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

Case 1:04-cv-01565-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR
ARIN M. ADAMS, Chapter 11 Trustee of the Post-Confrmation Bankrptcy Estates
of CORAM HEALTHCARE CORP. and
)
)

) )

CORA INC.,
Plaintiff,
v.

) Civ. Action No. 04-cv-1565(SLR)
) )
)

DANL D. CROWLEY, et aI.,
Defendants.

)

)
) )

MEMORADUM OF CHAPTER 11 TRUSTEE ARIN M. ADAMS
IN OPPOSITION TO DEFENDANT DANIEL D. CROWLEY'S MOTION TO CONTINUE THE TRIAL DATE
Richard A. Barkasy (#4683)
Michael J. Barre (#4684)

Dated: July 12, 2007

SCHNADER HARSON SEGAL & LEWIS LLP 824 N. Market Street, Suite 1001 Wilmington, DE 19801 (302) 888-4554 (telephone) (302) 888-1696 (facsimile)
OF COUNSEL:

Barr E. Bressler (admitted pro hac vice) Wilbur L. Kipnes (admitted pro hac vice)
Nancy Winkelman (admitted pro hac vice)

SCHNADER HARSON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600
Philadelphia, PAl 9 103

(215) 751-2400 (telephone) (215) 751-2205 (facsimile)
Counsel to Plaintif

Arlin M Adams, Chapter 11 Trustee of the Post-

Confirmation Bankrptcy Estates of CORA
HEALTHCARE CORP. and CORA INC.

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TABLE OF CONTENTS
Page

i. NATURE AND STAGE OF PROCEEDINGS.............................................................. 1
II. STATEMENT OF FACTS. ............. ....... ........ .......... ..... ....... ..... ........ ........ ..... ........... ....... 2

III. SUMMARY OF ARGUMENT ........................................................................................4
IV. ARGUMENT ..................................................................................................................... 6
1. The First Basis For Crowley's Motion (The Pendency Of The Colorado Insurance Action) No Longer Exists. ..... ........ ............. ..... ............ ....... ........... ..... ..... ... ..... ..... ... ....... 7

2. The Second Basis For Crowley's Motion (The Pendency Of

Various Pre-Trial

Motions Before This Court) Is Not A Valid Reason For A Continuance..................... 8
3. The Trustee Will Be Prejudiced By A Continuance ................................................... 10

V. CONCLUSION ............................................................................................................... 12

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TABLE OF AUTHORITIES
CASES
Bus. Association of

University City v. Landrieu, 660 F.2d 867 (3d Cir. 1981).................10

Koplove v. Ford Motor Co., 795 F.2d 15 (3d Cir. 1986).....................................................6
Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 218 F.R.D. 667 (C.D.
Cal. 2003)........... .... ..................... ............... ...... ......... ..... ............. ... ....... ... ... ........ ..... ....11

Neomagic Corp. v. Trident Microsystems, Civ. A. No. 98-699,2001 U.S.Dist. LEXIS 14585 (D. DeL. Sept. 7, 2001)..........................................................................11
Sutherland Paper Company v. Grant Paper Box Company, 183 F.2d 926 (3d Cir. 1950) ............................................................................................................................1 0

Fontana v. United Bonding Insurance Co., 468 F.2d 168 (3d Cir. 1972) .........................10

RULES
FED.R. CIV.P. 16............................................................................................................. 6, 11
DEL. L.R. CiV. P. 7 .1.3( c )(2) ................................................................................................5

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I. NATURE AND STAGE OF PROCEEDINGS
Arlin M. Adams, the Chapter 11 Trustee of

the Post-Confirmation Banptcy

Estates of Coram Healthcare Corp. and Coram, Inc. (collectively, "Coram"), filed this action on
December 29,2004, alleging that defendant Daniel D. Crowley, Coram's former Chairman, CEO
and President, breached his fiduciar duties to Coram. On April

25, 2006, this Cour entered a

Scheduling Order setting a tral date of September 17, 2007. On November 14, 2006, the parties
requested an extension of certain deadlines but did not ask to continue the tral date past its
previously scheduled date. The paries agreed that the dates for dispositive motions would be

retained so that the trial date would not change.

