Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :05-cv—00876-KAJ Document 17 Filed 01/17/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: Chapter ll
SUMMIT METALS, INC., Case No. 98-2870
Debtor,
AMBROSE M. RICHARDSON, III, Appeal No. 1:O5—cv—876 (KAJ)
Appellant,
v.
FRANCIS A. MONACO, JR., TRUSTEE et
al.,
Appellees.
APPELLEE RHC ACQUISITION’S RESPONSE TO MOTION FOR EXTENSION OF
TIME TO FILE APPELLANT’S OPENING BRIEF
Appellee RHC Acquisition Inc. ("RHC"), by and through its undersigned counsel, hereby
respectfully submits its Response to Motion for Extension of Time to File Appellant ’s Brief (the
"Motion to Extend”) in the above-captioned appeal (the "Appeal").
BACKGROUND
l. On September 19, 2005, Francis A. Monaco, Jr. Trustee ("Appellee") in the
above-captioned bankruptcy case tiled a motion to approve the sale of Rivco assets to RHC, and
on October l2 and 18, 2005, the Bankruptcy Court held hearings on the sale motion.
2. On October 25, 2005, the Bankruptcy Court granted Appellee’s sale motion and
entered an order authorizing the sale of Rivco assets to RHC (the "Sale Order"). It is this Sale
Order from which this appeal was taken.
3. The Appellant waited until November 3, 2005--the tenth day following entry of
the Sale Order——to file its Notice of Appeal and its motion for stay pending appeal (the "Stay

Case 1 :05-cv—00876-KAJ Document 17 Filed 01/17/2006 Page 2 of 3
Motion"). The sale of the Rivco assets closed on November 4, 2005 because the Sale Order was
not stayed pending appeal. No hearing has been held on the Stay Motion although one is
scheduled for February 10, 2006 before Judge Carey in the Bankruptcy Court.
4. On or about December 16, 2005, the Appellee filed a Motion to Dismiss the
Appeal as Moot (the "Motion to Dismiss"). On December 19, 2005, RHC filed a joinder to the
Appellee’s Motion to Dismiss. On December 30, 2005, Appellant filed its Response in
Opposition to the Motion to Dismiss on January 9, 2006. Both Appellee and RHC filed
appropriate replies. Briefing is complete on the Motion to Dismiss and the Motion to Dismiss is
ready for this Cou1t’s disposition.
5. On or about December 19, 2005, this Court docketed the appeal. Pursuant to
Bankruptcy Rule 8009, unless the District Court excuses the filing of briefs or specifies different
time limits, the Appellant is required to file a brief within 15 days after the entry of the appeal on
the docket.
6. The appeal was referred to mediation with Vincent Poppiti serving as mediator.
The mediator held a preliminary mediation conference on January 3, 2006, and the mediator and
counsel to all parties agreed to hold mediation in abeyance until this Court decides the Motion to
Dismiss.
7. On January 3, 2006, Appellant filed its Motion to Extend, asking this Court to
extend the Appellant’s time to file its opening brief Appellant contacted counsel for RHC
earlier that day to request RHC’s consent to an extension, but Appellant filed the Motion to
Extend that evening without waiting for RHC to respond.
8. RHC consents to the relief requested by the Appellant in its Motion to Extend.
RHC concurs that all parties may save time and money by delaying briefs on the appeal until
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Case 1 :05-cv—00876-KAJ Document 17 Filed 01/17/2006 Page 3 of 3
after the Motion to Dismiss is decided. RHC believes that this Court will grant the Motion to
Dismiss, thereby obviating the need for any briefing in this appeal.
WHEREFORE, RHC respectfully consents to the entry of an order granting Appellant
an extension to file and serve its opening brief until February 11, 2006, or within ten (10) days
after the Court renders its decision with respect to the pending Motion to Dismiss, whichever is
earlier.
Respectfully submitted,
KLETT ROONEY LEIBER & SCHORLING
A Professional Corporation
Dated: January 17, 2006 By: /s/ Teresa K.D. Currier
Teresa K.D. Currier (#3080)
The Brandywine Building
1000 West Street, Suite 1410
Wilmington, DE 19801
Tel: (302) 552-4200
Fax: (302 552-4292
and
SHEEHAN PHINNEY BASS + GREEN, P.A.
Bruce A. Harwood
Steven E. Boyce
1000 Elm Street
Manchester, NH 03105
Attorneys for Appellee RHC Acquisition
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