Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2313-JLK-CBS GLN COMPLIANCE, INC., Plaintiff, v. UNITED AIR LINES, INC., d/b/a UNITED BIZ JET HOLDINGS, BIZ JET CHARTERS, INC., AND BIZ JET SERVICES, INC., and JONATHON ROSS, Defendants. RESPONSE TO PLAINTIFF'S RENEWED MOTION TO LIFT ADMINISTRATIVE STAY Defendant United Air Lines, Inc., d/b/a United Bizjet Holdings, BizJet Charter, Inc., and BizJet Services, Inc. ("United"), by and through undersigned counsel respectfully submits this Response to Plaintiff's Renewed Motion to Lift Administrative Stay. INTRODUCTION Once again, GLN asks this Court to lift the administrative stay imposed by this Court in order to proceed only against Ross. GLN's sole basis for the renewed motion is the January 20, 2006 entry by the United States Bankruptcy Court for the Northern District of Illinois ("Bankruptcy Court") of the Order Confirming Debtor's Second Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code ("the Plan"). Indeed, as GLN notes, the Plan became effective on February 1, 2006, allowing the administration of claims. The confirmation of the Plan does not, however, support GLN's request to selectively lift the administrative stay. Instead, the confirmation of the Plan requires

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this Court to dismiss the Complaint as it pertains to United, and to refer the Complaint as it pertains to Ross to the Bankruptcy Court. First, according to representations made by GLN and its counsel, GLN's actions against United asserted in the case before this Court are "separate and distinct" from the claims filed by GLN in United's Chapter 11 Cases. Because GLN failed to timely file proof of claims in the United Chapter 11 Case for the claims it attempts to assert before this Court, its claims against United should be dismissed. Specifically, to the extent that GLN has failed to timely file proof of claims in United's Chapter 11 Cases for the claims it asserts against United before this Court, such claims have been forever discharged and GLN is forever barred, estopped, and enjoined from asserting such claims. Second, even if, contrary to the representations made by GLN and its counsel, GLN did file proof of claim forms in United's Bankruptcy for the claims GLN asserts against United before this Court, its Complaint against United must nevertheless be dismissed. Pursuant to Section 524 of the Bankruptcy Code and the Permanent Injunction issued in connection with the Plan, GLN is permanently enjoined from continuing in any manner the claims asserted against United before this Court. Third, allowing GLN to proceed against Ross without dismissing GLN's claims against United would profoundly prejudice United. Because, as this Court is aware, the claims against Ross and United are heavily intertwined, a judgment against Ross could potentially affect United.

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Finally, in addition to dismissing the lawsuit against United, the most logical and practical course of action for this Court is to transfer this whole proceeding1 to the Northern District of Illinois for reference to the Bankruptcy Court. The Bankruptcy Court clearly has jurisdiction over all claims and disputes "related to" United's Chapter 11 Case. In that regard, there is no question that GLN's claims against Ross "relate to" United's Bankruptcy. Because United may have an obligation to indemnify (at least in part) Ross from any judgment awarded by this Court, judgment against Ross in this case could impact the handling and administration of United's bankruptcy estate. Referring this whole case to the Bankruptcy Court is not only proper, but makes good sense. Federal courts have adopted a strong presumption that civil proceedings related to a bankruptcy should be tried in the "home" court where the bankruptcy is pending. Moreover, GLN's claims against United are thoroughly intertwined with GLN's claims against Ross. Accordingly, to the extent that any of GLN's claims against United are not barred by GLN's failure to timely file proof of claim forms, referring the whole matter to the Bankruptcy Court would avoid the attendant waste of judicial resources and risk of inconsistent factual findings inherent in conducting two separate trials on the precise same issues.