A number of motions are now pending before this Cour. The Trustee has moved
for a protective order to prohibit Crowley from deposing the Trustee's trial counsel in this

matter. That motion is fully briefed and oral argument has been requested. (D.!. 121, 131, 141,
142.) Both parties have fied sumar judgment motions, which also are fully briefed, with oral

argument requested. (D.I. 123, 129; 133, 137; 143, 148; 145, 150, 151.) Crowley has filed a

motion to strike from the Trustee's sumar judgment papers evidence of, and references to, the

previous findings and conclusions ofthe Banptcy Court. (D.!. 146.) That motion is fully
briefed and oral arguent has been requested. (D.I. 147, 154.)

Crowley now moves to continue the trial date for a six-month period. This is the

Trustee's opposition to Crowley's motion.

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II. STATEMENT OF FACTS
Crowley's opening brief did not include a Statement of

Facts, but rather included

pertinent facts in the "Natue and Stage of

Proceedings" section of

his brief. The Trustee

similarly will not repeat the facts underlying this litigation, which have been fully briefed
elsewhere, including in the Trustee's Memorandum in Support of

his Motion for Summar

Judgment. (See D.I. 129.) The Trustee incorporates by reference that more complete Statement
of

Facts, and here discusses only those facts relevant to Crowley's request for a continuance--

namely, the facts relating to the Colorado insurance coverage litigation.

Shortly after the Trustee commenced this action, the defendants here, Crowley and Coram's Outside Directors (who have since settled with the Trustee) sought coverage for the

defense ofthis litigation under a base layer Directors' and Officers' Liability Policy that Coram

had purchased from Genesis Insurance Company. Genesis responded by filing a declaratory

judgment action ("the Insurance Action") in federal district cour in Colorado seeking a
declaration that the Dolicv does not Drovide coverage for the Trustee's claims. In connection

.."" .J _

with the settlement with the Outside Directors, they assigned their rights under the Genesis

policy to the Trustee and he was substituted for them as a pary in the Colorado case.

The parties in the Colorado Insurance Action (Genesis, the Trustee, and Crowley)

filed sumar judgment motions on varous coverage-related issues. These motions were fully
briefed in January 2007. The Colorado Court had not ruled on them as ofthe time that Crowley fied his motion to continue this tral, prompting Crowley to file the motion, arguing that the
pendency of the sumar judgment motions in Colorado waranted delay of

this triaL. But then,

on June 25, 2007, three days after Crowley had filed the motion to continue, the Colorado Cour

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decided all of

the motions pending before it. (See D.I. 159 Ex. A (Colorado Court's June 25,

2007 Opinion).)

In order to understand the context of Crowley's motion to continue, a brief

explication ofthe Insurance Action is necessary. The Colorado Cour had four issues before it
on summar judgment, two of which involved Crowley and the Trustee, and two of

which

involved only the Trustee. (All of

the issues involved Genesis, of course.) The Cour ruled in

favor of Crowley and the Trustee, and against Genesis, on both the issues before it that involved
Crowley.

First, the Colorado Cour held that notice under the policy was adequate because,
even though the claims were asserted after the expiration of the policy period, adequate notice
had been given during the policy

period. (D.!. 159 Ex. A at 6-11.) Second, the Cour ruled that

coverage extends to claims and losses arising out of Crowley's (and the Outside Directors')

conduct that occurred after the policy's expiration (Januar 27, 2001) because the entire course
of conduct was related to and arose out of the same acts and omissions. (D.I. 159 Ex. A at 1114.)

As to the two issues before the Colorado Court on sumar judgment in the
Insurance Action that involved the Trustee, but not Crowley, one potentially could have involved

Crowley, but did not because Crowley and Genesis agreed to defer the Cour's ruling on it until
after the trial in this case. That issue has to do with an exclusion in the insurance policy known

as the "personal profit" exclusion, which excludes coverage for any loss in connection with any

claim arsing out of a director's or officer's "gaining in fact any profit or advantage to which
they were not legally entitled." As Crowley notes in his brief in support of

his motion to

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continue, Crowley and Genesis agreed to defer any litigation regarding the applicability of the

personal profit exclusion to Crowley until after the Trustee's claims against Crowley have been
resolved here. (D.I. 158 at 4-5 n.3.)!

