Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1 :O4—cv-01389-JJF Document 40 Filed 03/10/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
IH FOI ) Chapter ll
)
NORTHWESTERN OORRORATION ) Bankruptcy case N0. 03-12872 (JLP)
Reorganized Debtor. g
)
MAGTEN ASSET MANAGEMENT )
CORPORATION, )
)
APP€H¤¤t» ) CA 04-1389-JJF
v. )
)
NORTHWESTERN CORPORATION, g
Appellee. ;
DEBTOR’S MOTION (i)TO DISMISS CONSOLIDATED
APPEALS OF MAGTEN ASSET MANAGEMENT CORPORATION; AND (ii)
FOR LEAVE TO SUBMIT OPENING BRIEF WHICH EXCEEDS 40 PAGES
PAUL, HASTINGS, JAN OFSKY & GREENBERG TRAURIG, LLP
WALKER LLP
Jesse H. Austin, Ill Adam D. Cole
Karol K. Denniston 885 Third Avenue
Carolyn Chayavadhanangkur New York, NY 10022
600 Peachtree Street Telephone: (212) 801-2100
Suite 2400
Atlanta, GA 30308 - and -
Telephone: (404) 815-2400
GREENBERG TRAURIG, LLP
- and - Scott D. Cousins (No. 3079)
William E. Chipman, Jr. (No. 3818)
The Brandywine Building
1000 West Street, Suite 1540
Wilmington, DE 19801
Telephone: (302) 661-7000
Dated: March 10, 2005 Co-Counsel for North Western
Wilmington, Delaware Corporation
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Case 1:04-cv-01389-JJF Document 40 Filed 03/10/2005 Page 2 of 4
DEBTOR’S MOTION (i)TO DISMISS CONSOLIDATED
APPEALS OF MAGTEN ASSET MANAGEMENT CORPORATION; AND (ii)
FOR LEAVE TO SUBMIT OPENING BRIEF WHICH EXCEEDS 40 PAGES
Appellee No1thWestern Corporation ("N0rthWestern" or the “Re0rganized
Debt0r”) hereby moves (the "M0ti0n to Dismiss") the Court, pursuant to Bankruptcy
Rule 8 011 o fthe Federal Rules o f B ankmptcy Procedure, for an o rder dismissing the
appeals (the "Appeals") of Magten Asset Management Corporation from: (i) the Order
dated October 19, 2004 of the United States Bankruptcy Court for the District of
Delaware Confirming the Debtor’s Second Amended and Restated Plan of
Reorganization Under Chapter ll of the Bankruptcy Code dated August 18, 2004
[Magten, Exh. 163]; and (ii) the Order dated October 14, 2004, approving Memorandum
of Understanding [Magten, Exh. 201]. In support of this Motion to Dismiss,
NorthWestem relies upon its Memorandum of Law in Support of its Motion to Dismiss
("Mem0randum 0f Law") filed contemporaneously herewith.
Additionally, NorthWestem hereby moves this Court for leave, pursuant to D.
Del. LR 7.1.3, to submit the Memorandum of Law, which is 50 pages in length, 10 pages
over the page limit set by this Court. The Motion to Dismiss is a potentially case
dispositive motion that is of critical importance to the Reorganized Debtor and which, if
granted, will significantly contribute to the resolution of the Appeals. Moreover,
NorthWestern tiles the Memorandum of Law to assist the mediator and parties to the
Appeals by setting forth its position on the Appeals.
NorthWestem understands that the parties to the Appeals are not required to
respond to this Motion to Dismiss and that the Appeals cannot be decided until the
mandatory mediation occurs, however, NorthWestem believes that the Memorandum of
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Case 1:O4—cv-01389-JJF Document 40 Filed O3/10/2005 Page 3 of 4
Law will contribute to the mediator and the Cou1t’s understanding of NOfthW€St€Hl’S
position and of the grounds underlying NorthWestern’s Motion to Dismiss. Moreover,
NorthWestern files the Memorandum of Law to assist the mediator and the parties to the
mediation and to contribute to the efficient administration of the mediation,
NorthWestern respectfully submits that the Memorandum of Law will further both the
mediator’s and/or the Court’s resolution of these matters.
Finally, the Memorandum of Law is designed to streamline the mediation and
motion practice relating to the Appeals. Even though the Appeals have been
consolidated, NorthWestern could have filed two motions to dismiss and two
memorandums of law, each dealing with issues relating specifically to each of the
Appeals. Rather than filing two memorandums of law, NorthWestern believes that the
issues presented in the Appeals are directly related to each other and that the
Memorandum of Law, as filed, simplifies and properly frames the issues to be considered
by the Court.
WHEREFORE, for the reasons set forth in the accompanying Memorandum of
Law, NorthWestern requests that an order, in the form annexed hereto, be entered by the
Court dismissing the Appeals. NorthWestern further requests that an order, in the form
annexed hereto, granting leave, pursuant to D. Del. LR 7.1.3, to submit the Memorandum
of Law in support of the Motion to Dismiss.
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Case 1:04-cv-01389-JJF Document 40 Filed 03/10/2005 Page 4 of 4
Dated: March 10, 2005 Respectfully submitted,
Wilmington, Delaware
PAUL, HASTINGS, JANOFSKY & GREENBERG TRAURIG, LLP
WALKER LLP
Jesse H. Austin, III Adam D. Cole
Karol K. Denniston 885 Third Avenue
600 Peachtree Street New York, NY 10022
Suite 2400 Telephone: (212) 801-2100
Atlanta, GA 30308
Telephone: (404) 815-2400 - and -
- and — GREENBERG TRAURIG, LLP
Scott D. Cousins (No. 3079)
William E. Chipman, Jr. (No. 3818)
The Brandywine Building
1000 West Street, Suite 1540
Wilmington, DE 19801
Telephone: (302) 661-7000
Co-C ounsel for North Western
Corporation
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