Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00609-RLB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR
In re:
) ) ) )

W. R. GRACE & CO., et aL.,

No. 07-609

Debtors.

) )
) ) ) ) ) ) ) ) )

Hon. Ronald L. Buckwalter United States Distrct Judge

MARGART CHAKN, et aL.,
AN JOHN DOES 1-1000,
Appellants,
v.

Appeal from United States Banptcy Cour for the Distrct of Delaware
Case No. 01-01139 (Jointly Administered)
Adversary

No. A-01-771

Hon. Judith K. Fitzgerald
Chapter 11

W. R. GRACE & CO., et aL.

Appellees.

) )
)

REPLY OF W.R. GRACE IN SUPPORT OF MOTION TO DISMISS APPEAL
The most striking thing about Libby Claimants' opposition to Grace's motion to dismiss

this appeal (Dkt. No. 11) is that they do not seriously contend that there is any basis for this
Court to grant them leave to file this appeal under 28 U.S.C. § 158(a)(3); rather, they insist that
they are entitled to an appeal "as of right" under 28 U.S.c. § 1292(a)(I). (Libby Claimants'
Opp. at 6-9). That approach is not surrising because the Libby Claimants cannot possibly

justify a discretionary interlocutory appeal of a temporary "breathing room" stay preserving the

status quo while the Banptcy Court considers the merits of the Injunction Motions. i
However, as discussed in Grace's Motion to Dismiss and this Court's prior decision regarding

the same issue, this interlocutory appeal is governed by 28 U.S.C. §158(a)(3). Because the
i Capitalized term used but not defined herein have the meanings ascribed to them in the Motion ofW.R. Grace to Dismiss Appeal (Dkt. No.7).

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Libby Claimants can appeal the Stay Order only "with leave of the court," and they canot (and
have not tred to) justify such "leave," this Cour should dismiss the appeaL. 2

A. As this Court Has Held, The Stay Order is Not Appealable as of

Right

The Libby Claimants admit that this Cour has rejected their arguents that the Stay
Order is a preliminary injunction3 and is reviewable as of right under 28 U.S.c. § 1292(a)(1).4

Because the Libby Claimants simply rehash the same arguents, this Cour should reach the
5

same conclusion.

The Libby Claimants again find themselves in the curious position of arguing that this

Court's jursdiction over this appeal is governed by 28 U.S.C. § 1292, which governs appeals
from the distrct courts to the courts of appeals, rather than by 28 U.S.c. § 158(a), which governs
appeals from the banptcy cours to the district cours.6 They do not base that counter-intuitive

position on any statutory language; indeed, they do not even quote the language of the relevant

2 The opposition fied by BNSF on December 12, 2007 (Dkt. No. 13) merely recites the arguments in the Libby Claimants' Opposition. Thus, by responding to the Libby Claimant's Opposition, this reply also addresses the
BNSF Opposition.

3 Libby Claimants' Opp. at 5 (statig that "(t)his Cour declined to accept that argument in May 2006" and that
"(s)ince then, there has been no new authority").
4 Libby Claimants' Opp. at 2 ("This Cour's decision of the stay was reviewable as of

May 10,2006 rejected the Libby Claimants' position that right under 28 U.S.C. § l292(a)(1) . . . .").

5 For this reason, Grace agrees with the Libby Claimnts that oral argument is not necessary (Libby Claimants'

Opp. at 13 n.25).

6 Section 1292(a)(1) of the Judicial Code grants "the cours of appeals" jurisdiction over certain appeals from the district cours of the United States." Section 158 provides in pertent part that: "(i)nterlocutory orders of
(a) The district cours of

the United States shall have jurisdiction to hear appeals

(1) from finaljudgments, orders, and decrees;

(2) from interlocutory orders and decrees issued under section lI21(d) of title 11
increasing or reducing the time periods referred to in section 1121 of such title; and
(3) with leave of

the cour, from other interlocutory orders and decrees.

