MAYAGUEZ ADVANCED RADIOTHERAPY CENTER v. MAYAGUEZ MEDICAL CENTER DR RAMON E BETANCES INC et

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IN THE UNITED STATES BANKRUPTCY COURT FOR
THE DISTRICT OF PUERTO RICO
IN RE:
MAYAGUEZ ADVANCED RADIOTHERAPY
CENTER, INC.
CASE NO. 09-04540 BKT
DEBTOR Chapter 11
MAYAGUEZ ADVANCED RADIOTHERAPY
CENTER, INC.
PLAINTIFF 	ADV. NO.: 10-0159
VS.
MAYAGUEZ MEDICAL CENTER-DR. RAMON
EMETERIO BETANCES, INC.; ET ALS.
DEFENDANTS
FILED & ENTERED ON 12/03/2010
OPINION AND ORDER
This 	proceeding 	is 	before 	the 	Court 	upon 	Plaintiff’s 	Motion 	for
Reconsideration of the Court’s Opinion and Order filed on November 9, 2010 [Dkt.
No. 	24], 	and 	Defendant’s 	Opposition 	to 	the 	reconsideration 	motion 	filed 	on
December 2, 2010 [Dkt. No. 28]. The Plaintiff requests reconsideration of the
dismissal of the case in its totality, as it submits that the case is not subject
to dismissal pursuant to the standard of law applicable to a motion to dismiss.
The Defendant argues in its Opposition that the Reconsideration motion must be
denied because the Court’s finding and conclusion as to the lack of irreparable
harm to Debtor mandates not only the denial of the preliminary injunction, but
also the dismissal of the Verified Complaint For the reasons set forth below,
Plaintiff’s motion for reconsideration is hereby DENIED.
Case:10-00159-BKT Doc#:29 Filed:12/03/10 Entered:12/03/10 15:45:05 Desc: Main
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PROCEDURAL BACKGROUND & DISCUSSION
Plaintiff seeks reconsideration pursuant to Federal Rules of Bankruptcy
Procedure 9023, which makes Federal Rules of Civil Procedure 59 applicable to
bankruptcy proceedings. This rule states that “[a]ny motion to alter or amend a
judgment must be filed no later than 10 days after entry of the judgment.”Fed. R.
Civ. P. 59(e). In seeking reconsideration, “the moving party must either clearly
establish a manifest error of law or must present newly discovered evidence.”
Marie v. Allied Home Mortgage Corp., 402 F. 3rd 1, 7 n. 2 (1st Cir. 2005) quoting
Pomerleau v. W. Springfield Pub. Sch., 362 F. 3d 143, 146 n. 2 (1st Cir. 2004).
In Marie, the First Circuit also cited a leading treatise, noting four grounds
for granting a motion for reconsideration under Federal Rules of Civil Procedure
59 (e). The grounds are “manifest errors of law or fact, newly discovered or
previously unavailable evidence, manifest injustice, and an intervening change in
controlling law.” Marie v. Allied Home Mortgage Corp., 402 F 3rd at 7 (citing 11
C. Wright et al., Federal Practice & Procedure § 2810.1 (2d ed. 1995)).
Reconsideration of a judgment under Rule 59 is an extraordinary remedy that
is used sparingly and only when the need for justice outweighs the interests
advanced by a final judgment. It is directed at allowing a court to correct it
own errors. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445,
450 (1982). Moreover, it is well settled that Rule 59 (e) does not exist to give
parties a second chance to prevail on the merits generally. Rule 59 (e) is not to
be used to reassert arguments and theories previously rejected by the Court. The
rule is “aimed at reconsideration, not initial consideration.” Harley-Davidson
Motor Co., Inc. v. Bank of New England-Old Colony, N.A., 897 F.2d 611, 616 (1st
Cir. 1990). See also, Nat’l Metal Finishing Co. v. BarclaysAmerican/Commercial,
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Inc., 899 F. 2d 119, 123 (1st Cir. 1999) (Rule 59 (e) does not allow the losing
party to rehash old arguments, previously considered and rejected).
The Court finds unnecessary and superfluous a discussion of the arguments
already considered and rejected upon the analysis that led to granting of the
motion to dismiss filed by Defendants. Nevertheless, in support of its motion for
reconsideration, Plaintiff alleges that they had a lawful convent with Medical
Education Health Services, Inc., that provided for free parking to employees and
patients and lawful lateral entry to the cancer treatment facilities. That by way
of alleged unlawful conduct that is the subject of parallel litigation before
this court, Defendant took over the contract and that Defendant unilaterally
altered the terms of the contract in breach of the Civil Code and for retaliatory
reasons proscribed by the Bankruptcy Code. That as a result of this conduct,
Defendant is causing irreparable harm to Plaintiff’s interests. The Plaintiff
prays that the Court reconsider its dismissal of the case for failure to state a
claim. Defendant’s motion to dismiss does not foreclose Plaintiff’s claim as a
matter of law; and as such, Plaintiff is entitled to present evidence to show
that 	a 	valid 	agreement 	existed 	with 	respect 	to 	the 	parking 	and 	entrance
arrangements.
Notwithstanding these allegations presented in the reconsideration motion,
the plaintiff had several opportunities to present an actual contract or an
affidavit evidencing the material terms and conditions of an oral contract, but
did not. The plaintiff had an opportunity to reply to the Defendant’s motion to
dismiss in writing and orally at the hearing held on October 7, 2010, after which
the Court determined that an evidentiary hearing was not necessary. To date,
Plaintiff still has not submitted any written contract, even with its Motion for
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Reconsideration, nor an affidavit in support of its allegation of the existence
of an oral contract.
Absent a manifest error of law or newly found evidence, the court is not in
a position to reconsider its previous order. Because Plaintiffs have failed to
establish a manifest error of law and/or failed to present newly discovered
evidence, this Court finds that Plaintiff is not entitled to reconsideration
under Federal Rule of Bankruptcy Procedure 9023.
WHEREFORE, IT IS ORDERED that PLAINTIFF’s motion for reconsideration shall
be, and it hereby is, DENIED. The case remains dismissed.
San Juan, Puerto Rico, this 03 day of December, 2010.
Brian K. Tester
U.S. Bankruptcy Judge
CC: 	ALL CREDITORS
Case:10-00159-BKT Doc#:29 Filed:12/03/10 Entered:12/03/10 15:45:05 Desc: Main
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