Free Motion to Continue - District Court of California - California

Case 3:08-cv-00640-JAH-BLM

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. MICHAEL HAND, v. Plaintiff Case No . 08cv0640-JAB (BIM) UNOPPOSED REQUEST TO RESCHEDULE THE EARLY NEUTRAL EVALUATION CONFERENCE DUE TO TRIAL CONFLICT

LIBERTY LIFE ASSURANCE COMPANY ) ) OF BOSTON, FLOYD OLSON and BARBARA E. COFFMAN ) Defendants. )

Floyd Olson and Barbara E. Coffman ("Defendants"), through their undersigned attorney, respectfully request that the Court reschedule the Early Neutral Evaluation Conference ("ENE Conference") scheduled for April 29, 2008, and in support state as follows : 1. The captioned case was previously pending in the United States District

Court for the Northern District ofIllinois ("NDIL Court") . 2. On March 31, 2008, the NDIL Court granted Defendants' Motion to

Transfer and transferred this case to the captioned Court. 3. On April 11, 2008, this Court entered an order setting the ENE Conference

for April 29, 2008 at 2:00 p.m. PDT ("ENE Conference Order"). On April 16, 2008, counsel for Defendants received a copy of the ENE Conference Order. 4. Defendants believe that that there is good cause to reschedule the ENE

Conference based on the facts set forth below. Their request is not sought for any purpose ofdelay. 5. Paula K. Jacobi is trial counsel for Defendants in this matter.

UNOPPOSED REQUEST TO RESCHEDULE THE EARLY NEUTRAL EVALUATION 1 CONFERENCE DUE TO T RIAL, CONFLICT

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6.

Ms . Jacobi is also trial counsel to RT Jedburg Commerce Park, LLC

("Landlord") in the Chapter 11 bankruptcy proceeding of American LaFrance, LLC ("Debtor") which is pending in the Bankruptcy Court for the District ofDelaware ("Bankruptcy Court") as Case No. 08-10178 . 7. Prior to issuance ofthe ENC Order, the Bankruptcy Court scheduled trial

on the contested hearing to consider confirmation of the Third Amended Plan of Reorganization filed by Debtor for April 29, 2008 commencing at 2 :00 p.m. EDT. Attached as Exhibit A is a copy of the order scheduling the confirmation hearing . 8. The Landlord is contesting confirmation as well as the Debtor's request to

assume the lease on the terms proposed by Debtor . Ms. Jacobi is the sole trial counsel representing Landlord. Ms. Jacobi has taken all ofthe depositions in the case and other discovery . Ms . Jacobi must be at the contested hearings to prosecute the Landlord's objections . 9. Ms . Jacobi fully anticipates that the contested hearings will not end by

2 :00 p.m. PDT malting it impossible for her to initiate or participate in the ENE Conference ifit proceeds on April 29°'. 10 . One of the purposes of an ENE Conference is for the Court and the parties

to attempt settlement of the matter . Ms. Jacobi believes that this case is ripe for settlement and hopes that this Court would be able to assist the parties in the settlement of this matter. Ms. Jacobi would like the opportunity to participate in the ENE Conference so that she can represent Defendants in any settlement discussions .

UNOPPOSED REQUEST TO RESCHEDULE THE EARLY

NEUTRAL EVALUATION

CONFERENCE DUE TO TRIAL CONFLICT

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11 .

Defendants' counsel has spoken with Hand's counsel, and be does not

oppose this request . 12. Conference . WHEREFORE, Floyd Olson and Barbara A. Coffman respectfully request enty of an Order rescheduling the Early Neutral Evaluation Conference to a date certain after April 29, 2008 . Accordingly, Ms . Jacobi requests that the Court reschedule the ENE

Respectfully Submitted,

FLOYD OLSON & BARBARA E. COFFMAN
/s/Paada K Jacobi One oftheir attorneys Paula K. Jacobi Sugar, Friedberg & Felsentbal LLP 30 North LaSalle Street/Suite 3000 Chicago, Illinois 60602 612) 704-9400

UNOPPOSED REQUEST TO RESCHEDULE THE EARLY 3 NEUTRAL EVALUATION CONFERENCE DUE TO TRIAL
CONFLICT
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Case 3:08-cv-00640-JAH-BLM

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In rec CAN 1°AF Debtor.

