14‐3688‐bk In Re: Coudert Bros. LLP

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2015

(Argued: August 20, 2015 Decided: December 29, 2015)

Docket No. 14‐3688‐bk

IN RE: COUDERT BROTHERS LLP,

Debtor.

STATEK CORPORATION,

Appellant,

v.

DEVELOPMENT SPECIALISTS, INC., Plan Administrator for Coudert Brothers LLP,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: CABRANES, POOLER, and CHIN, Circuit Judges.

Appeal from an order of the United States District Court for the

Southern District of New York (Swain, J.), affirming orders of the United States

Bankruptcy Court for the Southern District of New York (Drain, J.), denying

appellantʹs motions for reconsideration of an order disallowing a claim. On

appeal, appellant argues that the bankruptcy courtʹs orders do not comply with

this Courtʹs mandate in a prior appeal in this case. Because we conclude that the

bankruptcy court did not give full effect to our mandate, which impliedly

foreclosed the bankruptcy court from relying on its prior alternative holding, we

reverse and remand with further instructions.

REVERSED AND REMANDED.

ANTHONY W. CLARK (Thomas J. Allingham II, Dain A. De Souza, J. Eric Ivester, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, Wilmington, Delaware, and New York, New York, for Appellant Statek Corporation

DAVID S. TANNENBAUM, Stern Tannenbaum & Bell LLP, New York, New York, for Appellee Development Specialists, Inc.

‐ 2 ‐ CHIN, Circuit Judge:

This case returns to us after our previous remand in Statek Corp. v.

Development Specialists, Inc. (In re Coudert Bros. LLP) (ʺCoudert Iʺ),

(2d

Cir. 2012), which in part vacated the bankruptcy courtʹs denial of a motion to

reconsider an order disallowing a claim. Appellant Statek Corp. (ʺStatekʺ)

appeals from a September 19, 2014 order of the United States District Court for

the Southern District of New York (Swain, J.), which affirmed orders of the

United States Bankruptcy Court for the Southern District of New York (Drain, J.),

dated August 23, 2013, and October 25, 2013, that again, on remand, denied

reconsideration. In denying Statekʹs latest motions for reconsideration, the

bankruptcy courtʹs decisions relied on a prior alternative holding ‐‐ that Statekʹs

argument was a ʺnew argumentʺ not proper for a motion for reconsideration ‐‐

which this Court did not explicitly address in Coudert I.

Statek now challenges the bankruptcy courtʹs decisions on the

ground that they do not comply with our mandate in Coudert I. For the reasons

set forth below, we remand for the district court to instruct the bankruptcy court

to reverse its orders denying reconsideration, vacate its claim disallowance order,

and reinstate Statekʹs claim.

‐ 3 ‐ BACKGROUND

This dispute arises out of Statekʹs claim in bankruptcy against

Coudert Brothers LLP (ʺCoudertʺ), a now‐defunct New York law firm and debtor

in bankruptcy. See Coudert I, 673 F.3d at 183‐84. The underlying facts are set

forth in detail in our prior opinion. See

at 183‐85. We briefly restate the

allegations in Statekʹs complaint.

From 1984 until 1996, Statek was controlled by Hans Frederick

Johnston, who looted its treasury. In 1990, Johnston caused Statek to retain

Coudert as counsel, and thereafter Coudert helped him hide his pilfered assets.

After Statek removed Johnston from power, Coudert failed to turn

over files and other materials relating to the Johnston years ‐‐ information to

which Statek was entitled as a former client. Because of this nondisclosure, it

was not until 2004 that Statek finally learned of Coudertʹs role in laundering

Johnstonʹs assets. Coudertʹs malpractice caused Statek to undergo a prolonged,

global search for its assets, at a cost of $85 million.

By complaint dated October 28, 2005, Statek sued Coudert for

malpractice in Connecticut state court. Coudert soon went bankrupt, and its

September 22, 2006 petition for Chapter 11 bankruptcy in the Southern District of

‐ 4 ‐ New York automatically stayed the Connecticut action. See

. On

March 23, 2007, Statek removed the Connecticut action to the United States

District Court for the District of Connecticut pursuant to

. And

on May 10, 2007, Statek filed a proof of claim in the bankruptcy court, attaching

as an exhibit the original Connecticut action complaint.

