[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 14, 2005
No. 04-16325 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-61030-CV-CMA
BFP INVESTMENTS, INC., a Florida corporation,
NETGATES, INC., a Delaware corporation,
WILLIAM G. BROWN, et al.,
Plaintiffs,
LEO GREENFIELD, a creditor and party in interest
on behalf of approximately 300
stockholders on Netgates, Inc.,
Plaintiff-Appellant,
versus
BFP INVESTMENTS LIMITED, a Florida limited
partnership,
SUSAN LASKY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 14, 2005)
Before ANDERSON, HULL and WILSON , Circuit Judges.
PER CURIAM:
The district court granted defendants’ motion to dismiss, concluding that
Greenfield’s action was untimely. Greenfield appeals. In January 2003, BFP
Investments Limited (“BFP Limited”) filed a petition for reorganization under
chapter 11 of the bankruptcy code. On August 5, 2003, a bankruptcy judge entered
an order confirming BFP Limited’s second amended plan of reorganization. On
August 4, 2004, Greenfield filed a “complaint” in the district court pursuant to
Fed.R.Civ.P. 60(b) against BFP Limited, Susan Lasky, Jeffrey Gambino, and Barry
Fernandez. The defendants moved to dismiss the “complaint,” alleging, inter alia,
that it was untimely. On November 9, 2004, the district court agreed and granted
the defendants’ motion to dismiss.
On appeal, Greenfield argues that the district court erroneously dismissed his
“complaint” which sought to vacate the bankruptcy court’s order of confirmation.
He claims that the court failed to recognize that although Fed.R.Bankr. 9024
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requires that an action to revoke a confirmation order be filed within 180 days as
specified by 11 U.S.C. § 1144, where relief is sought under Rule 60(b) based on
fraud of the court, the law does not impose time limits or limit the power of the
court to consider independent actions to relieve a party from a judgment.1
Greenfield argues that his Rule 60(b) motion alleged 29 acts of fraud perpetrated
on the bankruptcy court, resulting in the defendants defrauding him and over 300
stockholders, investors, and officers of their cash and equity in real estate through
the use of the Chapter 11 bankruptcy proceedings. Greenfield argues that these
allegations of fraud under Rule 60(b)(6) constituted extraordinary grounds
warranting revocation of the order of confirmation. He contends that the time
limits provided in Bankruptcy Rule 9024 are not applicable to Rule 60(b)(6)
complaints.
A motion to relieve a party from judgment is within the sound discretion of
the district court. First Wisconsin Nat’l Bank of Milwaukee v. Grandlich Devt.
Corp., 565 F.2d 879, 880 (5th Cir. 1978). Under Fed.R.Civ.P. 60(b) a court may
relieve a party from a final judgment or order for, inter alia, “fraud . . .,
misrepresentation, or other misconduct of an adverse party,” or “any other reason
1
Although Greenfield repeatedly cites to the rules as Fed.R.Civ.P. 60(b)(3)(6), it appears
that he intends to refer to Rule 60(b)(6). Nevertheless, we discuss both Rule 60(b)(3) and Rule
60(b)(6) infra.
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justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(3),
(b)(6). Title 11 United States Code Section 1144 provides that “[o]n request of a
party in interest at any time before 180 days after the date of the entry of the order
of confirmation, and after notice and a hearing, the court may revoke such order if
and only if such order was procured by fraud.” 11 U.S.C. § 1144; see also In re
Orange Tree Assoc. Ltd., 961 F.2d 1445, 1447 (9th Cir. 1992) (requiring strict
compliance with the 180-day time limitation for filing a complaint to revoke an
order confirming a chapter 11 plan). Federal Rule of Bankruptcy Procedure 9024
further provides that “[r]ule 60 F.R.Civ.P. applies in cases under the Code except
that . . . a complaint to revoke an order confirming a plan may be filed only within
the time allowed by § 1144.” Fed.R.Bankr.P. 9024. Additionally, the Federal
Rules of Civil Procedure apply to proceedings in bankruptcy only to the extent
provided by the Federal Rules of Bankruptcy Procedure. Fed.R.Civ.P. 81(a)(1);
see also Chrysler Financial Corp. v. Powe, 312 F.3d 1241, 1243 (11th Cir. 2002)
(same). Rules of procedure may not modify substantive law. 28 U.S.C. § 2075.
Greenfield concedes that § 1144 and Federal Rule of Bankruptcy Procedure
9024 together require that an action to revoke a confirmation order be filed within
the 180-day period specified in § 1144. Greenfield argues, however, that by filing
a cause of action seeking relief directly under Federal Rule of Civil Procedure
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60(b) his claim avoids the time provisions of § 1144 and Rule 9024. Greenfield
offers no statutory language supporting his reading of the rules, and no such case
law exists. The Advisory Committee Notes for Rule 9024 of the Federal Rules of
Bankruptcy Procedure directly refute Greenfield’s argument: “Clauses (2) and (3)
of this rule make it clear that the time periods established by §§ 727(e), 1144 and
1330 of the [Federal] Code may not be circumvented by the invocation of
F.R.Civ.P. 60(b).” Fed.R.Bankr.P. 9024 advisory committee’s notes (emphasis
added).
Because Greenfield’s Rule 60(b) motion was not filed within 180 days of the
entry of the confirmation order as required by Federal Rule of Bankruptcy
Procedure 9024 and 11 U.S.C. § 1144, we affirm.
AFFIRMED.2
2
Appellant’s motion to strike portions of appellee’s brief and for sanctions, and request
for oral argument are denied.
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