Geron v. Holding Capital Group, Inc. (In re PBS Foods, LLC)
Geron v. Holding Capital Group, Inc. (In re PBS Foods, LLC)
Opinion of the Court
MEMORANDUM DECISION AND ORDER DENYING LANDLORD’S MOTION PURSUANT TO FEDERAL RULE OF BANKRUPTCY PROCEDURE 9024
The matter before the Court is the motion [ECF Doc. No. 67
The Landlord contends that it is in possession of “newly discovered evidence”
The Rule 9019 Order is the subject of a pending appeal, and, accordingly, the Court has no jurisdiction to grant the Motion. Nonetheless, under Bankruptcy Rule 8008(a), the Court is authorized to (i) defer considering the Motion, (ii) deny the Motion, or (iii) issue an indicative ruling by stating that the Motion raises a substantial issue or that the Court would grant the Motion if the District Court remands the matter for that purpose. Based upon the record of this matter, and as explained below, the Court finds that the Landlord has not established a right to relief from the Rule 9019 Order. Accordingly, the Motion is DENIED.
Jurisdiction
This Memorandum.Decision constitutes our findings of fact and conclusions of law pursuant to Fed. R.Civ.P. 52(a), as made applicable herein by Bankruptcy Rules 7052 and 9014(c). The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(a) and the Amended Standing Order of Referral of Cases to Bankruptcy Judges of the United States District Court for the Southern District of New York, dated January 31, 2012 (Pres-ka, C.J'.) This is a “core proceeding.” See 28 U.S.C. § 157(b)(2)(A) and (B).
Background
On September 17, 2009 (the “Petition Date”), the Debtor filed a voluntary petition for relief under chapter 7 of Title 11 of the United States Code (the “Bankruptcy Code”) in this court. After the Petition Date, the Trustee qualified and is currently serving as chapter 7 trustee of the Debtor’s estate. Prior to the Petition Date, the Debtor operated as a restaurant in New York City in premises leased to it by the Landlord. The bankruptcy filing was precipitated, in part, by a dispute between the Debtor and the Landlord arising out of Debtor’s alleged breach of its lease. The Landlord may be the Debtor’s largest creditor, having filed an unsecured
On or about September 16, 2011, the Trustee commenced this adversary proceeding to avoid and recover certain transfers of funds by the Debtor to the Defendants, and for related relief. The underlying complaint [AP ECF Doc. No. 1] (the “Complaint”) pled eight causes of action. Only Count Eight is relevant to the Motion.
Simultaneously with the commencement of this proceeding, the Trustee filed complaints against Management,
In January 2014, the Trustee filed the Rule 9019 Motion for authorization to settle this adversary proceeding. The Settlement Offer called for (i) Defendants to make a one-time payment of $105,000 to the Trustee; (ii) Holdings to waive its $726,131 claim against the estate; and (iii) Defendants to each waive their claims against the estate under § 502(h) of the Code, all in full satisfaction of any and all estate claims against the Defendants. See Rule 9019 Motion ¶¶ 2, 10. A héaring on the Rule 9019 Motion was originally scheduled for January 29, 2014, but was adjourned on consent at the request of the Landlord to March 11, 2014 (the “First 9019 Hearing”).
The Landlord timely filed a Motion for Reconsideration of the Rule 9019 Order [AP ECF Doc. No. 38] (the “Rule 9023 Motion”). Among other things, in support of that motion, the Landlord submitted the New Documents. Both the Trustee and the Defendants opposed the motion. On May 21, 2015, this Court held a hearing on the Rule 9023 Motion, and on May 29, 2015, denied that motion. See In re PBS LLC I, — U.S. -, 134 S.Ct. 249, 187 L.Ed.2d 184 (2013). On June 12, 2015, the Landlord filed a Notice of Appeal in the Bankruptcy Court and identified the Rule 9023 decision and the Rule 9019 Order as the “subjects of appeal.” [AP ECF Doc. No. 61] (the “Appeal”).
The Landlord filed the Motion on October 15, 2015. By order dated November 12, 2015 [ECF S.D.N.Y. No. 12], the District Court (Kaplan, J.), on consent of the parties, stayed the Appeal pending this Court’s determination of the Motion. On
The Buie 9024 Motion
On three occasions, the Landlord has sought discovery from the Trustee regarding the payment of license fees to Management, Holdings and Mr. Payard. In 2012, in connection with the Payard Settlement, the Landlord and Trustee engaged in informal discovery pursuant to which the Landlord requested documents and information regarding license fees paid under the License Agreement to Mr. Payard and any related entities during the period 2006-2012, and specifically with respect to license fees paid by Brazilian licensees. See Graubard Certif. Ex. B.
As part of his response to the Landlord’s discovery requests for the Rule 9023 Motion, the Trustee produced the following documents that he had failed to produce in response to the two earlier requests:
(a) A letter dated August 10, 2011 from Francois Payard to the Trustee concerning a license agreement and payment of license fees in the sum of $150,000 in 2007 ( the “August 2011 Payard Letter”);
*595 (b) A license agreement dated January 5, 2007 between Payard Management LLC and Westin Chosen Seoul (“Wes-tin”) (the “2007 License Agreement”); and
(c) Pages from the Debtor’s general ledger with handwritten notations concerning license fee payments (the “General Ledger Pages”, and collectively with the August 2011 Payard Letter and the 2007 License Agreement, the “New Documents”).
