Free Answering Brief in Opposition - 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 DELAWARE
INRE:
R. Grace & Co. et al.
Chapter 11

Case No. 01- 01139

(JKF)

Adv. Proc. No. 01- 771
Debtors.

Jointly Administered

Libby Claimants

Appellants

1 :07 -cv- 00609 Hon. Ronald L. Buckwalter United States District Judge

R. Grace & Co.

et al.

Appellees.

RE: DJ. 7

LIBBY CLAIMANTS' OPPOSITION TO MOTION OF W. R. GRACE TO DISMISS APPEAL
Claimants injured by exposure to asbestos from Grace s operations in and near Lincoln

County, Montana (the " Libby

Claimants

), 1 hereby respond

R. Grace to
). While Libby Claimants

Dismiss Appeal dated November 13 , 2007 (the " Motion to Dismiss

suffer without the 24- hour care that they need , Grace seeks the dismissal ofthe Libby Claimants

appeal from an
prosecuting their tort claims (the " State
Litigation

Stay Order

) enjoining them

) against the State of Montana (the " State

and their tort claims (the " BNSF Litigation ) against the BNSF Railway Company and certain

I As identified in the Amended and Restated Verified Statement of Cohn Whitesell & Goldberg LLP and Landis
No. 01- 01139

Rath & Cobb LLP Pursuant to Fed. R. BanIa. P. 2019 (Bankr. Case D. l. 17337) filed in the bankruptcy case (Case (JFK)), as it may be amended and restated from time to time.

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affiliates ("

BNSF,, 2 The
c. 9

appealable to this Court as

1292(a)(1). Alternatively, the Libby
for this appeal to proceed on the basis that justice requires immediate review of the Stay Order.

BACKGROUND

Since the procedural history of this matter is set forth in detail in the Libby Claimants
opening brief 3 a summary will be sufficient here.
The Libby Claimants ,

Grace and the State appeared before this Court in April 2006. Four

months earlier , the Bankruptcy Court had issued a " temporary stay " of litigation by the Libby
Claimants against the

permitting the court to determine whether to grant Grace s motion to preliminarily
State Litigation.

4 The Libby

temporary

stay " exceeding the permissible ten (extendable to 20) day duration of a temporary

under under Fed. R. Civ. P. 65 is reviewable as a preliminary injunction-or , alternatively, that

this Court should grant leave for an
because the bankruptcy court lacked subject matter jurisdiction to enjoin the State
This Court' s

decision of May 10 , 2006 rejected the Libby Claimants ' position that the stay was
c. 9 l292(a)(1), and then

reviewable as of right under 28 U.

2 (Adversary Proc. D.

l. 466. ) Items designated by the Libby Claimants , the State , and Grace to be included in the record are from the main bankruptcy case , the bankruptcy adversary proceeding, and the previous appeal to this

Court (Docket No. 1 :06- CV -26).

Accordingly,

main bankruptcy case " (Bankr. Case D. " the bankruptcy adversary proceeding " (Adversary Proc. D. or the prior appeal to this Court " (Dist. Crt. App. D.

l. ~,

l. ~.

l. ~,

3 Libby Claimants ' Brief at pp. 6- 12.

4 (Adversary Proc. D.
5 (Dist. Crt. App. D.

l. 376.

l. 5 and 22.

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The Court believes , generally, that the conditions necessary for the Court to entertain this interlocutory appeal are not present in this case. However

jurisdiction under 28 US. c.

the Court thinks the indefinite nature of the Bankruptcy Court' s stay order may present an exceptional circumstance. Therefore , the Court exercises

9

addressing the indefiniteness of the Bankruptcy Court' s stay order. A time
frame in which the Bankruptcy Court

Debtors ' motion to expand the against the State of Montana would be appropriate in light of the indefinite stay order presently in place. However , the Bankruptcy Court is , in the first instance , best suited to determine that time frame.

R. Grace v. Libby Claimants
2006). 6 Accordingly, this Court

R. Grace & Co.

2006 WL 1313190 ,

*1 (D. Del.

advise the parties of a specific date on or
Debtors ' motion to expand the preliminary injunction.

