Free Response to Order - District Court of Delaware - Delaware

Case 1:05-cv-00005-JJF

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Filed 04/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE STATE OF NEW JERSEY ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION ) ) Appellant, ) ) v. ) ) IT LITIGATION TRUST TRUSTEE ) ) Appellee. )

C.A. No. 05-005 (Bankruptcy Case No.02-10118)

OPPOSITON TO REFERRAL TO MEDIATION The Appellant, the State of New Jersey, Department of Environmental Protection, in the above numbered and styled cause, by counsel, Kathrine M. Hunt, Deputy Attorney General, objects to the Court's referral of this cause for mediation, pursuant to the Notice of Docketing dated, January 6, 2005. 1. The first basis for this objection is that appellant does not have funds to pay the

mediator's fee, which is $525.00 per hour, with a two hour deposit required. The State of New Jersey is a public entity that does not maintain funds for purposes such as mediation. When appellant has been referred to mediation in its own State courts, it is entitled to participate for 2 hours without incurring a fee. 2. Additionally, the sole basis for this appeal is to have an order from the

Bankruptcy Court overturned. The order directs appellant to dismiss a State administrative proceeding against Landbank, Inc., a respondent in a case involving violations of the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30. The State maintains that the Bankruptcy Court

Case 1:05-cv-00005-JJF

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did not have jurisdiction or authority to issue the order in dispute. Therefore, mediation with appellee cannot provide a remedy since it is the Court's action that constitutes the basis of the appeal. Wherefore, the State of New Jersey objects to the referral of this cause to mediation and requests the Court to rescind the referral.

Dated: April 18, 2005 Peter C. Harvey Attorney General of New Jersey /s/ Kathrine Motley Hunt Deputy Attorney General State of New Jersey Hughes Justice Complex 25 Market Street, P.O. Box 093 Trenton, NJ 08625-093 Attorney for Appellant DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stuart B. Drowos Deputy Attorney General State of Delaware Carvel State Bldg., 6th Fl., 820 N. French Street Wilmington, De 19801 [email protected] Attorney for Appellant

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CERTIFICATE OF SERVICE A copy of the above Objection to Referral to Mediation was mailed on April 18, 2005 by first class mail and e-filed to the following counsel for appellee.

Jeffrey Schlerf, Esq., Eric Sutty, Esq., The Bayard Firm 222 Delaware Avenue, Suite #900 Wilmington, DE 19801

John Cunningham, Esq., Ileana Cruz, Esq., White & Case, LLP Wachovia Financial Center 200 South Biscayne Blvd., Suite #4900 Miami, FL 33131 DEPARTMENT OF JUSTICE STATE OF NEW JERSEY /s/ Kathrine Motley Hunt Deputy Attorney General State of New Jersey Hughes Justice Complex 25 Market Street, P.O. Box 093 Trenton, NJ 08625-093 Attorney for Appellant DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stuart B. Drowos Deputy Attorney General State of Delaware Carvel State Bldg., 6th Fl., 820 N. French Street Wilmington, De 19801 [email protected] Attorney for Appellant