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

Case 1 :04-cv-01415-JJF Document 7 Filed 05/18/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) District Court
) Civil Action No. 04-01415 (JJF)
AMERICAN CLASSIC VOYAGES CO., et al., )
) Chapter 11
Debtors. ) Bankruptcy Court
) Case No. 01-10954 (LHK)
(J ointly Administered)
)
AMERICAN CLASSIC VOYAGES CO., et al., )
DEBTORS, by and through PAUL GUNTHER, )
PLAN ADMINISTRATOR, )
) Adv. Pro. No. 03-56886 (PBL)
Plaintiff/Appellee, )
)
v. ) —
)
WESTAF F, )
)
Defendant/Appellant. )
)
APPELLANT’S MOTION FOR EXTENSION
OF TIME TO FILE APPELLANT’S OPENING BRIEF
Westaff (USA), Inc., the Appellant herein, respectfully submits this Motion for
Extension of Time to File Appellonfs Brief (the "Motion to Extend") in the above-noted
appeal.
BACKGROUND
1. The above-noted adversary proceeding is a suit to avoid and recover
preferential transfers. The Appellant filed a motion to dismiss the complaint (the
“Motion to Dismiss") in the adversary proceeding on June 23, 2004 and the parties
briefed the Motion. By order dated October 1, 2004, the Bankruptcy Court (Hon. Paul B.
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Case 1:04-cv-01415-JJF Document 7 Filed 05/18/2005 Page 2 of 3
Lindsey, presiding) entered an order (the "Order") denying the Motion to Dismiss. This
civil action (the "Action") is an appeal of the Order.
2. Effective April 15, 2005, the undersigned changed law firms. On April
28, 2005, this Court entered a scheduling order (the "Order") with a default briefing
schedule providing that the Appellant was to file its opening brief on or before May 13,
2005. The Order notes that its default briefing schedule may be amended by a briefing
schedule to be agreed upon by the parties. The Order was served upon counsel at his
previous firm.
3. Owing to the complexities of the 1mdersigned’s transition, there was a
brief delay before the undersigned could procure appropriate documents transferring the
file to the new law firm. Appellant has completed that process regarding this Action,
however, and expects to file a notice of substitution of counsel contemporaneously
herewith. At any rate, the Appellant was unable to and did not file its opening brief on
May 13, 2005.
4. The undersigned requested (on May 18, 2005) that the Appellee agree to a
consent form of briefing/scheduling order, as contemplated by the Order, to extend the
Appellant’s time to file its opening brief. Appellee, however, will not consent.
Accordingly, the Appellant requests an extension hereby.
5. Additionally, counsel to the Defendant will be having in-patient jaw
surgery at a Philadelphia hospital on May 25, 2005. The surgery is extremely serious
and will require (a) that counsel stay in the hospital for several days and (b) a minimum
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Case 1:04-cv-01415-JJF Document 7 Filed 05/18/2005 Page 3 of 3
recovery period of at least two weeks. Counsel is informed that after the surgery, he will
be unable to talk, come to the office or work for the first l0 days or so, and it will be very
difficult to do anything at all prior to about June 10, 2005.
6. Needless to say, counsel chose neither the briefing schedule nor the date
of the surgery, and counsel does not have the ability to change the date of the surgery, as
it was established based on the availability of the operating room, surgical staff, etc. In
view of the above-noted circumstances, the Appellant respectfully submits that the
requested extension is warranted, appropriate and reasonable.
BASIS FOR THE RELIEF REQ QUESTED
7. 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.
WHEREFORE, the Appellant respectfully requests entry of an order granting it
an extension until June 25, 2005 to file and serve its opening brief.
Respectfully submitted,
HARVEY, PENNINGTON ' I
Dated: May 18, 2005 By: /s/ James E. Hugg _
James E. Huggett, . squire (# 395 $’r
"J" Jackson Shrum, ‘ · .
913 N. Market Street, 7th Floor
Wilmington, Delaware 19801
(302) 351-1125 (telephone)
(302) 428-0734 (fax)
[email protected]
Counsel to Westajf (USA), Inc. / Appellant
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