There have been three significant developments since that time:
The Bankruptcy Court ignored this Court' s directive and never

parties with a date upon which it would decide the State Injunction Motion. The
Bankruptcy Court did not render its decision for more than 11

months after this

Court' s

order- 16 months from the entry of the initial stay order.

When finally rendered , the Bankruptcy Court' s decision (the " Injunction Denial
Decision ) fully vindicated the Libby Claimants ' position that the

Court lacked subject matter jurisdiction to enjoin the State Litigation.

Grace and the State moved for reconsideration of the Injunction Denial

6 (Dist. Crt. App. D. l. 26.

l. 419. ) (Bankr. D. Del. 2007).

7 (Adversary Proc. D.

Reported as

R. Grace & Co. v. Chakarian (In re W. R. Grace & Co. , 366 B. R. 295

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Decision

whereupon the Bankruptcy Court imposed a new " temporary

stay

for the stated purpose of providing time to rule on those motions together with a

request by Grace for yet
Libby Claimants '

, this time to

state court claims against BNSF

-a

has said the Bankruptcy Court lacks jurisdiction to grant.

The new Stay Order , which is the subject of this appeal , enjoins both the State Litigation
and the

The

reconsideration or Grace s motion to enjoin the BNSF Litigation, nor given any indication of any
date by which it will do so. In

the meantime , Libby Claimants struggle for precious air , and are

not receiving the 24- hour care they need.

' actions

to obtain the care they need. When enjoined , the State Litigation had reached the point where
the State

s motion to dismiss had been denied and the cases remanded for trial.

the BNSF Litigation had reached the point where cases were being scheduled for trial; indeed

the first of these cases would have gone to trial this month. Grace s bankruptcy is approaching

8 Debtors ' Motion to Alter and Amend the Court'
to Include Actions Against the State of

s Order Denying Its Request to Expand the Preliminary Injunction ); State of Montana s Motion for Reconsideration of Court' s Opinion and Order Denying Debtors ' Motion for Expansion of Preliminary Entered on April 16 , 2007. (Adversary Proc. D. l. 426.

9 (Adversary Proc. D. l. 466.
10 Debtors

' Motion to Expand the Preliminary Injunction to Include Actions Against BNSF.

398.

II BNSF Railway Company s Response to Debtors ' Motion to Expand the Preliminary Injunction to Include Actions Against BNSF. (Adversary Proc. D. I. 413. ); Motion ofBNSF for Leave to File a Reply (I) In Further Support ofIts Motion for Clarification of the Scope of the , or In the Alternative , for Relief Preliminary Injunction and (II) In Further Opposition to the Debtors ' Motion to Expand the Preliminary Injunction to Include Actions Against BNSF. ); BNSF Railway Company s Joinder in Libby Claimants ' Motion to Alter or Amend the Court' s Modified Order Regarding the Debtors ' Motion to Expand the Preliminary Injunction to Include Actions Against BNSF (Adversary Proc. D. I. 461.)
12

See Affidavit of Dr. C. Brad Black , ~ 7 (Adversary Proc. D. l. 417).

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its seventh anniversary with no end in sight.

' litigation against the State

and BNSF represents their only near- term hope for the care they desperately need.

ARGUMENT

The Motion to Dismiss

, no matter how

characterized by the bankruptcy judge , constitutes a preliminary injunction because it has lasted

longer than the maximum of20 days permitted by
415 U.S. 61 ,

see Sampson v. Murray,

86- 88 (1974);

Nutrasweet Co. v. Vit- Mar Enterprises, Inc. 112 F. 3d 689 (3d Cir.

1997), and (b) a preliminary injunction entered by a bankruptcy court is immediately reviewable
by this Court pursuant to 28 U. C. 9 1292(a)(1). Even if this Court concludes , as it did in the

earlier appeal , that the Stay Order is an interlocutory order that requires leave to appeal under 28
U.S. C. 9 158(a)(3), leave should be granted and the Motion to Dismiss should be denied , because

the issues presented by the Stay Order warrant this Court' s immediate review.
The Stay Order is a

Preliminarv Injunction

This Court is referred to the
full argument that the Stay Order-like any stay in an injunction proceeding that extends beyond
the ten or 20- day duration permitted by Fed. R. Civ. P. 65-is treated as a preliminary injunction
for purposes of appellate review. 13 This Court declined to accept that argument in May

