Free Designation of Record on Appeal - District Court of Delaware - Delaware

Case 1:04-cv-01543-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE In re ONCO INVESTMENT COMPANY, et al.,
) ) ) ) ) ) ) )

Chapter 11 Jointly Administered Case No. 04-10558 (JBR) Adversary Proceeding No. 04-54122 (JBR)

Debtors.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs-Appellants, ) ) ) -against) ) NORWEST BANK MINNESOTA, ) NATIONAL ASSOCIATION, n/k/a ) WELLS FARGO BANK, MN, NATIONAL ) ASSOCIATION, as Indenture Trustee for the ) ) 10% Senior Subordinated Notes due

MW POST PORTFOLIO FUND LTD., DB DISTRESSED OPPORTUNITIES FUND, LTD., POST OPPORTUNITY FUND, L.P., POST TOTAL RETURN FUND, L.P., HFR DS OPPORTUNITY MASTER TRUST, THE OPPORTUNITY FUND LLC, MW POST OPPORTUNITY OFFSHORE FUND, LTD., SOUTH DAKOTA INVESTMENT COUNCIL, CONCORDIA MAC29 LTD., JME OPPORTUNITY PARTNERS, LLC, JME OFFSHORE OPPORTUNITY FUND, LTD., JME OFFSHORE OPPORTUNITY FUND II, LTD., RESTORATION CAPITAL MANAGEMENT LLC, RESTORATION HOLDINGS LTD., and LITESPEED MASTER FUND, LTD.,

Civil Action No. 04-1543-SLR

Case 1:04-cv-01543-SLR

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February 1, 2009 of Oglebay Norton Company, OGLEBAY NORTON COMPANY, and THE DEPOSITORY TRUST COMPANY, Defendants-Appellees,

) ) ) ) ) ) ) )

-andTHE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF ONCO INVESTMENT COMPANY, et al., Defendant-Intervenor. APPELLANTS' DESIGNATION OF RECORD AND STATEMENT OF ISSUES ON APPEAL Pursuant to Rule 6 of the Federal Rules of Appellate Procedure and Rule 8006 of the Federal Rules of Bankruptcy Procedure, MW Post Portfolio Fund Ltd., et. al., (the Appellants"), hereby list the following items for inclusion in the record, and designate the statement of issues to be presented, with respect to the Notice of Appeal filed on October 28, 2005, from the Memorandum Order of the United States District Court for the District of Delaware, entered on September 29, 2005. DESIGNATION OF RECORD A. The Docket of the United States District Court for the District of Delaware. Doc No. 1 2 Notice Of Appeal Statement Of Issues And Designated Record By Appellants Designation Of Record (Part 1) By Wells Fargo Assoc. Designation Of Record (Part 2) By Wells Fargo Assoc. Notice Of Docketing Bankruptcy Record On Appeal. Docket Text

Date Filed 12/22/2004 12/22/2004

12/22/2004 12/22/2004 12/23/2004

3 4 5

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Date Filed 12/29/2004 01/13/2005 02/02/2005

Doc No. 6

Docket Text Notice Of Case Assignment Case Referred To Mediation.

7

Letter To Judge Robinson From I. Bifferato Re Mediation Stipulation To Consolidate Appeals So Ordered, Re Stipulation To Consolidate Appeals

02/22/2005 02/24/2005 02/25/2005

8

9

Stipulation And Order Establishing Briefing Schedule For Defendant-Appellees' Motion To Dismiss Appeals Motion To Dismiss Consolidated Appeals Opening Brief In Support Of Motion To Dismiss Affidavit Of Paul J. Brodnicki Affidavit Of Rochelle F. Walk Affidavit Of Julie J. Becker. Affidavit Of Richard W. Reinthaler Notice Of Service Of Motion To Dismiss, Memorandum Of Law In Support, Affidavit Of Julie J. Becker, Affidavit Of Rochelle F. Walk, Affidavit Of Paul J. Brodnicki And Affidavit Of Richard W. Reinthaler So Ordered, Re Stipulation, Set Briefing Schedule:

02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005

10 11 12 13 14 15 16

02/28/2005 04/08/2005 05/06/2005 17 18

Answering Brief In Opposition To Motion To Dismiss Defendant-Appellees' Reply Memorandum Of Law In

Case 1:04-cv-01543-SLR

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Date Filed

Doc No.

