MEMORANDUM OPINION
I. INTRODUCTION
Presently before me is a Motion for a New Trial and to Alter and Amend the Court’s Findings and Judgment (Docket Item [“D.I.”] 380; the “Motion to Amend”), filed by Plaintiff VFB L.L.C. (“VFB”). Also before me is a Motion to Strike VFB’s Motion to Amend (D.I. 384; the “Motion to Strike”), filed by Defendants Campbell Soup Company, Campbell Investment Company, Campbell Foodser-vice Company, Campbell Sales Company, Campbell Soup Company, Ltd. (Canada), Joseph Campbell Company, Campbell Soup Supply Company, L.L.C., and Pep-peridge Farm, Inc. (collectively, “Campbell”).
Jurisdiction over this case is proper undеr 28 U.S.C. § 1334. For the reasons that follow, Campbell’s Motion to Strike will be granted, and VFB’s Motion to Amend will be denied.
II. BACKGROUND
VFB brought this action against Campbell, alleging that Campbell engineered a fraudulent transfer of over $600 million from VFB’s predecessor in interest, Vlas-sic Foods International, Inc., (“VFI”), to Campbell, that Campbell controlled VFI’s directors and caused them to breach their fiduciary duties, that VFI paid illegal dividends to Campbell, that Campbell was VFI’s alter ego, and that Campbell’s Proof of Claim against VFI’s bankruptcy estate was either voidable or should be equitably subordinated. (D.I. 45, ¶¶ 699-759, D.I. 376 at 1.) On September 13, 2005, I entered my Findings of Fact and Conclusions of Law, deciding in favor of Campbell and against VFB on all counts. (D.I. 376 at 74.) Final judgment was entered against VFB on October 3, 2005. (D.I. 379.)
The background of this case was set out in my Post-Trial Findings of Fact and Conclusions of Law, and thereforе will not
III. DISCUSSION
A. Campbell’s Motion to Strike
1. The Bankruptcy Rules Apply to this Case
In its Motion to Strike, Campbell claims that VFB’s motion is untimely, as Campbell alleges that VFB filed its Motion to Amend more than ten days after the entry of final judgment in this case. (D.I. 385 at 1.) According to Campbell, Rule 9006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), rather than Rule 6 of the Federal Rules of Civil Procedure (the “Civil Rules”), applies to the computation of time for the ten-day deadline applicable here.
It is undisputed that under either set of rules, 1 the time for filing a motion fоr a new trial or a motion to alter and amend the judgment is ten days. See Fed.R.Civ.P. 52(b); Fed.R.Civ.P. 59(b), (e); Fed. R. Bankr.P. 7052; Fed. R. Bankr.P. 9023. As to the computation of time, however, the rules differ. Under the Civil Rules, “[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” Fed.R.Civ.P. 6(a). However, under the Bankruptcy Rules “[w]hen the period of time prescribed or allowed is less than 8 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” Fed. R. Bankr.P. 9006(a). Therefore, under the Civil Rules, intеrmediate Saturdays, Sundays, and legal holidays are not counted in the ten day deadline, but under the Bankruptcy Rules, they would be. Here, final judgment was entered on October 3, 2005 (D.I. 379.) Therefore, under the Civil Rules, VFB would have had until October 18, 2005 to file its Motion to Amend, but, under the Bankruptcy Rules, VFB had only until October 13, 2005 to file. VFB filed the Motion to Amend on October 18, 2005. Therefore, I must determine whether the Bankruptcy Rules or the Civil Rules apply to this action to decide whether VFB’s motion was timely filed.
Under 28 U.S.C. § 1334(b), a district court has “original but not exclusive jurisdiction of all civil proceedings arising under title 11, оr arising in or related to cases under title 11.” 28 U.S.C. § 1334. This court took jurisdiction over this action pursuant to 28 U.S.C. § 1334(b), and the parties did not dispute that the case is a “civil proceeding!] arising under title 11, or arising in or related to cases under title 11.” (D.I. 346 at ¶ CL1; Amended Complaint, D.I. 45 at ¶ 16.) Bankruptcy Rule 1001 states thаt “the Bankruptcy Rules ... govern procedure in cases under title 11 of the United States Code.” Fed. R. Bankr.P. 1001. This includes “bankruptcy cases filed under chapters 7, 9, 11, 12, and 13 of the Bankruptcy Code, and proceedings arising in or related to such cases, or arising under title 11.” Collier on Bankruptcy, ¶ 1001.01 (Alan N. Resnick et al. eds., 15th ed.2005). Therefore, as under
Further support for that conclusion is the statement by the United States Court of Appeals for the Third Circuit that, where a court has jurisdiction over a case based on 28 U.S.C. § 1334, the Bankruptcy Rules govern.