Graubard Cértif. ¶27^)-(0), Exs. N, O, and P. Comradery
The Landlord argues that the Trustee’s failure to produce the New Documents in response to Rule 9019 discovery requests, coupled with his failure to acknowledge Management’s receipt of license fees in response to questions posed by the Court during the Renewed Rule 9019 Hearing, provide grounds under Rules 60(b)(2), (3) and (6) to vacate the Rule 9019 Order.
The Trustee and Defendants oppose the Motion. They contend that it is time barred by Bankruptcy Rule 8002(b)(1)(D) because it was not filed within 14 days of the entry of the 9019 Order. They also argue that the Motion is meritless because the New Documents are not relevant to the license-related issues underlying Count Eight, and because the Trustee did not engage in any fraud, misrepresentation or misconduct in connection with the Rule 9019 Motion. The Court considers those matters below.
Discussion
Determining whether to grant a motion for relief from an order or judgment under Rule 60(b) is within the discretion the court. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). “Properly applied Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments.” Id. The standard for granting Rule 60(b) motions is “strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Schlafman v. State Univ. of New York, Farmingdale, 541 Fed.Appx. 91, 92 (2d Cir. 2013) (summary order) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Because such relief “is circumscribed by public policy favoring finality of judgments and termination of litigation ... the party seeking relief under Rule 60(b) bears the burden of establishing the grounds for such relief by clear and convincing evidence.” Info-Hold, Inc. v. Sound Merck, Inc., 538 F.3d 448, 454 (6th Cir. 2008) (citations omitted). “Motions for relief under Rule 60(b) are disfavored, and are reserved for exceptional cases.” Canale v. Manco Power Sports, LLC, No. 06 Civ. 6131, 2010 WL 2771871, at *2 (S.D.N.Y. July 13, 2010); see also Hoffenberg v. United States, No. 00 Civ. 1686, 2010 WL 1685558, at *4 (S.D.N.Y. Apr. 26, 2010) (“Relief under Rule 60(b) is only warranted if the [party] presents ‘highly convincing’ evidence that demonstrates ‘extraordinary circumstances’ justifying relief.”) (citation omitted). Pursuant to Rule 60(c)(1), “[a] motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c).
The Court first addresses application of Bankruptcy Rule 8002 to the Motion. Rule 8002(a)(1) states the general rule that “a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed. ” Fed. R. Banks. P. 8002(a)(1). Am exception to that rule applies to prospective appellants who, prior to filing an appeal of a judgment, seek relief from the judgment by motion under Bankruptcy Rule 9024. Fed. R. Bankr. P. 8002(b)(1)(D). If that party files such a motion “within 14 days after the judgment is entered,” its time to appeal the judgment is extended and runs from the date of the order disposing of that motion. Fed. R. Bankr. P. 8002(b)(1).
“As a general matter, ‘[t]he filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the [appellate court] and divests the [trial] court of its control over those aspects of the case involved in the appeal.” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)). “This divestiture rule' is founded on ‘concerns for efficiency5 ... and the desire to protect ‘the integrity of the appellate pro-eess.5 ” Cibro Petroleum Products, Inc. v. City of Albany (In re Winimo Realty Corp.), 270 B.R. 99, 105 (S.D.N.Y. 2001) (citations omitted). It applies to appeals filed in bankruptcy cases. Id. See also In re Millennium Global Emerging Credit Master Fund Ltd., 471 B.R. 342, 348 (Bankr.S.D.N.Y. 2012) (“[t]he filing of an appeal divests a bankruptcy court of jurisdiction over all aspects of the case that are the subject of the appeal.”) Thus, “a lower court may take no action which interferes with the appeal process or with the jurisdiction of the appellate court.” Dicola v. American Steamship Owners Mut. Prot. and Indem. Assoc., Inc. (In re Prudential Lines, Inc.), 170 B.R. 222, 243 (S.D.N.Y. 1994) (citations omitted).
The Trustee and Defendants misplace their reliance on Bankruptcy Rule 8002 because it does not address the consequences of the filing of an appeal when, as here, the Motion was filed more than 14 days after the appeal was taken.
If a party files a timely motion in the bankruptcy court for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the bankruptcy court may:
*597 (1) defer considering the motion;
(2) deny the motion; or
(3) state that the court would grant the motion if the court where the appeal is pending remands for that purpose, or state that the motion raises a substantial issue.
Fed. R. Bankr. P.8008(a).
Rule 8008, as amended, became effective December 1, 2014. See U.S. Supreme Court Order Amending Federal Rules of Civil Procedure (Apr. 25, 2014).
Rule 60(b)(2)
Rule 60(b)(2) provides for relief from a final order based upon “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed, R. Civ. P. 60(b)(2). A party seeking such relief must demonstrate that:
(1) the newly discovered evidence is of facts existing at the time of decision;
(2) the moving party is excusably ignorant of the facts despite using due diligence to learn about them;
*598 (3) the newly discovered evidence is admissible and so important as to probably effect change in the result of the former ruling; and
(4) the newly discovered evidence is not merely cumulative or impeaching of evidence already offered.