Docket Text Further Support Of Their Motion To Dismiss Consolidated Appeals

05/09/2005

19

Notice Of Completion Of Briefing And Request For Oral Argument On Motion To Dismiss Defendant-Appellees' Objection To Plaintiff-Appellants' Notice Of Completion Of Briefing And Request For Oral Argument Memorandum And Order Granting Motion To Dismiss Four Appeals Of Record Notice Of Appeal Of Memorandum And Order

05/16/2005

20

09/29/2005

21

10/28/2005

22

B.

The Record on Appeal Before the United States District Court for the District of Delaware. Filing Date/Entry Date 08/09/2004 Docket No. 16 Document

Amended Complaint (including exhibits).

08/09/2004

18

Amended Motion For Summary Judgment (including attached Memorandum of Law, Declaration of A. Brent Truitt, and exhibits thereto). Filed by MW Post Portfolio Fund Ltd., et al.

08/19/2004

25

Answer of Debtor Oglebay Norton Company to the First Amended Complaint. Filed by Oglebay Norton Company.

08/19/2004

26

Answer to Amended Complaint, Counterclaim by Wells Fargo Bank, National Association against MW Post Portfolio Fund Ltd, et al., Crossclaim by Wells Fargo Bank, National Association against Oglebay Norton Company. Filed by Wells Fargo Bank, National Association.

Case 1:04-cv-01543-SLR

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Filing Date/Entry Date

Docket No.

Document

08/20/2004

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Objection of Debtor-Defendant Oglebay Norton Company to Plaintiffs' Amended Motion for Summary Judgment (including exhibit). Filed by Oglebay Norton Company.

08/26/2004

28

Answer of The Official Committee of Unsecured Creditors to the First Amended Complaint. Filed by Official Committee of Unsecured Creditors.

08/30/2004

30

Motion For Summary Judgment Against The Depository Trust Company (including attached Memorandum of Law, Declaration of A. Brent Truitt, and exhibits thereto). Filed by MW Post Portfolio Fund Ltd, et al.

08/31/2004

33

Opposition of The Official Committee of Unsecured Creditors to Plaintiffs' Amended Motion For Summary Judgment. Filed by Official Committee of Unsecured Creditors.

08/31/2004

35

Cross-Motion of Defendant Wells Fargo Bank, National Association for Summary Judgment. Filed by Wells Fargo Bank, National Association.

08/31/2004

36

Memorandum of Law of Wells Fargo Bank in Opposition to Plaintiffs' Amended Motion for Summary Judgment and in Support of Its Cross-Motion for Summary Judgment. Filed by Wells Fargo Bank, National Association. Affidavit of Richard W. Reinthaler in Opposition to Plaintiffs' Amended Motion for Summary Judgment and in Support of Defendant Wells Fargo Bank, National Association's Cross-Motion for Summary Judgment (including exhibit). Filed by Wells Fargo Bank, National Association.

08/31/2004

37

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Filing Date/Entry Date 09/08/2004

Docket No. 39

Document

Answer to Counterclaims of Wells Fargo Bank, National Association. Filed by MW Post Portfolio Fund Ltd., et al.

09/08/2004

40

Answer of Cross-Defendant Oglebay Norton Company to the Cross-Claim of Wells Fargo Bank, National Association. Filed by Oglebay Norton Company.

09/14/2004

43

Memorandum of Law (I) in Reply to Objections to Plaintiffs' Amended Motion for Summary Judgment and (II) In Opposition to Wells Fargo Bank's CrossMotion for Summary Judgment. Filed by MW Post Portfolio Fund Ltd., et al.

