Opinion
Case No. 892-81381-288.
May 31, 2002
Edward Zinker, Esq,, Zinker Gelfand, Smithtown, NY, Counsel for the creditor, Dr. Arvan, et al.
Michael Carey, Esq., Carey Associates, New York, NY, Counsel for the trustee.
MEMORANDUM OF DECISION AND ORDER
This Court has jurisdiction over this matter under 28 U.S.C. § 1334(b) and the General Reference to the Court under Rule 4 of the General Rules of the United States District Court for the Eastern District of New York. This is a core proceeding under 28 U.S.C. § 157(b)(2). This Memorandum and Order constitutes Findings of Fact and Conclusions of Law under Fed.R.Civ.P. 52 as made applicable by Fed.R.Bankr.P. 7052.
On December 26, 2001, the trustee filed a motion for sanctions against Dr. Glen Arvan, the Arvan Group, P.C. and affiliated pension plans (collectively, "Arvan Entities"). As background to the disposition of the chapter 7 trustee's pending motion for sanctions, one has to begin with the trustee's earlier motion, filed on January 16, 2001, for an order authorizing the distribution of the net proceeds from the sale of a commercial warehouse in Denville, New Jersey, which was the principal asset of Merriman Associates Limited Partnership (LP) to each of its partners. This sale occurred about fifteen years from the date of formation of the LP. The distribution per partner was a function of the percentage of a limited partner's interest in the LP, less the distribution to the general partner in accordance with the elaborate provisions of the partnership agreement. In order to determine whether earlier distribution had been made to any of the partners, the trustee, who was appointed by the Court to serve as the acting general partner of the LP set himself the burdensome task of reconstructing of the financial records from the date of formation of the LP to the date of the proposed distribution. The records turned over to him by a representative of the general partner were incomplete; therefore, the trustee expended substantial time to supplement the LP's financial records from various other sources.
Under the proposed distribution, the Arvan Entities were scheduled to receive a lump sum payment of $110,0000, which represented the full recovery of its initial investment of $100,000 and an additional $10,268.12. On January 23, 2001, Dr. Arvan and his office manager appeared at the hearing and tendered a handwritten opposition to the trustee's motion. The office manager made persistent and contumacious efforts to represent Dr. Arvan as an individual in opposing the trustee's motion, but the Court ruled from the bench that Dr. Arvan could only speak for himself on a pro se basis and not through an employee of his medical practice PC. The Court further ruled that because the Arvan Entities as a collective entity included a professional corporation and various pension plans, those entities could not appear except through an attorney. Dr. Arvan was then directed to retain experienced counsel to represent the Arvan Entities in this contested matter, and was not permitted to proceed with its objection until it retained counsel.
According to the trustee, the Arvan Entities invested a total of $650,000 in various limited partnerships formed by the debtor or one or more of his affiliates, and the only recovery by the Arvan Entities of any part of those investments is from this LP. While this Court may understand Dr. Arvan's intense frustration over these losses, his frustration was not properly directed at the trustee, but at the debtor.
On March 16, 2001, the Arvan Entities filed a formal opposition, prepared by its new counsel, to the proposed distribution in which it asserted a claim for a return on its investment of $25,000 more than the reconstructed records of the LP showed. Attached to this response was a copy of its handwritten objection. Now the Arvan Entities also demanded a full and meticulous accounting of its Capital Account, including tangible evidence in the form of every distribution check, front and back, which the trustee alleged he had received. The implied rationale for the Arvan Entities' demand was that the trustee had undertaken to act as the acting general partner for the LP and, by necessary implication, that undertaking included the duty to account fully and in detail for each partner's interest in the LP.
In filing his motion, the trustee believed that he had, in fact, properly discharged his fiduciary duties as acting general partner, but the Arvan Entities were adamant in maintaining its objection. At the next regularly scheduled hearing of the trustee's motion to distribute, his special counsel turned over a substantial number of documents as the back-up for the trustee's accounting of the Arvan Entities' Capital Account. He could not produce copies, front and back, of each distribution made to the Arvan Entities because the depository bank for the LP, Bank Leumi, had destroyed all copies of its records of the LP account.