In short, all that was before the Colorado Court for decision involving Crowley

has now been resolved. The only extant issue related to Crowley in the Insurance Action - the
applicability ofthe personal profit exclusion - is an issue that Crowley himself

has asked the

Colorado Cour to defer ruling on until the resolution ofthis case. There is thus nothing further
that the Colorado Cour can do with respect to the coverage issues between Crowley and Genesis
at this time, and, indeed, until this case has been resolved.

III. SUMMAY OF ARGUMENT
1. Crowley has not met his burden of showing good cause for a continuance. One of

the bases for Crowley's motion to continue has disappeared completely and the other lacks merit.
Crowley based his motion to continue on two grounds - the pendency of

the summary judgment

motions in Colorado, and the pendency ofthe various motions here. As to the first, he asserted
that, "(r)esolution ofthe issues in the (Insurance Action), either upon the pending cross motions
for sumar judgment or by trial, would greatly increase the likelihood of settlement of this

case. . .. These motions have been fully briefed since Januar 12, 2007, but remain pending

before the cour in Colorado, and are unlikely to be decided until close to the Februar 2008 trial
! As to the two issues involving only the Trustee, first, the Colorado Cour agreed with the Trustee that the personal profit exclusion did not apply to the Outside Directors. (D.!. 159 Ex. A at 14-15). Second, the Court ruled in favor of the Trustee that his settlement with the Outside Directors was a covered loss under the policy. However, the Court denied that aspect of Genesis' motion without prejudice, declining to rule whether the settlement was enforceable against Genesis on some basis other than the contract language because a case is pending in the Colorado Supreme Cour that might impact resolution ofthat issue. (D.I. 159 Ex. A at 15-19.)

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date." (D.I. 158 at 2.) As to the second, he argued that, "the resolution of

the several pending

motions in this action will either dispose ofthe case in its entirety or will significantly impact the
scope of

the matters at triaL." (D.I. 158 at 3.)
2. Now that the Colorado Cour has ruled on the summar judgment motions, the

first basis for Crowley's motion has disappeared. Crowley attempts to resurrect this basis for a
continuance by asserting in the supplement to his opening brief

2 (filed a few days after the

Colorado Court issued its opinion) that, "some issues in (the Insurance Action) have been
resolved such that the parties have a better sense of

who wil bear certain costs of settlement and

risks oflitigation, but others remain unesolved at this time." (D.I. 160 at 2.) This is an unfair
and misleading statement because in fact, the Colorado Cour has now decided each and every
issue involving Crowley. There is nothing more that the Colorado Court could do that would
give the paries before this Court (Crowley and the Trustee) any better sense of

where they stand

vis-à-vis Genesis.

3. Crowley's second basis for seeking a continuance - the fact ofthe pendency of

sumar judgment and other motions here - is wholly invalid. In virtally every case, the

paries prepare for trial while motions (including dispositive motions) are pending. Of course,

the Cour's rulings on sumar judgment could end (or narow) the case, but that is hardly a
reason to postpone the tral. If it were, cours would always have to place every case in suspense
2 Crowley's supplement to his opening brief asserts that his attorneys are continuing to assess the

situation and "wil discuss these issues in more detail in the reply brief." Under this Cour's 1. 3 (c)(2) ("(t)he pary fiing the opening brief shall not reserve material for the reply brief which should have been included in a full and
Rules, that is inappropriate. See DEL. L.R. Civ. P. 7.

fair opening brief.") A reply brief is not a proper foru for Crowley's lawyers' additional musings that could have been included in their prior brief. If Crowley had additional arguments to make after the Colorado decision, he should have made them in his supplement. Any new, non-responsive arguents should be strcken from his reply.

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while summar judgment was being decided. Here, the paries maintained and complied with

the dispositive motion schedule set by the Cour precisely so that the September 17 trial date
would be retained.

4. Contrar to Crowley's assertion, the Trustee would be prejudiced if

the case were

continued. Coram filed for Chapter 11 protection almost seven years ago, on August 8, 2000.