28 U.S.C. § 158(a).

2

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statutes. And for good reason: their position is contrar to the explicit statutory text. Instead, the
Libby Claimants base their position entirely on caselaw purorting to apply the statutes.
As demonstrated in Grace's Motion to Dismiss, varous Supreme Cour and circuit cour

decisions -- including a long line of Third Circuit Cour of Appeals cases -- recognize that
district cours' jursdiction over banptcy appeals are governed by 28 U.S.C. § 158(a), not §
1292. (Motion to Dismiss at 8-9).7 The Libby Claimants do not dispute any of these cases cited

in the Motion to Dismiss. Nor do the Libby Claimants dispute that the sole appellate authority
they cite in support of their contrary position -- a footnote from In re Professional Ins. Mgm't,

285 F.3d 268, 282 n. 16 (3d Cir. 2002) -- is unsupported dicta and not binding on this Cour.

(Motion to Dismiss at 10).8 Finally, the Libby Claimants make no attempt to deal with the
Second Circuit's contrary holding that § 158(a)(3), not § 1292(a)(1), governs appeals from
bankptcy courts to district courts. See In re Kassover, 343 F.3d 91, 93-95 (2d Cir. 2003); see
also In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1299-1300 (7th Cir. 1997) (same). Thus,
appellate caselaw simply does not support the Libby Claimants' counter-intuitive and antitextual position.

7 See generally Connecticut Natl Bank v. Germain, 503 U.S. 249, 252 (1992) ("Bankptcy appeals are governed

for the most part by § 158," except when taken from a district cour to a cour of appeals, in which case § 1292 also applies); In re Resorts lntl, Inc., 372 F.3d 154, 160 (3d Cir. 2004) ("The District Court had jurisdiction to review the Bankptcy Cour's order under 28 U.S.C. § 158. We (the cour of appeals) have jursdiction under 28 U.S.C. § 1292(b)."); Landon v. Hunt, 977 F.2d 829, 830 (3d Cir. 1992) ("The distrct cour jursdiction is
from 28 U.S.c. § l58(a). Our (cour of appeals) jurisdiction is from 28 U.S.c. § 158(d), and 28 U.S.C. §§ 1291

and 1292."); In re Pruitt, 910 F.2d 1160, 1164 (3d Cir. 1990) ("Appeals from orders of a bankptcy judge are

governed by 28 U.S.C. § l58(a).")
8 See Kontrabecki v. Lehman Bros. Holdings, Inc., 2006 WL 249515, at *2 (N.D. CaL. Feb. 1,2006) (noting that

Professional Insurance is "dicta" on this point). Under settled Thid Circuit law, dicta is not binding on this
Cour. See, e.g., Ponnapula v. Ashcroft, 373 F.3d 480, 488 n.5 (3d Cir. 2004); Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 355 (3d Cir. 2002); Pryor v. National Collegiate Athletic Ass 'n, 288 F.3d 548, 568 (3d Cir.

2002); South Camden Citizens in Action v. New Jersey Dep't of Envtl Protection, 274 F.3d 771, 784 (3d Cir.
2001).

3

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The Libby Claimants ultimately base their position on a smattering of distrct cour
decisions invoking 28 U.S.c. § 1292(a)(1) to hear appeals from banptcy court injunctions
(Libby Claimants' Opp. at 6-9). At most, those citations prove that the distrct cours are divided
on this point: there are many more distrct cour cases holding that 28 US.c. § 158(a)(3)
provides the exclusive mechanism for appealing interlocutory banptcy cour orders to the

distrct court, and that 28 U.S.c. § 1292(a)(1) does not apply to such appeals.9 However, the
task here is not counting up the number of district cours on either side of the issue. That is not

necessary. The only district court that counts -- this one -- has already ruled that this appeal is
governed by 28 US.C. § 158(a).io And, the Third Circuit and other Circuit Cours have agreed.