As an interim measure, the Court approved the final distribution to the partners, but ordered the trustee to establish a separate escrow in the disputed amount for the Arvan Entities pending further order of this Court. The interim distribution to the Arvan Entities was $110,268.12. After some adjustments, the disputed amount to be deposited into the trustee's escrow account was mutually agreed to be $17,200. In light of the undeniable fact that in both absolute and relative terms the amount in dispute was modest, the Court assumed that the matter would be promptly resolved following fairly short negotiations, and that no further hearings would have to be held on this contested matter. The trustee also represented that he had made or authorized several reasonable proposals of settlement, but that the Arvan Entities rejected them.
The trustee's working premise was that the burden for proving any entitlement to the disputed amount fell upon the Arvan Entities. Under this premise, the Arvan Entities would have to prove a negative proposition, namely, that it did not receive all of the prior distributions that the records of the LP showed. The Arvan Entities averred that it had maintained excellent records of its investments, including the one in this LP, and that it had reviewed these records when it filed its opposition to the proposed distribution. To test the validity of these repeated representations, the trustee or his special counsel demanded the immediate turnover of all of the relevant financial and other records held by any of the Arvan Entities and any of its current or former accountants. When a complete set of these records was not turned over, the trustee authorized his special counsel to file a motion for an order compelling the production of these requested documents and to have a subpoena issued for the depositions of Dr. Arvan, his office manager, and her husband who served as Arvan's accountant. The motion for an order compelling the production of documents and other relief was granted on July 23, 2001. The order was entered on the docket on July 25, 2001.
As part of this process, the trustee also authorized his special counsel to continue his efforts to recover the most comprehensive set of supplemental financial records possible from the limited partners and the LP's former accountants to prepare a definitive and fully documented response to the Arvan Entities' disputed claim. The additional information was recovered from multiple sources in the form of K-1s, federal income tax returns, and distributions received by other limited partners and any other relevant financial records. But the process of the trustee's adequately preparing to defeat the Arvan Entities' claim for $17,200 took a decidedly ugly turn. Now the trustee's goal was to prove that the Arvan Entities persistent claim for the additional $17,200 was both a fraud on the Court as well as extortion. In this respect, what purported to be the trustee's special counsel's effort to defeat the Arvan Entities' disputed claim turned into what may be fairly characterized a vendetta in which the end game was to prosecute a motion for sanctions against Dr. Arvan. This process of developing a response exhausted 225 hours for the legal services of the trustee's lead special counsel at $250 an hour, a senior associate at $200 an hour, a junior associate at $150 an hour, and a legal assistant at $90 an hour, which generated an accrual of $39,383 in fees plus costs.
The Arvan Entities' pragmatic response to the Order compelling production of documents was to withdraw its disputed claim and to accept the trustee's final accounting. Based upon the outstanding accruals of professional fees and costs and projected further fees and costs, the Arvan Entities determined, upon the advice of counsel, that it had already passed the point of diminishing returns, and authorized its counsel to notify the trustee and his special counsel by letter rather than enter into a formal stipulation which would be filed with the Court that the Arvan Entities were withdrawing its objection. Notwithstanding the withdrawal of the disputed claim, the trustee's special counsel insisted upon the enforcement of the order compelling production. The Court held an off-the-record conference with counsel for the parties, and directed the trustee's special counsel to put an end to his discovery campaign. This matter had now become moot. For a more complete record in this case, the Court should have entered a written order vacating the order compelling discovery and a similar order marking this dispute over $17,200 as moot.