After two prior plans by the debtor failed to be confirmed due to Crowley's conflct, the
Trustee's plan of

reorganization was confirmed effective December 1, 2004. In accordance with

the terms of

the plan, the Trustee filed this action at the end of2004. Postponing the tral will
Coram's post-confirmation banptcy estate. The Trustee

fuher delay the administration of

(who is eighty-six years old) wishes to tr this action within the time-frame set forth by this

Court so that the Coram banptcy case can finally be concluded as expeditiously as possible.

IV. ARGUMENT
It is Crowley's burden to demonstrate that good cause exists for a continuance.

See FED.RCiv.P. 16(b). See also Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986)
("As Rule 16 recognizes, scheduling orders are at the hear of case management. If

they can be

disregarded without a specific showing of good cause, their utility wil be severely impaired."). This he has utterly failed to do. As set forth below, the first basis for Crowley's motion (the
pendency of

the Colorado Insurance Action) no longer exists. The second basis for his motion

(the pendency of

various motions here) is wholly invalid. Moreover, contrar to Crowley's

assertions, the Trustee wil, in fact, be prejudiced if the tral were delayed.

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1. The First Basis For Crowley's Motion (The Pendency Of

The Colorado

Insurance Action) No Longer Exists.

Crowley argued in his opening brief that the tral should be continued because
"settlement discussions are curently stalemated and will

likely stay that way until the Colorado

cour decides whether Genesis must cover Crowley and the Outside Directors for the Trustee's

claims." (D.I. 158 at 4.) The Colorado Cour has now issued its decision, in favor of coverage.
That should end the inquiry, even assuming arguendo that the pendency of the sumar

judgment motions in Colorado could have warranted a continuance here (which they did not).

Yet Crowley perseveres, undaunted, pointing in the supplement to his opening

briefto the Colorado Cour's scheduling of a settlement conference in the Insurance Action for

September 14,2007. Crowley argues that the proximity ofthat conference to the tral date here
wil make settlement unlikely because "the paries will be preoccupied with completing tral
preparation and wil have already expended time, resources, and effort preparing for tral." (D.I.
160 at 3.) Even if the effect of

possible settlement discussions in the Insurance Action was an

appropriate consideration on a motion to continue, Crowley's argument not only makes no sense,
but, is, in fact, counter-intuitive.

With all ofthe issues in the Insurance Action as they pertain to Crowley already
decided (except the personal profit exclusion, which Crowley himself asked to be deferred
pending the trial here), the paries can now do precisely what Crowley insisted the pendency of
the Colorado motions prevented them from doing - again attempt to settle the case. Now that

many of its defenses in the Colorado action have been eliminated, Genesis may finally elect to

negotiate in good faith in an attempt to reach an agreement. But that is most likely to happen
(and perhaps only will happen) with a tral

looming in this litigation.
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Moreover, as Crowley notes, "this action wil be concluded, one way or another,

before the personal profit exclusion is litigated in Colorado." (D.I. 158 at 5 n.3.) Thus, the
adjournent ofthe tral of

this case until March 2008 as requested by Crowley wil have the

paradoxical effect of fuher delaying the trial in Colorado. And conversely, the denial of
Crowley's motion and the timely trial of this case will serve to expedite the adjudication of

the

Colorado action.

Finally, it bears mention in this regard that the parties already have engaged in
extensive settlement negotiations. On December 5-6, 2005, the Trustee, Crowley, the Outside

Directors, and Genesis engaged in a private mediation in an attempt to settle their dispute. From

August 15,2005 until March 28,2006, this case was stayed to allow the paries and Genesis the
opportity to mediate and engage in follow-up settlement negotiations. The private mediation

and the subsequent discussions produced a settlement between the Trustee and the Outside

Directors only - not with Crowley. Crowley's own settlement posture has not changed as the
pa.rties have approached triaL. Yet Cro\:vley in essence seeks ai~other stay of at least six months
to pursue settlement discussions. Such a delay is unwaranted and prejudicial to the Trustee.

2. The Second Basis For Crowley's Motion (The Pendency Of Various

Pre-Trial Motions Before The Court) Is Not A Valid Reason For A Continuance.
Crowley argues that postponing the trial is warranted for the additional reason

that, depending on how this Cour rules on the sumary judgment and other motions curently

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pending before it, the scope of

the case may be significantly narrowed.3 Such is hardly "good

cause" for a continuance.