09/17/2004

49

Wells Fargo Bank's Reply Memorandum of Law in Further Support of its Cross-Motion for Summary Judgment. Filed by Wells Fargo Bank, National Association.

09/20/2004

52

Combined Answering Brief of The Depository Trust Company in Opposition to Plaintiffs' Summary Judgment Motion and Opening Brief in Support of Cross-Motion to Dismiss. Filed by The Depository Trust Company.

09/20/2004

53

Motion to Dismiss Adversary Proceeding. Filed by The Depository Trust Company.

09/28/2004

54

Memorandum of Decision on Plaintiffs' Amended Motion for Summary Judgment and Wells Fargo Bank's Cross-Motion for Summary Judgment.

09/28/2004

55

Order Denying Plaintiffs' Amended Motion for Summary Judgment.

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Filing Date/Entry Date 09/28/2004

Docket No. 56

Document

Order Granting Wells Fargo Bank's Motion for Summary Judgment.

10/11/2004

57

Memorandum of Law (I) in Reply to Answering Brief of The Depository Trust Company in Opposition to Plaintiffs' Summary Judgment Motion, and (II) in Opposition to Motion of The Depository Trust Company to Dismiss Adversary Proceeding. Filed by MW Post Portfolio Fund Ltd. et al.

10/12/2004

58

Transcript of Hearing held on September 23, 2004 before the Honorable Joel B. Rosenthal.

10/22/2004

59

Reply Brief of The Depository Trust Company in Support of Cross-Motion to Dismiss. Filed by The Depository Trust Company.

10/22/2004

60

Response of Wells Fargo Bank, National Association to Plaintiffs' Memorandum of Law (I) in Reply to Answering Brief of The Depository Trust Company in Opposition to Plaintiffs' Summary Judgment Motion and (II) in Opposition to Motion of The Depository Trust Company to Dismiss Adversary Proceeding. Filed by Wells Fargo Bank, National Association.

11/15/2004

63

Memorandum of Decision on Plaintiffs' Motion for Summary Judgment Against The Depository Trust Company and The Depository Trust Company's Motion To Dismiss.

11/15/2004

64

Order On The Depository Trust Company's Motion To Dismiss.

11/15/2004

65

Order On Plaintiffs' Motion For Summary Judgment Against The Depository Trust Company.

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Filing Date/Entry Date 11/24/2004

Docket No. 66

Document

Notice of Appeal. Filed by MW Post Portfolio Fund Ltd., et al.

11/24/2004

68

Notice of Appeal. Filed by MW Post Portfolio Fund Ltd., et al.

11/24/2004

70

Notice of Appeal. Filed by MW Post Portfolio Fund Ltd., et al.

11/24/2004

72

Notice of Appeal. Filed by MW Post Portfolio Fund Ltd., et al.

STATEMENT OF ISSUE ON APPEAL Whether the District Court erred by finding that confirmation of the Debtors' plan of reorganization mooted this appeal notwithstanding specific language in the confirmation order reserving the Appellants' rights.

Case 1:04-cv-01543-SLR

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DATED: November 14, 2005

HENNIGAN, BENNETT & DORMAN LLP Bruce Bennett James O. Johnston 601 South Figueroa Street, Suite 3300 Los Angeles, California 90017 (213) 694-1200 (Telephone) (213) 694-1234 (Facsimile) A. Brent Truitt 245 Park Avenue, Suite 3962 New York, New York 10167 (212) 672-1966 (Telephone) (212) 672-1965 (Facsimile) --and-- WERB & SULLIVAN /s/ Brian A. Sullivan Brian A. Sullivan (#2098) Amy D. Brown (#4077) 300 Delaware Avenue, 13th Floor Wilmington, Delaware 19801 (302) 652-1100 (Telephone) (302) 652-1111 (Facsimile) Attorneys for Appellants

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