Salyer et al v. SSC Farms I, LLC et al

Filing 12

AMENDED STIPULATION AND ORDER signed by Senior Judge Lawrence K. Karlton on 3/3/11 ORDERING that all proceedings regarding the Appeals are STAYED, and these appeals shall be administratively closed, pending further order of the Court, Pursuant Case s tay, the deadline for Appellants to file their opening brief and excerpts of record in the Appeals, and the deadlines for all other briefing thereafter regarding the Appeals are suspended and within seven (7) days after the Revised Budget no longer r emains in effect and either of the Parties determines that that it will no longer negotiate regarding extending the time period of the Revised Budget, such party will file with the Court and notice of expiration of the Revised Budget and a proposed o rder reopening the appeals, lifting the stay and issuing a revised briefing schedule, which in no event shall the deadline for Appellants to file their opening brief and excerpts of record in the Appeals be earlier than fourteen days after the date of the filing of the notice and proposed order and all other briefing thereafter regarding the Appeals shall be conducted in accordance with the rules of this Court and Bankruptcy Rules. (Mena-Sanchez, L)

(BK) Salyer et al v. SSC Farms I, LLC et al

Doc. 12

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STEVEN H. FELDERSTEIN, State Bar No. 056978 PAUL J. PASCUZZI, State Bar No. 148810 TANIA M. MOYRON, State Bar No. 235736 FELDERSTEIN FITZGERALD WILLOUGHBY & PASCUZZI LLP 400 Capitol Mall, Suite 1450 Sacramento, CA 95814 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] MALCOLM S. SEGAL, State Bar No. 075481 SEGAL & KIRBY 770 L Street, Suite 1440 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Scott Salyer, individually and as trustee of the Scott Salyer Revocable Trust, and the Scott Salyer Revocable Trust ANDREA M. MILLER, State Bar No. 88992 JAMES C. KEOWEN, State Bar No. 173546 NAGELEY MEREDITH & MILLER, INC. 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for SK PM Corp., SK Foods, LLC, SKF Canning, LLC, Blackstone Ranch Corporation, Monterey Peninsula Farms, LLC, Salyer Management Company, LLC, SK Farms Services, LLC, SK Frozen Foods, LLC, SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, SSC Farms III, LLC, SKF Aviation, LLC, and CSSS, LP d/b/a Central Valley Shippers Please see continuation page for a complete list of the moving parties and their respective counsel. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA In re: SK FOODS, LP, a California limited partnership, et al., Debtors. BANKRUPTCY CASE NO.: 09-29162-D-11 Chapter 11 U.S. District Court Case Nos. 2:10-cv-2912-LKK; 2:10-cv-2913-LKK 2:10-cv-2914-LKK
STIPULATION AND [PROPOSED] ORDER STAYING BANKRUPTCY APPEAL
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1 2 3 4 5 6 7 8 9 10 11 12 BRADLEY SHARP, 13 Plaintiff, 14 vs. 15 SCOTT SALYER, et al., 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 BRADLEY SHARP, Plaintiff, BRADLEY D. SHARP, Plaintiff,

AMENDED STIPULATION AND ORDER STAYING BANKRUPTCY APPEAL OF ORDER MODIFYING PRELIMINARY INJUNCTION

AP No. 09-02692 DCN: FWP-1 Chapter 11

vs. SSC FARMS I, LLC, et al., Defendants. AP No. 10-02014 DCN: FWP-1 Chapter 11

AP No. 10-02016 DCN: FWP-1 Chapter 11

vs. SFK AVIATION, LLC et al., Defendants.

STIPULATION AND [PROPOSED] ORDER STAYING BANKRUPTCY APPEAL
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CONTINUATION SHEET: PARTIES AND THEIR RESPECTIVE COUNSEL

STEVEN H. FELDERSTEIN, State Bar No. 056978 PAUL J. PASCUZZI, State Bar No. 148810 TANIA M. MOYRON, State Bar No. 235736 FELDERSTEIN FITZGERALD WILLOUGHBY & PASCUZZI LLP 400 Capitol Mall, Suite 1450 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail]

ANDREA M. MILLER, State Bar No. 88992 JAMES C. KEOWEN, State Bar No. 173546 NAGELEY MEREDITH & MILLER, INC. 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail]