1

In addition to GLN's claims against Ross and United, this case also involves United's counterclaims against GLN: (1) a counterclaim for breach of contract and (2) a counterclaim for defamation. United's breach of contract counterclaim involves GLN's breach of its contract obligation to acquire a valid Part 121 certificate and a valid Part 135 certificate as soon as reasonably practicable. United's defamation action involves GLN's publishing a broad variety of highly defamatory statements against United. In that connection, United recently became aware that GLN has yet again published a litany of outrageous defamatory statements against United on GLN's website. See http://www.gln-compliance.com/UAL-GLN.htm. Both of United's counterclaims against GLN arise out of the same transactional nexus as do GLN's claims against United and Ross. Accordingly, United's counterclaims should be referred, along with the rest of this case, to the Northern District of Illinois.

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FACTS Once again, GLN's motion provides no background facts nor much context for GLN's request to reopen this case. The following is a brief summary of the underlying dispute and the procedural posture of this case. A. The Underlying Case

This case arises from a failed business relationship between GLN and United. In 2000, United considered establishing a fractional ownership airline to be called BizJet, which required obtaining operating certificates from the Federal Aviation Administration ("FAA"). To assist it in the lengthy and complex certification process, United entered into a contract with GLN, whose principal was and remains Gerald Naekel. Although Naekel held himself out as having expertise in FAA certification, it quickly became apparent that GLN intended to rely principally on others to assist United. Jonathan Ross was one of the individuals who contracted with GLN to assist United in the certification process. While United was satisfied with work performed by Ross and certain other individuals, over time United became dissatisfied with GLN's work and had great difficulty interacting with Naekel. Eventually, this led to United terminating its contract with GLN and a dispute with Naekel (with Naekel claiming United owed GLN additional money, and United maintaining that it had not received adequate value for the significant amount of money already paid to GLN). Unable to continue working with Naekel, United nevertheless needed to continue pursuing FAA certification. To that end, United entered into an agreement with Ross in

September 2001, wherein it hired Ross as a consultant to assist with the completion of the certification process. Although United ultimately decided not to pursue the BizJet business, and the operating certificates were never obtained, Naekel was very upset that United continued to work with Ross after terminating its relationship with GLN. Naekel thus began a campaign of 4

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letters and emails alleging that Ross was directed by United to commit criminal acts. While United and Ross vigorously deny these baseless allegations, this demonstrates that GLN's dispute with Ross was tied to his relationship with United. Because United was unwilling to capitulate to repeated threats from GLN, GLN eventually filed suit against United and Ross in October 2001. GLN alleged claims of breach of contract and unjust enrichment against United, civil theft and civil conspiracy against United and Ross together, and tortious interference and outrageous conduct against Ross. (See First

Amended Complaint ("Complaint").) Significantly, all of the claims against Ross dealt with his interaction with United. (Id.) When GLN initially filed its Complaint in this action on June 6, 2001, it was represented by Jerre Dixon. Nine months later, on March 4, 2002, Dixon moved to withdraw as counsel for GLN citing "irreconcilable differences concerning the plaintiff's claims in this matter." Shortly thereafter, Paula Ray entered her appearance on behalf of GLN and she likewise moved to withdraw on October 8, 2002. (See December 5, 2002 Order granting GLN extension to obtain new counsel). Jeffrey Edelman then entered his appearance on behalf of GLN. Shortly

thereafter, United filed its Notice of Bankruptcy on December 17, 2002. Four months later, after GLN took no steps to prosecute this case against Ross, this Court administratively closed the case. (See April 8, 2003 Order.) Subsequently, on November 18, 2003, Edelman wrote counsel for both United and Ross that GLN would like to reopen negotiations, and that if such discussions were not productive, he would file within two weeks a motion to reopen the case and a motion to amend the Complaint to add additional defendants and additional causes of action. In the proposed Second Amended Complaint that accompanied Edelman's November 18th letter, GLN threatened to add as defendants former employees of

