LATIN AMERICAN MUSIC CO INC
11
ENRIQUE S. LAMOUTTE INCLAN
03/24/2017
10/03/2019
Yes
v
| PlnDue, SmBus |
Assigned to: Bankruptcy Judge ENRIQUE S. LAMOUTTE INCLAN Chapter 11 Voluntary Asset |
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Debtor LATIN AMERICAN MUSIC CO INC
PO BOX 366714 SAN JUAN, PR 00936 SAN JUAN-PR Tax ID / EIN: 13-3220536 dba LAMCO |
represented by |
VICTOR GRATACOS DIAZ
GRATACOS LAW FIRM, PSC PO BOX 7571 CAGUAS, PR 00726 787 746-4772 Email: bankruptcy@gratacoslaw.com |
U.S. Trustee MONSITA LECAROZ ARRIBAS
OFFICE OF THE US TRUSTEE (UST) OCHOA BUILDING 500 TANCA STREET SUITE 301 SAN JUAN, PR 00901 |
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U.S. Trustee US TRUSTEE
US TRUSTEE EDIFICIO OCHOA 500 TANCA STREET SUITE 301 SAN JUAN, PR 00901-1922 |
| Date Filed | # | Docket Text |
|---|---|---|
| 10/03/2019 | Bankruptcy Case Closed (RODRIGUEZ RODRIGUEZ, DENNIS) | |
| 09/13/2019 | 365 | Certificate of service (RE: related document(s)[364]) Notice Date 09/13/2019. (Admin.) |
| 09/11/2019 | 364 | OPINION AND ORDER DATED 8/29/2019: in view of the foregoing, the Motion for Reconsideration filed by ACEMLA de Puerto Rico and Latin American Music Co. Inc. is hereby denied. The Clerk shall close the cases upon this order becoming final. SO ORDERED. (PLEASE READ FULL ORDER FOR FURTHER DETAILS). Signed on 9/11/2019. (RE: related document(s)[353], [354], [355], [356], [357], [358], [361], [363]).(ZAYAS BUJOUVEN, DARHMA) |
| 09/11/2019 | 363 | NOTICE OF CORRECTIVE ENTRY: Incorrect PDF attached. Correct PDF will be entered accordingly. Party must re-file correctly. (RE: related document(s)[361]) (AGUAYO LOPEZ, BRENDA) |
| 08/31/2019 | 362 | Certificate of service (RE: related document(s)[361]) Notice Date 08/31/2019. (Admin.) |
| 08/29/2019 | 361 | OPINION AND ORDER DATED 8/29/19: These cases are before the court on its own motion in order to reopen the same in order to consider the Debtors Preliminary Motion for Reconsideration and for Additional Time to File a Motion for Reconsideration (Docket No. 478) and the Opposition to Debtors Preliminary Motion for Reconsideration and for Additional Time to File a Final Motion for Reconsideration (Docket No. 479) which were pending when the cases were closed on June 26, 2019. Therefore, the court hereby reopens the cases. Also, for the reasons stated below, ACEMLAs Preliminary Motion for Reconsideration and for Additional Time to File for Reconsideration is hereby denied. Legal Analysis and Discussion: Motions to reconsider are not recognized by the Federal Rules of Civil Procedure or the Federal Rules of Bankruptcy Procedure in haec verba. In re Lozada Rivera, 470 B.R. 109, 112 (Bankr. D.P.R. 2012), citing Jimenez v. Rodriguez (In re Rodriguez), 233 B.R. 212, 218-219 (Bankr. D.P.R. 1999), confd 17 Fed. Appx. 5 (1st Cir. 2001). Also see Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Lavespere v. Niagara Mach. & Tool Works Inc., 27910 F.2d 167, 173 (5th Cir. 1990), cert. denied 510 U.S. 859, abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075-1076 (5th Cir. 1994). Rather, federal courts have considered motions so denominated as either a motion to alter or amend under Fed. R. Civ. P. 59(e) or a motion for relief from judgment under Fed. R. Civ. P. 60(b), made applicable to bankruptcy proceedings through Fed. R. Bankr. P. 9023 and 9024. See Fisher v. Kadant, Inc., 589 F.3d 505, 512 (1st Cir. 2009) (noting a motion for reconsideration implicated either Fed. R. Civ. P. 59(e) or 60(b)); Equity Security Holders Committee v. Wedgestone Financial (In re Wedgestone Financial), 152 B.R. 786, 788 (D. Mass. 1993). These two rules are distinct; they serve different purposes and produce different consequences. Which rule applies depends essentially on the time a motion is served. If a motion is served within fourteen days of the rendition of judgment, the motion ordinarily will fall under Rule 59(e). If the motion is served after that time, it falls under Rule 60(b). In re Lozada Rivera, 470 B.R. at 113, quoting Van Skiver, 952 F.2d at 1243. Also see Universal Ins. Co. v. DOJ, 866 F. Supp. 2d 49, 73 (D.P.R. 2012) (A motion is characterized pursuant to [Fed. R. Civ. P.] 59(e) or [Fed. R. Civ. P.] 60(b) based upon its filing date.) The substance of the motion, not the nomenclature used or labels placed on motions, is controlling. In re Lozada Rivera, 470 B.R. at 113. Under either rule, the granting of a motion for reconsideration is an extraordinary remedy which should be used sparingly. Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (citations omitted). In the instant case, Debtors Motion for Reconsideration was filed within fourteen (14) days of the entry of Order. Therefore, it will be considered under Fed. R. Civ. P. 59(e), applicable to bankruptcy proceedings through Fed. R. Bankr. P. 9023. Fed. R. Civ. P. 59(e) itself does not state the grounds on which relief under the rule may be granted. Therefore, trial courts have considerable discretion in deciding whether to grant or deny a motion to alter or amend under Fed. R. Civ. P. 59(e). See ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008) ([Trial] courts enjoy considerable discretion in deciding [Fed. R. Civ. P.] 59(e) motions, subject to circumstances developed in the case law.); Venegas- Hernndez v. Sonolux Records, 370 F.3d 183, 190 (1st Cir. 2004), citing Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993); Robinson v. Watts Detective Agency, 685 F.2d 729, 743 (1st Cir. 1982). Generally, in order for a motion for reconsideration to proceed under Fed. R. Civ. P. 59(e), the movant must clearly establish a manifest error of law or fact or present newly discovered evidence that could not have been diligently found during the case. See Schwartz v. Schwartz (In re Schwartz), 409 B.R. 240, 250 (B.A.P. 1st Cir. 2008), citing In re Rodriguez, 233 B.R. at 219. The Court of Appeals for the First Circuit has explained that a motion for reconsideration brought under Fed. R. Civ. P. 59(e) must be based upon newly discovered evidence or a manifest error of law or fact. BBVA v. Vazquez (In re Vasquez), 471 B.R. 752, 760 (B.A.P. 1st Cir. 2012), Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997). To meet the threshold requirements of a successful [Fed. R. Civ. P.] 59(e) motion, the motion must demonstrate the reason why the court should reconsider its prior decision and must set forth facts or law of a strongly convincing nature to induce the court to reverse its earlier decision. In re Schwartz, 409 B.R. at 250 (citations omitted). A motion for reconsideration does not provide a vehicle for a party to undo its own procedural failures and it certainly does not allow a party to introduce new evidence or advance arguments that could or should have been presented to the district court prior to the judgment. Marks 3-Zet-Ernst Marks GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15-16 (1st Cir. 2006) (citations omitted). Thus, a motion for reconsideration cannot be used as a vehicle to re-litigate matters already litigated and decided by the court. See Standard Qumica de Venezuela v. Central Hispano International, Inc., 189 F.R.D. 202, 205 fn.4 (D.P.R. 1999). A party cannot use a Rule 59(e) motion to rehash arguments previously rejected or to raise ones that could, and should, have been made before judgment issued. See Soto-Padr v. Public Buildings Authority, 675 F.3d 1, 9 (1st Cir. 2012) (citations omitted). Conversely, the court should renew and reconsider whether it patently misunderstood a party or has made an error not of reasoning by apprehension. Ruiz Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 82 (1st Cir. 2008). Also see Mulero-Abreu v. Puerto Rico Police Department, 675 F.3d 88, 94-95 (1st Cir. 2012) (granting reconsideration in cases of manifest error of law). The granting of a motion for reconsideration is an extraordinary remedy which should be used sparingly. United States ex rel. Ge v. Takeda Pharm. Co., 737 F.3d 116, 127 (1st Cir. 2013). In practice, because of the narrow purposes for which they are intended, [Fed. R. Civ. P. 59(e)] motions typically are denied. Wright & Miller 11 Federal Practice and Procedure § 2810.1 (2nd ed. 2012) at p. 171. [M]otions for reconsideration should not give parties a second bite at the apple or another roll of the dice. Conway v. A.I. DuPont Hosp. for Children, 2009 U.S. Dist. LEXIS 45198 at *13, 2009 WL 1492178 at *4 (E.D. Pa. 2009). Also see BBVA v. Santiago-Vazquez (In re Santiago-Vazquez), 471 B.R. 752, 761 (B.A.P. 1st Cir. 2012) (in denying reconsideration, the bankruptcy court