Since then , there has been no new authority. This is not
position is based on

provides an even more important development. As Oliver Wendell Holmes , Jr. observed The
life of the law has not been logic; it has been experience. 14 Experience has now demonstrated

13 Libby Claimants ' Brief at pp. 12- 16; Libby Claimants ' Reply Brief at pp. 214 O. Holmes

, The Common Law

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that the Bankruptcy Court' s
danger of which the Supreme Court warned in

use of a " temporary

stay "

of indefinite duration presents the very

Sampson , 415 U. S. at 86- 87: that if a

were

able to shield its orders
restraining orders , rather than as preliminary injunctions , (the court)

unlimited authority over the parties in an injunctive proceeding.

It has now been almost two

years since the Bankruptcy Court first stayed the State Litigation

For that period , the Libby

Claimants have been barred from pursuing the State Litigation through a series of "temporary
stays
" with no end in sight

even though the Bankruptcy Court itself has ruled that subject matter

jurisdiction does not exist for an injunction to be

The time has come for this Court to
Congress in the form of Rule 65
proceedings that is not a temporary restraining order or a preliminary injunction.

Sampson , 415

U.S. at 86- 88;

Nutrasweet , 112 F. 3d at 692.
Stay

II.

The

Order Is Appealable As Of Rieht to this Court

As an injunction , the Stay Order is appealable by the Libby Claimants to this Court as of
right pursuant to 28 U. C. 9
See

Connecticut Nat'l Bank v. Germain , 503 U.S. 249 253 (1992). Section

1292(a)(1) applicable to the appellate process described in Section
Sections 158(a)(3), 158(c)(2) and
and approved by the Third

See Honig v. Broege (In re
*3- 4
(D. N.J. 2006);

Mortgage Investors Group, L.P. , 2006 WL 3308585 ,

In re Profl

Mgmt. , 246 B.R. 47 , 59 (D. N.J. 2000),
(3d Cir. 2002);

vacated and remanded on other grounds, 285 F. 3d 268
, 235 B.R. 548 , 553 (D. Del. 1999);

In re Reliance Acceptance

15 (Bankr.

l. 11473 203:8.

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Avella, Jr. v. City of Newburgh (In re Bertoli) , 1987 WL 8196 , *4 (D. N. J. 1987);

see also In

re Profl Ins. Mgmt. 285 F. 3d 268 282 n.16 (3d Cir. 2002) (approval of District Court' s analysis
of appellate jurisdiction).

In

Midstate Mortgage , the district court recently
Thus , where

Section 1292(a) applicable to the appellate process described in Section

the orders entered in the bankruptcy court are in the form of injunctive relief, the district court
sitting as an appellate court , is authorized under Section
need to resort to discretion to grant leave to appeaL"

Midstate Mortgage , 2006 WL 3308585 , *3-

Similarly, in

Profl

, the district court concluded jurisdiction existed over the

appeal pursuant to Sections 158(c)(2) and 1292(a)(1), without the need to resort to discretion to
grant leave to appeal , because " an
injunction ,

whether permanent or preliminary, is appealable.

Profl
analysis ,

, 246 B. R.
explaining: " (W)e

at 59.
, was

agree that the District Court , sitting as an

authorized to hear the appeal from the Bankruptcy Court as an appealable injunctive order under
28 U.S. c.
9 1292(a)(1)

Profl

, 285 F. 3d at 282 n. 16.

Likewise , this Court has also concluded that bankruptcy injunctions are appealable as of

right pursuant to 28 U.

C. 9 1292(a)(1).

Reliance Acceptance , 235 B.R. at

Reliance
s injunction , this

Acceptance , which involved an appeal to this Court from a

Court explained the interplay of the jurisdictional statutes:
C. 9 158(a) governs the court' s jurisdiction to review orders of the bankruptcy court. It provides that appeals " with leave of the court , from interlocutory orders and decrees , of
28 U.
bankruptcy judges bankruptcy judges under

Section

provides that " (a)n appeal under subsection (a) ... of this section shall be

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taken in the same
taken to the courts of appeals from the district courts....

party from pursuing injunction for purposes of
1292(a)(I). "

C. 9 1292(a) governs appeals from the district courts to the courts of appeals and provides that a party has an appeal as of right to the court of appeals from a district court order Carson v. American Brands, Inc. , 450 U. S. 79 (1981). Cf. 11 Wright & Miller, Federal Practice and Procedure 9 3923 (" An order that prohibits a
28 U.