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United and independent contractors who worked for United, including the Chief Executive Officer and Chief Operating Officer of BizJet. (2nd Am. Compl. at ¶¶ 5-6, 9-12.)2 The only additional claim added to the Second Amended Complaint was a claim against all defendants, including United and Ross, under the Racketeer Influenced and Corrupt Organization Act ("RICO") and the Colorado Organized Crime Control Act ("COCCA"). (Id. at ¶¶ 61-74.) Despite the threat from GLN's counsel, however, GLN took no steps to file a motion to reopen the case or to file the Second Amended Complaint. More than a year later, Edelman withdrew as GLN's counsel. (See Sep. 15, 2004 Order.) Richard O. Schroeder then entered his appearance as GLN's fourth lawyer in this case on November 4, 2004. Three months later, on February 5, 2005, Schroeder filed a Motion for Default Judgment against Ross. Days later, this Court denied that Motion without further briefing or response, as it was not accompanied by a certification of compliance with D.C. Colo. L. Civ. R. 7.1A. (See February 8, 2005 Order.) The Court further noted that this case was stayed and administratively closed in December 2002, and that there had been no request by any party to reopen it. (Id.) Despite the Court's admonition in this regard, another seven months passed before GLN filed the pending Motion to Lift Administrative Stay. The process of dealing with GLN's numerous attorneys has been very consistent. Each time a new attorney enters his or her appearance for GLN, they indicate a desire on behalf of GLN to move forward with the case. After becoming more educated and well-versed regarding GLN's case, however, no further action is taken and the attorney withdraws.
2

Because the proposed Second Amended Complaint was never filed with this Court, and because it contains inflammatory and baseless allegations against individuals not even in this case, United is not submitting a copy herewith. United presumes, however, that GLN will not contest the accuracy of United's citation to that document.

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B.

United's Chapter 11 Case

On December 9, 2002, UAL Corporation, and certain of its subsidiaries, including United Air Lines, Inc. (collectively "United"), filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code"). (See In re UAL Corporation, et al. Case No. 02-48191, U.S. Bankr. N.D. IL, 2002 (collectively, the "Chapter 11 Cases").) On February 27, 2003, the United States Bankruptcy Court for the Northern District of Illinois (the "Bankruptcy Court") entered an Order Pursuant to Sections 105(a), 501, 502 and 1111(a) of the Bankruptcy Code and Bankruptcy Rules 2002(a)(7), 3003(c)(3) and 5005(a) Establishing a Bar Date for Filing Proofs of Claim and Proofs of Interest and Approving Form and Manner of Notice Thereof [Docket No. 1608] (the "Bar Date Order"). The Bar Date Order set the following deadlines for creditors to file proofs of claim against United (the "Bar Dates"): The Prepetition Claims Bar Date of May 12, 2003 and the Governmental Bar Date of June 9, 2003. Pursuant to the Bar Date Order, Governmental Entities and Creditors (each, as defined in the Claims Bar Date Order) that failed to file a proof of claim or interest before the applicable Bar Date are "forever barred, estopped, and enjoined" from asserting such claim against the Debtors and "the Debtors and their property shall be forever discharged from any and all indebtedness or liability with respect to such [claims]." On January 20, 2006, the Bankruptcy Court entered the Order Confirming Debtors' Second Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code (the "Confirmation Order"). The Confirmation Order confirmed the Debtors' Second Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the United States

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Bankruptcy Code (the "Plan"). The Plan became effective on February 1, 2006 (the "Effective Date").3 The Confirmation Order approves the Permanent Injunction, which, among other things, states that: all Entities who have held, hold, or may hold Claims against or Interests in the Debtors or against the Released parties and Exculpated parties are permanently enjoined, from and after the Effective Date, from: (i) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claim against or Interest in the Reorganized Debtors, the Exculpated Parties, the Released Parties, any statutory committee or members thereof, and the employees, agents, and professionals of each of the foregoing (acting in such capacity) ... Confirmation Order, at ¶ 4(e). Further, the Confirmation Order set an administrative claims bar date of March 3, 2006 (the "Administrative Claims Bar Date"), for claimants to submit their request for administrative expenses pursuant to Section 503 of the Bankruptcy Code. Any potential creditor failing to do so by the Administrative Claims Bar Date is likewise barred, estopped and enjoined from asserting an administrative claim against United. Any potential creditor that has failed to meet the appropriate Bar Date discussed above, including GLN, may not pursue any action against United to collect any debt arising prior to United's exit from bankruptcy. Moreover, all such potential creditors are barred, estopped, and enjoined from asserting any such claim against United, whether in Bankruptcy Court or in any other forum, whether state or federal court. Likewise, in connection with the Debtors' solicitation of their Plan, GLN received a ballot to vote on the Plan (the "Ballot"). The Ballot allowed those who abstained from voting on
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A copy of the Confirmation Order and Plan can be found at www.pd-ual.com.