Of course, ifthe Cour grants summar judgment on liability in favor ofthe
Trustee on the basis of collateral estoppel or grants sumar judgment in favor of Crowley on
the issue of liability, there will be no liability case to try. But that is always the case when a

pary files for summary judgment. If the filing of a summar judgment motion constituted
grounds for parties to cease preparing for trial because the case might never be tred, or might be
tred on narrower grounds, every tral could be continued, and litigation would take significantly

longer than is already the case.

Crowley also claims that because the paries might not have a ruling on sumar
judgment until close to the time of

tral, an extension is waranted to allow for proper

preparation. This arguent, too, is a non-starer. The curent schedule affords the paries
sufficient time to prepare for triaL. While the Cour's decisions on the pending motions might
alter some aspects of the trial, the key issue - whether Crowley breached his fiduciary duties

owed to Coram - remains the same. The witnesses are known to both Crowley and the Trustee,
as are the universe of possible exhibits and the arguments that will be advanced at triaL. The

Trustee should not be forced to await trial because Crowley prefers to delay his own tral
preparation.

3 Crowley continues to mischaracterize the Trustee's response to his sumar judgment motion.
(See D.I. 158 at 5.) As made clear in the Trustee's answering brief, the Trustee relies on facts in the record (not, as Crowley asserts, on the Banptcy Cour's findings) to demonstrate that
Crowley is not entitled to sumar judgment on the issue of liability. Accordingly, there is no
reason for this Cour to decide whether to strike evidence of

the Banptcy Cour's opinions at

this stage.

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The case relied on by Crowley, Sutherland Paper Company v. Grant Paper Box
Company, 183 F.2d 926 (3d Cir. 1950), is inapposite. Sutherland is a unique case, far afield

from the general rule that denials of continuance motions are well within a district cour's
discretion. See, e.g., Fontana v. United Bonding Ins. Co., 468 F.2d 168, 169-70 (3d Cir. 1972).

In Sutherland, less than two weeks before trial, the District Cour not only ruled
on pending sumar judgment motions, but also decided a motion that granted additional
discovery, including an inspection of

the plaintiffs facilities. The Third Circuit's ruling that the

distrct court had abused its discretion in denying defendant's motion for a continuance was

based in par on the fact that the case involved a patent infrngement lawsuit "which in its natue
would involve technical and elaborate presentation." 183 F.2d at 931. Additionally, in view of
the district cour's discovery order, defendant had significant discovery to complete in a
complicated case with trial

less than two weeks away. Such is not the case here because the

paries have had adequate time to prepare. And as the Court of Appeals stated in a subsequent
case, "Sutherland sta.l1ds for the proposition that \"vhen a party is prejudiced by a justifiable

reliance on the trial cour, the denial of a continuance wil constitute an abuse of discretion."
Bus. Ass 'n of Univ. City v. Landrieu, 660 F.2d 867, 878 (3d Cir. 1981). Certainly there is no

such prejudice to Crowley here: even he notes that this Cour informed the paries that sumar

judgment would not be decided until shortly before the pretral conference and he has known of
the trial date for more than a year. (D.!. 158 at 6.)

3. The Trustee Will Be Prejudiced By a Continuance.

Finally, although it is not the Trustee's burden to show that he wil not be
prejudiced by a continuance, in fact, Crowley's assertion that no prejudice will inure to the

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Trustee is wrong.. The Trustee's confirmed plan became effective on December 1,2004. The
adjourent ofthe trial would fuher delay the administration of

Coram's post-confirmation

banptcy

estate. Moreover, as more time passes, the memories of

witnesses fade. See

Neomagic Corp. v. Trident Microsystems, Civ. A. No. 98-699,2001 U.S. Dist. LEXIS 14585, at

*4-*5 (D. DeL. Sept. 7,2001). Finally, the Trustee takes absolute issue with Crowley's statement

that this litigation does not interfere with Coram's management. Coram would far prefer to be

free from litigation with its former CEO and President. Regardless ofthe Trustee's position with
the post-confirmation estate, the Coram name is still attached to Crowley and his wrongful

conduct. The sooner this litigation ends, the better for Coram.

