United States District Court, D. Maryland, Southern Division
W. GRIMM UNITED STATES DISTRICT JUDGE.
Nader Modanlo is an Iranian-American former aerospace
executive with a lengthy history as a participant in federal
legal proceedings, both as a debtor and as a convicted
white-collar criminal. See generally United States v.
Madanlo, 762 F.3d 403 (4th Cir. 2014). This appeal marks
the culmination of a 16-year-long Chapter 7 bankruptcy case
involving one of his companies, Final Analysis, Inc.
("FAI"). See In re Final Analysis, Inc.,
Bankr. No. 01-20139 TJC.
brought this appeal in September 2017, seeking to challenge a
bankruptcy court order approving attorney's fees for the
law firm representing the trustee as special counsel. I
dismissed the appeal in a July 2, 2018 memorandum opinion and
order, holding that Modanlo had waived his right to contest
the firm's application for compensation. See
July 2018 Mem. Op., ECF No. 30. Modanlo now seeks to alter or
amend the Court's judgment pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure. See ECF Nos. 34,
has not identified a "clear error of law" in the
prior judgment. See Robinson v. Wix Filtration
Corp., 599 F.3d 403, 407 (4th Cir. 2010). His motion,
accordingly, will be denied.
bankruptcy case stretches back to September 2001, when the
company's creditors filed an involuntary petition against
it under Chapter 7 of the Bankruptcy Code. See In re
Final Analysis, Inc., 389 B.R. 449, 451 (Bankr. D. Md.
2008). Soon after the case commenced, the Chapter 7 trustee,
Cheryl Rose, asked the bankruptcy court for authorization to
hire attorney James M. Hoffman as special counsel to oversee
the "extensive legal servies" the case would
require.ECF No. 34-1. Rose sought to place Hoffman
under a general retainer, explaining his responsibilities
would include: (1) representing the trustee in suits relating
to the bankruptcy case; (2) investigating and prosecuting
potential fraudulent conveyance actions or other avoidance
actions; (3) assisting in the preparation of pleadings,
motions, and other filings required to administer the estate;
and (4) advising the trustee in connection with the
liquidation of estate property. See Id. ¶
3. The court approved the request. See
December 2001 Order, ECF No. 34-2.
330(a) of the Bankruptcy Code authorizes a bankruptcy court
to award special counsel and other professionals
"reasonable compensation for actual, necessary
services" and "reimbursement for actual, necessary
expenses." 11 U.S.C. § 330(a)(1). In the years that
followed, Hoffman and his then firm, Shulman, Rogers, Gandal,
Pordy and Ecker, P.A. ("Shulman Rogers"), applied
for and received compensation for their services under this
provision seven times. See ECF No.4, Exs. 1, 6, 14,
374 43, 49, 55. Hoffman would later file
four more requests for compensation, but by then he was no
longer affiliated with Shulman Rogers. One of those
applications, approved in January 2010, sought compensation
for his work while a principal at Goren, Wolff, Orenstein and
Hoffman, LLC. See ECF NO.4, Exs. 68, 72. Three
others were approved while he was affiliated with another law
firm, Offit Kurman, P.A. See ECF No.4, Exs. 74, 78,
79, 83; ECF NO.3, Exs. 42, 50.
appeal concerns the last of Hoffman's applications. In
that filing, dated July 13, 2017, Hoffman asked the
bankruptcy court to authorize the trustee to pay $43, 713.50
in compensation to Offit Kurman, plus a $7, 366.40 fee
enhancement. See Offit Kurman Final Appl., ECF No.3,
Ex. 50. Modanlo objected to the request, arguing that the
special counsel's time entries were lacking detail and
that some of the special counsel's work was not
compensable. See ECF NO.3, Ex. 47. Rose, the
trustee, sought to strike Modanlo's response in
opposition to the application, asserting Mondolo had filed it
"for the improper purpose of harassing [Offit Kurman
and] causing needless expense to the Trustee." Mot. to
Strike ¶ 7, ECF No., ,
Ex. 48. The trustee's motion argued Modanlo had
"waived his right to object to administrative expenses
of the professionals"" in 2004, when he and Rose
entered into a settlement agreement to resolve their various
disputes in connection with the bankruptcy
case. Id. ¶ 8.
