### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 31109

In the Matter of: GULF STATES LONG TERM ACUTE CARE OF COVINGTON, L.L.C.,

Debtor

------------------------------ DAVID V. ADLER,
Appellant

v.
GREGO RY D. FROST; BREAZEALE, SACHSE & WILSON, L.L.P ., Appellees

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:11

- CV

- 1659

Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges

. PER CURIAM: *

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 11, 2015 Lyle W. Cayce Clerk Case: 14-31109 Document: 00513075260 Page: 1 Date Filed: 06/11/2015Appellant David V. Adler (“Adler”) appeals the district court’s order dismissing his common

- law tort and contract claims against Appellees Gregory D. Frost (“Frost”) and Breaz e ale, Sachse & Wilson, L

. L

. P

. (“BSW”) for lack of

st anding

. Adler also appeals the district court’s order denying his motion to
reconsider its order dismissing his claims

. For the following reasons, we affirm.

I. Gulf States Long Term Acute Care of Covington, L.L.C. (“Debtor”), a long

- term healthcare facil ity in Louisiana, filed for bankruptcy under Chapter 11 of the Bankruptcy Code. BSW, a law firm, and Frost, a partner in BSW’s Baton Rouge office, represented Debtor in several financial transactions related to its continuing operations prior to bankruptcy

. Neither Frost nor BSW served as Debtor’s bankruptcy counsel in the chapter 11 case, however. Frost and BSW also represented Debtor’s co

- manager and several other defendants in a related derivative lawsuit. Those defendants are not parties to this appeal. The parties agree that neither Frost nor BSW was a creditor in Debtor’s bankruptcy case. The bankruptcy court ultimately confirmed Debtor’s Third Amended Plan of Reorganization (the “Plan”). The Plan contains a provision that purports to retain Debtor’s s tanding to pursue avoidance actions and fraudulent transfer actions aga inst a list of named defendants

. T hat list does not include Frost or BSW. The Plan also contains a different provision that purports to preserve “[a]ny and all other claims and causes of action which may have been asserted by the Debtor prior to the Effective Date” of the Plan. However, that provision does not specifically describe any “other claim[] or cause[] of action” that Debtor
intends to retain. Case: 14-31109 Document: 00513075260 Page: 2 Date Filed: 06/11/2015No. 14

- 31109

3 Each of the Plan’s claim retention provisions purports to authorize a disbursing agent to pursue claims on Debtor’s behalf for the benefit of
unsecured creditors. The bankruptcy court appointed Adler to s erve as Debtor’s disbursing agent

. After the bankruptcy court confirmed the Plan, Adl er commenced an adversary proceeding in the bankruptcy court in which he asserted various

common
- law tort and contract claims against Frost and BSW. 1 Adler alleged that Frost and BSW, “[i]n connection with and during” their representation of Debtor, (1) en gaged in legal malpractice; (2) deliberately conspired with the Debtor’s managers and their officers and directors; and (3) knowingly participated in a scheme to defraud Debtor, its minority owners, and its creditors of Debtor’s assets for the benefit of

c ompanies owned and controlled by other clients of Frost and BSW. This scheme resulted in the looting of [Debtor] of an amount in excess of Five Million Dollars ($5,000,000.00) and [Debtor]’s ultimate demise.

The district court then withdrew the reference to the bankruptcy court, so that the district court would rule on the adversary proceeding instead of the bankruptcy court. Frost and BSW moved to dismiss Adler’s claims against them. They argued that Adler lacked standing to pursue his claims because the Plan and the accompanying disclosure statement failed to specifically and unequivocally

reta in them. The district court agreed and accordingly dismissed Adler’s claims against Frost and BSW. Adler then returned to the bankruptcy court, seeking, among other things, a clarification that the Plan specifically reserved his claims against

1 Adler also brought common

- law and avoidance actions against several other defendants in that suit , but those defendants are not parties to this app eal. Case: 14-31109 Document: 00513075260 Page: 3 Date Filed: 06/11/2015No. 14

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4 Frost and BSW. The bankruptcy court denied that request because the district court’s order dismissing those cla ims was “binding on the parties and this Court and cannot be collaterally attacked.” However, the bankruptcy court also ruled that Adler did have standing to pursue claims against several other non
creditor defendants who are not parties to this appeal. Armed with the bankruptcy court’s opinion, Adler moved the district court to reconsider its order dismissing his claims against Frost and BSW. Adler argued that it would be anomalous to allow him to pursue his claims against the other non
- creditor defendan ts, but not against Frost and BSW , who
also were not creditors of Debtor . The district court disagreed and accordingly denied Adler’s motion for reconsideration. Adler now appeals both the district court’s order dismissing his claims and its order denying his motion for reconsideration.