This Cour established a firm date certain for the trial in this matter. That date
was set foureen months ago. The Trustee is entitled to rely on that date, barrng extreme

unforeseen circumstances. Although Crowley was certainly aware ofthe Colorado Insurance Action and its assorted ramifications, he made no attempt to alter the tral date here until now. In
fact, the suir.u1Uai~j judgment briefing in the Insurance Pi.ction \vas complete as of January 2007,

yet Crowley did not ask this Cour to push back the September 17 tral date pending resolution of
those motions in Colorado until June. Nor did he seek to stay this litigation pending the outcome
ofthe Colorado action. That delay is inexplicable and Crowley should not be rewarded for his

lack of diligence. See Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 218 F.RD. 667,
671 (C.D. Cal. 2003) (requiring party seeking to alter dates in scheduling order to demonstrate
good cause and holding lack of diligence warrants denying request to alter trial dates).

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V. CONCLUSION
For all ofthe reasons set forth above, the Trustee respectfully requests that the

Cour deny Crowley's motion to continue the tral.

Respectfully submitted,

Dated: July 12, 2007
Isl Michael J. Barre Richard A. Barkasy (#4683)
Michael J. Barre (#4684) SCHNADER HARRSON SEGAL & LEWIS LLP

824 Market Street Mall, Suite 1001 Wilmington, DE 19801 (302) 888-4554 (telephone) (302) 888-1696 (telecopier)

mbarre~schnader.com
OF COUNSEL:

Barr E. Bressler (admitted pro hac vice) Wilbur L. Kipnes (admitted pro hac vice)
Nancy Winkelman (admitted pro hac vice)

SCHNADER HASON SEGAL & LEWIS LLP
1600 Market Street, Suite 3600 Philadelphia, PA 19103
(215) 751- 2400 (telephone)

(215) 751-2205 (facsimile)
Counsel to Plaintif

Arlin M. Adams, Chapter 11 Trustee of the Post-

Confirmation Bankrptcy Estates of CORA
HEALTHCARE CORP. and CORAM, mc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
ARIN M. ADAMS, Chapter 11 Trustee of the Post-Confrmation Bankrptcy Estates of CORA HEALTHCARE CORP. and CORAM,
INC.,
)
)

Plaintiff,
v.

) ) )
) Case No. 04-1565 (SLR)

)

DANIEL D. CROWLEY, et al.,
Defendants.

) )
)

)

CERTIFICATE OF SERVICE
I, Michael J. Bare, hereby certify that I am at least eighteen years of age and that
on July 12,2007, I caused a tre and correct copy ofthe Memorandum of

Chapter 11 Trustee

Arlin M. Adams in Opposition to Defendant Daniel D. Crowley's Motion to Continue the Trial
Date, to be served upon the following:
Jeffrey C. Wisler, Esquire Christina M. Thompson, Esquire Connolly Bove Lodge & Hutz LLP 1007 N. Orange St., P.O. Box 2207 Wilmington, DE 19899 (via CM/ECF and hand delivery)
Dated: July 12,2007

Ellot R. Peters, Esquire

Laurie Carr Mims, Esquire Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 941 1 1 (via CM/ECF, emaU and overnight mail)
SCHNADER HARRSON SEGAL & LEWIS LLP

By: Isl Michael J. Barre
Richard A. Barkasy (#4683)
Michael J. Barre (#4684) 824 N. Market Street, Suite 1001

Wilmington, DE 19801
Telephone: (302) 888-4554
Facsimile: (302) 888- 1 696

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OF COUNSEL:

Barr E. Bressler (admitted pro hac vice) Wilbur L. Kipnes (admitted pro hac vice) Nancy Winkelman (admitted pro hac vice) SCHNADER HARRSON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600
Philadelphia, PAl 9 1 03

(215) 751-2400 (telephone)
(215) 751-2205 (facsimile)
Counsel to Plaintif
Arlin M. Adams, Chapter 11 Trustee of

the Post-

Confirmation Banptcy Estates of CORA
HEALTH

CAR CORP. and CORA, INC

2