Free Motion for Extension of Time to File - District Court of Delaware - Delaware

Case 1:05-cv—OO876-KAJ Document 11 Filed O1/O3/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11 Case No. 98-2870
)
SUMMIT METALS, INC. )
)
Debtor, )

)
AMBROSE M. RICHARDSON, III, ) _
) Appeal No. 1:05-cv—876 (KAJ) ·
Appellant, )
)
v. )
)
FRANCIS A. MONACO, JR., TRUSTEE, )
et al., )
)
Appellees. )
)
APPELLANT’S MOTION FOR EXTENSION
OF TIME TO FILE APPELLANT’S OPENING BRIEF
Ambrose M. Richardson., the Appellant herein, respectfully submits this Motion
for Extension of Time to File Appellonfs Brief (the "Motion to Extend") in the above-
captioned appeal (the "Appeal").
BACKGROUND
1. On September 19, 2005, Appellee Francis A. Monaco, Jr. Trustee
("Appe1lee") in the above—captioned bankruptcy case filed a motion to approve the sale of
Rivco to RHC Acquisition, Inc. ("RHC").
2. On October 12 and 18, 2005, the court held a hearing on the Appellee’s
sale approval motion.
Motion for Extension of Time to File Appellant_s Briefin Summit—1Richardson I-3-06.DOC

Case 1 :05-cv—OO876-KAJ Document 11 Filed O1/O3/2006 Page 2 of 4
3. On October 25, 2005, the court granted the Appellee’s motion and
rendered a decision and order authorizing the sale of Rivco to RHC ("Sale Order"). It is
this Sale Order from which the Appellant appealed.
4. On November 3, 2005, the Appellant filed a Notice of Appeal ("Appeal,"
at D.I. 542) and Motion to Stay Order Approving [Appellee’s] Motion to Sale [sic]
Certain N0n—Debt0r Assets and Overruling Objections ("Stay Motion," at D.I. 543).
5. At the time of filing the Appeal, Appellant repeatedly sought a hearing
date for the Stay Motion but received no response or a date from the Court for several
weeks thereafter. See Ayjidavit of Dawn Abernathy at D.I. 571. At that time, no further
omnibus hearing dates were available for the Stay Motion.
6. On or about December 13, 2005, the court gave January 25, 2006 at 11:30
am as the next available hearing date for the Stay Motion. The Appellant promptly filed
a Notice of Hearing for said date and time and served the Notice on all relevant parties.
On or about December 22, 2005, the involvement of visiting Judge Randolph Baxter was
terminated. Judge Kevin J. Carey was designated to replace Judge Baxter. At or about
that time, the Court informed the Appellant that the hearing for the Stay Motion would be
moved from January 25 to February 10, 2006, at 1:30 pm.
7. On or about December 16, 2005, the Appellee filed a Motion to Dismiss
the Appeal as Moot ("Motion to Dismiss"). On December 19, 2005, RHC joined the
Appellee’s Motion to Dismiss.
8. On or about December 19, 2005, the Court docketed the Appeal. Pursuant
to Bankruptcy Rule 8009, unless the district court excuses the filing of briefs or specifies
Motion for Extension nr Time to File Appeiinncs Briefin snmmngziennmsnn l-3-06,DOC

Case 1 :05-cv—OO876-KAJ Document 11 Filed O1/O3/2006 Page 3 of 4
different time limits, the Appellant is required to file a brief within 15 days after the entry
of the appeal on the docket.
9. The Appeal was referred t0 mediation with Vincent Poppiti serving as
mediator. Counsel to all parties to the Appeal participated in the mediation by telephone
on January 3, 2006. The parties agreed that mediation would be held in abeyance until
the Court makes a determination on the Motion to Dismiss. Pursuant to the parties’
agreement, the Appellee was given until January 9, 2006 to file a reply to the Appellant’s
Response to the Motion to Dismiss.
10. The undersigned requested (on January 3, 2006) that the Appellee and
counsel to RHC agree to a consent form of briefing/scheduling order to extend the
Appellant’s time to file its opening brief. As of the filing of this Motion, neither
Appellee nor RHC has responded to the Appellant’s request.
ll. Considering that the argument for the Motion to Stay will not be heard
until February 10, 2006, and that the Motion to Dismiss will not likely be resolved before
January 9, 2006, filing an opening brief would appear premature at this time. ln an effort
to save the parties time and expenses associated with the opening brief, the Appellant
respectfully requests an extension of time and seeks entry of an order for the same.
BASIS FOR THE RELIEF REQ QUESTED
12. No citations are needed for the proposition that the Court has authority to
control its own docketing and scheduling. The Appellant has set forth the above clear
and understandable reasons for the requested extension of time. No party would be
prejudiced if the extension is granted.
Maron for Extension of Time to File Appc11¤m_s ameri.] summrgzaamason l-3»06.DOC

Case 1 :05-cv—OO876-KAJ Document 11 Filed O1/O3/2006 Page 4 of 4
WHEREFORE, the Appellant respectfully requests entry of an order granting it
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,
HARVEY, PENNINGTON LTD.
Dated: January 3, 2006 By: /s/ James E. Hugger!
James E. Huggett, Esq (# 3956)
"J" Jackson Shrum, Esq. (#4757)
913 N. Market Street, 7`h Floor
Wilmington, Delaware 19801
(302) 351-1125 (telephone)
(302) 428-0734 (fax)
[email protected]
[email protected]
Counsel to A.M. Richardson / Appellant
Motion for Extension of Time to File Appellant_s Briefin Summititlichardson I-3-06.DOC