In re PMC Marketing Corp.
OPINION & ORDER
Before this court is Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) [Dkt. No. 1164]; Trustee’s Opposition to Creditor’s Motion for Prepetition Administrative Expenses [Dkt. No. 1171]; and Creditor’s Reply to Trustee’s Opposition [Dkt. No. 1175]. For the reasons set forth below, Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) is DENIED.
Debtor, PMC Marketing Corporation, filed a voluntary Chapter 11 bankruptcy case on March 18, 2009. Debtor’s Chapter 11 bankruptcy case was convеrted to Chapter 7 on May 21, 2010. Noreen Wis-covitch Rentas was appointed as the Chapter 7 trustee on the same day. Subsequently, creditor P.R. Electric Power Authority (“PREPA”) filed a Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9).
In the Motion presently before the Court, PREPA argues that it is entitled to prepetition administrative expenses. PREPA points out that during the twenty (20) days before the date of the commencement of Debtor’s bankruptcy case, the period of February 26 to March 17, 2009, Debtor received from PREPA electricity sold by PREPA to Debtor in the ordinary course of Debtor’s business. The services amounted to a total value of $154,023.52 and at least $89,336.42 from the total value remains unpaid by Debtor. PREPA contends that the difference between the two amounts is the result of the application of the payments made by Debtor’s prepetition surety pursuant to the prepetition bond issued by said security to jointly guаrantee payment by Debtor of its obligations to PREPA. PREPA further argues that the electricity supplied by PREPA to Debtor is moveable and was identifiable at the time that it passed through Debtor’s meters. PREPA argues that pursuant to 11 U.S.C. § 503(b)(9), “After notice and a hearing, there shall be allowed, administrative expenses ... [for] the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have beеn sold to the debtor in the ordinary course of such debt- or’s business.” Citing In re Grede Foundries, Inc.,
PREPA further points out that when courts are determining if a thing is a “good” for purposes of section 503(b)(9), courts apply the definition of “good” from the Uniform Commercial Code (the “UCC”). Therefore, because the UCC defines “goods” as “all things that are moveable at the time of identification to a contract for sale,” electricity is a “good” under the UCC definition of such term. Further, because electricity is identifiable to the consumer’s contract at the time it is metered at the consumer’s place and is moveable at the time that it is metered and afterwards, a utility that provides electricity to a debtor during the twenty days before the commencement of debtor’s bankruptcy case is entitled to administrative expense priority for the invoiced amount. Summarily, since PREPA supplied electricity to Debtor, in the Debtor’s ordinary coursе of business, during the twenty (20) day period prior to the commencement of Debtor’s bankruptcy case on March 18, 2009, PREPA is entitled to an administrative expense claim for the value of that electricity that remains unpaid pursuant to 11 U.S.C. § 503(b)(9) in the amount of $89,336.42.
In opposition, Trustee argues that PREPA’s Motion is actually a belated proof of claim in “disguise,” which cannot be filed three years after the deadline set by this Court. Pursuant to Fed.R.Bankr. P., Rule 3003, the Court can set the dеadlines to file proof of claims pursuant to § 501 of the Bankruptcy Code. Under the then active Local Rule 3003-1, “Proofs of claim in Chapter 11 cases must be filed: (a) on or before ninety (90) days from the date first set for the § 341 meeting of creditors; and, (b) for governmental units, within one hundred and eighty (180) days after the date of the order for relief, unless
(1) The first deadline was established by a “Notice of Chapter 11 Bankruptcy Case, Meeting of Creditors, & Deadlines” sent by the Court on March 20, 2009. Pursuant to said Notice, the bar dates were set as July 27, 2009 for regular creditors and September 16, 2009 for governmental units. See Dkt. 8. This Court gave notice of said bar dates to all creditors and parties in this case, including PREPA, on March 22, 2009. See Certificate of Service at Dkt. 9.
(2) The second deadline was established by an Order entered by this Court on February 19, 2010. Dkt. 588/ 663. In such Order, this Court stated that “[t]he cut-off date for administrative claims is 4/20/2010.” See Dkt. 588-p. 3, ¶ 11; Dkt. 663-p. 3, ¶ 11. This Court gave notice of said bar dates to all creditors and parties in this case, including the Movant who was notified through CM/ ECF on February 19, 2010, and March 26, 2010 through its counsel and twice by mail. See Certificate of Service at Dkt. 666.
(3) The third deadline that established the filing of proof of claims was notified when the case was converted to Chapter 7. The new bar dates were set as Septembеr 28, 2010 for regular creditors, and November 17, 2010 for governmental units. See Dkt. 866. The Court gave notice of said bar dates to all creditors and parties in this case, including the Movant who was notified through CM/ECF on May 21, 2010 through its counsel and twice by mail. See Certificate of Service at Dkt. 873.
