In re Grau, 060210 TXWBC, 09-32460-C

Docket Nº09-32460-C
Party NameIn re, Isidro Grau Debtor
Case DateJune 02, 2010
CourtUnited States Bankruptcy Courts, Fifth Circuit

In re, Isidro Grau Debtor

No. 09-32460-C

United States Bankruptcy Court, Western District of Texas, El Paso Division

June 2, 2010

Order Regarding Notice of Interlocutory Appeal, Rule 59(d) Fed.R.Civ.P. to the Fifth Circuit Court of Appeals

CAME ON for consideration the foregoing matter. The clerk of court has asked for assistance regarding the\is pleading. This order is entered to guide the clerk in the docketing of the debtor's pleading, and to address the issues raised under Rule 8001(f)(1), (2), and (3).

The debtor's pleading (restated in the caption of this order) complains that "a Motion for New Trial was timely filed pursuant to Rule 59(e) Fed.R.Civ.P." The court is unaware of any such motion. The debtor did file a Motion to Set Aside Summary Judgment [#22] on December 31, 2009. This may be the pleading which the debtor is now calling "Motion for New Trial." The debtor next complains that "the Court waited out beyond the mandatory 28 time period in which to grant a new trial pursuant to Rule 59(d) Fed.R.Civ. P. In an action that should be considered abuse of discretion by the Acting Judge." The statement appears to be a reference to the fact that no order has been docketed regarding the Motion to Set Aside Summary Judgment. The debtor appears to believe that Rule 59(d) imposes a 28 day deadline on the court within which to rule on a motion for new trial under Rule 59. The debtor misapprehends Rule 59(d). The subsection is one of permission not prescription. It is entitled "New Trial on the Court's Initiative or for Reasons Not in the Motion, " then proceeds to state that "no later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion." Fed.R.Civ.P. 59(d). Thus, the failure of a court to rule on a motion for new trial within 28 days is not an abuse of discretion under this rule.

It is true that motions for new trial should be considered promptly. However, the rule itself does not set a hard and fast deadline. Thus, the debtor is mistaken in relying on this rule for the next proposition asserted in his Notice of Interlocutory Appeal, namely, his statement that "the Debtor believes, that because of implied consent based on color of law that the Jurisdiction to Appeal an Interlocutory Decision does not have to await a reply from the acting judge, ; and should and must be granted as a...

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