See United States v. Int'l. Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001); Mancuso v. Consol. Edison Co. of New York, Inc., 905 F.Supp. 1251, 1264 (S.D.N.Y. 1995).
The Trustee and the Defendants do not dispute that the New Documents existed at the time of the Renewed Rule 9019 Hearing, or that the Landlord was excusably ignorant of their existence.
To establish a right to relief under Count Eight, the Trustee must prove either that Holdings was paid license fees by Management and/or the sub licensees, or that he could pierce Management’s corporate veil and recover from Holdings, as a 50% owner of Management, license fee payments paid to Management. The New Documents do not substantiate, let alone support, the allegations underlying Count Eight because they do not reflect the payment of license fees from any source to Holdings and provide no support for the Trustee’s veil piercing claims. Rather, those documents only show that: (i) Management was party to a license agreement with Westin (see 2007 License Agreement); (ii) in January 2007, Westin made a $150,000 payment to the Debtor (see August 2011 Payard Letter); (iii) the payment represented a fee owed by Westin to Management under the 2007 License Agreement (id.); and (iv) in December 2007, the Debtor transferred $150,000 to Management (see General Ledger). Nonetheless, at argument the Landlord contended that if those facts had been called to Judge Grossman’s attention, the Court would have taken them into account in determining whether the $105,000 cash payment called for under the settlement was adequate (Nov. 24 Tr. 43:15-19) and since they show that $150,000 was paid to Management under the 2007 License Agreement, the Court would have questioned the adequacy of the cash payment.
Neither assertion provides grounds for granting the Motion. The Landlord has taken no discovery of HCG or Holdings on matters relating to the Rule 9019 Settlement, or otherwise. The Court finds no merit to the Landlord’s suggestion that until it had evidence of a single $150,000 license fee payment by Westin in 2007, it could not have formulated a reason to seek discovery from Holdings regarding Holdings’ receipt of license fee payments from Management. The Landlord was put on notice of the Trustee’s allegations against Holdings in Count Eight in September 2011, when the Trustee sued Holdings. Moreover, the Landlord admits that it was provided information in September 2012 from Management’s counsel concerning license fee payments totaling approximately $59,000 received by Management from licenses for Japan and Korea in 2008 and 2009. Graubard Certif. ¶¶ 8, 22, 33(d) and Ex. E. With the Complaint in this proceéd-ing pending at that time, the Landlord had the opportunity to seek discovery from Holdings on those allegations in connection with the Settlement Offer but did not do so and limited discovery, requests solely to the Trustee. Rule 9024 is not a vehicle for the Landlord to obtain discovery that it could have obtained years ago. Moreover, there is no reason to think that discovery would have revealed that Holdings received license fee payments from Management or otherwise. In a letter dated April 15, 2015, Debtor’s counsel advised the Landlord that the “$150,000 that was paid to [Debtor by Westin] in or about January 2007 was paid to [Debtor] by mistake, [Debtor] remitted same to [Management], which was the sub-licensor of Westin Cho-sun. The $150,000 was never distributed to [Holdings] and was used as working capital.” See Trustee Obj., Ex. 2 [AP ECF Doc. No. 69-2], Moreover, pursuant to the Payard Settlement,' the Court authorized the Trustee to transfer the Marks to Mr. Payard. See supra note 10.
Based upon our review of the record of the Renewed Rule 9019 Hearing, we do not believe that Judge Grossman would have found the New Documents probative of matters relevant to that hearing. First, as previously noted, those documents do not demonstrate either that Holdings was paid any license fee fees or that there is a basis for piercing Management’s corporate veil to make Holdings accountable for license fees paid to Management. The documents show that Management was paid $150,000 under the License Agreement, but the Trustee settled the estate’s claims against Management in the Payard Settlement. The New Documents do not contain information that is directly relevant to this action; it is unlikely that Judge Gross-man would have attached - much, if any, significance to them had the Landlord offered them in opposition to the Rule 9019 Motion. Moreover, although, in its objection, the Landlord claimed that the Settlement Offer did not adequately account for “the license fees that were generated and never paid to the Debtor that have been alleged in the complaint as the eighth cause of action,” (Landlord’s Settlement Obj. ¶'19), and that “it verily believe[d] that the license fees received over the years should be in the several hundred thousands of dollars,” id. the Landlord offered no evidence in support of that contention either in its objection or at the
Rule 60(b)(3) provides that a court may grant a party relief from a final order on the basis of “fraud ... misrepresentation, or other misconduct of an adverse party.” Fed. R. Civ. P. 60(b)(3). A Rule 60(b)(3) motion is not a vehicle for relitigating the merits of the challenged motion. Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989) (citations omitted). During the Rule 9019 Hearing, the Court and the Trustee engaged in the following colloquy with regard to Count Eight:
THE COURT: Hold it. Why do you think the eighth cause of action as he uses does not have the value he ascribes to it?
MR. CERON: My information is that those payments were not made. I can confirm it with counsel as well. Those payments were not made. And I want to just remind the parties that Mr. Graubard has not presented any evidence, has not investigated any evidence. The only allegations he’s making are allegations that I provided to him, information that I provided to his counsel, to him in connection with trying to understand what the claims were.