correctly applied the First Circuit precedent against a second bite at the apple: litigants may not use Fed. R. Civ. P. 59(e) to advance arguments they could have made earlier).Fed. R. Bankr. P. 9006(b)(2) bars the court to enlarge the time to act under Fed. Bankr. R. 9023 and 9024. The time limit for filing a motion for reconsideration is not within the discretion of the Court. In Re Old Summit Mfg., LLC, 324 B.R. 557, 559 (Bankr. M.D. Pa. 2005). A bankruptcy court has no power to extend the time to file a motion for reconsideration. Home & Family v. England Resources Corp. (In re Home & Family), 85 F.3d 478, 481 (10th Cir. 1996). The Debtors filed a Preliminary Motion for Reconsideration and for Additional Time to File a Final Motion for Reconsideration. As stated herein, the court is unable to enlarge the time to file a motion for reconsideration pursuant to Fed. R. Bankr. P 9006(b)(2). The court, however, will entertain the motion filed by the Debtors as a final plead for reconsideration. The Debtors state that the court found cause for dismissal because of the Debtors former counsels difficulties of explaining the complex nature of [] Debtors businesses in their disclosure statements and of the apparent confusion caused by [] Debtors accountants by the poor communication between and among [] Debtors, former counsel, and the accountants. It is further alleged that the Debtors, advised by their only recently approved undersigned counsel, were not afforded an opportunity to remedy the deficiencies in both their Disclosure Statements and Plans of Reorganization. ACEMLA and LAMCO request the court to consider the Preliminary Motion and allow an additional term of 15 days to supplement the motion and to propose an Amended Disclosure Statement. The Debtors allege that new evidence was obtained after the hearing that shows that the Debtors projections and testimonies are credible. The Debtors argue that the dismissal constitutes a manifest injustice. To support the assertion, the Debtors include a list of the courts discussion of the testimony of CPA Aquino and his projections and of Mr. Alan McAbees testimony. The Debtors assert that CPA Aquino is preparing a supplemental financial report, to complement information related to 2018 revenues, past due accounts receivables, licenses, amongst other. They also provide a list of Mr. McAbees strategies to improve ACEMLAs business and request the opportunity to supplement this motion and amend the Disclosure Statement. The Debtors state that Mr. McAbee will make a proffer to this Honorable Court by an Unsworn Declaration Under Penalty of Perjury, to provide more details regarding the above-mentioned strategies to improve ACEMLAs businesses. As to the Non-Consensual Confirmation Pursuant to §1129(b) and the Absolute Priority Rule the debtors state: Debtors have no intention of violating the Absolute Priority Rule, and if allowed, the Disclosure Statements and Plans will be amended to properly clarify any lagoons and to assure compliance with said rule. The Debtors, essentially, argue that (1) there is newly discovered evidence and (2) the order dismissing the cases constitutes a manifest injustice, both grounds for reconsideration under Rule 59(e). For a motion for reconsideration to succeed, the movant must demonstrate either that newly discovered evidence (not previously available) has come to light or that the rendering court committed a manifest error of law." Mulero-Abreu v. P.R. Police Dep't, 675 F.3d 88, 94 (1st Cir. 2012). The Debtors have failed to show the court any newly discovered evidence. The information provided in their Preliminary Motion shouldve been in possession of the Debtors prior to the hearing for the approval of the Disclosure Statement and, therefore, presented therein. The fact that the Debtors request an opportunity to supplement the Disclosure Statement and the Plans, as well as the projections and the witnesses testimonies, reveal the Debtors attempt to relitigate the matters considered by the court during the hearing. As stated by the opposing parties, the Debtors are transparently trying to cure at the reconsideration stage the deficiencies of their disclosure statements and plans and their evidentiary presentation at trial by attempting to make new arguments and by