In re Pabon Rodriguez, Bankruptcy No. 95-02831

• Decision Date: 24 February 1999
• Docket Number: Bankruptcy No. 95-02831,Adversary No. 96-0108,96-0109.
• Citation: In re Pabon Rodriguez, 233 B.R. 212 (Bankr. P.R. 1999)
• Parties: In the Matter of Ramon A. PABON RODRIGUEZ, Elsa Iris Medina Landin, Debtors. Nicasio Lopez Jimenez, et al., Plaintiffs, v. Ramon A. Pabon Rodriguez, substituted by Richard Lee, Trustee, Defendants.
• Court: U.S. Bankruptcy Court — District of Puerto Rico

233 B.R. 212 (1999)

In the Matter of Ramon A. PABON RODRIGUEZ, Elsa Iris Medina Landin, Debtors Nicasio Lopez Jimenez, et al., Plaintiffs, v. Ramon A. Pabon Rodriguez, substituted by Richard Lee, Trustee, Defendants.

Bankruptcy No. 95-02831, Adversary Nos. 96-0108, 96-0109.

United States Bankruptcy Court, D. Puerto Rico.

February 24, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Juan E. Colon, Aguadilla, P.R., Miguel E. Bonilla Sierra, San Juan, P.R., for plaintiffs.

Charles Cuprill, Ponce, P.R., for debtor.

OPINION AND ORDER

ENRIQUE S. LAMOUTTE, Bankruptcy Judge.

Before the Court is a Motion requesting reconsideration of judgment filed by Plaintiffs on January 5th, 1998. Docket no. 17. Plaintiffs also pray the Court to consider their reply to the Trustee's motion for summary judgment (Docket no. 14) and their motion for reconsideration of Judgment (Docket no. 17) as motions under Rules 59 and/or 60 of the Federal Rules of Civil Procedure and in the alternative, as a motion requesting an extension of time to appeal. Docket no. 18.

I. Jurisdiction and Procedure

This Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334(b). This contested matter is a core proceeding under 28 U.S.C. § 157(b)(2)(B), (C) and (O).

II. Procedural History

The events giving rise to this proceeding commenced on September 5th, 1997, when the Trustee filed a motion for summary judgment. Docket no. 13. Plaintiffs' response was due on September 16th, 1997.¹ According to Plaintiffs' counsel, he requested an extension of no less than forty-five days to oppose the Trustee's motion on September 12, 1997. See, Plaintiffs' Motion in Request for Reconsideration of Judgment, Docket no. 17, at 2; Plaintiffs' Motion Requesting that the Reply to Request for Summary Judgment, Docket no. 18, at 2. The Court has no evidence, however, that said request was ever made either informally or formally.² The motion was never docketed, a hearing was not held on that date, nor Plaintiffs provided a stamped copy in support of this allegation.

On December 3rd, 1997, without knowledge that Plaintiffs had allegedly requested for an extension of time to answer, the Court granted the Trustee's motion for summary judgment. Notwithstanding the Court's order, Plaintiffs filed their reply to the Trustee's motion on December 12, 1997, eighty-seven days after it was due and nine days after this Court's order. Docket no. 14. The Court denied Plaintiffs' reply as moot.

On December 29, 1997, the Court entered judgment dismissing Plaintiffs' claims and holding that the title in fee simple to the real property lies with the Debtors and their estate in bankruptcy. On January 7, 1998, the Plaintiffs filed a motion requesting this Court to reconsider and vacate the judgment. Docket no. 17. Plaintiffs claim that they were misled by the Court's failure to notify them whether their request for an extension of time had been granted. Plaintiffs argue that since "no notice by the court was ever notified concerning said petition . . . counsel was thus mislead sic to belief that the forty five (45) days requested would not begin until the remedy was granted." Id., at 2. Plaintiffs also argue that they were not able to complete their opposition to the Trustee's motion for summary judgment until December 9, 1997 and file it on December 12, 1997 because they needed to gather "abundant evidenciary sic proof in order to contest the allegations contained in trustee's brief." Id.

On January 13, 1998, Plaintiffs filed a motion requesting the Court to consider their reply to the Trustee's motion for summary judgment (Docket no. 14) and their motion for reconsideration (Docket no. 17) as motions under Rules 59 and/or 60 of the Federal Rules of Civil Procedure and in the alternative, as a motion requesting an extension of time to appeal. Docket no. 18. Besides the arguments presented in the previous motion, Plaintiffs claim that "it will constitute a miscarriage of justice if the judgment entered on December 29, 1997 is not set aside or if the opportunity for appellate review is not afforded to the Plaintiff, particularly in a case where the property rights of the appearing parties are involved." Id., at 2.

The Trustee has not filed a reply to either of Plaintiffs' motions.

