UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 94-10916
Summary Calendar
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IN RE: FRANK J. STANGEL,
Debtor.
FRANK J. STANGEL,
Appellant,
VERSUS
UNITED STATES OF AMERICA,
Appellee.
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Appeal from the United States District Court
For the Northern District of Texas
(3:93 CV 2533 G)
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September 12, 1995
Before JOLLY, DAVIS, and EMILIO GARZA, Circuit Judges.
PER CURIAM:1
The central issue in this appeal is whether Stangel timely
filed his notice of appeal from the bankruptcy court's final
judgment and its orders denying his post-judgment motions for
reconsideration. The district court dismissed Stangel's appeal in
part and denied his remaining claims. We affirm.
I.
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
In September 1993, Frank J. Stangel filed a petition for relief
under Chapter 13 of the Bankruptcy Code. The Internal Revenue
Service ("IRS") filed proofs of claims with the bankruptcy court
totaling $81,896.78. Although Stangel did not specifically object
to the IRS's claims, he submitted a proposed repayment plan that
did not provide for the IRS's claims. The bankruptcy court
subsequently rejected Stangel's plan on the grounds that it failed
to provide for the IRS's claims. The court ordered Stangel to
obtain a hearing on his objection to the IRS' claims within 60 days
or face dismissal of his case. Stangel failed to request a hearing
within 60 days and, on September 29, 1993, the bankruptcy court
entered an order dismissing Stangel's case.
Stangel filed two post-judgment motions challenging the
bankruptcy court's September 29th judgment. The bankruptcy court
denied both motions. Stangel then filed a notice of appeal with
the district court. The timeliness of Stangel's notice of appeal
turns on the dates of his post-judgment motions and the bankruptcy
court's orders denying the motions:
-- September 29th: Bankruptcy court entered final
judgment dismissing Stangel's case;
-- October 6th: Stangel served his first post-
judgment motion requesting the
bankruptcy court to reconsider its
September 29th judgment;
-- October 26th: Bankruptcy court entered order
denying Stangel's first motion;
-- November 3rd: Stangel served his second post-
judgment motion requesting the
bankruptcy court to reconsider its
October 26th order denying his first
motion;
-- November 18th: The bankruptcy court entered order
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denying Stangel's second motion.
-- November 26th: Stangel filed a notice of appeal
with the district court.
The district court concluded that Stangel's notice of appeal was
untimely with respect to the September 29th final judgment and the
October 26th order denying his first motion, and dismissed this
part of his appeal. The court then affirmed the bankruptcy court's
November 18th order denying Stangel's second motion to reconsider.
Stangel timely appealed.
II.
A.
Federal Rule of Bankruptcy Procedure 8002(a) provides that a
notice of appeal in a bankruptcy proceeding must be filed "within
10 days of the date of the entry of the judgment, order, or decree
appealed from." However, Rule 8002(b) provides:
If a timely motion is filed by any party: (1) under Rule
7052(b) to amend or make additional findings of fact, whether
or not an alteration of the judgment would be required if the
motion is granted; (2) under Rule 9023 to alter or amend the
judgment; or (3) under Rule 9023 for a new trial, the time for
appeal for all parties shall run from the entry of the order
denying a new trial or granting or denying any other such
motion.
Stangel contends his two motions for reconsideration tolled the
appeals period under Rule 8002(b) until the bankruptcy court denied
his second motion on November 18th. He contends that his notice of
appeal was therefore timely because it was filed within 10 days of
the court's order denying the second motion. Although the
government agrees that Stangel's first motion for reconsideration
tolled the appeals period, it contends that successive motions for
reconsideration do not toll the appeal period under Rule 8002(b)
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and, as a result, Stangel's notice of appeal was not timely
because it was not filed within 10 days of the bankruptcy court's
September 29th judgment or its October 26th order denying Stangel's
first motion for reconsideration. However, the government concedes
that Stangel's notice of appeal was timely with respect to the
bankruptcy court's November 18th order denying his second motion.