The bottom line is that 28 U.S.c. § 158(a) does not contain a provision analogous to 28

US.C. § 1292(a)(1), which grants the circuit cours of appeals jurisdiction over appeals from
interlocutory district court orders granting injunctions. Congress could have, but did not, include

a provision analogous to § 1292(a)(1) in § 158(a). The Libby Claimants seek to rewrte the
statute to do just that. With the sole exception of interlocutory orders increasing or reducing plan

of reorganization exclusivity periods under 11 US.C. § 1121(d), Congress decided to vest the
district courts with discretion over all appeals from interlocutory banptcy court orders. See

28 U.S.C. § 158(a)(3). Of course, a district court may exercise its discretion to hear an appeal

where a bankptcy cour grants an injunction that would have been appealable as of right under

§ 1292(a)(1) if granted by the district court itself. However, as discussed below and in the
9 See, e.g., In re Quigley Co., 323 B.R. 70, 76-77 (S.D.N.Y. 2005); In re Enron Corp., 316 B.R. 767, 770

(S.D.N.Y. 2004); In re Johns-Manvile Corp., 2004 WL 385118, at *1 (S.D.N.Y. Mar. 1,2004); In re Mirzai, 271 B.R. 647, 651 & n.4 (C.D. Cal. 2001); In re First Allance Mortgage Co., 269 B.R. 424, 427 & n.6 (C.D. Cal. 2001); In re First Allance Mortgage Co., 264 B.R. 634, 644 & n.9 (C.D. Cal. 2001).
10 See In re WR. Grace & Co., 2006 WL 1313190 (D. DeL. May 10, 2006); 4/25/06 Hr'g Tr. (Dist. Crt. App. D.L
27) at 12:1-15.

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Motion to Dismiss, Grace respectfully submits that this is not such a case. There is no sound

basis for an interlocutory appeal under 28 U.S.C. § 158(a)(3) because all that is at issue is a

temporary stay. The Bankptcy Cour expressly withheld judgment on whether to grant the
requested injunctions. If and when the Banptcy Cour grants the injunctions, the Libby
Claimants are free to seek an appeal at that time.
B. The Libby Claimants Have Failed to Meet Their Burden of Demonstrating Grounds

for Granting an Interlocutory Appeal Under 28 U.S.c. § 158(a)(3)
The Libby Claimants also admit that this Court previously found that the conditions

necessary for an interlocutory appeal of the Stay Order under 28 US.c. § 158(a)(3) are not
present. (Libby Claimants' Opp. at 3).11 As explained in the Motion to Dismiss, this Appeal

should be denied under 28 U.S.C. § 158(a)(3) because the Libby Claimants canot demonstrate

that (a) exceptional circumstances exist for an appeal of the Stay Order, (b) the Stay Order
involves a controlling question of law upon which there is substantial grounds for difference of

opinion, and (c) an immediate appeal of the Stay Order will materially advance the ultimate
termination of

the litigation. (Motion to Dismiss at 13-14).

No exceptional circumstances exist to justify an interlocutory appeal because the Stay

Order does not affect the merits of any actions -- it merely preserves the status quo while the

Bankptcy Court considers the Injunction Motions. The Libby Claimants' argument that
exceptional circumstances exist because the Bankptcy Court found that it lacked jurisdiction to
enjoin actions against the State of

Montana (Libby Claimants' Opp. at 3, 6, 11) ignores a critical

fact: the Montana Injunction Denial Order is being reconsidered by the Banptcy Court
because the jursdictional finding is alleged to be contrary to Third Circuit precedent governing
11 See In re WR. Grace & Co., 2006 WL 1313190.

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jursdiction of the very same Injunction that Grace sought to expand to include actions against
the State of Montana.

12

It is undisputed by the paries that distrct cours in this circuit look to 28 U.S.c.
§ 1292(b) for guidance in deciding whether to grant leave to appeal an interlocutory order under
28 US.c. § 158(a)(3). Rather than meeting their burden of demonstrating these requirements,

the Libby Claimants summarly assert that (1) "(t)he Stay Order involves a controllng question

of law concernng application of Fed.R.Civ.P. 65 and subject matter jurisdiction under 28
U.S.c.§ 1334(b);" (2) "(s)ubstantial grounds exist for differing opinions to arse on these issues;"

and (3) "an immediate appeal wil advance the termination of the State Litigation and BNSF
Litigation by permitting these lawsuits to reach trial or settlement without fuher interrption."
(Libby Claimants' Opp. at 11-12). Not only have the Libby Claimants failed to even attempt to
affrmatively demonstrate the requirements for leave to appeal, they have not disputed the

arguments in the Motion to Dismiss which clearly demonstrate that the requirements cannot be
met.