UNITED STATES BANKRUPTCY COURT DISTRICT O~ DBLAW I Chnpter 11 Cue No. W-10y7s (BIA) Bet Docket No. 58

AhIENDED ORDER 5U TO SECTIONS 105, 1125 AND 1126 OF T1-JE BAN CY CODE, B VPTC"Y RULES 2002, 3017, 5015 AND 3020, A RULE 3017-1 (A) PROVING ADEQUACY OF DISCLOSURE STATEli'I4ENT'9 ~LOCA1, (U) ESTARLIS G PROCEDURES FOR SOLICITATION AND TARULATIOL4 630° VOTES TO ACCEPT OR REJECT T PLAN, (C) 075 UTIIOK, AND ($?) FWIKG DATE, TOW, AND PLACE FOR CO IZION

Upon the motion (the "Motion")' of American LaFrance; LLC ("ALF" or the "DeWC'),
as debtor in possession, for entry of an order (the "Order") pursuant to sections 105, 11125 and 1126 of title 11 of the United States Code, 11 U.S.C. §§ 101-1330 (the "Bankruptcy node"), Rules 2002, 3003, 3617, 3018 and 3020 and 9006 ofthe Federal Rules of Rankruptey Procedure i (the "Bankruptcy Xulos'% and Rule 30171 of the Local Rules of Bankruptcy Fracrice and Pmccdura of the United States Bankruptcy Court for the District of Delaware (thel"Local Rules'°) (a) approving the adequacy of the Disclosure Statement with respect to the Plan, as may be subsequently amended, pursuant to section 1125 of the Bankruptcy Code, (b) %tall;>lishireg procedures for solicitation and tabulation of votes to aoocpt or relcot the proposed ehslptcr I I pleat (as may be amended from limo-to-time, the "P '7; (c) fixing a record date for distu ibution

and (d) faxing the date, time, and place to consider approval of the Plan; and it appoaringithat the Court has jurisdiction over this matter pursuant to 28 U.S.C . §§ 157 and 1334 and that ill a core proceeding pursuant to 28 U,SZ. § 357(6)(2) ; and ' capitanzed teams not otherwise defined herein shall have the rneatalalls aserlbed to such ecm in t M0%16 .
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The Debtor, with the support of the Committee, having filed the Plan together wwith the Disclosure Statement relating thereto dated March 27, 2045, and this Court having sohedi~nled the date, time, and place for the hearing to consider approval of the Debtor's Disclosure St4zment (the "Disclosure Statement Hearing"); and it appearing that proper and adequate notic4ir of the Disclosure Statement Hearing has been givers to all parties in interest in accordance with the and Motion ; and the Disclosure Statement Hearing having been held on March 28. 2003; all parties in interest,having been givers an opportunity to be heard at the Disclosure st"acaaeni Roaring, and all objections to thc Motion having been overruled or otherwise disposed of;' NOW, THEREFORE, the Court hereby finds m fallow, : The Disclosure Statement complies with due process, the requirements Qf the i Bankruptcy Code and the Bankruptcy Rule and contains "adequate information" as sueh~ term is defined in section 1125 of the Bankruptcy Code; B. Proper and adequate notice of the Disclosure Statement Hearing and the time R.

fixed for filing objections to the Disclosure Statement has been given to all parries in interest, and such notice complies with the Banlriiptry Code, the Bankruptcy Pules, and the Low Rules; C. Than Solicitation Procedures proposed in the Motion reasonable provide a fair and cquitabla voting process, and are consistent with section 1126 of the Bankruptcy Coda ". ; D. The procedures for transmi the Disclosure Statement, the Plan, the BQ~lllats (as

defined below) and the voting instructions are fair, reasonable and adequate and comply ivith Use raquirments of Bankruptcy Rule 3017(c); and E. The relief requested in the Motion and granted herons is warranted udder the,

circumstances and is in the best interests of the Debtor's estate and its crcditot's.