The trustee then authorized his special counsel to file a motion for sanctions against the Arvan Entities on December 26, 2001, when the trustee's offers of settlement in relatively modest amounts were rejected. This was close to a full year from the date of the trustee's motion for distribution. The Court repeatedly urged counsel for the opposing parties to settle this matter and the trustee not to file and prosecute any motion for sanctions. As the Court pointed out, this case was filed in 1992, and ten years later, it was way beyond any reasonable deadline for the trustee's filing of his final report and the closing of this estate. Prosecuting a motion for sanctions would simply delay the closing of this estate and would only increase the costs of administration. Despite these urgings, the trustee also authorized his special counsel to prepare a very detailed declaration supported by a comprehensive and fully indexed and tabbed set of exhibits in support of his motion for sanctions. The rationale for prosecuting the motion was that the trustee would not succumb to any extortionate demands by the Arvan Entities when the latter had failed in all this time to establish its entitlement to any further distributions, and that the trustee had a fiduciary duty to the estate to prosecute a motion for sanctions as a proper response to the Arvan Entities' alleged "fraud on the Court."
The Arvan Entities and its counsel belatedly filed its detailed Affirmation and Affidavits on April 11, 2002 in response to the motion for sanctions. This precipitated yet another round of detailed declarations from the trustee's special counsel, supported by additional exhibits, another memorandum of law; this last set being filed on May 7, 2002, with a hearing scheduled to be held on the 10th. The Arvan Entities sensibly declined to submit further rebuttals to these additional declarations. It should be noted that the hearing date on this contested matter was adjourned several times at the mutual request of both counsel or because counsel for the Arvan Entities was prosecuting its appeal of an order of this Court that denied the request to withdraw as counsel solely due to Dr. Arvan's failure to agree to pay an additional retainer in the amount specified by the firm. More than four months had passed from the date of the trustee's filing of his motion for sanctions, with frequent emergency hearings and telephone conferences.
There was considerable delay in the filing of the Affirmation and Affidavits on behalf of the Arvan Entities. Even though counsel had participated actively in all aspects of the contested matter concerning the distributions, once the motion for sanctions was filed, the firm sought to withdraw as counsel for the Arvan Entities. The Court denied the motion. The firm filed an appeal of this determination, and the district court lent its good offices to resolving the appeal. After granting the firm a further extension to file its responsive pleading to the motion for sanctions, the matter was scheduled for an evidentiary hearing.
The Court declines as a matter of policy and practice to read pleadings and memoranda filed less than five (5) full business days before the date of an extended hearing, especially when there have been rounds and rounds of prior submissions which the Court and its chambers personnel have had to review and summarize in preparation for the hearing.
The adjourned hearing was scheduled to begin at 9:30 a.m. on May 10, 2002, with the whole day set aside on the Court's calendar for this single matter. The Court first convened a chamber's conference with counsel only. During this conference, Arvan's counsel made three oral motions in limine. Two were denied during the conference; the third was an oral motion to disqualify the trustee's special counsel under the Disciplinary Rule 5-102 of the New York Code of Professional Responsibility on the ground that special counsel would have to testify in this matter on material issues of fact.
D.R. 5-102, "Lawyer as Witness," states in pertinent part: "A lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client. . . . If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, the lawyer shall not serve as an advocate on issues of fact before the tribunal . . . .
Primarily in what the movant's counsel anticipated would be the trustee's special counsel's rebuttal to the Arvan Entities' testimony about who said what to whom with respect to what over an extended period of time.
The Court then concluded the conference which lasted for close to ninety minutes and directed counsel for both parties to present their opening statements and to assert any in limine motions either wished to make. The nub of the trustee's argument in support of his motion for attorneys' fees was that the Arvan Entities' initial formal opposition to the motion, filed on March 15, 2001, and the subsequent filing on April 10, 2002 constituted a "fraud on the Court." The trustee was prepared to prove, so his special counsel argued, that the very inconsistencies between these responsive papers further proved a fraud on the Court, for one or the other of the responsive pleadings had to be a false representation to the Court; they could not be both true.
The nub of the Arvan Entities' argument was that the withdrawal of its objection to the proposed distribution precluded the imposition of any such sanctions, especially when the amount of the sanctions began at $37,500 and was climbing, according to the trustee's special counsel, to $60,000 to $70,000. for the additional costs and fees in prosecuting the motion for sanctions. Not only was the amount requested for sanctions grossly disproportionate to the disputed amount of $17,200, but the prodigious expenditure of time it took to complete the detailed accounting after the lodging of its objection was probative evidence that the Arvan Entities were justified in lodging that objection. If it took that much scrupulously detailed investigative work to rebut the objection with a full and final accounting, supported by the requisite documentation, then the only discernible motive for the motion for sanctions seemed to be a strong desire by the trustee and his special counsel to punish the Arvan Entities for causing the expenditure of such excessive time charges.