presenting new evidence for the court to consider. Where evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration. Lepore v. Vidockler, 792 F. 2d 272, 274 (1st Cir. 1986) (Referencing Rule 60(b)). See also Harsco Corp. v. Zlotnicki, 779, F.2d 906, 909 (3rd Cir. 1985). The documents (check and payment advices) included in the Preliminary Motion for Reconsideration, although dated post-hearing, correspond to the daily operation of the corporations which, if relevant, should have been informed, discussed or clarified during the hearing held by the court, and do not constitute newly discovered evidence that warrant reconsideration. Additionally, the Transfer and Sale of Copyrights Assets was admitted as Exhibit C during the hearing and discussed in the Opinion and Order at Docket No. 475. The court agrees with the opposing parties when stating that the Debtors are using the motion for reconsideration as a vehicle to undo its own procedural errors. Moreover, as applied to Rule 59(e), no general definition of manifest injustice has ever been developed; courts instead look at the matter on a case-by-case basis. McDaniel v. Am. General Fin. Servs., 2007 U.S. Dist. LEXIS 52217, 2007 WL 2084277 (W.D. Tenn. 2007). "Essentially, 'a showing of manifest injustice requires that there exists a fundamental flaw in the court's decision that without correction would lead to a result that is both inequitable and not in line with the applicable policy.'" In Re Ft. Howard Dev., LLC, 593 B.R. 427 (Bankr. Md. 2018). Manifest injustice is defined as "[a]n error in the trial court that is direct, obvious, and observable. Looper v. USDE (In Re Looper) 2007 Bankr. LEXIS 2071, 2007 WL 1725251 (Bankr. WD Tenn. 2007). However, [a] party may not seek Rule 59(e) relief on the premise of "manifest injustice" if the only error the movant seeks to correct is a "poor strategic decision." In Re Henning, 420 B.R. 773, 785 (Bankr. W.D. Tenn. 2009). The Debtors have failed to demonstrate any fundamental flaw in the dismissal orders or an error of the court that warrants reconsideration. The Debtors had sufficient time to submit to the court adequate disclosure and confirmable plans. Any shortfall of the Debtors obligations lies within its own acts and may not be remedied by reconsideration. Furthermore, the Preliminary Motion for Reconsideration and the request for time to supplement or amend the Disclosure Statement and the plans fails to consider the time limitations imposed by 11 U.S.C. §1121(e) for a small business case. Similarly, the allowance of an extension of time to supplement the Disclosure Statements and Plans, as requested by the Debtors, contravenes the requirements of 1129(e) which mandate the court to confirm a plan within 45 days after the plan is filed. Therefore, the court finds that the Motion for Reconsideration does not meet the Fed. R. Civ. P. 59(e) standard. Conclusion:In view of the foregoing, the Motion for Reconsideration filed by ACEMLA de Puerto Rico and Latin American Music Co. Inc. is hereby denied. The Clerk shall close the cases upon this order becoming final. SO ORDERED. (RE: related document(s)[353], [354]).(ZAYAS BUJOUVEN, DARHMA) |
| 06/26/2019 | Bankruptcy Case Closed. (ZAYAS BUJOUVEN, DARHMA) | |
| 04/22/2019 | 360 | Operating Report for the period of January 2019 . filed by JAVIER A VEGA VILLALBA on behalf of LATIN AMERICAN MUSIC CO INC (VEGA VILLALBA, JAVIER) |
| 03/06/2019 | 359 | Certificate of service (RE: related document(s)[358]) Notice Date 03/06/2019. (Admin.) |
| 03/04/2019 | 358 | ORDER: This case is before the court upon the Debtors Urgent Motion for Peer International Corporation of Puerto Rico to Show Cause Why it Should not be Held in Contempt filed by Latin America Music Co. (LAMCO) at Docket No. 355, and the Opposition to Debtors Urgent Motion for Peer International Corporation of Puerto Rico to Show Cause Why it Should not be Held in Contempt filed by Peer International Corporation of Puerto Rico (Peer) at Docket No. 356. Pursuant to the Opinion and Order entered by the court in the administratively consolidated case of ACEMLA de Puerto Rico Inc. (ACEMLA) at Docket No. 4831, the Urgent Motion filed by LAMCO is hereby denied. Signed on 3/4/2019. (RE: related document(s)[355], [356]).(RODRIGUEZ RODRIGUEZ, DENNIS) |