As demonstrated in the Motion to Dismiss, the Libby Claimants' summar assertions are

unfounded. First, the Stay Order does not involve a controlling issue of law because the
Bankptcy Cour did not address the merits of the underlying Injunction Motions -- it merely
issued a temporar stay while it considered the motions. Second, the Libby Claimants have

failed to identified any substantial grounds for differing opinions regarding the issue on appeal:
whether the Bankptcy Court can issue a "breathing room" stay to decide the underlying
12 See Debtors' Motion to Alter and Amend the Cour's Order Denying Its Request to Expand the Prelimiary
Injunction to Include Actions Against the State of Montana (Adv. Pro. D.L 427); State of

Montana's Motion for

Reconsideration of Cour's Opinon and Order Denying Debtors' Motion for Expansion of Preliminary
Injunction (Adv. Pro. D.L 426).

6

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Injunction Motions. Simply stating that "substantial grounds exist for differing opinions" is not

sufficient.13 Nor is it accurate -- as this Court has recognized, such an order is "entirely
appropriate."14 Finally, immediate appeal of

the Stay Order wil not materially advance ultimate

termination of the litigation because the merits of the Injunction Motions would still need to be
decided by the Bankptcy Cour even if

the Libby Claimants prevailed on their appeaL.

Accordingly, this appeal should be dismissed because the Libby Claimants' have failed to

meet their burden of demonstrating the requirements for leave to appeal under 28 U.S.C. §
158(a)(3).

C. The Merits of the Injunction Motions are Not Before this Court

Regardless of the foregoing jurisdictional issues, in no event is it either necessary or

appropriate for this Cour to address the merits of the Injunction Motions. As the Libby
Claimants emphasize in their Opposition, "(t)he Bankptcy Cour has not ruled on the motions

for reconsideration or Grace's motion to enjoin the BNSF Litigation. . . ." (Libby Claimants'

Opp. at 4). In the Libby Claimant's prior appeal, this Cour exercised its jurisdiction for the
narrow purose of directing the Bankptcy Cour to advise the paries as to when it expected to
render a decision on the underlying motions.15 To the extent the Court has similar concerns
regarding the Stay Order, it should enter an order directing the Banptcy Court to set a date by
which it wil rule on the Injunction Motions. Thus, even if this Cour were to exercise

13 See Burns v. Lavender Hil Herb Farm, Inc., 2005 WL 545288, *2 (B.D. Pa. 2005) ("Plaintiffs disagreement with the Cour's logic, without citation to contrary authority, does not create a legally suffcient difference of opinon."); General Refractories Co. v. Allstate Ins. Co., 1995 WL 71044, *1 (B.D. Pa. 1995) ("First, plaintiff fails to establish that there are substantial grounds for difference of opinon. Merely asserting such difference. . .
does not satisfy the more stringent requirements of § 1292(b).")
14 4/25/06 Hr'g Tr. (Dist. Crt. App. D.L 27) at 11 :7-11.

15 See In re WR. Grace & Co., 2006 WL 1313190.

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jurisdiction over this Appeal, the proper outcome would not be to address the merits of the
Injunction Motions in the first instance, but to have the Banptcy Cour address the Stay
Order's length while it decides the Injunction Motions.

WHEREFORE, for the foregoing reasons and those in the Motion to Dismiss, Grace

respectfully request that this Court (1) dismiss the Appeal for lack of jurisdiction under 28
U.S.c. §158(a)(1) and (2) decline to grant appeal of an interlocutory order under 28 U.S.c.
§158(a)(3).