Counsel for Defendants SK PM Corp., SK Foods, LLC, SKF Canning, LLC, Blackstone Ranch Corporation, Monterey Peninsula Farms, LLC, Salyer Management Company, LLC, SK Counsel for Scott Salyer, individually and as Farms Services, LLC, SK Frozen Foods, LLC, trustee of the Scott Salyer Revocable Trust, SS Farms, LLC, SSC Farming, LLC, SSC and the Scott Salyer Revocable Trust Farms I, LLC SSC Farms II, LLC and SSC Farms III, LLC, SKF Aviation, LLC and CSSS, LP d/b/a Central Valley Shippers MALCOLM S. SEGAL, State Bar No. 075481 GREGORY C. NUTI, State Bar No. 151754 SEGAL & KIRBY KEVIN W. COLEMAN, State Bar No. 168538 770 L Street, Suite 1440 MICHAEL M. CARLSON, State Bar No. Sacramento, California 95814 88048 Telephone: [phone] SCHNADER HARRISON SEGAL & LEWIS Facsimile: [phone] LLP [e-mail] One Montgomery Street, Suite 2200 San Francisco, California 94104-5501 Counsel for Scott Salyer, individually and as Telephone: [phone] trustee of the Scott Salyer Revocable Trust, Facsimile: 415-364-6785 and the Scott Salyer Revocable Trust [e-mail] [e-mail] [e-mail] Counsel for Bradley D. Sharp, Chapter 11 Trustee

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Scott Salyer, individually and as trustee of the Scott Salyer Revocable Trust; the Scott Salyer Revocable Trust; SK PM Corp.; SK Foods, LLC; SKF Canning, LLC; Blackstone Ranch Corporation; Monterey Peninsula Farms, LLC; Salyer Management Company, LLC; SK Farms Services, LLC; SK Frozen Foods, LLC; SS Farms, LLC; SSC Farming, LLC; SSC Farms I, LLC; SSC Farms II, LLC; SSC Farms III, LLC; SKF Aviation, LLC; and CSSS, LP d/b/a Central Valley Shippers (collectively, "Appellants"), on the one hand, and Bradley D. Sharp ("Appellee" and, together with Appellants, the "Parties"), the duly appointed and acting chapter 11 trustee of substantively consolidated debtors SK Foods, L.P., a California limited partnership, and RHM Industrial/Specialty Foods, Inc., a California corporation, d/b/a Colusa County Canning Co., on the other hand, by and through their respective counsel, hereby stipulate and agree as follows: 1. On October 13, 2010, the Bankruptcy Court entered the Order on Defendants'

Motion to Modify Preliminary Injunction (the "Order Modifying Preliminary Injunction"), modifying a preliminary injunction (the "Preliminary Injunction") previously granted by the Bankruptcy Court in the above-captioned adversary proceedings (collectively, the "Adversary Proceedings"), in order to allow SSC Farming, LLC ("SSC Farming") to sell certain parcels of real property and use some the proceeds from such sale (the "Sale Proceeds") for the payment of certain expenses incurred by SSC Farming in the ordinary course of business pursuant to a budget attached to the Order Modifying Preliminary Injunction for the months of August through December 31, 2010 (the "Budget"), without prejudice to further requests to use the Sale Proceeds. 2. On October 27, 2010, Appellants filed in the Adversary Proceedings the Notice of

Appeal, appealing the Order Modifying Preliminary Injunction, and the Statement of Election to have the Appeals heard by the United States District Court for the Eastern District of California. Those actions by Appellants have resulted in the current proceedings (collectively, the "Appeals"). 3. On December 1, 2010, Appellants filed the Statement of Issues on Appeal from

Order on Defendants' Motion to Modify Preliminary Injunction for the Appeal, presenting issues to be heard on in the Appeals, concerning the use of the Sale Proceeds. 4. On January 11, 2011, the Court entered a briefing schedule (the "Briefing -1620216.03-Los Angeles Server 1A

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Schedule") for the Appeals. Pursuant to the Briefing Schedule, Appellants were to submit their opening brief and excerpts of record on January 25, 2011. 5. On or around January 14, 2011, the Parties agreed to participate in mediation

concerning, among other things, the Appeals with Judge Michael McManus in the sixty (60) days thereafter (the "Mediation"). The Parties also agreed to postpone the briefing of the Appeals as the issues in the Appeals will be negotiated as part of the Mediation. 6. On January 17, 2011, the Parties filed a stipulation (the "Stipulation") extending

the deadline for Appellants to file their opening brief and excerpts of record to March 17, 2011 with all other briefing thereafter regarding the Appeals to be conducted pursuant to a briefing schedule in accordance with the rules of this Court and the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). The Court entered an order approving the Stipulation on the same day. 7. On January 31, 2011, SSC Farming, SSC Farms I, LLC, SSC Farms II, LLC and

