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


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` Case 1 :O5—cv—OO764-RLB Document 2 Filed 1 1/O4/2005 Page 1 of 4
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
V In re: ) Chapter 11
)
W.R. GRACE & CO., et al., ) Case No. 01-01139 (JKF)
) (J ointly Administered)
Debtors. )
) Rel. Docket No. 9551
APPELLANTS’ DESIGNATION OF RECORD AND STATEMENT OF ISSUES
PRESENTED ON APPEAL FROM THE ORDER OF THE HONORABLE
JUDITH K. FITZGERALD ENTERED SEPTEMBER 22, 2005
PacifiCorp and the VanCott Bagley Cornwall & McCarthy 401(k) Profit Sharing Plan
(collectively, the "Appellants"), pursuant to Federal Rule of Bankruptcy Procedure 8006, hereby
designate the record and issues presented on appeal to the United States District Court of
Delaware from the final order issued by United States Bankruptcy Judge Judith K. Fitzgerald,
which denied the Appellants’ Motion for Leave to File Late Proofs of Claim (the "Appeal").
Statement of Issues Presented on Appeal 1
1. Whether the court erred in concluding that the Appellants, the current and
immediate prior owners of the Vermiculite Intermountain Site in Salt Lake City,
Utah ("Site"), were not reasonably ascertainable from public records and
therefore were not "known" creditors constitutionally entitled to actual notice of
the bar date for filing claims against the Debtor, W.R. Grace & Co.?
2. Whether the court erred in concluding that, pursuant to Rule 9006 of the Federal
Rules of Bankruptcy Procedure, Appellants may not file late claims on grounds of
excusable neglect'?
3. Whether the court erred in concluding that the Appellants are not entitled to
contribution under Section l13(f)(3)(b) of CERCLA from the Debtor for the costs
of an EPA-ordered removal of asbestos contaminated soils from the Site, where
contamination of the Site resulted from the Debtor’s arrangements to process
Grace vermiculite on-Site?
4. Whether the court erred in concluding that the VanCott Bagley Cornwall &
McCarthy 40l(k) Profit Sharing Plan received actual notice of the claims bar
date?
487.001-9558.DOC

Case 1:O5—cv—OO764-RLB Document 2 Filed 11/O4/2005 Page 2 of 4
Designation 0f Items to Be Included in the Record on Appeal
1. PacifiCorp and the VanCott Bagley Cornwall & McCarthy 401(K) Profit Sharing
Plan’s Motion for Leave to File Late Proofs of Claim filed by PacifiCorp and the
VanCott Bagley Cornwall & McCarthy 401(K) Profit Sharing Plan on January 4,
2005. [D.I. 7571]
2. Objection to PacifiCorp and the VanCott Bagley Cornwall & McCarthy 401(K)
Profit Sharing Plan’s Motion for Leave to File Late Proofs of Claim filed by W.R.
Grace & Co. on February ll, 2005. [D.I. 7746]
3. Certification of Counsel and Stipulation and Agreed Order for Briefing for
Briefing on PacifiCorp and the VanCott Bagley Cornwall & McCarthy 401(K)
Profit Sharing Plan’s Motion for Leave to File Late Proofs of Claim filed by
PacifiCorp and the VanCott Bagley Comwall & McCarthy 401(K) Profit Sharing
Plan on March 22, 2005. [D.l. 8087]
4. Reply Brief to W.R. Grace’s Objection to PacifiCorp and The VanCott Bagley
Comwall & McCarthy 40l(k) Profit Sharing Plan’s Motion for Leave to File Late
Proofs of Claim filed by PacifiCorp and the VanCott Bagley Cornwall &
McCarthy 401(K) Profit Sharing Plan on April 4, 2005. [D.I. 8164]
5. Debtors’ Response to PacifiCorp and the Vancott Bagley Cornwall & McCarthy
401(K) Profit Sharing Plan’s Brief in Support of Their Motion for Leave to File
Late Proofs of Claim filed by W.R. Grace & Co. on April 25, 2005. [D.I. 8283]
6. Order Denying PacifiCorp and the VanCott Bagley Cornwall & McCarthy 401(K)
Profit Sharing Plan’s Motion for Leave to File Late Proofs of Claim signed on
September 20, 2005 and entered on September 22, 2005. [D.I. 9488]
7. Order Approving Stipulation and Agreed Order for Briefing on PacifiCorp and
the VanCott Bagley Cornwall & McCarthy 401(K) Profit Sharing Plan’s Motion
for Leave to File Late Proofs of Claim signed and entered on September 22, 2005.
[D.l. 9488]
8. Notice of Appeal From Order Entered September 22, 2005 of the Honorable
Judith K. Fitzgerald filed by PacifiCorp and the VanCott Bagley Cornwall &
McCarthy 401(K) Profit Sharing Plan on October 3, 2005. [D.I. 9551]
9. Transcript of hearing before the United States Bankruptcy Court for the District of
Delaware on February 28, 2005. [D.I. 7998]
487.001-9558.1500 2

Case 1:O5—cv—OO764-RLB Document 2 Filed 11/O4/2005 Page 3 of 4
10. Each item properly designated, or to be properly designated, by any other party to
this Appeal.
Dated: October 12, 2005 LANDIS RATH & COBB LLP
Richard S. Cobb (#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
Attorneys for PacifiCorp and the VanCott Bagley
Cornwall & McCarthy 401(k) Profit Sharing Plan
..3,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 PacifiCorp
-aHd-
VAT} T, BAGLEY, CORNWALL &
MCGARTHY
J. Robert Nelson, Esquire
50 South Main Street
Salt Lake City, UT 84144-0450
Telephone: (801) 237-0270
Facsimile: (801) 534-0058
Attorneys for the VanCott Bagley Comwall &
McCarthy 401(k) Profit Sharing Plan
487.001-9558.DOC 3

Case 1:O5—cv—OO764-RLB Document 2 Filed 11/O4/2005 Page 4 of 4
10. Each item properly designated, or to be properly designated, by any other party to
this Appeal.
Dated: October 12, 2005 LANDIS RATH & COBB LLP
J ,,,» I-
pq nvnn I VAV, , ,
Ric ard S o b (#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
Attomeys for PacifiCorp and the VanCott Bagley
Cornwall & McCarthy 401(k) Profit Sharing Plan
-and-
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 PacifiCorp
-a_Hd-
VANCOTT, BAGLEY, CORNWALL &
MCCARTHY
J. Robert Nelson, Esquire
50 South Main Street
Salt Lake City, UT 84144-0450
Telephone: (801) 237-0270
Facsimile: (801) 534-0058
Attorneys for the VanCott Bagley Cornwall &
McCarthy 401 (k) Protit Sharing Plan
487.001-9ssx.Doc 3