Nov. 4, 2014 Tr. 14:13-24. The Landlord contends that “[t]he specific statement by the Trustee on the record that he knows that no license fees were paid was clearly a material misrepresentation with regard to the payment of license fees.” Graubard Certif. ¶41. According to the Landlord, the New Documents establish that the statement was misleading. The Landlord further contends that the “Trustee’s words were not ambiguous and could not have been more succinct than the language actually used, i.e., he affirmatively represented that no license payments had been made in connection with the Debtor. The Court relied on the Trustee’s statement on the record.” Graubard Certif, ¶ 41(a) (emphasis omitted).
The Landlord asserts that the statement that there were no payments made under the License Agreement actually: (i) refers “to those license fee payments made from
The Trustee disputes the Landlord’s contentions and maintains that his statements on the record were accurate then and are still accurate today. Trustee Obj. ¶¶ 39, 43. He maintains that the $150,000 payment reflected in the New Documents “has no relation whatsoever to Defendants ____” and “was never distributed to ,.. Holdings.... ” Id. at ¶ 34. Further, he contends that “[t]he Landlord’s claim that the Trustee made a material misrepresentation to this Court clearly lacks merit and is nothing more than an attempt to misconstrue the Trustee’s statements on the record.” Id. at ¶ 39. “The Trustee’s comments were clearly referring to Defendants, as they were made at the hearing on the [Rule] 9019 Motion. The Landlord’s efforts to muddy the record fall far short of the ‘clear and convincing’ evidence necessary to show that the Trustee misrepresented any matters to this Court.” Id. at ¶40. Directly responding to the fraud allegation, the Trustee emphasizes that the “Trustee’s statements at the 9019 hearing regarding the fact that no license fees had béen paid were accurate and referring to Defendants in the instant adversary proceedings. The mere fact that the Landlord failed to understand the Trustee’s statement does not constitute fraud or misrepresentation on the part of the Trustee.” Id. at ¶ 43. The Court finds no merit to the Landlord’s contentions.
As used in Rule 60(b)(3), the term “fraud” means a [‘knowing misrepresentation of a material fact, or concealment of the same when there is a duty to disclose, done to induce another to act to his or her detriment.” Info-Hold, Inc. v. Sound Merch. Inc., 538 F.3d at 456 (citations omitted). Such fraud may include “deliberate omissions when a response is required by law or when the non-moving party has volunteered information that would be misleading without the omitted material.” Id. (citations omitted). As the Court has found that (i) the Trustee did not misrepresent facts .to the Court, and (ii) Geron did not deliberately withhold the
Nor does the Court find merit to the Landlord’s assertion that the Trustee’s failure to produce the New Documents in response to Landlord’s discovery requests is grounds for relief under Rule 60(b)(3) based on “misconduct”. Graubard Certif. ¶¶ 42-44. Although the Court is satisfied that the Trustee did not intentionally fail to produce the New Documents in response to those requests — and notes that he produced them in connection with the Rule 9023 Hearing — it is settled that “even ah accidental failure to disclose or produce materials requested in discovery can constitute ‘misconduct’ within the purview of Rule 60(b)(3).” Catskill Development, 286 F.Supp.2d at 314 (collecting cases). See also Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (“ ‘Misconduct’ does not demand proof of nefarious intent or purpose as a prerequisite to redress — [Depending upon the circumstances, relief on the ground of misconduct may be justified ‘whether there was evil, innocent or careless, purpose.’ ”). See, e.g., Schultz v. Butcher, 24 F.3d 626, 630-31 (4th Cir. 1994) (stating that “although [plaintiff] claims the report was not withheld intentionally, the document was in her attorney’s possession at the time of the request, and the failure to produce such an important report which contained information helpful to an adversary’s position is not easily excused”, and finding misconduct under the purview of Rule 60(b)(3) where plaintiff inadvertently failed to produce documents in discovery); Catskill Development, 286 F.Supp.2d at 315 (concluding that defendant’s failure to produce tapes was “product of mistake [on defendant’s counsel’s] part”, that nonetheless “constituted ‘other misconduct’ pursuant to Rule 60(b)(3).”) (footnote omitted).
Assuming, arguendo, that the Trustee’s failure to produce the New Documents in response to the Landlord’s discovery requests in connection with the Rule 9019 Motion constitutes “misconduct” under Rule 60(b)(3), to obtain relief the Landlord must also show that the “misconduct substantially interfered with [its] ability to prepare [its opposition to the Rule 9019 Motion] and defend against the motion fully and fairly.” Monaghan v. SZS 33 Assoc., L.P., No. 89 Civ. 4900, 1992 WL 135821, at *3 (S.D.N.Y. June 1, 1992). The Landlord has failed to make that showing since, as discussed above, the Trustee’s inadvertent failure to produce the New Documents did not undermine, in any way, the Landlord’s ability to prepare for and oppose the Rule 9019 Motion. As such, the Landlord has not established grounds for relief under Rule 60(b)(3). See Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998) (finding that opposing party’s withholding of psychological report did not constitute such fraud as to justify relief from the judgment, since withheld report was not admissible under Fed R. Evid. 404, not relevant, was cumulative, and would not have helped moving party if it had been available at the time of trial); Mauldlin v. Edwards (In re M/V Peacock), 809 F.2d 1403, 1405 (9th Cir. 1987) (determining that shipowners’ failure to disclose that their ship was not registered in accordance with particular federal statute did not support relief because moving party had incentive to investigate the issue and means to do so that were not affected by the opponent’s failure to make voluntary discovery because information was not exclusively within the control of opponent.).