II. The district court granted Frost and BSW’s motion to dismiss Adler’s claims pursuant to Federal Rule of Civil Procedure 12(b)(1) , so we will review
the dismissal order de novo

. 2 “We review a district court’s denial of a motion for reconsideration for abuse of discretion.” 3 “ T his court interprets the terms of a bankruptcy reorganization plan . . . de novo and holistically.” 4

2 United States v. Renda Marine, Inc. , 667 F.3d 651, 655 (5th Cir. 2012) (citing LeClerc v. Webb , 419 F.3d 405, 413 (5th Cir. 2005)).
3 LeClerc , 419 F.3d at 412 n.13 (citing Westbrook v. C.I.R. , 68 F.3d 868, 879 (5th Cir. 1995)).

4 Evercore Capital Partners II, L.L.C. v. Nancy Sue Davis Trust (In re Davis Offshore, L.P.) , 644 F.3d 259, 263 (5th Cir. 2011) (citing New Nat’l Gypsum Co. v. Nat’l Gypsum Co. Settlement Trust (In re Nat’l Gypsum Co.) , 219 F.3d 478, 484 (5th Cir. 2000)). Case: 14-31109 Document: 00513075260 Page: 4 Date Filed: 06/11/2015No. 14

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5 I I I. Ordinarily, when a bankruptcy court confirms a chapter 11 reorganization plan, the bankrup tcy estate ceases to exist, and the debtor (or its representative) loses its authority to pursue claims on behalf of the estate. 5 However, s ection 1123(b)(3)(B) of the Bankruptcy Code allows a reorganization plan to “provide for . . . the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any . . . claim or interest” belonging to the debtor or to the estate.
In Dynasty Oil & Gas, LLC v. Citizens Bank (In re United Operating, LLC) , 540 F.3d 351 (5th Cir. 2008) (“ United Operating ”), we held that “[a]fter confirmation of a plan, the ability of the debtor” or its representative “to enforce a claim once held by the estate is limited to that w hich has been retained in the plan.” 6 “If a debtor has not made an effective reservation, the debtor has no standing to pursue a claim that the estate owned before it was dissolved.” 7 “For a debtor to preserve a claim, the plan must expressly retain the ri ght to pursue such actions. The reservation must be specific and unequivocal.” 8 A “blanket reservation of ‘any and all claims’” is insufficient to preserve the debtor’s standing to sue. 9 T h is rule is intended to (1) promote the efficient
administration o f the bankruptcy estate and (2) provide creditors the

5 Dynasty Oil & Gas, LLC v. Citizens Bank (In re United Operating, LLC) , 540 F.3d 351, 355 (5th Cir. 2008).
6 Id

. (brackets omitted) (quoting Paramount Plastics, Inc. v. Polymerland, Inc. (In re Paramount Plastics, Inc.) , 172 B.R. 331, 333 (Bankr. W.D. Wash. 1994))

. The C ourt may also consult the disclosure statement accompanying the reorganization plan to determine whether the post

- confirmation debtor has standing. Spicer v. Laguna Madre Oil & Gas II, L.L.C. (In re Tex. Wyo. Drilling, Inc.) , 647 F.3d 547, 551 (5th Cir. 2011)

. Here, however, the disclosure statement accompanying the Plan contains no additional information regarding the Plan’ s claim retention provisions that would afford Adler standing to pursue his claims against Frost and BSW.
7 United Operating , 540 F.3d at 355.
8 Id . (citations and internal quotation marks omitted).
9 Id . at 356. Case: 14-31109 Document: 00513075260 Page: 5 Date Filed: 06/11/2015No. 14

- 31109

6 information they need to intelligently vote for or against a proposed chapter 11 plan. 10

IV.
The district court concluded that the Plan did not specifically and unequivocally re tain Adler’s claims against Frost and BSW , and therefore dismissed the claims for lack of standing. Adler argues that he has standing to pursue his claims because the United Operating doctrine does not apply with full force where, as here, the debtor’s representative sues defendants who were not creditors of the debtor and therefore were not entitled to vote on the debtor’s reorganization plan. Adler contends that, notwithstanding United Operating , a blanket reservation of “any and all claims” is sufficient to retain a claim against a defendant if (1) the defendant is a non

- creditor and (2) the reorganization plan clearly identifies how the proceeds of the claim will be
distributed. Adler therefore asks us to announce an exception to United Operating that this Court has not previously recognized.
W e have no occasion to consider whether such an exception exists because Adler did not properly raise this argument in the proceedings below

. [I] f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court. If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we w ill not address it on appeal. 11
Adler did not ask the district court to recognize his proposed exception to United Operating in his response to Frost and BSW’s motion to dismiss. Instead, Adler advanced an entirely different argument: that the Plan was

10 Id

. at 355 (citations omitted ).