Trustee contends that because PREPA had ample opportunities to file this instant claim, and PREPA on several occasions filed other similar claims, PREPA should be barred from filing this particular claim. Trustee points out several instances tо which PREPA had filed such similar claims: (1) PREPA filed a regular proof of claim in this case on July 7, 2009. See Claim 94-1. PREPA later amended its claim on January 20, 2010. See Claim 94-2. (2) PREPA also filed a “Motion for Allowance of Administrative Claim” on March 29, 2010 in response to this Court’s Order of February 19, 2010 [Dkt. No. 668]. The court granted PREPA’s Motion for Allowance of Administrative Claim on April 15, 2010 [Dkt. No. 710], That Motion filed on March 29, 2010 [Dkt. No. 668] makes no mention of this new requested administrative claim. Trustee further points out that although Fed.R.Bankr.P., Rule 3003(c)(3) and § 503(a) provide that the court may extend the time within which proofs of claim or interest may be filed, this extension must be based on “cause shown” such as excusable neglect. Trustee argues that PREPA has failed to show excusable neglect because PREPA received the notice of the filing of the case along with all creditors. Conclusively, the Trustee asks the court to deny PREPA’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) as a belated proof of сlaim. The Trustee also contends that PREPA did not check the required box for a § 503(b)(9) claim in the proof of claim form, another reason to deny the claim.
In response to the Trustee’s Opposition, PREPA argues that its Motion is not a proof of claim but instead is an administrative expense priority for the value of the electricity received by Debtor during the twenty (20) day period prior to the date of Debtor’s bankruptcy petition pursuant to 11 U.S.C. § 503(b)(9). PREPA further argues that its administrative expense claim is not delayed because it is not filing a
Even assuming arguendo that the court set April 20, 2010 as the bar date for filing all administrative expense claims and that the statement contained in the Minutes of the February 19, 2010 hearing is sufficient and adequate notice of said bar date, PREPA contends that its administrative expense claim at issue did not arise in Debtor’s chapter 11 case but rather when Debtor’s bankruptcy case was converted from chapter 11 to chapter 7. Therefore, PREPA was entitled to file its administrativе expense claim in Debtor’s chapter 7 case because pursuant to Fed. R. Bankr.P. 1019(3), all claims timely filed in Debtor’s chapter 11 case were deemed filed in Debtor’s chapter 7 case. Summarily, because PREPA did not have to file a new proof of claim in Debtor’s chapter 7 case, PREPA contends that it had timely filed a proof of claim during Debtor’s chapter 11 case and thus this instant proof of claim was deemed filed in Debtor’s chaрter 7 case. PREPA further contends that it could not have checked the box for a § 503(b)(9) claim since it was non-ejdstent on any versions of the B-10 forms available at the time of the filing was made.
II. Discussion and Analysis
After reviewing the arguments raised by the parties and the relevant law, the court finds that, in the context of this current inquiry, the electricity provided by PREPA is a “service” and thus does not fall under 11 U.S.C. § 503(b)(9). As such, PREPA is not entitled to a prepetition expense.
Although the Trustee focuses her rebuttаl on section 501 and Rule 3003, the weight of this matter and the relevant ensuing analysis falls squarely on section 503. An examination of the docket of this case reveals that PREPA did timely file a proof of claim covering the amounts for which PREPA now seeks administrative expense priority in Claim number 94-1 and 94-2. Moreover, as PREPA points out, 11 U.S.C. § 503(b)(9) does not mandate a filing deadline.
Section 503(b)(9), which was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), allows creditors to receive priority claims for the value of goods received by a debtor in the ordinary course of the debtor’s business within the twenty (20) days preceding the commencement of the bankruptcy case. 11 U.S.C.
A bankruptcy court in this Circuit has reviewed this issue in a different context in In re Erving Indus., Inc.,
Further, the electric company stated that it is not a utility provider because it was not listed under the chart of electric utility providers maintained by the Commonwealth of Massachusetts and that it is not a traditional provider of utilities because “it does not have a monopoly or exclusive service or franchise area, is not regulated by the government, and is subject to competition from a number of available alternative sоurces of electricity.” Id. Other courts have agreed with Judge Bo-roff in holding that electricity is a “good.” Enron Power Marketing, Inc. v. Nevada Power Co.,
Many courts however disagree with Judge BorofPs holding that electricity is a “service” rather than a “good.” In re Samaritan Alliance, LLC,
Per contra, this Court believes that in deciding the question whether electricity is a “good” or a “service” under the Bankruptcy Code, a court must carry out an inquiry into the unique facts of each case and thus this analysis cannot be determined without taking into consideration the tоtality of circumstances of all the relevant facts. In this instant case, PREPA plays a different role than the alternative energy provider in Erving. Contrary to PREPA, the alternative energy provider in Erving is exactly that, an alternative energy provider, in which the consumer can elect such alternative energy from a private corporation. This Court takes judicial notice of PREPA’s web-page.