Rule 60(b)(6) permits a court to grant a party relief from a final order for “any other reason that justifies relief.” Fed. R.Civ.P. 60(b)(6). While the rule “allows courts to vacate judgments whenever necessary to accomplish justice,” relief under that rule “should be granted only in extraordinary circumstances.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (citing Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 863, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). See also DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (confirming that relief under Rule 60(b)(6) is appropriate where “the judgment [at issue] may work an extreme and undue hardship.”) “Rule 60(b)(6) is a broadly drafted ‘umbrella provision,’ which must be read in conjunction with the other sections of that Rule, and is applicable only where the more specific provisions do not apply.” PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 898 (2d Cir. 1983). Thus, relief under Rule 60(b)(6) cannot be predicated “on- one of the grounds for relief enumerated in clauses (b)(1) through (b)(5).” Williams v. 563-569 Cauldwell Assoc. LLC, No. 10 Civ. 09, 2013 WL 1344672 at *2 (S.D.N.Y. Mar. 28, 2013) (quoting Liljeberg, 486 U.S. at 863, 108 S.Ct. 2194). Such motions must be denied. Id. Put another way, “if the reasons offered for rehef from judgment can be considered in one of the more specific clauses of Rule 60(b), such reasons will not justify relief under Rule 60(b)(6).” United States v. Int’l. Bhd. of Teamsters, 247 F.3d 370, 391-92 (2d Cir. 2001) (citations omitted).
The Landlord contends that “rectifying a misrepresentation by [the] Trustee to the Court would qualify under subsection (6) based on the desire of the Court to maintain the integrity of the bankruptcy process on a fair and equitable basis to the Trustee, to the bankrupt estate, the creators and to the Bankruptcy Court itself.” Graubard Certif. ¶ 47. However, in doing so, it is merely restating the Landlord’s alleged grounds for relief under Rules 60(b)(2) and (3). That does not provide grounds for relief under Rule 60(b)(6). See, e.g., Teamsters, 247 F.3d at 391-92. The Landlord has not stated a right to relief under Rule 60(b)(6).
For all the foregoing reasons, the Landlord’s motion is DENIED.
IT IS SO ORDERED.
. Citations to “ECF Doc. No._” or to "AP ECF Doc. No. _” refer to the location that the referenced document can be found on the Court’s electronic case filing dockets for the Debtor's case, 09-15629, and this adversary proceeding, 11-02717, respectively. Any other adversary proceeding referenced herein will be specifically referenced by the relevant adversary proceeding number, followed - by “AP ECF Doc. No._”, such as related to the Other Adversary Proceedings (defined below). References to “ECF S.D.N.Y. Doc. No. _” refer to the electronic docket maintained in the Appeal (defined below).
. At times, parties filed the same document in both the Debtor’s main bankruptcy case and this adversary proceeding, and/or related adversary proceedings in the Debtor’s case. To avoid confusion of the record, reference will be made to both entries where appropriate.
.In support of the Motion, Landlord filed an Attorney’s Certification In Support of Landlord’s Motion Pursuant to F.R.B.P. 9024 [ECF Doc. No. 67; AP ECF Doc. No. 66] ("Graubard Certification”); a Certification of the Debtor’s Landlord, 1032-1034 Lex. Ave. Ltd In Support of Its Motion Under F.R.B.P. 9024 [ECF Doc. No. 68; AP ECF Doc. No. 67] ("Landlord Certification”); and the Landlord’s Reply Certification in Support of Motion Under F.R.B.P. 9024, which was a certification by counsel to the Landlord [ECF Doc. No. 70; AP ECF Doc. No. 78] (the "Graubard Reply Certification”).
. See Trustee's Objection to Motion By 1032-1034 Lex. Ave. Ltd.. For Relief from This Court's Order Entered November 5, 2014 Approving Settlement Between Trustee and Defendants, dated November 16, 2015 [AP ECF Doc. No. 69] (the "Trustee Objection”) and the Attorney’s Certification in Opposition to Motion By 1032-1034 Lex. Ave. Ltd. Pursuant to F.R.B.P. 9024, dated November 16, 2015 [AP ECF Doc. No. 71] (the "Defendants' Objection”).
. The facts and procedural history relevant to this matter are discussed at length in the Court’s prior Memorandum Decision and Order, dated May 29, 2015, denying the Landlord’s Rule 9023 Motion (defined below). See Geron v. Holding Capital Group Inc. (In re PBS LLC d/b/a Payard Patisseries & Bistro), Case No. 09-15629, Adv. No. 1102717, 2015 WL 3465815 (Bankr.S.D.N.Y., May 29, 2015) ("In re PBS LLC I”). The Court assumes familiarity with that discussion and these proceedings.
. In Counts One through Five, the Trustee sought to avoid and recover a number of transfers from the Debtor to each of the Defendants as preferential and fraudulent transfers under §§ 547, 548, and 550 of the Bankruptcy Code. In Counts Six and Seven, he sought to disallow any claims filed by HCG and Holdings pursuant to § 502(d) of the Bankruptcy Code.