In bankruptcy, appellee Development Specialists, Inc., the plan

administrator (the ʺPlan Administratorʺ), moved to disallow Statekʹs claim as

time‐barred. On July 21, 2009, the bankruptcy court granted that motion (the

ʺClaim Disallowance Orderʺ) (Drain, J.). The bankruptcy court reasoned that

New York choice‐of‐law rules applied under the Erie doctrine, and New Yorkʹs

ʺborrowing statuteʺ requires claims to satisfy both the relevant New York statute

of limitations and the limitations period of the state where the cause of action

accrued. See

. The bankruptcy court found that Statek did not

satisfy those requirements.

Statek moved for reconsideration, arguing that the bankruptcy court

had erroneously applied the Erie doctrine by not treating the bankruptcy court as

the transferee court for the Connecticut action. See generally Ferens v. John Deere

Co.,

(1990) (holding federal courts follow choice‐of‐law rules of the

‐ 5 ‐ transferor court). On September 8, 2009, the bankruptcy court denied that

motion, employing the Federal Rule of Civil Procedure 59(e) standard. See

(j); Fed. R. Bankr. P. 9023 (directing application of Rule 59). The

bankruptcy court reasoned that the ʺtransferee courtʺ argument was ʺnever

raisedʺ before and therefore was a new argument that could not be considered on

reconsideration. In re Coudert Bros. LLP, No. 06‐12226(RDD),

, at

*2 (Bankr. S.D.N.Y. Sept. 8, 2009). Moreover, the bankruptcy court held, ʺthe

argument [was] mistakenʺ because Statekʹs claim was filed in New York and so

there was no transfer.

. Following Statekʹs appeal, the district court

affirmed (Hellerstein, J.). In re Coudert Bros. LLP, No. 09 Civ. 9561(AKH),

, at *4 (S.D.N.Y. June 14, 2010).

In Coudert I, we reversed. We first noted that we did not have

subject matter jurisdiction over the Claim Disallowance Order because it was

untimely appealed. Coudert I, 673 F.3d at 185‐86 & n.6 (holding Federal Rule of

Bankruptcy Procedure 8002(a)ʹs appeal deadline is jurisdictional). But we

vacated the denial of Statekʹs motion for reconsideration and agreed with Statekʹs

ʺtransferee courtʺ reconsideration argument. We held, on this ʺquestion of first

impression,ʺ that for practical purposes the bankruptcy court was to be treated as

‐ 6 ‐ the transferee court of the Connecticut action.

, 190‐91. Therefore, we

ruled, Connecticut choice‐of‐law rules applied to Statekʹs bankruptcy claim. We

then instructed:

The portion of the district courtʹs order affirming the bankruptcy courtʹs denial of Statekʹs motion for reconsideration is REVERSED, and the case is REMANDED to the district court with instructions to REMAND IN PART to the bankruptcy court with instructions to apply Connecticutʹs choice of law rules in deciding Statekʹs motion to reconsider.

; see also

(instructing ʺbankruptcy court to apply the choice of

law rules of Connecticut to decide Statekʹs motion for reconsiderationʺ). We did

not, however, specifically address the alternative holding that the ʺtransferee

courtʺ argument has been raised for the first time on the motion for

reconsideration.

On remand, the bankruptcy court ordered additional briefing on

whether it could still adhere to that alternative holding. On August 19, 2013, it

concluded in In re Coudert Bros. LLP (ʺCoudert IIʺ), No. 06‐12226(RDD),

, at *2, *11 (Bankr. S.D.N.Y. Aug. 19, 2013), that it could. The bankruptcy

court found, as an initial matter, that Connecticut choice‐of‐law rules pointed to

Connecticutʹs statute of limitations. While Statekʹs malpractice claim would be

barred by Connecticutʹs three‐year limitations period for tort suits ‐‐ Coudert

‐ 7 ‐ failed to comply with Statekʹs requests in July 1996, and Statek sued in

November 2005 ‐‐ the bankruptcy court acknowledged that Connecticutʹs

ʺcontinuing course of conductʺ doctrine possibly provided an exception.

.

But the bankruptcy court ultimately concluded that this doctrine ʺdo[es] not lead

to a clear answer on the timeliness of the Claimʺ and that there is ʺno manifest

answer to whether the Claim should be allowed.ʺ

.

Instead, in Coudert II, the bankruptcy court held that its alternative

basis for denying reconsideration ‐‐ that Statekʹs ʺtransferee courtʺ argument was

a new argument ‐‐ continued to apply. See

at *8‐10. In so concluding, the

bankruptcy court determined that relying on its prior alternative holding

complied with our mandate in Coudert I. See

at *11‐13.