SSC Farms III, LLC (collectively, the "Farming Entities") filed the Motion of Farming Entities to Further Modify the Preliminary Injunction to Permit Ordinary Course Lease and Management Transactions (the "Ordinary Course Transactions Motion") to allow them to make further expenditures of the Sale Proceeds to protect and preserve assets subject to the Preliminary Injunction. 8. On February 16, 2011, the Parties filed a stipulation (the "Revised Budget

Stipulation") in the Adversary Proceedings in which they agreed to the entry of an order, among other things, (i) resolving the Ordinary Course Transactions Motion, (ii) modifying the terms of and extending the time period of the Budget (the "Revised Budget") to cover the period of January 1, 2011 through March 31, 2011 and allowing the Farming Entities and Appellee, by written agreement, to extend the Revised Budget after March 31, 2011 for amounts agreeable to Appellee, without further order of the Bankruptcy Court or the Court and (iii) agreeing that Appellants would immediately stipulate to the stay of the Appeals for the period that the Revised Budget remains in effect, including any extensions thereof agreed to by the Farming Entities and Appellee. The Bankruptcy Court entered the order requested by the Revised Budget Stipulation -2620216.03-Los Angeles Server 1A

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on the same day (the "Revised Budget Order"). 9. Appellants believe that, so long as the Revised Budget is in effect, the relief sought

by them in the Appeals may be unnecessary. 10. For the foregoing reasons, the Parties hereby jointly request that the Court enter an

order (A) staying all proceeding in the Appeals; said stay to include but not be limited to, suspending the deadline for Appellants to file their opening brief and excerpts of record in the Appeals, and suspending all other briefing thereafter regarding the Appeals, and (B) requiring that, within seven (7) days after the Revised Budget, including any extensions thereof, no longer remains in effect and either of the Parties determines that that it will no longer negotiate regarding extending the time period of the Revised Budget, such party will file with the Court a notice of expiration of the Revised Budget and a proposed order lifting the stay and reinstating the briefing schedule, which (a) in no event shall the deadline for Appellants to file their opening brief and excerpts of record in the Appeals be earlier than fourteen (14) days after the date of the filing of the notice and proposed order and (b) all other briefing thereafter regarding the Appeals shall be conducted in accordance with the rules of this Court and the Bankruptcy Rules.

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Dated this 28th day of February, 2011

SCHNADER HARRISON SEGAL & LEWIS LLP /s/ Michael M. Carlson_________________ MICHAEL M. CARLSON Counsel for Bradley D. Sharp, as Chapter 11 Trustee of SK Foods, L.P.

FELDERSTEIN FITZGERALD WILLOUGHBY & PASCUZZI LLP /s/ Paul J. Pascuzzi________________________ PAUL J. PASCUZZI Counsel for Scott Salyer, individually and as trustee of the Scott Salyer Revocable Trust, and the Scott Salyer Revocable Trust

SEGAL & KIRBY LLP /s/ Malcolm S. Segal___________________ MALCOLM S. SEGAL Counsel for Scott Salyer, individually and as trustee of the Scott Salyer Revocable Trust, and the Scott Salyer Revocable Trust

NAGELEY MEREDITH & MILLER, INC. /s/ James C. Keowen______________________ JAMES C. KEOWEN Counsel for SK PM Corp., SK Foods, LLC, SKF Canning, LLC, Blackstone Ranch Corporation, Monterey Peninsula Farms, LLC, Salyer Management Company, LLC, SK Farms Services, LLC, SK Frozen Foods, LLC, SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, SSC Farms III, LLC, SKF Aviation, LLC, and CSSS, LP d/b/a Central Valley Shippers

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GOOD CAUSE APPEARING, IT IS ORDERED AS FOLLOWS, 1. All proceedings regarding the Appeals are stayed, and these appeals shall be administratively closed, pending further order of the Court, Pursuant to the stay, the deadline for Appellants to file their opening brief and excerpts of record in the Appeals, and the deadlines for all other briefing thereafter regarding the Appeals are suspended, and 2. Within seven (7) days after the Revised Budget no longer remains in effect and either of the Parties determines that that it will no longer negotiate regarding extending the time period of the Revised Budget, such party will file with the Court a notice of expiration of the Revised Budget and a proposed order reopening the appeals, lifting the stay, and issuing a revised briefing schedule, which (a) in no event shall the deadline for Appellants to file their opening brief and excerpts of record in the Appeals be earlier than fourteen (14) days after the date of the filing of the notice and proposed order and (b) all other briefing thereafter regarding the Appeals shall be conducted in accordance with the rules of this Court and the Bankruptcy Rules.

Dated: March 3, 2011.

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