One partner in the law firm representing the Arvan Entities then began to present its oral motion to disqualify the trustee's special counsel, with interjections by another partner who both supported the motion but also tried to be responsive the Court's request for an opening statement. This double-teaming seemed inappropriate and only added to the confusion. Meanwhile, four witnesses who had been subpoenaed or who had voluntarily been produced by this law firm were kept waiting for several hours.
In response to the oral motion to disqualify him and his firm, the trustee's special counsel then requested an order from the Court directing the Arvan Entities' counsel to file a formal written motion, supported by a memorandum of law, and that he be given sufficient opportunity to do the appropriate research before replying to the motion, to deliberate on the merits of the motion, and to consult with the trustee about retaining new trial counsel for this hearing. The Court denied the request from the bench on the ground that the allegations and legal basis for the motion to disqualify were adequately spread across the record in open court. The remaining parts of the special counsel's request was granted.
Between the in-chambers conference and the opening statements, this phase of the hearing had exhausted at least three and one-half hours, with no witnesses yet having been called. Two of the subpoenaed witnesses made an oral application for permission to leave the courthouse and return on another day. At this point, the Court continued the contested matter for sanctions sine die and scheduled deadlines for further submissions by the trustee's special counsel and a hearing date on the motion to disqualify. In passing, the Court remarked that the case law in this circuit frowns on motions to disqualify counsel on the eve of trial. In Vegetable Kingdom, Inc. v. Katzen, 653 F. Supp. 917, 921 (N.D.N.Y. 1987), the court held that "Motions to disqualify opposing counsel should be approached with "cautious scrutiny'." (Citations omitted). And in In re Allboro Waterproofing Corp., 224 B.R. 286, 290 (Bankr. E.D.N.Y. 1998) the court noted that "The Second Circuit has therefore adopted a cautious approach when resolving disqualification motions" since "disqualification motions have become `common tools of the litigation process, being used . . . for purely strategic purposes.'" (discussing Allegaert v. Perot, 565 F.2d 246 (2d Cir. 1977). The court in Allboro Waterproofing noted that such motions should be "subjected to strict scrutiny because of the "strong potential for abuse' when a lawyer invokes the need to call opposing counsel as a witness and then acts to disqualify him as counsel." Allboro Waterproofing Corp., 224 B.R. 286, 296 (discussing Paramount Communications, Inc. v. Donaghy, 858 F. Supp. 391, 394 (S.D.N.Y. 1994)).
After further deliberation, the Court reached the conclusion that more than enough time had been extended by the parties and their respective counsel on the motion for sanctions, and that this matter should, as a matter of prudence, be determined on the voluminous pleadings, declarations, affidavits, affirmations, and memoranda of law. There could be no reasonable basis for protracting this matter in light of this continuing escalation of costs and attorneys' fees.
II. Discussion.
A. Legal Basis.
The trustee relies for his authority in support of his motion for sanctions upon this Court's inherent authority, the all-writs provision of the Bankruptcy Code under 11 U.S.C. § 105 (a). and Fed.R.Bankr.P. 7034 and 7037.
As to any "inherent authority," this Court is of the opinion that any inherent authority should rarely be resorted to if there is a substantive provision of the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure that addresses the dispute. As to section 105 (a), the courts of appeals have repeatedly held that bankruptcy judges have misused 11 U.S.C. § 105 (a) to rewrite provisions of the Bankruptcy Code in order to reach desired outcomes for which no other explicit provision was enacted by Congress. Section 105 "does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law, or constitute a roving commission to do equity." United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir. 1986); Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3d Cir. 1985). And the court in Barbieri v. RAJ Acquisition Corp. (In re Barbieri), 199 F.3d 616, 620-21 (2d Cir. 1999) stated that the "equitable powers emanating from § 105(a) . . . are not a license for a court to disregard the clear language and meaning of the bankruptcy statutes and rules." (citing Official Comm. of Equity Sec. Holders v. Mabey, 832 F.2d 299, 302 (4th Cir. 1987). This Court rarely, if ever, relies upon section 105 (a) as the basis for issuing any order.