After Coudert II, Statek asked for reconsideration once again,

requesting that the bankruptcy court reconsider Coudert II and lift the stay of the

Connecticut action so that Statek could amend its claim to plead additional facts

relevant to the ʺcontinuing course of conductʺ doctrine. On October 25, 2013, the

bankruptcy court denied that motion. On September 23, 2014, the district court

affirmed both denials of reconsideration for substantially the reasons relied on by

‐ 8 ‐ the bankruptcy court (Swain, J.). See In re Coudert Bros. LLP, No. 13‐CV‐8578‐LTS‐

FM (S.D.N.Y. Sept. 19, 2014).

This appeal followed.

DISCUSSION

When reviewing a bankruptcy court decision that was appealed to a

district court, we ʺreview the bankruptcy courtʹs decision independent of the

district courtʹs review.ʺ Coudert I,

. Typically, ʺ[a] bankruptcy

courtʹs denial of a motion to reconsider a disallowed claim is a discretionary

decision.ʺ

ʺHere, however, that discretion was cabined by the mandateʺ in

Coudert I. Puricelli v. Republic of Argentina,

(2d Cir. 2015). A

lower court has ʺno discretion in carrying out the mandate.ʺ In re Ivan F. Boesky

Sec. Litig.,

(2d Cir. 1992). We therefore review de novo ʺwhether

the judgment comports with [the] mandate.ʺ Carroll v. Blinken,

(2d Cir. 1994).

On appeal, Statek primarily argues that the bankruptcy courtʹs

decisions on remand ran afoul of our mandate in Coudert I. The ʺmandate ruleʺ

has existed since the ʺearliest daysʺ of the judiciary. Briggs v. Pa. R.R. Co., 334

‐ 9 ‐ U.S. 304, 306 (1948). By that rule, a lower court ʺmust follow the mandate issued

by an appellate court.ʺ Puricelli,

.

In following a mandate, the lower court must carry out its duty to

give the mandate ʺfull effect.ʺ Ginett v. Comput. Task Grp., Inc.,

, 360‐61

(2d Cir. 1993) (citing In re Sanford Fork & Tool Co.,

(1895)); see

United States v. E. I. du Pont de Nemours & Co.,

(1961) (concluding

mandate must be ʺscrupulously and fully carried outʺ). The lower court ʺcannot

vary it, or examine it for any other purpose than execution; or give any other or

further relief; or review it, even for apparent error, upon any matter decided on

appeal; or intermeddle with it, further than to settle so much as has been

remanded.ʺ In re Sanford,

; accord Vendo Co. v. Lektro‐Vend Corp.,

, 427‐28 (1978).

But the mandate is controlling only ʺas to matters within its

compass.ʺ New Eng. Ins. Co. v. Healthcare Underwriters Mut. Ins. Co.,

(2d Cir. 2003) (quoting Sprague v. Ticonic Natʹl Bank,

(1939)).

When the mandate leaves issues open, the lower court may dispose of the case

on grounds not dealt with by the remanding appellate court. See Ex parte Century

Indem. Co.,

, 355‐56 (1938) (finding no error that lower court ʺfound

‐ 10 ‐ another ground for its action, ‐‐ a ground not dealt with in its former ruling and

not presentedʺ by the first appeal); Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co.,

(2d Cir. 2014) (finding no violation where lower court

addressed ʺon remand an issue that was not decided by this Court in the original

appeal,ʺ that ʺ[t]he [original] appeal did not raise,ʺ and that was developed

through further discovery). But see Parmalat Capital Fin. Ltd. v. Bank of Am. Corp.,

, 270‐71 (2d Cir. 2012) (ʺHere, both the ʹspecific dictates of the

mandateʹ and the ʹspirit of the mandateʹ focus entirely on the question of timely

adjudication . . . . It is not reasonable to construe the mandate as allowing

alternative, dispositive bases . . . to be raised for the first time on remand . . . .ʺ).

We therefore must examine the scope of our mandate in Coudert I.

The scope of a mandate may extend beyond express holdings, and

precludes relitigation both of ʺmatters expressly decided by the appellate courtʺ

and of ʺissues impliedly resolved by the appellate court[].ʺ Sompo Japan,

(quoting Brown v. City of Syracuse,

(2d Cir. 2012)). A

mandate, therefore, may expressly dispose of certain issues raised on appeal, or

if the disposition of an issue is ʺnecessarily impliedʺ by our decision, a mandate

‐ 11 ‐ may also foreclose such an issue from being considered by the lower court.