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ACCORDINGLY, after hereby QRDERED that : 1. 2. 3.

done

deliberation, and suirtaient cause appearing theefihr, it Is

The Motion is GRANl°PD. The Disclosura Statement is APPROVED. The Debtor is authoriacd to (a) make ministerial changes to the Di4ciosare

Statement and related documents (including, without limitation, the exhibits thereto) and 6':b) with the consent of the Committee or Author Court Order, revise the Disclosure Statement and related documents (including, without limitation, the exhibits thereto) to add further di6iclosure concerning events occurring at or after the Disclosure Statement Bearing, prior to distributing it to each endty that is required to receive the Disclosure Statement, 4. as Xxhl t 5. The voting instructions and the farms of Ballots substantially in the form attached to the Motion, era hereby approved . j

The Debtor, through its Balloting Agent, Kurknaan Camon Covisultants LLC, is

directed to transmit by first-class mail copies ofthe Disclosure Statement, the Fin, the ni>tioe of the confirmation hearing (the "Confirmation Hearing Notica'7 substantially in the form attached as Exhible__9 to the Motion, the
Ballots, sod

the voting instructions (collectively, the

"Solicitation Maerials") to the holders of (a) Class I (Secured Claims of PrePetition headers), (b) Class 4 (Gencrat Unsecured Claims), and (c) Class 5 (Convenience Claims) (as Poach is defined in the Plan); provided, that with respect to a holder of claims that has timclliy filed multiple proofs of olatms on account of a single claim, the Debtor will provide such hoidsr with only one set of Solicitation Materials, provided, furdnr, that with respect to those per ! 0119 or entities to whom the Debtor or its Balloting Agent ensiled a notice ofthe Disclosure St~tement Hearing that was retamod by the United States Postal Service. as undeliverable with no

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forwarding address, the Debtor and its Balloting Agent shall not be required to mail such ~7ersorxs the Solicitation Materials. The Debtor shall also mail a copy of the Committee's letter to the Genasal Unsecured Creditors of American LaFrancn, LLC, In the foam set fscth on otherwise provided pursuant to this Order. The Debtor shall also mail a copy of the letter to General Unsecured Creditors of American LaFranoe, LLC, in the forest sot forth on
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hereto, to all holders of Class 4 Claims to whom the Solicitation Materials are nAiled or

it D hereto, to all holders of Class 4 Claims to whom the Solicitation Materials arc ensiled

or otherwise provided pursuant to this Order . Because the holders of (a) Class 2 (Other Allowed Socurod Claims Against ! Debtor), (b) Class 3 (Allowed Priority Non-Tax Claims), (G) Class S (Assumed LiabilltiEa), and (d) Class 7 (Intcmsts) (each as defined in the plan) are, not impaired under the Plan, and ,gIre thus I transmit conclusively presumed to have accepted the plan, the Debtor shall not be required to copies of the Disclosure Statement and the Plan to such holders, rather, the Debtor shall ;tad by first class trail, a notice (the "Unimpaired Non-Voting Notice''), which will, atreong otW th`sngs, (w) include a summary of tbe treatment provided under the flan to each such class, (x) advise that the Disclosure Stawsacnt and Plan can be obtained through the Banlwuptcy Court's ~Iftterna or upon i written request to the Debtor's counsel or Committee's counsel, (y) include the date of the
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6.

website (www .de6 .yt,5tic

the Balloting Agent's websit® www

Confirmation Hearing, and (z) state the date fixed to file objections to confirmation of thcI Plan . 7. pursuant to Bankruptcy Rule 3017(d), rcb 28, 2008 shall be the rect'urd date: (the "Record Date") for purposes of determining which holders of claims arc entitled to vote on the Plan and are entitled to rocoive the Solicitation Materials .

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8.

All Ballots accepting or rojecting the Plan must b received by KurtzmanICarson

Consultants, L.LC (the "Balloting Agent") by 4:30 p .m., prawa111ng Paelfue Time, on Aurii E0 . 3008 (the "Voting Deadline") at the following address: Amoriom LaFranec, LLC, et al. Balloting n Carson Consultants LLC C/o Ku 2335 Alaska Avenue El Segundo, Califomia 90245 fare. 310-751-1880 9. Solely for the purpose of voting on the plan and not for the purtsosc of

