Timothy Blixseth v. Brian A. Glasser , 593 F. App'x 643 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 11 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: YELLOWSTONE MOUNTAIN No. 13-35113
CLUB, LLC,
D.C. No. 2:12-cv-00020-SEH
Debtor,
MEMORANDUM*
TIMOTHY L. BLIXSETH,
Plaintiff - Appellant,
v.
BRIAN A. GLASSER, Esq., Trustee of
the Yellowstone Club Liquidating
Trust; YELLOWSTONE MOUNTAIN
CLUB, LLC; BLUE SKY RIDGE, LLC;
YELLOWSTONE DEVELOPMENT,
LLC; MICHAEL SNOW, 7 B
Shareholder; GREG BRANCH, 7 B
Shareholder; ROBERT P. WATSON, 7
B Shareholder; KATHARINE M.
WATSON, 7 B Shareholder; A. C.
MARKKULA, Trustee of the Arlin
Trust; 7 B Shareholder; LINDA
MARKKULA, Trustee of the Arlin
Trust; 7 B Shareholder; BANKERS
FINANCIAL CORPORATION, a
Florida corporation; 7 B Shareholder;
*
This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
page 2
SPANO YELLOWSTONE HOLDINGS
LIMITED PARTNERSHIP, 7 B
Shareholder; MOUNTAIN VISTA
PROPERTIES AG, 7 B Shareholder,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted August 5, 2014
Pasadena, California
Before: KOZINSKI, Chief Judge, PAEZ and BERZON, Circuit Judges.
The bankruptcy court acted well within its discretion in denying Timothy
Blixseth’s motion for reconsideration of an order allowing the B Shareholders a
$22 million claim against the estate.
Bankruptcy Rule 9024 says that Federal Rule of Civil Procedure 60 applies
to bankruptcy proceedings. Rule 9024 makes no exception for motions made
under 11 U.S.C. § 502(j) to reconsider contested orders allowing claims against the
estate. Under Rule 60, there are limited grounds for granting reconsideration, and
the bankruptcy judge reasonably determined that Blixseth falls short of all of them.
Blixseth meets none of the specific circumstances that justify
reconsideration under Rule 60(b)(1)–(5). Nor does he satisfy Rule 60(b)(6)’s
page 3
catchall provision because he fails to show that “extraordinary circumstances
prevented [him] from taking timely action.” United States v. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Even assuming that Blixseth
didn’t have standing to challenge the April 19, 2010 allowance order until the
amended AP 14 judgment came down on September 7, 2010, he still waited over a
year after that date to file the motion for reconsideration. And Blixseth’s excuse
for this delay—that the bankruptcy court lacked jurisdiction to address the
allowance order while the AP 14 judgment was on appeal—is unavailing. The
allowance order was independent of the AP 14 judgment, so it could have been
reconsidered while the AP 14 appeal was pending. See Nat’l Ass’n of Home
Builders v. Norton, 325 F.3d 1165, 1167 (9th Cir. 2003) (“As a general rule,
‘[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over
the matters being appealed.’”) (emphasis added) (quoting Natural Res. Def.
Council v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001)). Because
Blixseth has produced no convincing explanation for this delay, the bankruptcy
court didn’t abuse its discretion when it denied Blixseth’s motion for
reconsideration.
AFFIRMED.