Sprague,

.

A mandate may also, by its terms, further ʺlimit[] issues open for

consideration on remand.ʺ Puricelli,

. Of course, ʺwhere a

mandate directs a district court to conduct specific proceedings and decide

certain questions, generally the district court must conduct those proceedings

and decide those questions.ʺ

(citing 18B Charles Alan Wright, et al., Federal

Practice and Procedure § 4478.3, at 753‐54 (2d ed. 2002) [hereinafter ʺWright &

Millerʺ]). But the inquiry is broader. The district court must follow ʺboth the

specific dictates of the remand order as well as the broader ʹspirit of the

mandate.ʹʺ United States v. Ben Zvi,

(2d Cir. 2001) (quoting United

States v. Kikumura,

(3d Cir. 1991)); see Himely v. Rose,

(1809) (Marshall, C.J.) (asking ʺwhether [mandate] has been

executed according to its true intent and meaningʺ).

Far from giving full effect to our mandate in Coudert I, the

bankruptcy court here essentially gave it no legal effect. In Coudert I, we

instructed the bankruptcy court ʺto apply Connecticutʹs choice of law rules in

deciding Statekʹs motion to reconsider.ʺ 673 F.3d at 191. The bankruptcy court

‐ 12 ‐ did not follow that instruction, as the Connecticut choice‐of‐law rules did not

bear on the bankruptcy courtʹs ultimate decision. Instead, the bankruptcy court

ordered further briefing on whether it could adhere to its prior alternative

holding that Statekʹs argument was a new argument not available on

reconsideration. The bankruptcy court concluded that it could, and disposed of

the case on that basis. See Coudert II,

, at *8‐10.

While the bankruptcy court did address Connecticutʹs choice‐of‐law

rules, its decision fell short of applying them ‐‐ it merely considered them. The

bankruptcy court conducted an analysis of the Connecticut statute of limitations,

which operated through Connecticutʹs choice‐of‐law rules. Id at *3‐8. Those

timeliness rules, the bankruptcy court supposed, led to no ʺclear answer.ʺ

. The bankruptcy court erred, however, by not pursuing the Rule 59 inquiry

further. See E. I. du Pont,

(holding mandate must be ʺscrupulously

and fully carried outʺ). The absence of a ʺclear answerʺ was no reason to

abandon the issue to be decided pursuant to the mandate.

What impelled the bankruptcy courtʹs decision was instead its prior

alternative holding. The bankruptcy court reasoned that even if a full inquiry

into the Connecticut statute of limitations ʺcould possibly have changed the

‐ 13 ‐ outcome of the case,ʺ it would not matter, because the bankruptcy court ʺʹshould

not be required to respond to new arguments now.ʹʺ Coudert II,

, at *10 (quoting Analytical Surveys, Inc. v. Tonga Partners, L.P., No. 06 Civ.

2692(KMW)(RLE),

, at *3 (S.D.N.Y. May 29, 2009)). Indeed, the

bankruptcy court hypothesized that application of the Connecticut statute of

limitations would change the outcome of the Claim Disallowance Order because

there were ʺinsufficient grounds to grant the motion to [disallow].ʺ App. at 828.

By the bankruptcy courtʹs analysis, it seems, the proper application of

Connecticut choice‐of‐law rules would have required reconsidering and vacating

its Claim Disallowance Order. In relying on a prior alternative holding, the

bankruptcy court failed to effectuate Coudert Iʹs mandate.

We must consider, then, whether the scope of the mandate was so

narrow as to permit the bankruptcy court to dispose of the case in this manner,

that is, by relying on a prior alternative holding. We did not expressly address in

Coudert I the merits of whether Statekʹs ʺtransferee courtʺ argument was a new

argument cognizable on reconsideration. Nonetheless, we impliedly foreclosed

that ground of decision in Coudert I.

‐ 14 ‐ As a general matter, it is an uncompromising rule that lower courts

may not hear ʺarguments . . . that could have been raised prior to the entry of

judgment.ʺ Exxon Shipping Co. v. Baker,

, 485 n.5 (2008) (quoting 11C

Wright & Miller § 2810.1, at 127‐28). This Court also ʺ[g]enerally . . . will not

consider an argument on appeal that was raised for the first time below in a

motion for reconsideration.ʺ Official Comm. of Unsecured Creditors of Color Tile,

Inc. v. Coopers & Lybrand, LLP,

(2d Cir. 2003). But this rule, for

us, is not absolute; it exists as a matter of ʺprudence.ʺ

(quoting Baker v.