determining who has an allowed claim or who is entitled to receive a distribution undor rlac Flan, each holder of a Voting Claim shall have an allowed claim amount equal to either (a) tho amount of such claim as set forth in the Debtor's schedules of liabilities, or (b) if a timely proofatifclaim is filed, the amount of such claim as set forth therein, provided, lrsnvavo, that the assioee of a trans and assigned scheduled or filed general unsecured claim shall be permitted jtce vote such Claim only ifthe transfer and assignment has been reflected on the Court's docket oc of the close of business on the Rwotd Date, and providedAnker that (i) if a claim is not listeid in the Debtor's schedules of liabilities but is the subject of a timely filed proof of claim, such claim shall be allowed for voting purposas only and not for the purpose ofsllowanee or dist6birtion in the amount set forth in such proof of claim, (i) if a claim for which a proof of chisel h'sis been timely fled is fisted on the Debtor's schedules of liabilities as contingent, unliquidated or disputed, such claim shall bc allowed for voting purposes only and not for the party®se of allowanac or distribution, (iii) if a claim has been estimated or othorwisc allowed fort voting purposes by order of the Court, such claim shall be allowed for voting pueposcs only' in the amount estimated or atlowod by the Court; unless the Court enters an order disallow"°±$ such clahu, flv) if a claim is deemed allowed pursuant to the Plan and the holder of the claim is

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entitled to vote on the Plan., the claim shall be allowed ftir voting purposes in the sinotmtddaemed allowed pursuant to the Plat, (v) ifa holder of Maims has timely filed multiple proofs 0 ralaians on account of a single claim, such holder shall have only one allowed claim for voting purposes, and (vi) each holder of any claim shall be entitled to vote all of the non-duplicative Maims it holds, but may only cast a single ballot as to all claims within a particular class, 10. ff an objection and request to estimate a Voting Claim (an "T-ttimation Rsxlu®sf~ the Voting Deadline, such Estimation Request rn) or such other date and time as may be

is filed and served at least ten (10) days prior will be heard April 21, 2005 at 2;60 p.m.

established bythe Court. The heaFing on the Estimation Requestwill dotermincthe allovillance of the Voting Claim for voting purposes only and not for distribotion purposes . l i, If a Voting, Claim is lasted in the Debtor's schedules of liabilities as cottin&ent, unliquidated, or disputed and a proof` of such claim was not timely tiled, such claim shall ~[have no voting rights. 12. The following procedures shall be followed in connection with tabulating iiallots'
(a)

only original Bellom returned to the Balloting Agent bearing original signet=s will be oo=ted ; any unsigned Ballot shall not be counted; any Ballot that is illegible or contains insufeient information t6 permit the identification of the holder shall not be counted; any Ballot cast by a persona or entity that does not hold a claim Ir,~, a class entitled to vote on the Plan shall not be counted, any Ballot that is properly completed, executed and timely returned to the Balloting Agent that does not indicate an acceptance or rejection of the Plan not be counted; any Ballot that is properly completed, executed and timely retum6id to the Balloting Agent that indicates both acoeptanoe and rejection of the Plan shall not be counted;

(b) (c) (d) (e)

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whenever a holder of a Voting Claim returns more than one Ballot; voting the same claim prior to the Voting Deadline, only the last Ballot: timely returned to the Mating Agent shall be counted; whatever a General Unsecured Creditor elects to be treated in Cass 5 the Convenience Class, only the Convenience Class election will be counted and any other vote will not be counted; (9) {77 13. 14. each holder of a Voting Claim shall be doomed to have voted j:he full amount of its claim; and holders ofVoting Claims shall not split their vote within a claim, bttt shall vote their entire claim within a particular class othher to accept or reject the Plan.

The Distribution Record Date is the effective date off the Plan. 'rhe preliminary hearing to consider confirmation of the Pleas (the °,Pretrial

Confirmation Hearing") shall be held before The Honorable Brendan L, Shannon, United States Bankruptcy .ledge, 824 Market Street, 0 Floor, Courtroom 1, Wilmington, Delaware oft April 21, 2008, at 2:00 p 1