III. Controversy and Arguments of the Parties

The dispositive issue in this case is whether the Court must vacate the judgment entered in order to consider Plaintiffs' reply to the Trustee's motion for summary judgment which was filed eighty-seven days after the deadline expired and nine days after the Court granted the motion. Plaintiffs claim that they were misled by the Court's failure to notify them whether their request for an extension of time had been granted. Plaintiffs' counsel asserts that he honestly believed that the additional time requested would not begin to run until the Court granted the motion and notify it. Plaintiffs also argue that they could not file their opposition previously because they needed to gather "abundant evidenciary sic proof in order to contest the allegations contained in trustee's brief." Finally, Plaintiffs contend that since the Court denied their reply brief as moot, the December 29, 1997 order constitutes a "miscarriage of justice . . . particularly in a case where the property rights of the appearing parties are involved."

For the reasons stated herein, the Court declines to follow Plaintiffs' pleas and, therefore, denies its motions.

IV. Discussion

A. Procedural requirements to request an extension of time for replying to a motion for summary judgment

Rules 311(5) and (12) of the U.S.D.C. Local Rules, as adopted and amended by Rules 7001(a) and (b)(1) of the Local Bankruptcy Rules, provide that a respondent has eleven (11) days to oppose a motion for summary judgment after its service. Pursuant to U.S.D.C. Local Rule 311(5), the respondent should file the reply brief and all supporting documents within said period. If the respondent needs to file additional affidavits or other documents in support of his brief, U.S.D.C. Local Rules 311(6) and (12) provide that the respondent must indicate so in the motion, and "the Clerk may enter an ex parte order specifying the time within which such additional documents and brief shall be filed. . . ."

Moreover, Fed.R.Bankr.P. 7056(f) provides that if a party needs additional time to submit affidavits or other evidentiary materials in opposition to a motion for summary judgment, he must submit an affidavit explaining the reasons why he is unable to do so.³ This Rule is usually used in situations "in which the facts are exclusively or largely within the knowledge or control of the moving party or nonparties, thereby rendering it impossible for the nonmoving party to submit timely affidavits or other evidentiary materials demonstrating the existence of genuine issues of fact." 10 Lawrence P. King et al., Collier on Bankruptcy, ¶ 7056.08, at 7056-11 (15th ed.1997). Collier explains that the Rule "cannot however rest on a mere assertion that summary judgment should be denied because of the nonmoving party's lack of knowledge of the facts. Rather, the affidavit must specify what facts are within the movant's knowledge or control and what steps have been taken to obtain the information. The court may then order a continuance of the motion to permit the discovery to be taken, deny the motion without prejudice to renewal after completion of discovery, or take any other action it deems appropriate." Id., at 7056-11 to 7056-12.

In requesting an extension of time, the nonmoving party must abide by U.S.D.C. Local Rule 311(14), as adopted by Rule 7001 of the Local Bankruptcy Rules. Rule 311(14) provides:

(14) Extensions of Time

(A) The Clerk of the Court is authorized to sign and enter orders without further direction by the Court granting a first extension of time not to exceed thirty (30) days. Any extension of time thereafter must be presented to the Court for consideration.

(B) All motions for extension of time shall state the expiration date of the period sought to be extended and the expiration date of the proposed extension.

Pursuant to this Rule, the nonmoving party may request an extension of time to file his reply to a motion for summary judgment provided that he complies with the requirements set forth in the Rule. In his motion, the party must specify the period of time requested and when will it expire.

In seeking an extension of time to respond to a motion for summary judgment, the party must also comply with the requirements of Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure. This Rule governs the enlargement of time limitations for taking actions required under the Rules or by order of the Court. It provides for a court order enlarging time, and permits retroactive enlargement if excusable neglect is shown. If the request is made before the expiration of the period originally prescribed or as extended by previous order, the court may enlarge the time at its discretion, "with or without a motion or notice." Collier comments that by the words "with or without motion or notice," the Rule permits the parties to make the motion informally. He explains, however, that "the motion, when so made, unless made during a hearing or trial, should be written" following the procedure prescribed by Fed.R.Bankr.P. 9013.⁴ 10 Lawrence P. King et al., Collier on Bankruptcy, ¶ 9006.062, at 9006-11— 9006-12 (15th ed.1997). Once a party shows some cause for an order enlarging the period of time, it is within the discretion of the court to grant or deny it.

If a party does not oppose a motion for summary judgment within the eleven day period provided in U.S.D.C. Local Rules 311(5) and (12), or within the time provided by the Court pursuant to U.S.D.C. Local Rule 311(14) and Fed. R.Bankr.P. 9006(b)(1), the Court may consider the motion. Nonetheless, the mere fact that a party failed to file a...