Free Response to Order - District Court of Delaware - Delaware

Case 1 :07-cv-00647-SLR Document 7 Filed 05/14/2008 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARC S. KIRSCHNER, as the Trustee of the Refco
Litigation Trust,
Civil Case No.
Plaintiff, 07-647-SLR
v.
Re: Docket No. 4
MKK LIMITED, a Republic of Ireland Corporation,
THE DARETTO FOUNDATION, a Liechtenstein
entity, and JOHN DOES, individuals.
Defendants.
RESPONSE TO ORDER TO SHOW CAUSE
Marc S. Kirschner (the "Refco Trustee"), as Court-approved Trustee for
the Refco Litigation Trust (the "Trust"),1 by and through the undersigned counsel, files
this Response to Order to Show Cause pursuant to the Court’s order of April 2l, 2008.
ARGUMENT
Since the filing of the above-captioned action, the Refco Trustee has
diligently investigated the location of MKK Limited and The Darretto Foundation, both
non-United States entities. Only recently has the Refco Trustee discovered the location
of MKK Limited and effected service pursuant the Hague Convention. The certificate of
service was filed with this Court on April 30, 2008. Despite the retention of an
investigator, the Refco Trustee has been unable to locate The Daretto Foundation, which
appears to be an unregistered Lichtenstein entity. The Refco Trustee continues to
I The Trust is the duly authorized representative to commence all claims and causes of
action formerly owned by the bankruptcy estates of Refco Inc. and certain of its
subsidiaries pursuant to the Modified Joint Chapter ll Plan of Refco Inc. and Certain of
its Direct and Indirect Subsidiaries, as confirmed by the United States Bankruptcy Court
for the Southern District of New York on December 15, 2006.

Case 1:07-cv-00647-SLR Document 7 Filed 05/14/2008 Page 2 of 3
actively investigate the Daretto Foundation’s location.
Although service on a foreign defendant must comport with Federal Rule
of Civil Procedure 4(f), which expressly states that Federal Rule of Civil Procedure 4(m)
and the 120 day time limit set forth therein does not apply to service on foreign
defendants, to the extent that Federal Rule of Civil Procedure 4(in) applies and requires
the Refco Trustee to serve its complaint within 120 days of filing, good cause exists to
extend the time for the Refco Trustee to serve The Daretto Foundation because the Refco
Trustee has diligently investigated the location of MKK Limited (and recently served the
Complaint) and continues to investigate the location of The Daretto Foundation so to
properly effectuate service. Accordingly, the above—captioned action should not be
dismissed and the time to serve The Daretto Foundation should be extended such that the
Refco Trustee may complete its investigation and effectuate service pursuant to the
Hague Convention.
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Case 1:07-cv-00647-SLR Document 7 Filed 05/14/2008 Page 3 of 3
CONCLUSION
WHEREFORE, the Refco Trustee requests that the Court not dismiss the
above-captioned action for failure to prosecute and, pursuant to the motion filed
contemporaneously herewith, extend the time for service of the Complaint on The
Daretto Foundation.
Dated: May 14, 2008
Wilmington, Delaware
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
@.,;,7, ,,9,%,
Gregory W. Werkheiser (No. 3553)
Thomas F. Diiscoll III (No. 4703)
1201 N. Market Street, 18th Floor
P.O. Box 1347
Wilmington, Delaware, 19899-1347
Telephone: (302) 658-9200
Facsimile: (302) 658-3989
-and-
MILBANK, TWEED, HADLEY & MQCLOY LLP
Andrew M. Leblanc (pro hac vice)
One Chase Manhattan Plaza
New York, New York 10005
Telephone: (212) 530-5000
Facsimile: (212) 530-5219
Counsel for Mare S. Kirschner, the Trustee for the
Refco Litigation Trust
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