Free Order on Motion to Reopen Case - District Court of Delaware - Delaware

Case 1:07-cv-00034-SLR Document 39 Filed 06/02/2008 Page 1 of 3
I IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 13
DAVID J. BUCHANAN, g Bk. No. 04-12419(JKF)
Debtor. g
DAVID J. BUCHANAN, )
Appellant, g
v. g Civ. No. 07-34-SLR
BARBARA BUCHANAN, )
Appellee. g
O R D E R
At Wilmington thisdgday of May, 2008, having reviewed appellant’s pending
motions;
IT IS ORDERED that the motion to re-open the case (D.I. 35) is denied and the
motion for appointment of counsel (D.l. 38) is denied as moot, for the reasons that
follow:
1. On September 26, 2007, the court dismissed the appeal and affirmed the
order of the bankruptcy court dated December 1, 2006. (D.I.34) This case, and a civil
action filed by appellant, Buchanan v. Gay, Civ. No. 06-711-SLR, focuses on actions
taken in Bankruptcy Court, Family Court, and the Delaware Supreme Court during
divorce, custody, visitation, and property settlement proceedings between appellant, his
former spouse, and virtually anyone connected to the litigation. As this court noted, "it is
apparent that appeIIant‘s appeal is more about the results ofthe Family Court

Case 1:07-cv-00034-SLR Document 39 Filed 06/02/2008 Page 2 of 3
proceedings than it is about his Chapter 13 case." (D.l. 34)
2. While difficult to discern, it appears appellant relies upon a 1997 District of
Wyoming bankruptcy case, Wyoming Dep’t of Transp. v. Straight, 209 B.R. 540, 551 (D.
Wyo. 1997), that discusses the issue of Eleventh Amendment immunity to support the
re-opening ofthe case. Appellant argues that the court considered immunity prior to
having an opportunity to respond to all arguments raised by appellee inasmuch as the
bankruptcy case did not close until November 2, 2007.
3. Rule 60 provides for relief from a judgment or order. It provides that a party
may file a motion for relief from a final judgment for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence by which
due diligence could not have been discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresen-
tation or other misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged, or a priorjudgment upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other reason justifying relief
from the operation ofthe judgment. Fed. R. Civ. P. 60(b).
4. AppeIIant’s argument for re-opening the case is specious. Notably, appellant
fails to meet any of the requisites for relief under Rule 60(b). Moreover, he relies on
non-precedential case law and, in this Circuit, there has been no change in the law on
Eleventh Amendment immunity. Finally, the bankruptcy court did not err in its decision,
its December 1, 2006 order was affirmed, and the appeal dismissed. The court also
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Case 1:07-cv-00034-SLR Document 39 Filed 06/O2/2008 Page 3 of 3
denies, as moot, appeIIant’s motion for appointment of counsel.
UNITED STATgS DISTRICT JUDGE
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