Dated: December 13, 2007

KILAN & ELLIS LLP
David M. Bernick, P.C. Janet S. Baer Salvatore F. Bianca 200 East Randolph Drive Chicago, Ilinois 60601
Telephone: (312) 861-2000

Facsimile: (312) 861-2200
- and -

PACHUSKI STANG YOUNG
& JONES LLP

ra Davis Jones (Bar No. 2436) ames E. O'Neill (Bar No. 4042) 919 North Market Street, 16th Floor P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courer 19801) Telephone: (302) 652-4100

tô~

Facsimile: (302) 652-4400
Co-Counsel for the Debtors and Debtors in Possession

8

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

In re:

W. R. GRACE & CO., et aI.,
Debtors.

) ) ) ) )

07-609 Hon. Ronald L. Buckwalter United States District Judge
No.

)
)

MARGARET CHAKARIAN, et aI., AND JOHN DOES 1- 1000,
Appellants,
v.

W. R. GRACE & CO., et aI.,
Appellees.

) ) ) ) ) ) ) )
) )

Appeal from United States Bankrptcy Court for the District of Delaware
Case No. 01-01139 (Jointly Administered)
Adversary No. A-01-771

Hon. Judith K. Fitzgerald
Chapter 11

CERTIFICATE OF SERVICE
December, 2007, I

I, James E. O'Neil, hereby certify that on the 13th day of

caused a copy of the following document to be served on the individuals on the attached service
list(s) in the manner indicated:

REPLY OF W.R. GRACE IN SUPPORT OF MOTION TO DISMISS APPEAL

Ja

91 100-00IIDOCS_DE: i 14838.5

Case 1:07-cv-00609-RLB

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W. R. Grace & Co. et al. Appeal Service List Case No. 07-cv-00609
Document Number: 132779

15 - Hand Delivery 14 - First Class Mail

Hand Delivery (Counsel to Personal Injury Claimants) Marla R. Eskin, Esquire Mark T. Hurford, Esquire Campbell & Levine, LLC 800 N. King Street, 3rd Floor

Wilmington, DE 19801

Possession) ,

(Counsel to Debtors and Debtors in

Hand Delivery (Counsel to The Chase Manhattan Bank)

Laura Davis Jones, Esquire James E. O'Neil, Esquire Pachulski Stang Ziehl & Jones LLP 919 North Market Street, 17th Floor Wilmington, DE 19801
Hand Delivery Vito 1. DiMaio
Parcels, Inc.

Mark D. Collns, Esquire Deborah E. Spivack, Esquire
Richards, Layton & Finger, P .A.

One Rodney Square P.O. Box 551 Wilmington, DE 19801
Hand Delivery (Counsel to Property Damage Claimants) Michael B. Joseph, Esquire

10th & King Streets Wilmington, DE 19801
Hand Delivery

Theodore J. Tacconell, Esquire
Ferr & Joseph, P.A.

(Counsel to Offcial Committee of Unsecured Creditors) Michael R. Lastowski, Esquire Duane, Morris & Heckscher LLP 1100 North Market Street, Suite 1200 Wilmington, DE 19801-1246
Hand Delivery (Counsel to DIP Lender) Steven M. Yoder, Esquire The Bayard Firm 222 Delaware Avenue, Suite 900 Wilmington, DE 19801 Hand Delivery (Counsel to Maryland Casualty Company) Jeffrey C. Wisler, Esquire Connolly Bove "Lodge & Hutz LLP
1220 Market Street, 10th Floor

824 Market Street, Suite 904 P.O. Box 1351 Wilmington, DE 19899
Hand Delivery (United States Trustee) David Klauder, Esquire Office of the United States Trustee 844 King Street, Room 2311

Wilmington, DE 19801
Hand Delivery (Counsel to Equity Committee)

Teresa K. D. Curer, Esquire
Klett Rooney Lieber & Schorling
1 000 West Street, Suite 1410

P.O. Box 1397 Wilmington, DE 19801

Wilmington, DE 19801

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Hand Delivery (Counsel to Libby Plaintiffs) Adam G. Landis, Esquire
Kerr Mumford, Esquire

Hand Delivery (Counsel to David T. Austern, Futue
Claimant' s Representative)

Landis Rath & Cobb LLP 919 North Market Street, Suite 600 Wilmington, DE 19801
Hand Delivery Ellen W. Slights Assistant United States Attorney The Nemours Building
1007 Orange Street, Suite 700

John C. Philips, Jr., Esquire Philips, Goldman & Spence, P.A. 1200 North Broom Street Wilmington, DE 19806

First Class Mail
(Counsel to Libby Plaintiffs) Jon L. Heberling, Esquire John F. Lacey, Esquire
McGarvey, Heberling, Sullivan & McGarvey, P.c.