C. 9

Consequently, the court looks to sections 158(c)(2) and 1292(a) to find the

defendants have a right to appeal to this court at this time the Bankruptcy Court' s preliminary injunction order.
Reliance Acceptance , 235 B.R. at 553. Similar

Bertoli

case.

Bertoli , 1987 WL 8196 ,

*4. In that case ,

the court found that an
. Looking to

bankruptcy preliminary injunction was subject to an immediate appeal.

158(a), 158(c), and 1292(a)(1), the court concluded that an appeal of an injunction is " an appeal

of right and that the court is duty bound to hear and decide the issues presented.
Carol Gerard v. W. R. Grace & Co. (In re W. R. Grace & Co. , Civil Action

See also

1549:

Memorandum Opinion , pp. 1- 2

(D. Del. July 16 ,

2003) (Wolin , 1.) 16

("

the court has jurisdiction

over this case pursuant to 28 U.

C. 9
17

interlocutory orders with respect to injunctions.
2004).

vacated by

115 Fed. Appx.

565 (3d Cir.

Courts outside of the Third Circuit have similarly concluded that bankruptcy court orders
regarding injunctions are appealable as of right.

See Official Comm. of Unsecured Creditors of

16

l. 154.

Gerard (an appeal originating out of the same raising similar jurisdictional issues , in which both Grace and the Libby Claimants participated), Grace argued in its brief before this Court that 28 D. C. ~ 1292(a)(1) provided the district court with jurisdiction of appeals concerning bankruptcy court injunctions. Gerard , Civil Action No. 02- 1549: Brief of Appellees. The district Gerard , Civil Action No. 02- 1549: Memorandum Opinion , pp. 1-

17 Ironically, in

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Indust. Ceramics, Inc. v.

, 252 B.R. 296 , 301- 02 (W.

Y. 2000)

(recognizing that preliminary injunctions issued by bankruptcy court are appealable as of right to
district court , but finding that order on appeal was not an injunction);
La Habra Products, Inc. v.

Patio Indus. (In re Patio Indus. 220 B.R. 672 676 (C. D. Cal. 1996) (granting appeal as of right
under section 1292(a)(1) for review of bankruptcy court injunction);

Internal Revenue
135 B.R. 517

Ernst & Young, Inc. (In re Petition of Ernst & Young, Inc.
1991) (" the application of Section 1292(a) to
appealable " as of right).
R. 796 , 801- 02 and n. 5

520- 21 (S. D. Ohio

See also Sarah R. Neuman Found., Inc. v. Garrity (In re Neuman) ,
(S.

81

Y. 1998) (permitting appeal from bankruptcy court injunction).

Injunctions issued by
district courts. Both can be
, with irreparable consequences.
(a)s a

policy matter , the rulings of a non-Article III bankruptcy court should not be more insulated from

appellate review than the rulings of an Article III district court.
Prod., Inc. 190 B. R. 287 , 290 (E. D.

Clark V. Sanders (In re Reserve

Tex.

position are decisions from courts in the Second Circuit that directly contravene the established
precedent in this Circuit.

Profl

, Midstate

Mortgage Reliance Acceptance , and

Bertoli and courts outside of the Third Circuit have found

that bankruptcy court orders regarding injunctions are appealable as of right , this Court should
similarly conclude that the Stay Order is appealable as of right.
In sum , the Stay Order constitutes a preliminary injunction that is immediately appealable
to this Court pursuant to 28 U.S. C.
9 1292(a)(I). The appeal

, and

the Motion to Dismiss should be denied.

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III.

If this Court Concludes that the Stay Order is Not Appealable the Libby Claimants as of Right, Leave to Proceed with an Interlocutorv Appeal should be Granted under 28 U. c. & 158(a)
If this Court concludes that the Stay Order is not appealable by the Libby Claimants as of

right pursuant to 28 U.S. c.
granted under 28 U.S. c.

