United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH United States Magistrate Judge
case comes before the Court on Plaintiff's Motion to
Vacate Order (Doc. 24) Dismissing Case Due to Lack of
Abandonment by Chapter 7 Trustee and Denying Plaintiff's
Motion for Leave to Proceed In Forma Pauperis (Doc. 25). I
respectfully recommend that the motion be
Plaintiff Isabel Santamaria's 253 page complaint alleges
that Defendants violated the Americans with Disabilities Act
(Doc. 16). She also seeks redress under 42 U.S.C. § 1983
(Id.). When Plaintiff filed this lawsuit, she
requested leave to proceed in forma pauperis (Doc.
2). I found multiple problems with Plaintiff's complaint
and recommended that it be dismissed without prejudice, with
leave to amend (Doc. 9). The Court adopted my report and
recommendations and gave Plaintiff leave to file an amended
complaint, which she did (Docs. 15-16). Plaintiff also filed
a new motion for leave to proceed in forma pauperis
amended complaint Plaintiff reported having filed a Chapter
13 bankruptcy case which was later converted to Chapter 7
(Doc. 18 at 9). Consequently, Plaintiff's claims in this
case had become property of the bankruptcy estate leaving the
Chapter 7 trustee as the only person with standing to assert
them. Doscher v. Barnett, No.
6:16-cv-1515-Orl-18TBS, 2016 U.S. Dist. LEXIS 175967, at *2
(M.D. Fla. Nov. 4, 2016). “When a bankruptcy case is
filed, virtually all of the debtor's assets vest in the
bankruptcy estate. Such property includes causes of actions
belonging to a debtor at the commencement of a case.”
In re Upshur, 317 B.R. 446, 452 (Bankr. N.D.Ga.2004)
(citing 11 U.S.C. § 541(a)(1)); Chen v. Siemens
Energy Inc., 467 Fed.Appx. 852, 853-54 (11th Cir. 2012)
(“The trustee, as the representative of the bankruptcy
estate, becomes the only party with standing to bring a cause
of action that belongs to the estate.”). Under 11
U.S.C. § 554, once an asset becomes part of the
bankruptcy estate, the debtor's rights in the asset are
extinguished unless the asset is abandoned back to the
debtor. Chen, 467 Fed.Appx. at 853 (citing
Parker, 365 F.3d at 1272). Because the Chapter 7
trustee was not bringing the lawsuit, I recommended that the
case be dismissed without prejudice (Doc. 18). The Court
agreed and the case was dismissed without prejudice on May
15, 2019 (Doc. 24). Plaintiff did not seek reconsideration or
appeal the Court's decision.
3, 2019, Plaintiff filed the pending motion, asking the Court
to vacate its dismissal order (Doc. 25). As grounds, she
states that on May 28, 2019, the Chapter 7 trustee gave
notice of his intent to abandon the claims asserted in this
lawsuit (Doc. 25, ¶ 11). Chambers checked the bankruptcy
file to see what, if anything had occurred in response to the
Chapter 7 Trustee's notice and found that no objections
were filed. Chambers also found that Plaintiff and her
husband received a discharge from the bankruptcy court on
June 27, 2019 (No. 6:18-bk-7478-KSJ, Doc. 48).
the bankruptcy trustee is vested with the power to sell
property of the estate, he is also authorized to abandon
property of the estate. 11 U.S.C.A. § 554; In re
Bast, 366 B.R. 237, (S.D. Fla. May 2, 2007); Gaylor
v. Ga. Dep't of Natural Resources, 2:11-cv-288-RWS,
2016 WL 705620, at *4 (N.D.Ga. Feb. 23, 2016). Once the
trustee abandons a pending lawsuit, the debtor is free to
pursue the cause of action. Steger v. Gen. Elec.
Co., 318 F.3d 1066, 1080 (11th Cir. 2003); Failla v.
Citibank, N.A., 542 B.R. 66, 611 n.5 (S.D. Fla. 2015)
(citing In re CVA Gen. Contractors, Inc., 267 B.R.