bankruptcy court agreed. See Final Order, ECF NO.3,
Ex. 50. In an August 2017 order granting Hoffman's
application, the court stated Modanlo had "no right to
object" to the application, as he had
"contractually bargained away his right to object to the
compensation of professionals as a creditor in this
appealed the bankruptcy court's order. See ECF
No. 1. On July 2, 2018, I granted Offit Kurman's motion
to dismiss the appeal, concluding that Modanlo had indeed
waived his right to challenge the special counsel's
application. July 2018 Mem. Op., ECF No. 30. Modanlo has
since filed a motion for reconsideration, ECF No. 34. That
motion has been fully briefed. See ECF Nos. 34, 353
367.7. No. hearing is necessary. See Fed. R. Bankr.
P. 8019(b)(3); Loc.R. 105.6.
district court "sits as an appellate tribunal in
bankruptcy." In re Birmingham, 846 F.3d 88, 92
(4th Cir. 2017). As such, it reviews the bankruptcy
court's findings of fact for clear error and its
conclusions of law de novo. See Id. A finding of
fact "is 'clearly erroneous' when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." In re Rood, No.
DKC 12-1623, 2013 WL 55650, at *2 (D. Md. Jan. 2, 2013)
(quoting In re Fitzwater, No. 11-934, 2022 WL
4339559, at *2 (S.D.W.V. Sept. 21, 2022)). "With respect
to the bankruptcy court's application of law to the
facts, the district court reviews for abuse of
Modanlo seeks to amend a judgment of this Court pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure.
See Mot. for Recons. 1, ECF No. 34. A district
court's power to grant or deny a Rule 59(e) motion is
discretionary. See Robinson v. Wix Filtration Corp.,
599 F.3d 403, 411 (4th Cir. 2010). The rule provides
that a court may alter or amend a judgment "if the
movant shows either (1) an intervening change in the
controlling law, (2) new evidence that was not available at
trial, or (3) that there has been a clear error of law or a
manifest injustice." Id. at 407.
Rule 59(e) motion is not a vehicle for parties to
recapitulate arguments considered by the Court before
rendering its original decision." IFCO Sys. N. Am.,
Inc. v. Am. Home Assurance Co., 797 F.Supp.2d 660, 671
(D. Md. 2011). It is likewise not an opportunity "to
raise arguments which could have been raised prior to the
issuance of the judgment, nor . . . to argue
a case under a novel legal theory that the party had the
ability to address in the first instance." Pac. Ins.
Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403
(4th Cir. 1998). Where, however, the court has misapprehended
the facts or arguments or is persuaded its judgment was
plainly erroneous, the court may grant the motion.
See Steven S. Gensler, Federal Rules of Civil
Procedure: Rules and Commentary 234-35 (2018 ed.).
Rule 59(e) motion purports to raise "four independent
but related reasons" for amending the Court's
judgment dismissing his appeal. Mot. for Recons. 1. Two of
those assertions essentially attack the Court's
interpretation of the 2004 settlement agreement. The first is
that I erred in concluding Modanlo's objection to the
special counsel's application was barred as an
"adverse" action, as defined in Paragraph 3.a of
the settlement agreement. See Suppl. Mot. 7-9, ECF
No. 35. The second is that, even if "adverse," the
objection was nevertheless permissible under other terms
contained in the agreement. See Id. at 9-11.
motion does not alter my view that he waived his right to
contest counsel's application. Nevertheless, to clear up
any possible misunderstandings, I will take a moment here to
further detail my reasoning.
has raised a dispute over the interpretation of a contract,
and so I start, as one must, with a recitation of the
pertinent provisions. Paragraph 3, which bears the subject
line, "Modanlo Group Objections & Further
Participation in ...