Phar-Mor, Inc. v. Coopers & Lybrand,
The answer to that question depends on the effect of the 2001 Amendment. The advisory committee note regarding the 2001 Amendment simply states that “[t]he reference to incorpоration of the Civil Rules in the Federal Rules of Bankruptcy Procedure has been restyled.” Fed.R.Civ.P. 81 advisory committee’s note;
see also Chrysler Financial Corp. v. Powe,
In sum, the decision in
Phar-Mor
remains good law, and Bankruptcy rule 9006 provides the proper method of computing time in this case. Under Bankruptcy Rule
2. The 10-day Time Limit is Jurisdictional
VFB filed its Motion to Amend under Civil Rules 52 and 59, which are made applicable to Bankruptcy cases by Bankruptcy Rules 7052 and 9023. Under Bankruptcy Rule 9006(b)(2), “[t]he court may not enlarge the time for taking action under Rules ... 7052[and] 9023.” Fed. R. Bankr.P. 9006. Furthermore, the 10-dаy filing deadline under rules 52 and 59 is jurisdictional, such that this court’s jurisdiction ceased to exist at the expiration
of
the time limit.
Browder v. Director, Dept. of Corrections of Illinois,
3. VFB’s Other Arguments
VFB presents three other arguments as to why Campbell’s Motion to Strike should not be granted. First, VFB argues that a Motion to Strike is “procedurally improper under the Federal Rules,” as a motion to strike under Rule 12(f) is for pleadings only. (D.I. 394 at 4.) VFB’s argument is unavailing for two reasons. First, courts in the Third Circuit have long granted motions to strike when a motion under Rule 52 or 59 was filed outside the 10-day deadline.
See, e.g., Kruse v. Zenith Radio Corp.,
Third, VFB argues that even if the Bankruptcy Rules apply, its motion should be considered a motion for reconsideration under Bankruptcy Rule 3008. Bankruptcy Rule 3008 states that “[a] party in interest may move for reconsideration of an order allowing or disallowing a claim against thе estate.” Fed. R.
If the standard for a motion under Civil Rule 60 is applied, VFB’s Motion to Amend cannot be considerеd a motion for reconsideration under Bankruptcy Rule 3008 for two reasons. First, in its motion VFB essentially alleges that the court committed legal error in wrongfully placing the burden of proof on VFB rather than Campbell. (D.I. 381 at 3.) A motion for reconsideration under Bankruptcy Rule 3008 or Civil Rule 60(b) is nоt a proper vehicle for alleging legal error.
U.S. v. Fiorelli,
Sеcond, because VFB has filed a notice of appeal (D.I. 387), this court only retains jurisdiction to deny a motion for reconsideration, but lacks the jurisdiction to grant it.
See, e.g., See Hancock Indus. v. Schaeffer,
Because I have determined that this court lacks jurisdiction to consider VFB’s Motion to Amend because it was untimely-filed under Bankruptcy Rule 9006, that motion must be denied as moot.
IY. CONCLUSION
Aсcordingly, Campbell’s Motion to Strike (D.I. 384) will be granted, and VFB’s Motion to Amend (D.I. 380) will be denied. An appropriate order will follow.
ORDER
For the reasons set forth in the Memorandum Opinion of today’s date in this matter,
IT IS HEREBY ORDERED that the Motion for a New Trial and to Alter and Amend the Court’s Findings and Judgment (Docket Item [“D.I.”] 380), filed by VFB L.L.C., is DENIED, and the Motion to Strike VFB’s Motion for a New Trial, or To Alter and Amend the Court’s Findings and Judgment (D.I. 384), filed by Defendants Campbell Soup Company, Campbell Investment Company, Campbell Foodser-vice Company, Campbell Sales Company, Campbell Soup Company, Ltd. (Canada), Joseph Cаmpbell Company, Campbell Soup Supply Company, L.L.C., and Pep-peridge Farm, Inc., is GRANTED.
Notes
. Bankruptcy Rule 7052 incorporates Civil Rule 52 into the Bankruptcy Rules. Fed. R. Bankr.P. 7052. Bankruptcy Rule 9023 incorporates Civil Rule 59 into the Bankruptcy Rules. Fed. R. Bankr.P. 9023.
. Additionally, the language of Rule 81(a)(1), that "these rulеs ... do apply to proceedings in bankruptcy to the extent provided by the Federal Rules of Bankruptcy Procedure,” supports the conclusion that Bankruptcy Rule 9006 applies to this case. The Bankruptcy Rules clearly incorporate many of the Civil Rules. See, e.g., Fed. R. Bankr.P. 7026 (incorporating Fed.R.Civ.P. 26); Fed. R. Bankr.P. 7052 (incorporating Fed.R.Civ.P. 52); Fed. R. Bankr.P. 9023 (inсorporating Fed.R.Civ.P. 59). However, although Bankruptcy Rule 9006 is modeled on Civil Rule 6 (Fed. R. Bankr.P. 9006, advisory committee note (1983)), Civil Rule 6 is clearly not incorporated into the Bankruptcy Rules, as Bankruptcy Rule 9006 provides a different method for the computation of time.
. I believe that the Fifth Cirсuit is correct that a motion under Bankruptcy Rule 3008 should be treated as a motion under Civil Rule 60. To allow a party to use Rule 3008 as a vehicle for requesting the correction of legal error beyond the 10-day period set out in Fed.R.Civ.P. 59 and Fed. R.App. P. 4(a)(4) would effectively destroy the 10-day limit. There would be no purpose for the 10-day period for a party filing a motion under Bankruptcy Rule 9023 or 7052, if that time limit was essentially abrogated by Bankruptcy Rule 3008.