This leaves Fed.R.Bankr.P. 7034 and 7037 as the remaining source of authority to grant the trustee's motion for sanctions. These particular rules do apply to contested matters "unless the Court otherwise directs." In this respect, Rules 7034 and 7037 are the default rules for contested matters under Fed.R.Bankr.P. 9014, and are only made inapplicable by an express determination by the Court. Fed.R.Bankr.P. 7034 has no direct bearing on the trustee's motion — it simply addresses the production of documents and is not a predicate for sanctions. Fed.R.Bankr.P. 7037 does expressly provide for sanctions for violation of an order compelling discovery by a recalcitrant party under section (b) of the Rule. The imposition of costs and reasonable attorney's fees to opposing counsel is a residual remedy; it is the catch-all final sentence to section (b) of the Rule which enumerates and describes the range of sanctions that the court should consider. In exercising this type of discretion, it is, of course, incumbent upon the Court to review the totality of the facts and circumstances in the particular contested matter or adversary proceeding.
This Rule provides:
In a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought. . . . The motion shall be sewed in the manner provided for service of a summons and complaint by Rule 7004, and, unless the court otherwise directs, the following rules shall apply: 7021, 7025, 7026, 7028-7037, 7041, 7042, 7052, 7054-7056, 7064, 7069, and 7071. The court may at any stage in a particular matter direct that one or more of the other rules in Part VII shall apply. . . . The clerk shall give notice to the parties of the entry of any order directing that additional rules of Part VII are applicable or that certain of the rules of Part VII are not applicable. The notice shall be given within such time as is necessary to afford the parties a reasonable opportunity to comply with the procedures made applicable by the order.
Rule 7037 makes Federal Rule of Civil Procedure applicable in adversary proceedings. Fed.R.Civ.P. 37 (b) provides that "In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."
The trustee has pressed a motion that goes beyond the limits of the scope of Rule 7037 because the bulk of his attorneys' fees, sought in the motion for sanctions, were incurred before the motion to compel discovery was entered as well as after the Arvan Entities' withdrawal of this disputed claim. A plain reading of Rule 7037 speaks only to reimbursing costs and attorney's fees incurred to enforce the order compelling discovery. In this case, there were no substantial attorney's fees and costs properly incurred by the trustee after the entry of the order compelling discovery because, as discussed above, the issue of discovery became moot. In view of this, the trustee and his special counsel may recover as a sanction the reasonable attorney's fees incurred for the period from preparing the motion to compel discovery through the date of withdrawal of the Arvan Entities' demand for $17,200. It then becomes a matter of this Court's exercise of its sound discretion in determining whether the imposition of sanctions is justified under the totality of the facts and circumstances surrounding this acrimonious dispute over $17,200, and if so justified, in what amount.
This Court tends to view the Arvan Entities' withdrawing its objection to the distribution as analogous to the safe harbor provision of Fed.R.Bankr. 9011(c). In sum and substance, this Court accepts as a valid explanation that the Arvan Entities made a conscious decision, on the advice of counsel, to withdraw its objection on a pragmatic assessment of the costs versus the benefits of continuing to oppose the trustee's proposed distribution. There was only a marginal basis for filing its formal objection in the first place, given the trustee's fiduciary duties as acting general partner and the incomplete state of the financial records of the LP. By no stretch of the legal imagination does the Arvan Entities' course of conduct amount to a "fraud upon the Court," as alleged by the trustee's hyperbolic special counsel.
Rule 9011(c)(1) provides:
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be sewed as provided in Rule 7004. The motion for sanctions may not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition in violation of subdivision (b).
