Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:04-cv-00804-GMS—|\/IPT Document 27 Filed 05/17/2007 Paget of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re:
Chapter ll
NationsRent, Inc., et al., I Case Nos. 01-11628 through 01-11639 (PIW)
Jointly Administered
Debtors.
NationsRent Unsecured Creditor’s Liquidating
Trust, Perry Mandarino, not personally, but as
Trustee
Plaintiff,
v.
Vic’s Tire Service, Civil Action Number: 04—804(***)
Defendant.
MOTION TO DISMISS PURSUANT TO RULE 41(a)(2)
OF THE FEDERAL RULES OF CIVIL PROCEDURE
Perry Mandarino, Trustee (the "Trustee") of the NationsRent Unsecured Creditors’
Liquidating Trust (the "Creditor Trust"), by and through its counsel, hereby moves (the
"Motion") to dismiss the above—referenced case pursuant to Rule 4l(a)(2) of the Federal
Rules of Civil Procedure (the "Federal Rules") and in support hereof respectfully states
as follows:
Background
1. On December 17, 2001, NationsRent, Inc. and eleven of its subsidiaries
(collectively, the "Debtors") filed voluntary petitions for relief under chapter 11 of the
Bankruptcy Code, 11 U.S.C. §§ 101-1330 (the "Bank1uptcy Code") in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy COLll'I”).
I NationsRent USA, Inc., NationsRent Transportation Services, Inc., NR Delaware, Inc., NRGP, Inc.,
NationsRent West, Inc., Logan Equipment Corp., NR Dealer, Inc., NR Franchise Company, Inc.,
NationsRent of Texas, LP, and NationsRent of Indiana, LP
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2. By order dated May 14, 2003 [Docket No. 2151] (the "Confirmation
Order"), the Court confirmed the First Amended Joint Plan of Reorganization of
NationsR.ent, Inc. and Its Debtor Subsidiaries [Docket No. 1824] (the "Plan”).l
On June 13, 2003, the Plan became effective in accordance with its terms, and the
Debtors emerged from chapter 11 as reorganized entities.
3. Pursuant to Section IV.K. of the Plan, the Creditor Trust was formed to,
inter alia, pursue all Unresolved Avoidance Actions (against parties not released under
the Plan) and the Retained Actions and all Unresolved Avoidance Action recoveries
(against parties not released under the Plan) and recoveries on account of the Retained
Actions.
4. On December 12, 2003, the Trustee commenced the above—referenced
case by filing the Adversary Complaint to Avoid and Recover Preferential Transfers
Pursuant to l1 U.S.C. Sections 547 and 550 (the "Complaint") against Vic’s Tire Service
(the "Defendant") in the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court").
5. On March 29, 2004, the Defendant filed an answer (the "Answer") to the
Complaint. In the Answer, the Defendant did not assert any counterclaims against the
Trustee.
6. On June 29, 2004, the United States District Court for the District of
Delaware (the "District Court") withdrew the reference of the adversary proceeding, and
the Case was transferred to District Court.
7. Thereafter, the Trustee determined to dismiss the proceeding. The Trustee
made attempts in August 2006 and March 2007 to contact the Defendant by letter in
‘ Capitalized terms not defined her-ein shall have the meanings given to such terms inthe Plan.
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order to obtain a stipulation of dismissal. However, the attempts were never answered by
the Defendant.
8. On February 22, 2007, an order was entered scheduling a teleconference
in this case for March 19, 2007 and requiring Defendant’s participation. The order was
served on the Defendant. However, the Defendant did not participate in the
teleconference.
9. On March 20, 2007, an order was entered scheduling a teleconference in
this case for April 18, 2007 and requiring Defendant’s participation. The order also
stated for the benefit of the Defendant that, "failure to participate in this teleconference
may result in the denial of your claims or requests for relief in the above actions and a
dismissal of the above actions without further notice or hearing." The order was served
on the Defendant. However, the Defendant did not participate in the teleconference.
Relief Reguested
l0. The Trustee requests the entry of an order dismissing the above-referenced
case pursuant to Federal Rule 4l(a)(2).
Basis for Relief Reguested
l l. Federal Rule 4l(a)(2) provides:
[e]xcept as provided in paragraph (l) of this subdivision of this
rule, an action shall not be dismissed at the plaintiff’ s
insistence save upon order of the court and upon such terms
and conditions as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the service upon the
defendant of plaintiff s motion to dismiss, the action shall not
be dismissed against the defendant’s objection unless the
counterclaim can remain pending for independent adjudication
by the court. Unless otherwise specified in the order, a
dismissal under this paragraph is without prejudice.
FED. R. Civ. P. 41(a)(3).
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12. The Trustee determined to dismiss the case and sent correspondence to the
Defendant requesting the execution of a stipulation of dismissal. The Defendant ignored
the Trustee’s requests to stipulate to a dismissal and ignored orders of this Court
requiring the Defendant’s participation in status conferences to discuss the Trustee’s
proposed dismissal. The Defendant filed no counterclaim against the Defendant. The
absence of a counterclaim and the Defendant’s failure to participate in the status
conferences ordered by the Court warrant a dismissal of this case.
WHEREFORE, the Trustee requests that the Court grant the relief requested
herein and such further relief as is just and proper.
Dated: May 18, 2007
Wilmington, Delaware
LOWENSTEIN SANDLER PC
Paul Kizel, Esq.
Susan C. Greco-Ericksen, Esq.
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500 (telephone)
(973) 597-2400 (facsimile)
-and-
THE BAYARD FIRM//\\
Neil B. Glassén, Esq. (No. 2087)
Ashley B. Stitzer, Esq. (No. 3891)
Mary E. Augustine, Esq. (No. 4477)
222 Delaware Avenue, Suite 900
Wilmington, Delaware 19899
(302) 655-5000 (telephone)
(302) 658-6395 (facsimile)
Attorneys for NationsRent Unsecured
Creditors Liquidating Trust
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