9 1292(a)(1), leave to

9 158(a). This Court has

orders through exercise of its discretion to grant a party leave to appeal.

C. 9 158(a)(3).

Since this provision provides no standard to assess whether leave to appeal is appropriate , courts

in the Third Circuit have imported the criteria of 28 U.S. C.

9 1292(b) - governing appeals of

interlocutory orders from district courts
interlocutory order of a bankruptcy court.

See Official Bondholders Comm. v. Chase Manhattan
In re Delaware &
, an interlocutory appeal

Bank (In re Marvel Entm t Group, Inc. , 209 B.R. 832 , 837 (D. Del.

Hudson Ry. Co. , 96 B.R. 469 , 472 (D. Del.

should be allowed if: " (1) a controlling question of law is involved; (2) the question is one where
there is a substantial

materially advance the ultimate termination of the litigation.
In essence ,

Marvel Entm , 209 B.R. at 837.

the appellant must

exceptional circumstances justify a
Delaware &

from the basic policy of postponing review until after the entry of final judgment."

Hudson , 96 B.R. at 473.
In the prior appeal before this Court concerning the stay of just the State Litigation , this

Court exercised jurisdiction under 28 U.S. c.
Bankruptcy Court' s stay order may

9 158(a)(3) because " the indefinite nature of the

18 To

concern , this Court ordered the

18 (Dist. Crt.

l. 26.

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would render a decision on the State Injunction Motion.

19 The Libby Claimants doubt that the

Court anticipated that the Bankruptcy Court would ignore its May 2006 order and that the matter

would still be unresolved

they most certainly exist now.
stayed the State Litigation ,

but the Bankruptcy Court itself has ruled that it lacked jurisdiction to

do so. Without

Claimants , the Bankruptcy
Litigation.

temporary stay "

of the

Exceptional circumstances also exist because the Bankruptcy Court has started down the

same road in respect of the BNSF
BNSF Litigation , the Libby
matter jurisdiction) as in the case

, and the Stay Order now

stay, of indefinite duration , of the BNSF Litigation as well as the State

Litigation has been stayed for 6 months with , once again , no end in sight.
accepts jurisdiction over this appeal , the abuse to which the

subjected by reason of illegal , indeterminate and unreasonably lengthy stays will continue.
In sum , this appeal presents

review-indeed , require interlocutory review in
criteria of

The three

Marvel Entm

and

Delaware & Hudson are met as well: (1) The Stay Order

a controlling question of law
jurisdiction under 28 U. C. 9 1334(b). (2)

arise on these issues. (3) An
19 (

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State Litigation and BNSF Litigation by
without further interruption.

At the hearing before this Court on the prior appeal , more than 19 months ago , this Court

was rightly
burdensome. ,,

unduly

20 There can be no doubt that the Stay Order is unduly
, 14

Claimants. Since
Libby Claimants have died of asbestos-related disease ?l
As has been

22 and

reports by Dr. Alan C. Whitehouse 23

the Stay

Libby Claimants. Many require oxygen. The Grace
end stage care , and home assistance that the Libby Claimants need?4 The Libby

hour

their families continue to suffer every single day while the Stay Order compounds their distress
by preventing their pursuit of the nearest term sources of 24-hour care: the State and BNSF. It is
in this Court' s power to permit the State Litigation and the BNSF Litigation to go forward. That

power should be exercised.

20 (Dist. Crt. App. D.

l. 27, 5:2.

21 (Adversary Proc. D.
22

l. 459 , Ex. 8.)

l. 363 and 417.
, Exs. A and B.

23 (Adversary Proc. D.I. 459

24 (Adversary Proc. D.

l. 417.

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CONCLUSION
The Motion to Dismiss should be denied. The appeal should go forward without further
delay, and the Stay Order should be vacated forthwith.25
Dated: December 3 , 2007

LANDIS RA TH & COBB

Wilmington , Delaware

tt~1,
Adam G. Landis (No. 3407 Kerri Mumford (No. 4186) 919 Market Street , Suite 600 O. Box 2087 Wilmington , DE 19801 Telephone: (302) 467- 4400 Facsimile: (302) 467- 4450 Email: landis0Jlrclaw. com mumford0JIrclaw. com
- and -

Daniel C. Cohn Christopher M. Candon

COHN & WHITESELL LLP
101 Arch Street Boston , MA 02110
Telephone: (617) 951- 2505
Facsimile: (617) 951- 0679

Email: cohn0Jcwgl1.com candon0Jcwg II. com
Counsel to the Libby Claimants

, this Court questioned the utility of oral argument since the issues had been thoroughly presented in the papers. (Dist. Crt. App. D.I. 27 , 14:21 - 15:7. ) If the Court takes a similar view of the Motion to Dismiss and of the appeal itself, the Libby Claimants are willing to dispense with oral argument , especially given their paramount concern for a decision that is speedy as well as just.