. See Yann Geron, Chapter 7 Trustee of the Estate of PBS Foods, LLC, d/b/a Payard Patisserie & Bistro v. Payard Management LLC (Adversary Proceeding 11-02610-jmp) [AP ECF Doc. No. 1],
. See Yann Geron, Chapter 7 Trustee of the Estate of PBS Foods, LLC d/b/a Payard Patisserie & Bistro v. Francois Payard (Adversary Proceeding 11-02716-jmp) [AP ECF Doc. No. ‘ 1] (the "Payard Complaint”).
. See Yann Geron, Chapter 7 Trustee of the Estate of PBS Foods, LLC, d/b/a Payard Patisserie & Bistro v. FR Ventures, LLC (Adversary Proceeding 11-02609-jmp) [AP ECF Doc. No. 1].
.In part, the Payard Settlement called for Mr. Payard to pay $140,000 to the Debtor’s estate on behalf of himself, Management and Ventures in full satisfaction of the claims asserted against them (including the breach of fiduciary duty and unjust enrichment claims brought solely against Mr. Payard). Payard Settlement ¶ 3. It als'o called for the Trustee, on behalf of the estate, to assign to Mr. Pa-yard all of the estate's right, title and interest in and to the PAYARD mark and all common law rights in and to the PAYARD name, mark and logo along with the goodwill associated therewith, the portion of the business to which the Mark pertains, and the right to recover damages and profits for past infringement thereof, if any. Id. at ¶ 4. Those are the same Marks relevant to this adversary proceeding. The Landlord opposed the Payard Settlement. See Objection of 1032-1034 Lexington Ave. Ltd. to the Trustee's Motion to Settle Three Adversary Proceedings, dated June 27, 2012 [ECF Doc. No. 33] (the "Payard Settlement Objection”); see also Graubard Certif. ¶ 7. In part, in support of its objection, the Landlord contended that given Mr. Payard’s ownership interest in Management, any fees paid under the License Agreement were paid for his benefit. Payard Settlement Obj. ¶¶ 13, 15. The Landlord complained that since the Trustee had failed to monetize the value of the claims against Mr. Payard relating to the License Agreement, it was impossible for creditors, let alone the Court, to determine whether the $140,000 cash payment by Mr. Payard on behalf of the three defendants under the Payard Settlement was fair and equitable. Id. at ¶ 7. It also specifically objected to the provision in that settlement requiring the Trustee to assign the Marks to Mr. Payard. The Landlord asserted that the assignment of that trademark would “compound[ ] the travesty by which [Mr.] Pa-yard has been allowed to collect license fees for several years without any compensation to the debtor” {id. at ¶ 16), and was against the Trustee's own best interests because it would "undercut the validity, of the Trustee's claims against [HCG] and Holdings” in that separate adversary proceeding. Id. at ¶ 19. After conducting a hearing, the Court approved the Payard Settlement.
. A separate order was entered in each of the related adversary proceedings. See 11-02609, AP ECF Doc. No. 26; 11-02610, AP ECF Doc. No. 26; and 11-02716, AP ECF Doc. No. 25.
. References to "Mar. 11, 2014 Tr. _:_” refer to the transcript of the record of the First 9019 Hearing.
. When the Debtor filed this case, it was assigned to the Honorable James M. Peck. After Judge Peck’s retirement effective January 31, 2014, the case was temporarily assigned to the Honorable Robert E. Grossman, sitting by designation in the United States Bankruptcy Court for the Southern District of New York pursuant to an order signed by the Honorable Robert A. Katzmann, Chief Circuit Court Judge for the Second Circuit Court of Appeals. Judge Grossman presided over this adversary proceeding until it was reassigned to Judge Garrity on February 18, 2015.
. References to "Nov. 4, 2014 Tr. _:_” refer to the transcript of the record of the Renewed Rule 9019 Hearing.
. References to "Nov, 24, 2015 Tr. _:_” refer to the transcript of the record of the Rule 9024 Hearing.
. By agreement among the parties, the Landlord sent unsigned Interrogatories and Document Requests to the Trustee which the Trustee treated as a request for informal discovery. Without limitation, Interrogatory No. 1 asked the Trustee to "[s]tate the amount and date of payment of all license fees received by any Payard Entity for the years 2006, 2007, 2008, 2009, 2010, 2011 and 2012.” Interrogatory No. 5 asked the Trustee to "[s]et forth a list list [sic] of each payment made by a Brazilian [sublicensee] to each of the Payard Entities for the period 2006, 2007, 2008, 2009, 2010, 2011 and 2012.”
. In connection with the Rule 9019 Motion, see Graubard Certif. Ex. G, the Landlord served a Request of 10321034 Lex. Ave., Ltd. to Trustee for Interrogatories and Document Production dated January 16, 2014 (the "Interrogatories” and "Document Request”, respectively). Interrogatory No. 6 requested the Trustee to “[s]et forth the substance of the 'detailed information’ provided to the Trustee as set forth in paragraph 9 of the [Rule 9019] Motion.” Document Request No. 1 requested the Trustee to produce "[c]opies of all documents provided to the Trustee as set forth in paragraph 9 of the [Rule 9019] Motion.” Paragraph 9 of the Rule 9019 Motion states, as follows:
The Trustee and the Defendants have exchanged documents and detailed information concerning the claims and defenses, have engaged in active settlement negotiation, and have ultimately concluded that a settlement along the lines detailed in the Stipulation is in the parties’ respective best interests.