B. The Totality of the Facts and Circumstances Surrounding This Contested Motion.
There is no doubt that the trustee incurred actual attorneys' fees and costs in inducing the Arvan Entities to withdraw its objection, and that Dr. Arvan and his associated professional personnel were far less cooperative and forthcoming than they should have been in responding to the trustee's reasonable and repeated requests for the production of their "excellent" records. Having directly experienced the level of animus that overcame the parties as it played out in this Court's presence at numerous status conferences, off-the-record in chambers or telephone conferences, and having carefully studied the cascading motions, oppositions, declarations, affirmation, voluminous exhibits, and memoranda of law, this Court is confident that it too has suffered the full measure of this disputed matter. As a finding of fact, based upon this extensive record, this Court finds that Dr. Arvan and its associated personnel were unjustifiably obstreperous on repeated occasions in refusing to cooperate and to comply fully in response to the trustee's reasonable requests for production of the Arvan Entities' records relating to the LP. It was completely unreasonable for the Arvan Entities to persist in demanding copies of both sides of checks issued by the general partner over a period of ten years before the trustee was appointed as acting general partner. The point of the matter is that the trustee presented a substantial number of documents supporting the accuracy and correctness of his proposed distribution, especially copies of the documents that were delivered to Dr. Arvan at this initial hearing and at later dates. The Arvan Entities exercised very poor business judgment in pressing this point after it received these supporting documents.
This Court also faults the trustee for not having tightly reined in his special counsel. There was no justification ex ante in continuing to collect more and more documents and in turning this dispute over modest dollars into a prosecution for an alleged fraud on the Court. See In re C. Keffas Son, Inc., 240 B.R. 466 (Bankr. E.D.N.Y. 1999). As special counsel inadvertently stated during the chamber's conference of May 10, 2002, he was trained as a federal prosecutor to spend whatever governmental resources were required in order to convict somebody of a federal offense, even if the amount at issue was "only a thousand dollars." No doubt special counsel was a dogged and resourceful federal prosecutor in the Southern District of New York. Some of those very talents were on display in prosecuting an adversary proceeding over the course of more than five years against the debtor, his affiliates, and other third parties. However, special counsel's prosecutorial indifference to expending substantial resources in this estate to contest this disputed matter of $17,200 was inexcusable. That attitude of indifference itself can only be described as poor litigation judgment that no reasonably prudent bankruptcy judge can tolerate, let alone reward the trustee's special counsel turned self-appointed prosecutor for excessive fees and expenses. Special counsel transmuted this whole episode involving the Arvan Entities into a relentless, no holds barred prosecution for sanctions more than double or now triple the amount in dispute. Excessive virtue ironically is often transmuted into excessive vice.
In hindsight, of course, the trustee should simply have scheduled an evidentiary hearing on the disputed matter of $17,200, based upon the documents he had collected through January 23, 2002. The Court suspects that the trustee had a reasonable probability of prevailing in this dispute, given the state of the reconstructed records he had analyzed by the initial hearing date on his motion to distribute. He had only to prove that Dr. Arvan's objection was lacking in merit by a preponderance of the evidence; he should have directed his special counsel to stop right there. If special counsel was apprehensive that he might be blind-sided at the forthcoming evidentiary hearing, then a formal motion to produce should have been immediately issued to the Arvan Entities, and if that motion were not properly complied with, then he could have proceeded with the evidentiary hearing with reasonable confidence that the trustee would probably prevail.
III. Conclusion and Disposition.
Under the totality of these facts and circumstances, the Court concludes that the Arvan Entities' obstinate stance and refusal to produce all of its records relating to the PC did justify the trustee's special counsel in drafting, filing, and pursing a motion to compel, which was granted without opposition and in continuing to prepare for the contested matter over the escrowed amount. For these efforts, the trustee should be reimbursed for fees and costs incurred during this narrow time frame. After reviewing the special counsel's sufficiently comprehensive and reasonable detailed time records, this Court has concluded that Dr. Arvan and the Arvan Medical P.C. shall be held jointly and severally liable in the amount of $2,500. This sanction must be paid within ten business days from the entry of this Memorandum and Order on the record.
If either party wishes to move for reconsideration of this Memorandum and Order, that party should deliberate long and hard before filing that motion and a supporting memorandum within ten days of the entry of this Memorandum and Order on the docket.