25 The appeal has been

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
INRE:
R. Grace & Co. et at.
Debtors.
Chapter 11

Case No. 01- 01139 (JKF)

Adv. Proc. No. 01- 771

Jointly Administered

Libby Claimants

Appellants

1 :07-cv- 00609 Hon. Ronald L. Buckwalter United States District Judge

R. Grace & Co. et at.

Appellees.

AFFIDAVIT OF SERVICE
STATE OF DELA WARE
) SS

NEW CASTLE COUNTY

Cathy A. Adams , being duly sworn according to law , deposes and says that she is employed by the law firm of Landis Rath & Cobb LLP , attorneys for the Libby Claimants in the above-referenced cases , and on the 3rd day of December , 2007 , a copy of the following

LIBBY CLAIMANTS' OPPOSITION TO MOTION OF W. R. GRACE TO DISMISS APPEAL
was caused to be served upon the parties on the attached list in the manner as indicated.

SWORN TO AND SUBSCRIBED before me this 3rd day of December , 2007.

L ~Jh.

N t Y

JOAN M.
NOTARY PUBLIC
STATE OF DEL.AWA.RE
393. 001- 18337. DOC

My comp'

:;SI,:XI

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Via First Class Mail
Libby Claimants, et al.

v. W. R. Grace & Co.,

et al.

(Counsel to W. R. Grace & Co. et al. David M. Bernick , P.

Civil Action No. 07- 609

District Court Appeal
Service List

Janet S. Baer , Esq. Lori Sinanyan , Esq. Kirkland & Ellis LLP 200 East Randolph Drive Chicago , IL 6060

Via Electronic Notification (Counsel to Debtors and Debtors in Possession)
Laura Davis Jones ,

Via First Class Mail
(Counsel to the Official Committee of Asbestos Personal Injury Claimants) Peter Van N. Lockwood , Esq. Nathan D. Finch , Esq. Caplin & Drysdale , Chartered One Thomas Circle , N. Washington , DC 20005

Esq. James E. O' Neill , Esq. Pachulski Stang Ziehl & Jones LLP 919 North Market Street , 17th Floor O. Box 8705 Wilmington , DE 19899

Via Electronic Notification (Counsel to the Official Committee of Asbestos Personal Injury Claimants) Marla Rosoff Eskin , Esq. Mark T. Hurford , Esq. Campbell & Levine , LLC 800 King Street , 3rd Floor Wilmington , DE 19801

Via First Class Mail
(Counsel to the Official Committee of Asbestos Personal Injury Claimants) Elihu Inselbuch , Esq. Caplin & Drysdale , Chartered 375 Park Avenue , 35th Floor New York , NY 10152- 3500

Via Electronic Notification Evelyn J. Meltzer , Esq. Pepper Hamilton LLP Hercules Plaza , Suite 5100 13 13 Market Street
PO Box 1709

Via First Class Mail
Edward C. Toole , Jr. , Esq.

Wilmington , DE 19899- 1709 (Counsel to BNSF Railway Company)

Anne Marie Aaronson , Esq. Pepper Hamilton LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia , P A 19103 (Counsel to BNSF Railway Company)

Via Electronic Notification (Counsel to the State of Montana) Francis A. Monaco , Jr. , Esq. Kevin J. Mangan , Esq. Womble Carlyle Sandridge & Rice , PLLC 222 Delaware Avenue , Suite 1501 Wilmington , DE

Via First Class Mail
(Counsel to the Libby Claimants) Daniel C. Cohn , Esq. Christopher M. Candon , Esq. Cohn & Whitesell LLP 101 Arch Street Boston , MA 02110