Although there are no decisions in this circuit that directly
address the effect of successive post-judgment motions under Rule
8002(b), several cases directly address the effect of successive
motions under Federal Rule of Civil Procedure 4(a)(4). Because
Rule 4(a)(4) directly tracks the language of Rule 8002(b), Courts
typically look to decisions applying Rule 4(a) as a guide to
applying Rule 8002. See In re Arrowhead Estates Development Co., 42
F.3d 1306, 1311 (9th Cir 1994)(quoting In re Brickyard, 735 F.2d
1154, 1156 (9th Cir. 1984)).
This court has previously held that successive Rule 59(e)
motions for reconsideration or rehearing generally do not toll the
appeals period under Rule 4(a)(4). In United States v. One 1988
Dodge Pickup, 959 F.2d 37, 39 (5th Cir. 1992), the court held that
Rule 4(a)(4) "does not embrace a second Rule 59 motion that merely
challenges the denial of the original Rule 59 motion." Similarly,
in Charles L.M. v. Northeast Ind. Sch. Dist., 884 F.2d 869, 871
(5th Cir. 1989), the court held that a second motion for
reconsideration did not toll the appeals period under Rule 4(a)(4)
because "[t]he interest of finality requires that the parties
generally get only one bite at the Rule 59(e) apple for the
purposes of tolling the time for bringing an appeal." Although
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Stangel's second post-judgment motion purportedly challenges the
bankruptcy court's denial of his first motion, the motion merely
repeats most of the arguments made in the first motion. Thus,
Stangel's second motion is essentially a successive motion for
reconsideration and, consequently, did not toll the appeals period
under Rule 8002(b).2 We therefore conclude that the district court
did not err in dismissing Stangel's appeal of the bankruptcy
court's final judgment and its October 26th order denying Stangel's
first motion for reconsideration.3
B.
We also agree that the district court did not err in affirming
the bankruptcy court's denial of Stangel's second motion for
reconsideration. Although motions for reconsideration or rehearing
are typically treated as Rule 59(e) motions, motions for
reconsideration or rehearing served more than 10 days after the
judgment are generally decided under Rule 60(b). Harcon Barge Co.,
784 F.2d at 669. Rule 60(b) provides for relief from a final
judgment under the following circumstances:
2
Bankruptcy Rule 9023 provides that "Rule 59 F.R. Civ.
P. applies in bankruptcy cases under the [Bankruptcy] Code." A
post-judgment motion for reconsideration or rehearing is
generally considered a Rule 59(e) motion to alter or amend if it
challenges the correctness of the judgment. See Edward H Bohlin
Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993).
3
The only distinguishing factor in this case is that a
Rule 59(e) motion served more than 10 days after the final
judgment is usually considered under Rule 60(b). See Harcon Barge
Co. v. D&G Boat Rentals, Inc., 784 F.2d 665, 669 (5th Cir. 1986).
However, because Stangel's second motion essentially relitigates
the merits of his earlier Rule 59(e) motion for reconsideration,
we are convinced that the rationale for limiting the tolling
effect of successive Rule 59(e) motions applies with equal force
to the present case.
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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(3) Fraud, misrepresentation, or other misconduct of an
adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
or
(6) any other reason justifying relief from the operation of
the judgment.
The bankruptcy court's denial of a Rule 60(b) motion is reviewable
under an abuse of discretion standard. See Williams v. Brown &
Root, Inc., 828 F.2d 325, 328 (5th Cir. 1987).
Stangel's second motion fails to raise any of Rule 60(b)'s
grounds for relief from the bankruptcy court's judgment. Rather,
he merely repeats the arguments he made in his first motion for
reconsideration. Denial of a Rule 60(b) motion that does not raise
any of the grounds for relief cognizable under that rule, but which
essentially repeats the arguments of a prior motion for
reconsideration, is generally not an abuse of discretion. See
Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199 (5th Cir. 1993);
Colley v. National Bank of Texas, 814 F.2d 1008, 1010 (5th Cir.
1993). We therefore conclude that the district court did not err in
affirming the bankruptcy court's November 18th order denying
Stangel's second motion for reconsideration.
AFFIRMED.
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