In connection with the Rule 9023 Motion, the Landlord served a Notice to Take Deposition of Trustee Yann Geron and for Production of Documents dated December 4, 2014. The Trustee objected to the deposition notice and the document request. The Landlord and the Trustee resolved the discovery dispute and the Trustee agreed to answer questions and produce documents on an informal basis. The informal discovery requested by the Landlord was set forth in an e-mail by counsel for the Landlord addressed to the Trustee with a copy to his counsel, dated February 18, 2015, with a list of questions to the e-mail. Those questions included "[h]ave you received any documents, spreadsheets, accounting reports regarding the amounts of any licensing fees?” To the extent that the Trustee received documents, the Landlord asked the Trustee to produce copies of the documents. See Motion, Exhibit K.
. The Landlord also complains that the Trustee failed to produce the New Documents in connection with its discovery requests relating to the Payard Settlement. That settlement is final and the Landlord has taken no steps to review it. Accordingly, the Court will focus its discussions on the Landlord’s assertions regarding the Rule 9019 Motion.
. The Trustee raises timing issues in opposing the Landlord’s request for relief under Rule 60(b)(6). He argues that the Landlord’s nearly six month “delay in filing the [Motion] without explanation undermines a finding by this Court that ‘extraordinary circumstances’ exist here warranting a reconsideration of the [Rule] 9019 Order.” Trustee Obj. ¶ 47. The Court does not reach that issue because, irrespective of the timing of the Motion, and as set forth below, the Landlord has not established a right to relief under Rule 60(b)(6), •
. The Landlord timely filed its Appeal on June 12, 2015. The' Landlord filed its Motion approximately four months after it commenced the Appeal.
. “If the bankruptcy court states that it would grant the motion or that the motion raises a substantial issue, the district court ... may remand for further proceedings____” Fed. R. Bankr.P. 8008(c).
. http://www.supremecourt.gov/orders/ courtorders/frbkl4_d281.pdf.
. Courts generally take the position “that it is ‘just and practicable’ to apply the new rules in all cases as soon as they are promulgated. ” See e.g., Matthew Enterprise, Inc. v. Chrysler Group LLC, Case No. 13-cv-04236, 2015 WL 8482256, at *1 n. 7 (N.D.Cal. Dec. 10, 2015) (applying amended Rule 26(b)(1) standard concerning proportionality of discovery to needs of the case) (citations omitted). Courts utilize the “maximum extent possible” standard when deciding whether to apply amended rules to proceedings commenced prior to the effective date of such amendments. See Hodges-Williams v. Barnhart, 221 F.R.D. 595, 600 (N.D.Ill. 2004). That standard is satisfied whenever the application of an amended rule to a previously pending case is “possible so long as there is no injustice.” Id. at 601. Here, the clear purpose of the amendment is to conform the Federal Rules of Bankruptcy Procedure to the Federal Rule of Civil Procedure 62.1 and Federal Rule of Appellate Procedure 12.1, thereby eliminating a gap in the Court’s procedural arsenal when confronted with Rule 60(b) motions filed after a challenged order has been appealed. Neither the Trustee nor the Defendants have argued that the Court lacks jurisdiction to decide the Motion. None of the parties here would suffer injustice through our application of Rule 8008 in this instance.
. The Trustee concedes that he has been in possession of the New Documents since at least November 2011. Nov. 24, 2015 Tr. 20:18-22. At the Rule 9024 Hearing, he explained that his counsel inadvertently failed to produce them in response to the Landlord's Rule 9019 document request, that he did not learn of that mistake until the Landlord sought discovery in connection with the 9023 Motion, and that he rectified his counsel’s error by producing the New Documents in response to that discovery. Id. at 53:6-25. The Landlord did not challenge those assertions and the Court credits them.
. It was not until Landlord sought reconsideration of the 9019 Approval Order under Rule 9023 that the Trustee allegedly presented documents relevant to the issue of the value of the payments under the License Agreement. See Reply of the Debtor's Landlord 1032-1034 Lex. Ave., Ltd. in Support of Motion under F.R.B.P. 9023 [AP ECF Doc. No. 53] ¶ 4 and Exs. L and M.
