Free Response to Order - District Court of Delaware - Delaware

Case 1 :07-cv-00645-SLR Document 6 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 N0.
Plaintiff 07-645-SLR
v.
Re; Docket No. 4
CHRISTOPHER SUGRUE 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”),l 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
Defendant Christopher Sugrue ("Sugge") is a United States resident who
has fled abroad. Over the course of the preceding six months, the Refco Trustee has been
actively investigating Sugme’s location. Sugrue, however, has taken aggressive steps to
conceal his location. The Refco Trustee is working to effectuate service on Sugrue
pursuant to the Hague Convention and has retained APS International, Ltd. ("APS"), a
company with expertise and experience in international service of process, to assist the
Refco Trustee with international service on Sugrue once he has been located. Service
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-00645-SLR Document 6 Filed 05/14/2008 Page 2 of 3
through the Hague Convention, however, is a lengthy process and APS expects that
service will take approximately until August 2008.
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(ni)
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(m) 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 Sugrue because any delay in prosecuting
the above-captioned action arises from Sug1ue’s flight from the United States and/or from
the lengthy service process created by the strictures of the Hague Convention.
Accordingly, the above-captioned action should not be dismissed and the time to serve
Sugrue 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-00645-SLR Document 6 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 tiled
contemporaneously herewith, extend the time for service of the Complaint.
· Dated: May 14, 2008
Wilmington, Delaware
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
% 9 JAM
Gregory W. Werkheiser (No. 3553)
Thomas F. Driscoll 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 Marc S. Kirschner, the Trustee for the
Refco Litigation Trust
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