Free Letter - District Court of Delaware - Delaware

Case 1:05-cv-OOOO4-SLR Document 10 Filed O9/21/2005 Page 1 of 3
Edwards o~Angell A
919 North Market Street Wilmington, DE 19801 3027777770 fax 5027777263
Denise Seastone Krall
20;.425.7106 l
fax $88325.9741 ¤
dlcrai`[email protected] ,
September 21, 2005 1
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VLA HAN D-DELIVERY I
The Honorable Sue L. Robinson ,
J. Caleb Boggs Federal Building
844 N. King Street
Room 6124
Lockbox 31 ,
Wilmington, DE 19801 E
Re: F!eetB0sron Financial Corporation, at al. v. NHL Inc. i
Civil Action Nos. 05-004 (SLR) and 05-659 (SLR)
Dear Judge Robinson: Q
This firm represents the Defendants F leetBoston Financial Corporation, KMR Management Inc.,
Robert Reisner, and Waring S. Justis (together, “Appellants"). Currently, the Appellants have
two appeals pending with the court in the above—referenced case. The first appeal filed
December 13, 2004 is designated appeal 05-004 ("First Appeal"). The second appeal filed
February 22, 2005 is designated appeal 05-659 (“Second Appeal"). Counsel for Appellants I
recently received notice that the Second Appeal is being sent to mediation in compliance with E
the Standing Order dated July 23, 2004 for procedures to govern mediation of appeals from the E
U.S. Bankruptcy Court for this District (“Standing Order").
This letter 1S being submitted to the Court to request that the arbitration IH the Second Appeal be i
waived and that it be consolidated with the First Appeal because both appeals address
substantially similar, if not the same, issues. Attached to this letter is a courtesy copy of the {
motion to consolidate the appeals ("Consolidation Motion"), which the Defendants filed with the
Court on September 19, 2005. [
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Mediation
The First Appeal was referred to mediation pursuant to the C0urt’s Standing Order. On March ,
14, 2005 and July 14, 2005 the parties attended mediation conferences with mediator David B. E
Stratton, Esq. and discussed the issues underlying the appeal and potential resolution of the entire I
case. At the March 14, 2005 mediation, it was agreed that the Plaintiff would provide an i
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Case 1:05-cv-OOOO4-SLR Document 10 Filed O9/21/2005 Page 2 of 3
Edwards e~Angell
The Honorable Sue L. Robinson l
September 21, 2005
Page 2
analysis of the claims made against the Plaintiff s bankruptcy estate by the end of April 2005. It
was contemplated that after the analysis was provided, the parties would reconvene the
mediation discussions. The parties met and further discussed the case on July 14, 2005. After
additional discussion between the parties and the mediator, on August 17, 2005, the mediator
sent an email to the parties stating that he recognized that the parties were unable to reach an
agreement after engaging in good faith negotiations through the mediation process and l
concluded that further remediation would be iiruitless. The mediator thereafter filed a Mediator’s i
Report on August 24, 2005 [D.I. 5] advising the Court that the mediation had terminated
unsuccessfully.
Appellants recently received notice that the Second Appeal is being sent to mediation pursuant to l
the Standing Order. However, due to the inability ofthe Appellants and the Appellee to reach an l
agreement to resolve the issues at dispute in the First Appeal and the case generally, the ‘
Appellants do not believe mediation would be productive or cost effective with regard to the `
substantially similar issues pending in the Second Appeal filed with the Court. Accordingly, i
Appellants request that the court waive mediation for the Second Appeal and enter the relief i
requested in the Consolidation Motion, so that the parties may immediately proceed with both E
appeals.
Consolidation Motion Q
The Consolidation Motion requests treatment under Bankruptcy Rule 8011(b) governing the
consideration and disposition of procedural issues that arise during the pendency of an appeal. E
Bankruptcy Rule 801l(b) states in pertinent part that "motions for procedural orders . . . may be
acted on at any time, without awaiting a response thereto and without hearing? Fed. R. Bankr. i
P. sor 1(b). {
On September 13, 2005, the Court entered an amended briefing schedule [D.l. 7] stating that the i
Appellants’ opening brief is due October ll, 2005, Appellee’s answering brief is due November
10, 2005 and Appellants’ reply brief is due December 9, 2005. Appellants believe that they can i
brief the consolidated appeals under the Coru·t’s currently entered briefing schedule which I
requires submission of Appellant’s opening brief on October 11, 2005. 3
Counsel for Appellee has notified counsel for Appellant that Appellee has no objection to: (1) a
waiver of the mediation procedures pursuant to the Standing Order; and (2) the consolidation of S
the Appeals. Counsel for Appellee also believes that the appeals should not go forward until the
Motion is decided.
If the Court has any questions, counsel is available. E
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Case 1:05-cv-OOOO4-SLR Document 10 Filed O9/21/2005 Page 3 of 3 l
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Edwards e~ Angell {
The Honorable Sue L. Robinson
September 2l, 2005
Page 3
Respectfully, I
Denise Seastone Kraft (Bar No. 277 E
cc: Stephen W. Spence
Guy Donatelli, Esquire
Office of the United States Trustee
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