The Honorable Brendan %,. Shaotcon, United States Bankruptcy Judge, 824 Market fthcct, 6a° Floor, CODMOOM
1,

i Wilmington, Delaware on April 24, 2005, at 2000 pam ., or such laten idaw as

may be scheduled therefor by this Court. The Debtor and Committee shall not be regfrired to give any further notice of any adjournment of the Confirmation Hearing announced jin open Courtat the Confirmation Hearing or let any continuation thereof. 15. The Debtor shall publish the Confirmation Hearing Notice once in the 9iational

edition of one of the following: The Wall Street Journal, The New York Times, or Tire USA Today, as to be determined by AIX, no later than Fifteen (15) days prior to the Conr!rmation Hearing, and such ptablicatlon notice shall be adequate and su£fclont and no er notiice shall

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be necessary with respect to any holder of claim of which the Debtor do not have actuaLl notice as ofthe date of this Order, 16. Cbjcctions, ifany (including any supporting mornorande), to confirmation of the Plan (a) shall be in writing, (b) shall comply with the Bankruptcy Code, Bankruptcy RdI ks and any orders of this Court, (c) shall set forth the name and contact information of the objector and the nature and amount of any claim or interest asserted by the objector against the ea:atcs or property of the Debtor, (d) shall state with particularity the logal and factual basis fear such

a

abjection, and (e) shall be riled with this Court, together with prcofof service thereof, and served upon use following persons so as to be receiver, no later than 32.00 p,m, prevailing l~astern 'rime, on April 3$, 2008: Counsel for the e Christopher A. Ward, Esquire 919 Market Street, Suite 1000 Wilmington, DE 19001 Telephone-.(302) 426-1189 Facsimile: (302) 426-9193 sward [email protected] -andHAYNES Al BOONE, LLP [an T. Peck Abigail Ottmers 901 Main Street, Suite 3100 Dallas, Texas 75202 Telephone: 214.651 .5000 Facsimile: 214,651 .5940 [email protected] abigail.ottmers@haynesboone .com r United S a Tru, te e

OFFfCli,OF TFM UNITED STATES TRUSTEE S44 King Streek, Suite 2207 Wilmington, Delaware 19801
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Facsimile: (302) 573-6497 Ann: 'Richard Shepacarter,Esq.

PEPPER HAMILTON LLP David B . Stratton, Pzq. David M. Vournier, Bsq. James C. Carignan, Esq, Hercules Plaza, Suite 5100 1313 Market Street, P.O. Box 1709 Wilmington, Delaware 19599-1709 (302) 777-6500 Fax: (302) 421-2390 17 . The DoNor is uathorizcd to file a reply to any objections to confirmatiain on or

before April 24, 2008 at 12:00 (noon). IS. Unless an objection tee cowifirrnation of the Plan is timely =ved and filed in i This Court shall retain jurisdiction over all manors related to or arising from the

accordance with this Order, it may not be omsidered by the Court. 19.

Motion or the intorprewtion or implementation ofthis Order.

Dated:

2005 Wilmington, Delaware

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Case 3:08-cv-00640-JAH-BLM 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IC. racobi Paula Friedberg & Felsenthal LLP agar, 0 North LaSalle Street/Suite 3000 hicago, Illinois 60602 312) 704-9400 MICHAEL .HAND, v. Plaintiff

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFO A ) ) ) I Case No. 08cv0640-JAH (BLM)

LIBERTY LIFE ASSURANCE COMPANY ) ) OF BOSTON, FLOYD OLSON and BARBARA E. COFFMAN ) Defendants . ) PROOF OF SERVICE I, Kendra L. Hewitt, a non-attorney, state under penalty ofperjury, thatiI caused to be served on April 22, 2008 a true and correct copies of this Proof of Service and UNOPPOSED REQUEST TO RESCHEDULE THE EARLY NEUTRAL EVALUATION CONFERENCE DUE TO TRIAL CONFLICT upon the following: 13y U.S. Mail, on the following counsel, on April 22,2008 : Michael Hand 207 N. Watersedge Unit 302 Glendale Heights, IL 60139 Edward Sedlacek Mark S. Bishop Lawrence A. Stein Huck, Bourna, Martin, Jones & Bradshaw, P.C. 1755 South Naperville Road Suite 200 Wheaton, IL 60187-8132 Sara Amy Weinberg Ashley B Abel Jackson Lewis LLP 320 West Ohio Street Suite 500 Chicago, IL 60610 RespeoKfally Submitted, FLOYD OLSON & BARBARA AT . COFFMAN Al Paula K Iacobi One oftheir attorneys

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TOTAL P . 00 2