P.O. Box 2046 Wilmington, DE 19899
Hand Delivery
(Counsel to the State of

745 South Main Kalispell, MT 59904
Montana)

First Class Mail
(Counsel to Debtors) David M. Bernick, P.c. Janet S. Baer, Esquire

Francis A. Monaco, Jr, Esquire

Kevin Mangan, Esquire Womble, Carlyle Sandridge & Rice, PLLC 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801

Kirkland & Ells LLP 200 East Randolph Drive Chicago, IL 60601

Hand Delivery (Counsel for BNSF Railway Company) Evelyn Meltzer, Esquire Pepper Hamilton LLP
Hercules Plaza, Suite 5100

First Class Mail
(Debtors) Mark Shelnitz W. R. Grace & Co. 7500 Grace Drive Columbia, MD 21044

1313 Market Street P.O. Box 1709 Wilmington, DE 19899
Hand Delivery (Counsel for Royal Indemnity Company) Ian Connor Bifferato, Esquire Bifferato, Gentilotti & Biden
1308 Delaware Avenue .

First Class Mail (Counsel to Offcial Committee of
Unsecured Creditors)
Lewis Krger, Esquire

Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038-4982

P.O. Box 2165 Wilmington, DE 19899

First Class Mail
(Counsel to Personal Injury Claimants) Elihu Inselbuch, Esquire Rita Tobin, Esquire Caplin & Drysdale, Chartered
375 Park Avenue, 35th Floor

New York, NY 10152

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First Class Mail First Class Mail (Counsel to Propert Damage Claimants)
Scott L. Baena, Esquire Bilzin Sumberg Dunn Baena Price & Axelrod LLP First Union Financial Center 200 South Biscayne Blvd, Suite 2500

(Counsel to Libby Claimants) Daniel C. Cohn, Esquire
Chrstopher M. Candon, Esquire

Cohn & Whitesell LLP 101 Arch Street Boston, MA 02110

Miami, FL 33131 .
First Class Mail

First Class Mail (Counsel to David T. Austern, Future
Claimant' s Representative)

(Counsel to Equity Committee) Philip Bentley, Esquire Kramer Levin Naftalis & Frankel LLP 11 77 Avenue of the Americas New York, NY 10036

Roger Frankel, Esquire Richard H. Wyron, Esquire Orrick Herrington & Sutcliffe LLP Columbia Center 1152 15th Street, N.W. Washington, DC 20005-1706

First Class Mail
(Counsel to Personal Injury Claimants) Peter Van N. Lockwood, Esquire Nathan D. Finch, Esquire Caplin & Drysdale, Chartered One Thomas Circle, N.W. Washington, DC 20005

First Class Mail
Montana) Dale R. Cockrell, Esquire
(Counsel for State of

Chrstensen, Moore, Cockrell, Cummings

& Azelberg, P.C. P.O. Box 7370 Kalispell, MT 59903

First Class Mail (Counsel to Offcial Committee of
Unsecured Creditors) Wiliam S. Katchen, Esquire Duane Morris LLP
744 Broad Street, Suite 1200

First Class Mail
(Counsel to BNSF Railway Company) Edward C. Toole, Jr., Esquire Ane Marie Aaronson, Esquire 3000 Two Logan Square 18th & Arch Streets Philadelphia, P A 19103

Newark, NJ 07102-3889

First Class Mail
(Counsel to DIP Lender) David S. Heller, Esquire J. Douglas Bacon, Esquire Latham & Watkins Sears Tower, Suite 5800 233 South Wacker Drive Chicago, IL 60606