Dorfman,

(2d Cir. 2000) (providing exceptions)).

It follows that when we do consider on appeal arguments raised for

the first time below in a motion for reconsideration and remand on the basis of

those arguments, the lower court must follow our mandate. See, e.g., Wojtowicz v.

United States,

(2d Cir. 1977) (remanding for competency hearing

despite competence being raised for first time in motion for reconsideration). In

other words, if we elect to consider a new argument on appeal, on remand the

lower court may not ignore our ruling on the basis that we relied on a non‐

cognizable ʺnew argument.ʺ By remanding in this case, we necessarily implied

‐ 15 ‐ that Statekʹs ʺtransferee courtʺ argument should not be disregarded as a ʺnew

argument.ʺ

In Coudert I, we addressed at length whether Connecticut choice‐of‐

law rules would apply. 673 F.3d at 186‐91. That question was Coudert Iʹs

overwhelming focus. See Parmalat, 671 F.3d at 270‐71 (finding when mandate

ʺfocus[es] entirely on [one] questionʺ other ʺalternative, dispositive basesʺ are

ʺʹimpliedly decidedʹʺ). If we thought an alternative, dispositive holding would

altogether preclude application of Connecticutʹs choice‐of‐law rules, ʺwe would

have affirmed . . . ; there would have been no need for a [remand].ʺ Kerman v.

City of New York,

(2d Cir. 2004); see also Parmalat, 671 F.3d at 270‐

271. Indeed, we were fully aware of the bankruptcy courtʹs alternative holding

and could have adopted it ‐‐ but we did not. See Coudert I, 673 F.3d at 186 (noting

that we ʺreview the bankruptcy courtʹs decision independent of the district

courtʹs reviewʺ). Accordingly, we conclude that the bankruptcy courtʹs ʺnew

argumentʺ holding in Coudert II was impliedly foreclosed by our mandate in

Coudert I.

The Plan Administratorʹs arguments to the contrary are unavailing.

First, the Plan Administrator argues that because Coudert I instructed the

‐ 16 ‐ bankruptcy court to ʺdecideʺ the motion for reconsideration, the mandate left

open all other grounds of decision. 673 F.3d at 183, 191. Because we asked for a

decision by the bankruptcy court, the Plan Administrator contends, we impliedly

decided nothing. The Plan Administratorʹs interpretation reads out other words

from our decree ‐‐ notably, ʺto apply.ʺ As we discussed, we must have impliedly

decided enough so that our instructions would be given some legal effect.1 In

any event, we have found implied decisions where the instruction was more

general than the one in Coudert I. See, e.g., Kerman, 374 F.3d at 109‐111, vacating

No. 96 Civ. 7865(RPP),

(S.D.N.Y. Feb. 11, 2003), remanded from

(2d Cir. 2001) (ʺremand[ing] for further proceedings not inconsistent

with this opinionʺ); see also Fed. R. App. P. 41(a) (dictating that mandate includes

full opinion).

1 The Plan Administrator further contends that ʺif the Court of Appeals believed that the reconsideration motion was already decided, it would not have given the Bankruptcy Court this explicit instructionʺ to decide the motion. Appelleeʹs Br. at 34. But the reconsideration motion was not entirely decided by Coudert I, even if the ʺnew argumentʺ was. The bankruptcy court could have decided (but did not) that the Connecticut statute of limitations offered no possible recourse under the facts pleaded and denied the motion for reconsideration on those grounds. See, e.g., United States v. Clark,

(2d Cir. 1993) (finding no abuse of discretion where lower court ʺexplicitly considered [the motion for reconsiderationʹs] merits and denied itʺ).

‐ 17 ‐ Second, the Plan Administrator invokes a countervailing rule

derived from the related law‐of‐the‐case doctrine.2 The Plan Administrator

contends that the bankruptcy court correctly adhered to its original ruling on the

ʺnew argumentʺ issue, which is the ʺlaw of the case.ʺ See generally Burrell v.