The Puerto Rico Electric Power Authority (PREPA) is a public corporation that was founded in 1941. Our Mission is to provide electric energy services to customers in the most efficient, cost-effective and reliable manner in harmony with the environment. Our Vision is to ensure that PREPA’s operations are competitive to similar corporations around the world. PREPA produces, transmits and distributes, practically, all the electric power used in Puerto Rico. It is one of the major public electric power corporations in the United States. PREPA is directed by a Government Boаrd, comprised of nine members. Seven of its members are appointed by the Governor of Puerto Rico with the approval of the Senate. (emphasis added).
As seen above, PREPA is a government agency, seeking to provide utilities to the residents of Puerto Rico. Both the House Judiciary Report and the Senate Report on the provision provide in relevant part:
[Section 366] gives debtors protection from a cut-off of service by a utility becаuse of the filing of a bankruptcy*24 ease. This section is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility.
H.R.Rep. No. 95-595, at 350 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963, 6306; S.Rep. No. 95-989, at 60 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5846.
The term “utility” is not defined in the Bankruptcy Code, but its ordinary meaning is “a service (such as light, power, or water) provided by a public utility.” Merriam-Webster’s Collegiate Dictionary, (10th ed. 2001). The term “public utility” is defined as “a business organization (as an electric company) performing a public service and subject to special governmental regulation.” Id. Further guidance is provided by the legislative history of the provision. See Darby v. Time Warner Cable, Inc. (In re Darby),
III. Conclusion
This Court realizes that the Trustee raised other issues in her Reply, however, this Court, for judicial economy purposes, will not delve unnecessarily into these issues not relevant to the pertinent inquiry. Regardless, because PREPA provided a “service” rather than a “good” to Debtor, PREPA is not entitled to prepetition priority expenses pursuant to 11 U.S.C. § 503(b)(9).
WHEREFORE, Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) is DENIED.
SO ORDERED.
OPINION & ORDER
Before the court is Creditor P.R. Electric Power Authority’s (“PREPA”) Motion to Alter or Amend Judgmеnt [Dkt. No. 1181] and Trustee’s Opposition to Creditor’s Motion for Reconsideration [Dkt. No. 1184]. For the reasons stated herein, PREPA’s Motion to Alter or Amend Judgment is hereby DENIED.
Courts often entertain motions for reconsideration under either Rules 59 or 60 of the Federal Rules of Civil Procedure, depending on the time when such motion is served. See Perez-Perez v. Popular Leasing Rental, Inc.,
Accordingly, a Rule 59(e) motion for reconsideration usually cannot be granted absent highly unusual circumstances, unless the court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law. See Prescott v. Higgins,
PREPA’s Motion neither provides this Court with genuine reasons why the court should revisit its prior Order nor compelling facts or law in support of reversing the prior decision. Rather, PREPA misconstrues the basis of the actions taken by the court. Further, PREPA contends that this Court erred in its previous determination of energy as a service rather than a good by mirroring previous arguments already considered by this Court.
After considering arguments from both parties, this Court finds that Plaintiff does not presеnt this Court with adequate reasoning to justify good cause nor a special circumstance in demonstrating that the court’s previous reasoning constituted a manifest error of law. Further, Plaintiff fails to present newly discovered evidence nor any intervening change in law. This Court emphasizes the following as laid out in the original Opinion & Order:
Section 503(b)(9), which was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), allows сreditors to*26 receive priority claims for the value of goods received by a debtor in the ordinary course of the debtor’s business within the twenty (20) days preceding the commencement of the bankruptcy case. 11 U.S.C. § 503(b)(9). Thus, to qualify for administrative priority treatment, a claim must be: (1) for goods, (2) that are received by the debtor within the twenty (20) days prior to the bankruptcy filing, and (3) that are sold to the debtor in the ordinary course of its business. It is well settled that only “goods” аre eligible for this priority treatment, not “services.” In this instant case, there is no dispute that PREPA provided electricity to Debtor within the twenty (20) day period preceding the bankruptcy filing, and that the Debtor purchased that electricity in the ordinary course of its business. Thus, the only issue is whether the electricity provided by PREPA falls within the definition of “goods” for purposes of section 503(b)(9).
In re PMC Mktg. Corp, 09-02048,
WHEREFORE, IT IS ORDERED that PREPA’s Motion to Alter or Amend Judgment be, and it hereby is, DENIED.
SO ORDERED.
Notes
. See In re Grede Foundries, Inc.,
. www.aeepr.com. Accessed August 23, 2013.