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the Plan to nonetheless opt-out of a release granted to numerous non-debtor parties under the Plan. Pursuant to the Confirmation Order, if the holder of a claim fails either to vote against the Plan or to opt-out of the release on the Ballot, such holder is deemed to have consented to granting the releases. (See Confirmation Order, at ¶ 4(c).) GLN abstained from voting on the Plan, and therefore granted such releases pursuant to the terms of the Confirmation Order. On February 13, 2007, Richard O. Schroeder, then counsel for GLN, wrote a letter to counsel for United. In his letter, Mr. Shroeder made the following representation regarding GLN's claims asserted against United before this Court: "GLN believes that its claims against Untied are separate and distinct from the claims filed with the bankruptcy court." (See February 13, 2007 letter attached hereto as Exhibit A.) Similarly, in a May 10, 2007 letter addressed to counsel for United, Gerald Naekel personally repeatedly represented that GLN's claims filed in the United Chapter 11 Case are "unrelated" to GLN's claims against United before this Court. (See May 10, 2007 letter attached hereto as Exhibit B, at 1-2.) C. The Administrative Stay

On April 9, 2003, this Court imposed an administrative stay on all claims against Ross and United. On August 8, 2005, GLN sought to lift the administrative stay in order to proceed against Ross only. On October 13, 2005, this Court denied GLN's motion on the basis that an

indemnification agreement between Ross and United necessarily implicated that bankruptcy estate, requiring a stay as to all parties. On August 24, 2007, GLN filed its Renewed Motion to Lift Stay.

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ARGUMENT A. GLN'S CLAIMS AGAINST UNITED SHOULD BE DISMISSED.

This Court should dismiss GLN's claims against United. The Permanent Injunction issued by the Bankruptcy Court in connection with the confirmation of the Plan makes clear that GLN is prohibited from continuing its case against United before this Court. (See Facts Section at ¶ 7.) Similarly, Section 524 of the Bankruptcy Code makes clear that a discharge under Chapter 11 "operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover or offset any such debt as a personal liability of the debtor . . ." (See 11 U.S. C. § 524 (a)(2).) It is beyond question that all of GLN's pre-petition claims against United have been discharged. Accordingly, GLN is prohibited from continuing its claims against United before this Court. Moreover, because GLN has failed to file timely proof of claims in United's Chapter 11 Case, GLN is barred, estopped, and enjoined from asserting such claims against United, whether before this Court or in the Bankruptcy Court. In this regard, the Confirmation Order set an administrative claims bar date of March 3, 2006 (the "Administrative Claims Bar Date"), for claimants to submit their request for administrative expenses pursuant to Section 503 of the Bankruptcy Code. Any potential creditor failing to do so by the Administrative Claims Bar Date is likewise barred, estopped and enjoined from asserting an administrative claim against United. See Bankruptcy Rule 3003(c)(2) ("Any creditor . . . whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the

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time prescribed by subdivision (c)(3) of this rule; any creditor who fails to do so shall not be treated as a creditor with respect to such a claim for the purposes of voting and distribution." 4 According to GLN and its previous counsel, the proof of claims that GLN did file in the United Chapter 11 Case are "separate and distinct" and "unrelated" to GLN's claims against United before this Court. These admissions make clear that GLN had failed to file proof of

claims for the claims it asserts before this Court. Accordingly, by operation of the Plan and the Bankruptcy Code, GLN has forever forfeited these claims. With regard to GLN's claims against United, there is nothing for this Court to do but to dismiss them. Additionally, granting the relief that GLN now seeks -- the lifting of the administrative stay so that GLN could proceed only against Ross -- without dismissing United from the case would be substantially prejudice United. GLN alleges that United is a co-conspirator of Ross for nearly every count asserted in GLN's complaint. It is therefore impossible for GLN to pursue its case against Ross without establishing conspiracy participation of United. More importantly, allowing GLN to proceed against Ross alone risks unfairly prejudicing United because conspiracy claims allow for imputed liability between co-conspirators. Additionally, a judgment
4

