Free Motion to Strike - District Court of Delaware - Delaware


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Date: October 21, 2005
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Case 1 :O5—cv—OO764-RLB Document 3 Filed 1 1/O4/2005 Page 1 of 2
` IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
W. R. GRACE & CO., et al. g Case No. 01-01139 (IKE)
) (J ointly Administered)
Debtors. )
Related Docket No. 9635
RESPONSE TO APPELLANTS’ DESIGNATION OF RECORD AND MOTION TO
STRIKE ISSUE THREE OF THE STATEMENT OF ISSUES PRESENTED ON APPEAL
On October 12, 2005, at Docket No. 9635, PacifiCorp and the VanCott Bagley Cornwall
& McCarthy 401(k) Profit Sharing Plan (collectively, the "Appellants") filed a designation of
record (the "Designation") and statement of issues presented on appeal (the "Statement of
Issues"). The above—captioned debtors and debtors in possession (collectively, the "Debtors")
(a) file this Response to correct one of the items misdesignated by the Appellants in the
Designation, and (b) move to strike issue 3 as set forth in the Statement of Issues.
Designation of Record
The Debtors hereby correct one of the items misdesignated by the Appellants in the
Designation. Item 7 of the Appellants’ Designation, the "Order Approving Stipulation and
Agreed Order for Briefing on PacmCorp and the VanCott Bagley Cornwall & McCarthy 40] (K)
Projit Sharing Plan ’s Motion for Leave to File Late Proofs of Claim singed and entered on
September 22, 2005 ," should be docket number 9489, and not 9488 as designated by the
Appellants.
Motion to Strike Issue Three of the Statement of Issues
The Debtors move to strike issue 3 of the Appellants’ Statement of Issues. The Court did
not make a determination on the issue. At the hearing on February 28, 2005, in deciding the
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Case 1 :O5—cv—OO764-RLB Document 3 Filed 1 1/O4/2005 Page 2 of 2
Appel1ants’ motion for leave to file a late proof of claim, the Court focused its inquiry on
whether actual notice was required under the circumstances, or whether publication notice was
adequate. The Court did not inquire as to whether the claim itself was legitimate, but whether a
late claim should be permitted. In particular, the Court stated:
I’m not even sure there is an allowable claim against the estate,
but I don’t need to go there at this point in time because
obviously that’s not at issue today. The only question today is
whether the claim should be permitted to be filed at all.
Transcript of Hearing on February 28, 2005, 28:21-25.
The Debtors therefore request that issue 3 of the Statement of Issues be stricken.
Dated: October 21, 2005 KIRKLAND & ELLIS LLP
James H.M. Sprayregen, P.C.
, Janet S. Baer
James W. Kapp HI
Lori Sinanyan
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
@1
PACI-IULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
L Davis Jones (Bar No. 2436)
J s E. O’Neill (Bar No. 4042)
9 North Market Street, 16th Floor
P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courier 19801)
· Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Co—Counsel for the Debtors and Debtors in Possession
2
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