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In re Plant Insulation Company, 3:09-BK-31347 TEC (2014)

Court: District Court, N.D. California Number: infdco20140912804 Visitors: 3
Filed: Sep. 11, 2014
Latest Update: Sep. 11, 2014
Summary: STIPULATED JOINT MOTION AND PROPOSED ORDER FOR EXTENSION OF TIME FOR APPELLANTS TO APPEAL FROM ORDER AFFIRMING CONFIRMATION OF AMENDED AND RESTATED SECOND AMENDED PLAN OF REORGANIZATION OF PLANT INSULATION COMPANY, AS MODIFIED (Fed.R.App.P. 4(a)(5), Local Rules 6-2, 7-12) RICHARD SEEBORG, District Judge. I. INTRODUCTION This stipulated motion 1 is brought jointly by the Plan Proponents 2 and the appellant insurers pursuant to Fed.R.App.P. 4(a)(5) to extend the date for the filing of any app
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STIPULATED JOINT MOTION AND PROPOSED ORDER FOR EXTENSION OF TIME FOR APPELLANTS TO APPEAL FROM ORDER AFFIRMING CONFIRMATION OF AMENDED AND RESTATED SECOND AMENDED PLAN OF REORGANIZATION OF PLANT INSULATION COMPANY, AS MODIFIED (Fed.R.App.P. 4(a)(5), Local Rules 6-2, 7-12)

RICHARD SEEBORG, District Judge.

I. INTRODUCTION

This stipulated motion1 is brought jointly by the Plan Proponents2 and the appellant insurers pursuant to Fed.R.App.P. 4(a)(5) to extend the date for the filing of any appeal from this Court's order affirming the Bankruptcy Court's Confirmation Order, which was entered on August 18, 2014 (the "Affirmation Order"). Because the parties have settled their disputes pending the expiration of a reconsideration period for any party to object to the settlements, they expect that by extending the appeal period, there will be no need for an appeal to be filed. Filing an appeal only to then seek its dismissal would cause unnecessary work for the judicial system and expense for the parties that can be avoided by an extension.

II. FACTUAL STATEMENT3

The Plan Proponents have now settled with the appellant insurers that had sought review of the Bankruptcy Court's Confirmation Order in this Court. This Court denied the appeal and entered the Affirmation Order on August 18, 2014. (See Docket No. 77). Any appeal from that Order is due on or before September 17, 2014, pursuant to Fed.R.App.P. 4(a) (applicable pursuant to Fed.R.App.P. 6(b)).

Under the Plan of Reorganization that was the subject of the Affirmation Order, the Bankruptcy Court had jurisdiction up until September 2, 2014 in which to designate additional insurers as Settling Asbestos Insurers under the Plan. By two motions filed on August 25 and 27, the Plan Proponents sought approval of settlements with the remaining objecting insurers, OneBeacon Insurance Company, OneBeacon America Insurance Company, American Employers' Insurance Company, Transport Insurance Company as successor in interest to Transport Indemnity Company, American Home Assurance Corporation, Insurance Company of the State of Pennsylvania, Granite State Insurance Company, and United States Fidelity & Guaranty Company, along with their affiliates. The Bankruptcy Court entered orders shortening time for hearing the motions to August 29, 2014. No party objected to the relief sought in the motions and following the hearing, the Bankruptcy Court entered Settlement Approval Orders approving the settlements. (See Exhibits A and B to Sacks Declaration). Because the settlements were approved on motions heard on shortened time, the Bankruptcy Court provided any potential objectors with a 21-day period in which to seek reconsideration of the approval orders. That period ends on September 19, 2014.

The settlements with these insurers provide for them to be able to preserve their rights to appeal from the Affirmation Order until the later of the Settlement Effective Date, which is on September 19 unless reconsiderations is sought, or the entry of an order of the Bankruptcy Court denying reconsideration. (See Exhibits C and D to Sacks Declaration). Any notice of appeal from the Affirmation Order is due on September 17, 2014. In order to avoid the need for filing a notice of appeal before it is determined if any party is seeking reconsideration, the parties have agreed to seek an extension of time in which to do so from this Court.

III. DISCUSSION

Under Fed.R.App.P. 6(b), appeals from this Court acting in its appellate capacity are governed by the normal rules governing time to appeal contained in Rule 4, with certain exceptions not applicable here. The time for filing an appeal is normally 30 days, but Fed.R.App.P. 4(a)(5)(A)(ii) allows this Court to extend that time either before or after its expiration based on a showing of good cause. In this case, the extension can be for up to 30 days after the normal date for filing, or to and including October 17, 2014. Fed.R.App.P. 4(a)(5)(C).

Here, all parties agree there is good cause to extend the time to file an appeal. Under the settlement agreements, an appeal would only be filed as a protective measure in the unlikely event that a party in interest sought reconsideration, and would only be pursued in the even more unlikely event that the Bankruptcy Court granted reconsideration and withdrew approval for one or both settlements. The easiest way to preserve appellate rights in this instance is by merely extending the time in which to file the notice of appeal until it is determined if at least the first eventuality of a motion for reconsideration comes to pass. By doing so, the parties need not incur fees for filing the appeal, the time and expense of following the necessary steps to perfect the appeal once filed, nor the effort of getting an appeal dismissed once it is filed. The court system will not have to process an appeal that would most likely be dismissed.

IV. CONCLUSION

The Plan Proponents and the Appellant insurers respectfully request that this Court enter the proposed order extending the time for Appellants to file an appeal from the Affirmation Order from September 17, 2014 to October 17, 2014.

SO STIPULATED.

DENTONS US LLP By /s/Robert B. Millner Robert B. Millner Attorneys for OneBeacon Insurance Company And for purposes of this stipulation only, on behalf of the following parties in interest and their counsel: American Home Assurance Company, Granite State Insurance Company, Insurance Company of the State of Pennsylvania, Transport Indemnity Company and United States Fidelity and Guaranty Company4

ORDER

Good cause appearing, based on the foregoing it is hereby ordered that the date for Appellants to file a notice of appeal from this Court's Order entered August 18, 2014 is extended from September 17, 2014 to and including October 17, 2014.

FootNotes


1. This request is brought as a motion based on the language of Fed.R.App.P. 4(a)(5) that call for a motion for extension of time. It is in all other respects a stipulated request pursuant to Local Rule 6-2. The insurers have authorized the Plan Proponents to file this motion and to state that they join in it.
2. The Plan Proponents are Bayside Insulation & Construction, Inc., a California corporation, the Official Committee of Unsecured Creditors of Plant Insulation Company, and the Honorable Charles B. Renfrew (Ret.), appointed by the Bankruptcy Court under Bankruptcy Code Section 524(g)(4)(B)(i) as the legal representative on behalf of persons holding potential asbestos injury demands against Plant.
3. The facts set forth herein are supported by the accompanying Declaration of Steven B. Sacks.
4. Steven Sacks hereby attests that he has on file the holographic signature corresponding to the Appellants' signature indicated by a conformed signature (/S/) within this e-filed document.
Source:  Leagle

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