Indeed, in connection with United's Chapter 11 case, the Bankruptcy Court bar date Order, attached here as Exhibit C, made clear that all unsecured creditors failing to timely file a proof of claim would be forever barred from continuing such claims: Any Person or Entity that is required to file a Proof of Claim in these Chapter 11 Cases but fails to do so in a timely manner shall be forever barred, estopped and enjoined from: (a) asserting any Claim against the Debtors that such Person or Entity has that (i) is in an amount that exceeds the amount, if any, that may be set forth in the Schedules or (ii) is of a different nature or in a different classification than what may be set forth in the Schedules (in either case any such Claim referred to as an "Unscheduled Claim") and (b) voting upon, or receiving distributions under, any plan or plans of reorganization in these Chapter 11 Cases in respect of an Unscheduled Claim. Consistent with any confirmed plan or plans of reorganization, as applicable, the Debtors and their property shall be forever discharged from any and all indebtedness or liability with respect to such Unscheduled Claims. February 27, 2003 Order at ¶ 11 (emphasis added).

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against Ross could potentially affect United under the doctrine of res judicata or collateral estoppel. At bottom, GLN's motion to selectively lift the administrative stay to allow GLN to proceed only against Ross confirms that this Court must dismiss the lawsuit against United. B. THE CLAIMS AGAINST ROSS SHOULD BE REFERRED TO THE BANKRUPTCY COURT.

In addition to dismissing the lawsuit against United, the most logical and practical course of action for this Court is to transfer this whole proceeding to the Northern District of Illinois for reference to the Bankruptcy Court. The Bankruptcy Court clearly has jurisdiction over all claims and disputes "related to" United's Chapter 11 Case.5 An action is related to bankruptcy where "the resolution of a dispute affects the bankrupt's estate or the allocation of assets among creditors." In re Salem Mills Inc., 148 B.R. 505, 508 (N.D. Ill 1992) (citing Home Ins. Co. v. Cooper & Cooper, Ltd., 899 F.2d 746, 749 (7th Cir. 1989). Specifically, a claim pursued against a party entitled to indemnification from the debtor is related to that debtor's bankruptcy. See Apex Invest. Assoc. v. TJX Cos., 121 B.R. 522, 525-527 (N.D. Ill 1990) (holding that referral to the Bankruptcy Court pursuant to 28 U.S.C. § 157(a) was proper because the dispute involved claims against a party entitled to indemnification from the debtor); In re Salem Mills Inc., 148 B.R. at 510 (holding that a third party action is related to bankruptcy where the third party is entitled to indemnification from the debtor and where the third party files a proof of claim form based upon the indemnity agreement); Bond Street Associates, Ltd. v. Ames Dept. Stores, Inc., 174 B.R. 28, 32-33 (Bankr. S.D.N.Y. 1994) (claim against a third party relates to bankruptcy

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28 U.S.C § 157(a) (district court may refer to a bankruptcy court "any or all cases arising under Chapter 11 and any or all proceedings arising under title 11 or arising in or related to a case under Chapter 11.").