773, 780 n.7 (Bankr.W.D.Tex. 2001) (“When a trustee
abandons a cause of action, the cause of action is revested
in the debtor as if it was never property of the
estate[.]” Now I find that Plaintiff once again has
standing to assert her claims.
fails to cite any Federal Rule of Civil Procedure or case law
in support of her motion. To process this matter, I have
construed the motion as one for reconsideration. The rules do
not specifically provide for the filing of a motion for
reconsideration, but it is generally understood that
Fed.R.Civ.P. 59(e) encompasses motions for reconsideration.
11 Charles Alan Wright et al., Federal Practice &
Procedure § 2810.1 (3d ed. 2017); Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991),
cert. denied, 506 U.S. 828 (1992)).
of a court's order is an extraordinary remedy and a power
to be “used sparingly.” United States ex rel.
Mastej v. Health Mgmt. Assocs., Inc., 869 F.Supp.2d
1336, 1348 (M.D. Fla. 2012). “Appropriate circumstances
for reconsideration include situations in which the Court has
obviously misapprehended a party's position, the facts,
or mistakenly has decided an issue not presented for
determination.” U.S. v. Halifax Hosp.
Medical Center, No. 6:09-cv-1002-Orl-31TBS, 2013 WL
6284765, at *1 (M.D. Fla. Dec. 4, 2013). Reconsideration is
also warranted based upon: “(1) an intervening change
in controlling law; (2) the availability of new evidence; and
(3) the need to correct clear error or manifest
injustice.” McGuire v. Ryland Grp., Inc., 497
F.Supp.2d 1356, 1358 (M.D. Fla. 2007).
motion for reconsideration must demonstrate why the court
should reconsider its past decision and set forth facts or
law of a strongly convincing nature to induce the court to
reverse its prior decision.” Florida College of
Osteopathic Medicine, Inc. v. Dean Witter Reynolds,
Inc., 12 F.Supp.2d 1306, 1308 (M.D. Fla. 1998). Parties
cannot use a motion for reconsideration to ask a district
court to “relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the
entry of judgment.” Wilchombe v. TeeVee Toons,
Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting
Michael Linet, Inc. v. Vill. of Wellington, Fla.,
408 F.3d 757, 763 (11th Cir. 2005)).
party moving for reconsideration must present “facts or
law of a strongly convincing nature to induce the court to
reverse its prior decision.” McGuire, 497
F.Supp.2d at 1358 (internal quotations omitted). “This
ordinarily requires a showing of clear and obvious error
where the interests of justice demand correction.”
Id. (internal quotations omitted). “A party
who fails to present its strongest case in the first instance
generally has no right to raise new theories or arguments in
a motion for reconsideration.” Id. (internal
quotations omitted). “To avoid repetitive arguments on
issues already considered fully by the court, rules governing
reargument are narrowly construed and strictly
applied.” Capitol Body Shop, No.
6:14-cv-6000-Orl-31TBS, Doc. 129 at 3 (citing St. Paul
Fire & Marine Ins. Co. v. Heath Fielding Ins. Broking
Ltd., 976 F.Supp. 198, 201-02 (S.D.N.Y. 1996)).
bankruptcy trustee did not give notice that he was abandoning
the claims asserted in this case until after the case was
dismissed. Consequently, Plaintiff could not have presented
this activity in the bankruptcy case to the Court before the
dismissal order was entered. For this reason, and because the
trustee abandoned the claims, I respectfully recommend the
Court treat Plaintiff's motion as one for reconsideration
and grant it.
are still numerous problems with Plaintiff's amended
complaint including that it is an impermissible shotgun
pleading in which each count incorporates by reference the
allegations of each preceding causes of action (Doc. 16,
¶¶ 173-280. Gambino v. City of St. Cloud,
No. 6:18-cv-869-Orl-31TBS, 2018 WL 5621517, at *3 (M.D. Fla.
Oct. 11, 2018) (“The most common type-by a long shot-is
a complaint containing multiple counts where each count
adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last
count to be a combination of the entire complaint
…”) (quoting Weiland v. Palm Beach Cty.
Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir.
amended complaint is still plagued by the same deficiencies I
identified in my original report and recommendations (Doc.
9). Therefore, I RESPECTFULLY RECOMMEND the
Court GRANT Plaintiff's motion to the
extent it seeks to reopen the case and give Plaintiff 21 days
leave to file a second amended complaint.