. Jones v. Aero/Chem Corp., 921 F.2d 875 (9th Cir. 1989), cited by the Landlord in support of its claim for relief under Rule 60(b)(3), is instructive because it also addressed Rule 60(b)(2). There, Jones, a customs agent, suffered a chemical burn when a tear gas canister that she was required to wear in a holster on her duty belt accidentally discharged. She brought a products liability action against the manufacturers of the canister (collectively, "Athea”) alleging, among other things, defects in the design and manufacture of the canister. Id. at 877. After a trial in which the jury returned a special verdict of finding "no defect” in the canister, counsel to a third party defendant in the action gave plaintiff’s counsel copies of correspondence from Athea to that third party defendant, including a note written by an engineer and Vice President of Athea ("Smith”), in which (i) he indicated that he believed that the actuator system that controlled the discharge of the tear gas was "too sensitive,” (ii) stated that he knew of the possibility of accidental discharge, and (iii) discussed remedial measures. Id. The following day, Jones moved for a new trial under Fed. R.Civ.P. 59, asserting, among other things, newly discovered evidence and prejudicial misconduct in failing to produce the Smith correspondence in discovery. Id. The Court noted that the standards applicable to
. The Court notes that the statements in the Graubard Reply Certification concerning Holdings’ receipt of money from license fees, including “[Count Eight] relates to all the license fees that were received by Management, and then passed through to its two members, defendant FP and Francoise Payard" (Graubard Reply Certif. ¶ 4, emphasis added); and "significant license fees that were paid to Management, and then siphoned off to FP and Payard ----” {Id. at ¶ 22, emphasis added);
. The Trustee acted pro se at the hearing on this Motion and throughout was visibly upset by the Landlord's insistence in its papers and on the record that he had engaged in "fraud, misrepresentation or other misconduct” in connection with the Renewed Rule 9019 Hearing. During the hearing the Trustee addressed the substance of his comments to Judge Grossman that underlie the Landlord’s request for relief under Rule 60(b)(3). He explained that in responding to Judge Gross-man as he did, he understood the Judge to be asking whether there had been license fees paid to the Debtor. See Nov. 24 Tr. 56-57:2. In a letter submitted to the Court after that hearing [AP ECF Doc. No. 81] (the “Trustee Nov. 24 Letter”), among other things, the Trustee purported to "clarify” that explanation. He advised the:Court that “[a]s [his] opposition to the landlord’s 9024 motion states, [his] understanding at the hearing was that he was being asked about license payments to [HCG] or [Holdings], the defendants in this adversary proceeding.” See Trustee Nov. 24 Letter 2. In its own letter [AP ECF Doc. No. 80], the Landlord objects to the submission of the Trustee's letter and asks the Court to disregard it. On the issue of whether the Trustee misrepresented facts to Judge Grossman during the Renewed Rule 9019 Hearing, the Court will limit its review to the record made at that hearing.
. The Landlord misplaces its reliance on Abrahamsen v. Trans-State Express, 92 F.3d
In Ebersole v. Kline-Perry, 292 F.R.D. 316, the defendant made a number of statements in which she accused plaintiff of animal abuse and violation of laws relating to dog training. The statements were published in various emails and Facebook postings. Id. at 318. In his amended complaint, plaintiff alleged libel, business conspiracy in violation of state law and tortious interference with a business expectancy. Id. During discovery, defendant requested that plaintiff produce, among other things, complete copies of his "training files” and "any other documents pertaining to the services provided. ” Id. at 319. Plaintiff did not produce any copies of videos to defendant in response to this, or any other discovery requests, although plaintiff did make defendants aware during discovery of the existence of a number of “positive” videos of dog trainings, videos that were subsequently introduced at trial during rebuttal. During discovery defendant also served a subpoena on the county sheriff's office requesting copies of all documents, including videos, pertaining to investigations involving or related to reports of animal abuse by the plaintiff. Id. At that time, the sheriff’s office produced a number of documents, but no videos. Id. At trial, three witnesses for the defendant testified that they had observed plaintiff abusing and mistreating dogs in his care. Plaintiff testified at trial and on cross-examination, denied that he had mistreated ány dog, and contended that the witnesses were wrong in the way they described his treatment of the dogs. Id. Ultimately, the juty returned a verdict against defendant on, among other things, the libel claim and awarded plaintiff damages. Id. Approximately one month later, defendant’s counsel received a number of videos and other materials that had been produced by the sheriff’s office in response to discovery requests in another lawsuit. Three of the videos showed plaintiff engaged in behavior that the court found could be fairly characterized as abusive. Id. at 320. Thereafter, defendant moved under Rule 60(b)(2) and (3) to vacate the judgment. The court found that plaintiff failed to produce, or at the very least, disclose the existence of highly pertinent evidence responsive to defendants’ discovery requests—
. The Landlord misplaces its reliance on In re Gledhill, 76 F.3d 1070 (10th Cir. 1996). There, the debtors, two individuals, filed a chapter 11 plan that called for the payment of amounts due and owing to a secured creditor (the bank) under a prepetition loan agreement. The debtors failed to make those payments and, on the bank’s motion, the court dismissed their case. Id. at 1073. Thereafter, the bank obtained a judgment decree and order of foreclosure in state court, and conducted a judicial sale of some of its collateral. Id. It obtained a deficiency judgment against the debtors and lien securing it and on the eve of another court-ordered sale of the debtors’ property, the debtors filed a second chapter 11 case. Id. The bank obtained stay relief on the grounds that the second case was filed in bad faith and, thereafter, the bank moved forward in state court to foreclose on the debtor’s property. Id. Prior to a scheduled foreclosure sale, the . court converted the chapter 11 case to one under chapter 7 and a chapter 7 trustee was appointed. Id. A week before the scheduled foreclosure sale, the trustee moved the court under Rules 60(b)(2)
Reference
- Full Case Name
- IN RE: PBS FOODS, LLC d/b/a Payard Patisserie & Bistro, Debtor Yann Geron, Chapter 7 Trustee of the Estate of PBS Foods, LLC d/b/a/ Payard Patisserie & Bistro v. Holding Capital Group, Inc. and FP Holdings, LLC
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