United States,

, 165 n.3 (2d Cir. 2006) (discussing ʺmajor groundsʺ for

ʺdepart[ing] from the sound policy of adhering to [a] prior rulingʺ). But this rule

only operates ʺin the absence of an intervening ruling on the issue by a higher

court.ʺ United States v. Quintieri,

(2d Cir. 2002). Here, Coudert

I was that intervening ruling by a higher court.

Third, and finally, the Plan Administrator argues that because the

ʺnew argumentʺ issue was not ʺsquarely presentedʺ to us in Coudert I, we could

not have impliedly decided it. Though the doctrines are related, this argument

mistakes the requirements of the mandate rule with waiver. See 18B Wright &

Miller § 4478.6, at 821 (3d ed. 2012) (explaining difference between ʺlaw of the

caseʺ and ʺforfeitureʺ or ʺwaiverʺ). Our mandate impliedly decides at least

enough issues to allow it to be effective, even if not all issues are made explicit.

See Ginett, 11 F.3d at 360‐61; see, e.g., Parmalat, 671 F.3d at 270‐71 (rejecting as

2 Though our Court has long considered the mandate rule as a branch of the law‐of‐the‐case doctrine, see, e.g., Sompo Japan,

, those doctrines are not, strictly speaking, one and the same.

‐ 18 ‐ impliedly decided ʺalternative, dispositive basesʺ not raised in prior appeal); Yick

Man Mui v. United States,

(2d Cir. 2010) (finding ʺfactual

predicates of . . . claims, while not explicitly raised on direct appeal, were

nonetheless impliedly rejected by the appellate court mandateʺ); Burrell,

(holding mandate impliedly decides that resentencing de novo usually

required when it reverses a conviction and remands for resentencing); Kerman,

374 F.3d at 109‐11 (finding existence of ʺclearly established rightʺ impliedly

decided though it was not raised).

Of course, in some cases, this Court chooses to expressly address

alternative holdings, and in other cases, we state that we express no view on

them, leaving those alternatives open for the lower court to reconsider. See, e.g.,

Am. Hotel Intʹl Grp., Inc. v. OneBeacon Ins. Co., 374 Fed. Appʹx 71, 74 (2d Cir. 2010)

(finding prior mandate limited scope by stating it ʺexpress[ed] no viewʺ on other

issues); see also United States v. Johnson,

(2d Cir. 2004) (ʺThe

general mandate rule can be avoided by specific instructions . . . .ʺ). In this case,

we did not include any such express language, and, indeed, our mandate was

clear enough: The bankruptcy court was instructed to apply Connecticut law. It

did not do so.

‐ 19 ‐ Because we determine that the bankruptcy court derogated from our

mandate in Coudert I, we consider the appropriate instructions on remand.

Generally, ʺthe appellate court retains the right to control the actions of the

[lower] court where the mandate has been misconstrued or has not been given

full effect.ʺ Ginett, 11 F.3d at 360‐61. We fashion instructions to give Coudert I

that effect.

It is clear that the bankruptcy court would have vacated the Claim

Disallowance Order had it not misconstrued our mandate. During a hearing, the

bankruptcy court concluded that Statek pleaded sufficient facts to overcome the

Plan Administratorʹs motion to disallow the claim. The bankruptcy court stated:

[N]ow that Iʹm instructed to apply Connecticut Choice of Law principles I would conclude that under Connecticut law, I would apply the Connecticut limitations law, not some other jurisdictionʹs limitation law. And further, I would conclude that there is insufficient or are insufficient grounds to grant the motion to [disallow] because of the facts necessary to decide the tolling for continuing conduct.

App. at 828. In its written decision, the bankruptcy court reiterated that the facts

in the record did not lead to a ʺclear answerʺ sufficient to permit it to rule on the

timeliness issue in the Plan Administratorʹs favor. Coudert II,

,

at *3. The bankruptcy court should have, by its finding that there were

‐ 20 ‐ insufficient grounds to grant a motion to disallow without further facts, reversed

its orders denying reconsideration and vacated the Claim Disallowance Order.

Statek should have been allowed to proceed with its claim.

CONCLUSION

For the foregoing reasons, the district courtʹs order affirming the

August 23, 2013 and October 25, 2013 orders of the bankruptcy court is

REVERSED, and the case is REMANDED to the district court with directions to

REMAND to the bankruptcy court with instructions to: (1) reverse its orders

denying reconsideration, (2) vacate the Claim Disallowance Order, (3) reinstate

Statekʹs claim, and (4) permit further proceedings in a manner consistent with

this opinion.

‐ 21 ‐