Free Response to Motion - District Court of Delaware - Delaware

Case 1 :O5—cv—OO764-RLB Document 4 Filed 1 1/O4/2005 Page 1 of 4
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
W.R. GRACE & CO., et al., g Case N0. 01-01139 (JKF)
) (J ointly Administered)
Debtors. )
) Re: Docket Nos. 9635 and 9922
APPELLANTS’ RESPONSE TO DEBTORS’ MOTION TO STRIKE
ISSUE THREE OF THE STATEMENT OF ISSUES PRESENTED ON APPEAL
PacifiCorp and the VanCott Bagley Cornwall & McCarthy 401(k) Profit Sharing Plan
(collectively, the "Appellants"), hereby submit this response to Debtors’ Motion to Strike Issue
Three of the Statement of Issues Presented on Appeal ("Motion to Strike"), filed on October 21,
2005, and in support state as follows:
Debtors’ Motion is Procedurally Defective
1. Debtors failed to comply with Local District Court Rules 7.1.2 and 7.1.3 (the
"Local Rules" or "Local Rule _"). Debtors’ Motion to Strike is devoid of any reference to a
procedural or legal basis for the relief sought. There are no supporting cases or legal authorities
cited. Debtors do not even set forth the legal standard regarding what may be properly included
in the record on appeal and there is no record attached to the Motion to Strike to which the Court
can refer. Debtors’ Motion to Strike is nothing more than an unsupported, unsubstantiated
procedurally defective request for relief.
2. Debtors also failed to comply with Local Rule 7.1.1, which requires that a party
filing a non-dispositive motion must, at the time of filing the motion, make a statement showing
that the attorney making the motion has made a reasonable effort to reach agreement with the
opposing attorneys on the matter. See D. Del. LR 7.1.1. Appellants have proposed a possible

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consensual resolution to the dispute below, which, had Debtors complied with the Local Rules,
may have obviated the need for motion practice.
3. Therefore, Appellants submit that Debtors’ Motion to Strike should be denied for
failure to comply with the Local Rules.
Record Below Demonstrates the Bankruptcy Court Considered and Decided Issue Three
4. Debtors assert that the Bankruptcy Court did not make a determination on
whether the Appellants have a claim against the Debtors’ estate. lt is true that Appellants did
not raise the issue in their Motion for Leave to File Late Claims. However, from comments
made at the February 28, 2005 hearing on the Appellants’ Motion for Leave to File Late Claims,
the Bankruptcy Court clearly appeared to consider and decide the issue.
5. At the hearing, the Bankruptcy Court stated several times that it "[saw] no basis"
for Appellants’ claim. Transcript of Hearing on February 28, 2005, attached hereto as Exhibit A,
at 27: 2-3 ("I’m still not clear how there is even a claim against this estate"), 13-14 ("I’m not
sure I see a claim"); 28: 8-9 ("No, that’s too attenuated. I’m sorry. It’s just too attenuated."), 14-
15 ("I see no basis"); 28:25-29:1 ("But I don’t see a basis for [a claim]."); 30:1 ("I’m not
convinced [PacifiCorp] is a creditor of the debtor").
6. The Bankruptcy Court’s Order Denying PacifiCorp and the VanCott Bagley
Cornwall & McCarthy 401(K) Profit Sharing Plan’s Motion for Leave to File Late Proofs of
Claim ("Order Denying Leave to File Late Proofs of Claim") is not supported by separate
findings. Rather, it merely states, without apparent exclusion, that it "agrees with and adopts the
reasoning set forth in Debtor ’s Brief (D.l. 7746) and Response (D.I. 8283)" (emphasis added).
Order Denying Leave to File Late Proofs of Claim, attached hereto as Exhibit B, at p. 2.
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7. The Debtors’ Response to PacifiCorp and the VanCott Bagley Comwall &
McCarthy 401(K) Profit Sharing Plan’s Brief in Support of Their Motion for Leave to File Late
Proofs of Claim ("Debtors’ Response to Motion to File Late Claims") specifically argued that no
claim exists because the Debtor was not an "arranger" under CERCLA. Debtors’ Response to
Motion to File Late Claims, attached hereto as Exhibit C, at pp. 15-19. Thus, it appears that the
Order Denying Leave to File Late Proofs of Claim adopted all of the Debtors’ arguments,
including its contention that there was no allowable claim under CERCLA. For this reason,
Appellants have properly included Issue Three in their Statement of Issues on Appeal.
Conclusion
8. Debtors’ Motion to Strike should be denied because it is procedurally deficient.
Debtors have simply ignored the applicable Local Rules 7.1.1, 7.1.2 and 7.1.3. In the event that
the Court considers the merits of the Motion to Strike, Appellants submit that Issue Three was
properly included. If the Debtors do not wish to address the issue at this time, it is a simple
matter for the parties to stipulate, and for the Court to order, that the Bankruptcy Court’s Order
Denying Leave to File Late Proofs of Claim does not have any binding effect with respect to the
issue of allowability of Appellants’ claim against the Debtors. If the Debtors will not so
stipulate, their Motion should be denied.
Dated: Novemberi, 2005 LANDI RATH & BB LLP
c S. bb #3157)
Megan N. Harper (#4103)
919 Market Street, Suite 600
P.O. Box 2087
Wilmington, DE 19899
Telephone: (302) 467-4400
Facsimile: (302) 467-4450
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Case 1:O5—cv—OO764-RLB Document 4 Filed 11/O4/2005 Page 4 of 4
Attorneys for Appellants PacifiCorp and the
VanC0tt Bagley Cornwall & McCarthy 401(k)
Profit Sharing Plan
-&nd-
MABEY & MURRAY LC
Steven J. McCardell, Esquire
Jared L. Inouye, Esquire
1000 Kearns Building
136 South Main Street
Salt Lake City, UT 84101-1685
Telephone: (801) 320-6700
Facsimile: (801) 359-8256
Attorneys for Appellant PacifiCorp
-and-
VANCOTT, BAGLEY, CORN WALL &
MCCARTHY
J. Robert Nelson, Esquire
50 South Main Street
Salt Lake City, UT 84144-0450
Telephone: (801) 237-0270
Facsimile: (801) 534-0058
8 Attorneys for Appellant VanCott Bagley Cornwall
& McCarthy 401(k) Profit Sharing Plan
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