11 N.Y. Life Ins. Co. v. Brown , 84 F.3d 137, 141 n.4 (5th Cir. 1996) (quoting FDIC v. Mijalis , 15 F.3d 1314, 1327 (5th Cir. 1994)). Case: 14-31109 Document: 00513075260 Page: 6 Date Filed: 06/11/2015No. 14

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7 sufficiently specific and unequivocal because (1) the Plan mentioned a related
derivative lawsuit and (2) Frost and BSW represented the defendants in that
lawsuit. In other words, Adler argued that he should win under the traditional United Operating standard ; he di d not argue that the traditional United Operating standard should not apply at all. Adler also argued that his claims would benefit rather than harm the creditors , but that too is very different from asking the district court to hold that t he United Operating doctrine is categorically inapplicable to a large subset of potential defendants that a debtor might sue post

- confirmation

. Adler did briefly state in his response that Frost and BSW , unlike the creditors, “are not a notice consideratio n in the
Plan ,” but that passing observation “merely intimate [ s ] ” the argument Adler now raises on appeal. 12 In sum, t here is a major difference between the arguments that Adler briefed in his response and the argument that United Operating should not apply in this case whatsoever

. 13 The district court therefore had no opportunity to consider the exception that Adler now
proposes. We acknowledge that Adler thoroughly discussed the proposed exception

to United Operating in his motion for reconsiderat ion

. However, this Court

“ will not consider an issue raised for the first time in a Motion for Reconsideration.” 14

12 See id

. (quoting Mijalis , 15 F.3d at 1327).
13 The substantial difference between Adler’s arguments before the district court and Adler’s argument on appeal distinguishes this case from Dallas Gas Partners L.P. v. Prospect Energy Corp. , 733 F.3d 148 (5th Cir. 2013) and Yee v. City of Escondido , 503 U.S. 519, 534 (1992 ), which Adler cites in his reply brief.

14 Lincoln Gen. Ins. Co. v. De La Luz Garcia , 501 F.3d 436, 442 (5th Cir. 2007) (citations and internal quotation marks omitted). Case: 14-31109 Document: 00513075260 Page: 7 Date Filed: 06/11/2015No. 14

- 31109

8 Thus, we will consider only the question preserved for appeal: whether
the Plan specifically and unequivocally reserves Adler’s claims against Frost and BSW under the traditional United Operating framework.

V. In the absence of an exception that would render the United Operating doctrine inapplicable in this case , Adler clearly lacks standing to pursue his
claims , as Adl er’s counsel all but conceded at oral argument

. The Plan’s reservation of “[a]ny and all other claims and causes of action which may have been asserted by the Debtor prior to the Effective Date” is exactly the sort of blanket reservation that is insufficie nt to preserve the debtor’s standing. 15 Because the Plan does not set forth the legal basis of Adler’s claims against Frost and BSW, Adler lacks standing to pursue them. 16 Although the Plan purports to retain avoidance actions and fraudulent conveyance actio ns against certain named defendants, an explicit reservation of avoidance actions is insufficient to reserve a debtor’s standing to pursue

common
- law claims

. 17 Because Adler’s claims against Frost and BSW are

common
- law tort and contract claims rather than avoidance or fraudulent conveyance actions, the Plan does not specifically and unequivocally preserve
them. Adler also unsuccessfully argued before the district court that the Plan’s

15 United Operating , 54 0 F.3d at 356. Accord Wooley v. Haynes & Boone, L.L.P. (In re SI Restructuring Inc.) , 714 F.3d 860, 865 (5th Cir. 2013) (“Neither the Plan nor the disclosure statement references specific state law claims for fraud, breach of fiduciary duty, or any other p articular cause of action. Instead, the Plan simply refers to all causes of action, known or unknown. As noted, such a blanket reservation is not sufficient to put creditors on notice.”)

. 16 See Compton v. Anderson (In re MPF Holdings US LLC) , 701 F.3d 449 , 455 n.4 (5th Cir. 2012) (“[The requirement] that the reorganization plan set forth the legal basis for the reserved claims . . . was the core holding of United Operating .”).
17 See SI Restructuring , 714 F.3d at 865. Case: 14-31109 Document: 00513075260 Page: 8 Date Filed: 06/11/2015No. 14

- 31109

9 passing references to the aforementioned derivative lawsuit and to a D&O policy were sufficient to retain his claims against Frost and BSW. Adler does not pursue those arguments on appeal. In any event, the district court correctly rejected them. We therefore affirm the district court’s order dismissing Adler’s claims against Frost and BSW for lack of standing. We likewise conclude that the district court did not abuse its discretion by denying Adler’s motion for
reconsideration. AFFIRMED. Case: 14-31109 Document: 00513075260 Page: 9 Date Filed: 06/11/2015