Free Order on Motion to Dismiss - District Court of Delaware - Delaware

Case 1:04-cv-00353-JJF Document 15 Filed 07/08/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: : Chapter 11
M GROUP INC., E Bankruptcy Case No. O0—1936—JKF
Debtor. ;
THE INTERPUBLIC GROUP OF ;
COMPANIES, INC., t/a :
TRANSWORLD MARKETING CORP., :
Appellant, ;
v. E Civil Action No. 04-353-JJF
LARRY WASLOW, in his capacity E
as Unsecured Claims ;
Administrator of M Group, :
Inc., :
Appellee. E
MEMORANDUM ORDER
Pending before the Court is the Unsecured Claims
Administrator's Motion To Dismiss The Appeal Of The Interpublic
Group Of Companies, Inc. T/A Transworld Marketing Corp. For
Failure To Comply With Briefing Schedule (D.I. 6). In addition,
The Interpublic Group of Companies, Inc. t/a Transworld Marketing
Corp. (“Interpublic”) has filed a Motion For Entry Of A
Scheduling Order (D.I. 7). For the reasons discussed, the Motion
To Dismiss will be denied, and the Motion For Entry Of A
Scheduling Order will be granted.
By his Motion, Larry Waslow, the Claims Administrator,

Case 1:04-cv-00353-JJF Document 15 Filed 07/08/2005 Page 2 of 4
contends that the instant appeal should be dismissed based on
Interpublic’s failure to timely file an Opening Brief in support
of its appeal. The appeal in this case was filed in the
Bankruptcy Court on May 10, 2004, and it was transmitted to the
Court and docketed on June 4 2004. Pursuant to Bankruptcy Rule
8009, Interpublic was required to file its Opening Brief in
support of its appeal on or before June 21, 2004. Fed. R. Bankr.
P. 8009(a)(1) (“The appellant shall serve and file a brief within
15 days after entry of the appeal on the docket pursuant to Rule
S007"). The Claims Administrator moved for dismissal on July 30,
2004, based on Interpubic’s failure to comply with the briefing
requirements. Interpublic briefed the Motion To Dismiss and
moved the Court for entry of a Scheduling Order on August 13,
2004. Thereafter, Interpublic filed an Opening Brief in support
of its appeal on October 27, 2004, and the parties stipulated
that further briefing would be stayed until the Court ruled on
the pending Motion To Dismiss.
The Claims Administrator makes no claim of prejudice based
on Interpublic’s delay in filing an Opening Brief and does not
contend that Interpublic's delay was the result of bad faith. In
these circumstances, the Court concludes that dismissal of the
instant appeal is not warranted. gee In re Magic Restaurants,
1997 WL 33100710, *2-3 (D. Del. Oct. 8, 1997) (declining to
dismiss appeal where designation of record was not filed timely).
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The Claims Administrator directs the Court to two cases
supporting its argument that dismissal is appropriate,
Koutoufaris v. Morris (In re Koutoufaris), 2002 WL 1585912, *1
(D. Del. Jul. 18, 2002) and Kuntz v. The Grand Union Company (Ip
re The Grand Union Company), 1999 WL 33220033, *2 (D. Del. Dec.
29, 1999). However, those cases do not mandate dismissal, and in
Koutoufaris, the Court noted a pattern of dilatory conduct by the
attorneys in the appeal before the court, a related appeal, and
in the proceedings at the Bankruptcy Court level. No such
pattern of dilatory conduct has been alleged in this case.
Accordingly, the Court will deny the Claims Administrator’s
Motion To Dismiss.
Interpublic has also moved the Court for entry of a
Scheduling Order because the parties have failed to agree to a
stipulated briefing schedule. The Court will grant Interpublic's
Motion and order the Claims Administrator to file his Answering
Brief no later than Monday, August 8, 2005, and Interpublic to
file its Reply Brief no later than Tuesday, August 23, 2005.
NOW THEREFORE, IT IS HEREBY ORDERED thise§iL day of July
2005, that:
1. The Unsecured Claims Administrator's Motion To Dismiss
The Appeal Of The Interpublic Group Of Companies, Inc. T/A
Transworld Marketing Corp. For Failure To Comply With Briefing
Schedule (D.I. 6) is DENIED.
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2. Interpublic's Motion For Entry Of A Scheduling Order
(D.I. 7) is GRANTED.
3. The Claims Administrator shall file his Answering Brief
no later than Monday, August 8, 2005.
4. Interpublic shall file its Reply Brief no later than
Tuesday, August 23, 2005.
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