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where debtor has obligation to indemnify the third party); In re Bretano's, Inc., 27 B.R. 90, 91 (Bankr. S.D.N.Y. 1983) (same). It is beyond dispute that referral of this entire lawsuit to the Bankrutpcy Court would be proper under 28 U.S.C. § 157(a). Because, as this Court is aware,6 United may be required to indemnify (at least in part) any judgment against Ross, the dispute between GLN and Ross may affect United's bankruptcy estate or the allocation of assets among United's unsecured creditors. Accordingly, the Bankruptcy Court clearly has jurisdiction over GLN's claims against Ross. In re Salem Mills, 14 B.R. at 510; Apex Invest. Assoc., 121 B.R. at 525-527; Bond Street Associates, 174 B.R. at 32-33; In re Bretano's, 27 B.R. at 91. Referring this whole case to the Bankruptcy Court is not only proper, but makes good sense. GLN's complaint makes clear that GLN's claims against United are thoroughly

intertwined with GLN's claims against Ross. Accordingly, to the extent that any of GLN's claims against United are not barred by GLN's failure to timely file proof of claim forms, referring the whole matter to the Bankruptcy Court would avoid the attendant waste of judicial resources and risk of inconsistent factual findings inherent in conducting two separate trials on the precise same issues. Moreover, federal courts have adopted a strong presumption that civil proceedings related to a bankruptcy should be tried in the "home" court where the bankruptcy is pending. See DVI Fin. Servs., Inv. v. Cardiovascular Labs, Inc., 2004 WL 727105, *2 (Bankr. E.D. Pa. 2004); In re Grogg, 295 B.R. 297, 306-307 (Bankr. C.D. Ill. 2003); Frelin v. Oakwood Homes Corp., 292 B.R. 369, 387,388 (Bankr. E.D. Ark. 2003); In re Wedlo, Inc., 212 B.R. 678,

6

Indeed, on October 13, 2005, this Court denied GLN's motion to lift the administrative stay to allow GLN to proceed with the lawsuit against Ross on the basis that an indemnification agreement between Ross and United necessarily implicated that bankruptcy estate, requiring a stay as to all parties.

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679 (Bankr. M.D. Ala. 1996); In re Aztec Indus., Inc., 84 B.R. 464, 467 (Bankr. N.D. Ohio 1987); In re Convent Guardian Corp., 75 B.R. 346, 347 (Bankr. E.D. Pa. 1987). Indeed, "[t]he general rule is that the court where the bankruptcy case is pending is the proper venue for all related proceedings within the court's jurisdiction, because speedy and economic administration of cases is a paramount consideration in the bankruptcy process." In re Vital Link Lodi, Inc., 240 B.R. 15, 19 (Bankr. W.D. Miss. 1999) (emphasis added). CONCLUSION For the reasons set forth above, this Court should not reopen this matter as it pertains to Ross. Instead, this Court should dismiss the lawsuit against United and transfer this whole proceeding to the Northern District of Illinois for reference to the Bankruptcy Court. Respectfully submitted this 20th day of September, 2007. /s Mark T. Barnes Mark T. Barnes BROWNSTEIN HYATT & FARBER, P.C. 410 17th St., 22nd Floor Denver, Colorado 80202 (303) 223-1100 [email protected] ATTORNEYS FOR DEFENDANT UNITED AIR LINES, INC.

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of September, 2007, I electronically filed the foregoing RESPONSE TO PLAINTIFF'S RENEWED MOTION TO LIFT ADMINISTRATIVE STAY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected] [email protected] [email protected] [email protected] I hereby certify that on this 20th day of September, 2007, I served a true and correct copy of the attached RESPONSE TO PLAINTIFF'S RENEWED MOTION TO LIFT ADMINISTRATIVE STAY via the United States mail, postage pre-paid, properly addressed to: Ricks Frazier, Esq. United Air Lines, Inc. 1200 East Algonquin Road Elk Grove Township, Illinois 60007 Jonathan Ross c/o Stephen Gurr, Esq. KAMLET SHEPHERD & REICHERT, LLP 1515 Arapahoe Tower One, Suite 1600 Denver, CO 80202 /s Mark T. Barnes Mark T. Barnes BROWNSTEIN HYATT FARBER SCHRECK, P.C. 410 17th Street, 22nd Floor Denver, Colorado 80202 Phone: (303) 223-1100 Fax: (303) 223-1111 E-mail:[email protected] ATTORNEYS FOR DEFENDANT UNITED AIR LINES, INC.

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