In Re: Zacky Farms, LLC

Filing 11

STIPULATION and ORDER signed by Judge John A. Mendez on 8/27/2013 ORDERING that Appellants' opening brief shall be due on 9/27/2013. The appellee's opening brief shall be due within fourteen (14) days after service of Appellants' open ing brief. Appellants may file a reply brief with the District Court, within fourteen (14) days after service of appellee's opening brief. Once all briefs have been submitted, the Appellants are to notify the court in writing, within fourteen (14) days after service of Appellants' reply brief, that the appeal is ready for oral argument. (Zignago, K.)

1 Joseph M. Marchini
#082427
Carl R. Refuerzo
#106253
2 Peter G. Fashing
#195756
BAKER MANOCK & JENSEN, PC
3 5260 North Palm Avenue, Fourth Floor
Fresno, California 93704
4 Telephone: [phone]
Facsimile: 559.432.5620
5 Email: [e-mail]
Email: [e-mail]
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Attorneys for Richard Zacky, individually and in his capacity as trustee of the
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Richard N. Zacky Irrevocable Trust dated 11/25/07, the
Survivor's Trust of Albert and Beverly Zacky Trust Dated
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2/10/88, and the Barbara Jean Zacky Irrevocable Trust Dated
12/30/06, and ZF Enterprises, LLC,
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Mark Gorton #99312
10 BOUTIN JONES, INC.
555 Capitol Mall, Suite 1500
11 Sacramento, CA 95814
Telephone: [phone]
12 Facsimile: [phone]
Email: [e-mail]
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Attorneys for Creditor Integrated Grain & Milling, Inc.
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Thomas H. Armstrong #146016
15 THE LAW OFFICES OF THOMAS H. ARMSTRONG
5250 N. Palm Avenue, Suite 224
16 Fresno, CA 93704
Telephone: [phone]
17 Facsimile: [phone]
Email: [e-mail]
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Attorneys for Big Feather Ranch, LLC, Lucky Wishbone Ranch, LLC and
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American Huntsman, LLC
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

22 In re

CASE No. 2:13-CV-00455

23 ZACKY FARMS, LLC,

Bankruptcy Court Case No. 12-37961

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Debtor,

25 RICHARD ZACKY, ET AL.,
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FURTHER STIPULATION TO ENLARGE
TIME TO FILE APPELLANTS'
OPENING BRIEF; ORDER

Appellants.

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1367103v2 / 18027.0004

FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and
[PROPOSED] ORDER

1

This Further Stipulation to Enlarge Time to File Appellants' Opening Brief

2 ("Stipulation") is entered into by and between appellants Richard Zacky (individually and in his
3 capacity as trustee of the Richard N. Zacky Irrevocable Trust dated 11/25/07, the Survivor's Trust
4 of Albert and Beverly Zacky Trust Dated 2/10/88, and the Barbara Jean Zacky Irrevocable Trust
5 Dated 12/30/06), ZF Enterprises, LLC, Integrated Grain & Milling, Inc., American Huntsman,
6 LLC, Big Feather Ranch, LLC, and Lucky Wishbone Ranch, LLC (collectively, "Appellants"), the
7 Official Committee of Unsecured Creditors ("Creditors' Committee"), and Zacky Farms, LLC
8 ("Debtor"), by and through their respective attorneys of record.
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RECITALS
A.

On May 9, 2013, the Clerk of Court for the United States District Court,

11 Eastern District of California ("District Court") filed its Briefing Schedule in Bankruptcy Appeal
12 ("Briefing Schedule"). A previous Stipulation to Enlarge Time to File Appellants' Opening Brief
13 was timely filed by the parties to this Stipulation on May 22, 2013. The Court granted the
14 stipulation on May 23, 2013, and ordered that Appellants' opening brief be filed by July 8, 2013.
15

B.

On July 2, 2013, the parties timely filed a Further Stipulation to Enlarge

16 Time to File Appellants' Opening Brief ("Second Stipulation"). The Second Stipulation sought a
17 further twenty-one (21) day enlargement of time for Appellants to file their opening brief. On July
18 3, 2013, the Court granted the Second Stipulation and ordered that Appellants' opening brief be
19 filed by July 29, 2013.
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C.

On July 26, 2013, the parties timely filed a Further Stipulation to Enlarge

21 Time to File Appellants' Opening Brief ("Third Stipulation"). The Third Stipulation sought a
22 further thirty (30) day enlargement of time for Appellants to file their opening brief. On July 26,
23 2013, the Court granted the Third Stipulation and ordered that Appellants' opening brief be filed
24 by August 28, 2013.
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D.

As previously reported to the Court, Appellants, the Creditors' Committee

26 and the Debtor (collectively, "Parties") have reached a tentative settlement of this matter. Since
27 the filing of the Second Stipulation, a change in management had occurred at Integrated
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1367103v2 / 18027.0004

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FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and
[PROPOSED] ORDER

1 Grain & Milling, Inc. ("IGM") and IGM's new management needed additional time to evaluate the
2 tentative settlement. The Parties are still working toward final settlement and continue to believe
3 that a final settlement will be forthcoming at which time a suitable, written settlement agreement
4 among the Parties will be finalized, and the Parties will seek U.S. Bankruptcy Court approval of
5 the settlement. Upon approval by the U.S. Bankruptcy Court, Appellants will dismiss the appeal.
6

E.

The Parties desire to again further enlarge the time within which Appellants

7 may file their opening brief. As with the prior enlargements, the requested enlargement will serve
8 to avoid unnecessary expense and effort on the part of the Parties in prosecuting and defending the
9 appeal, and the unnecessary expenditure of judicial resources in hearing and deciding the Appeal
10 in the event a final settlement is approved by the U.S. Bankruptcy Court. Accordingly, the Parties
11 have entered into this further Stipulation.
12

F.

The Committee is willing to stipulate to Appellants' request for a further

13 enlargement of time within which to file Appellant's opening brief but the Committee does not
14 stipulate to other assertions made in this Stipulation.
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STIPULATION

16 IT IS HEREBY STIPULATED as follows:
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1.

The Parties fully incorporate herein the Recitals set forth above.

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2.

The Parties acknowledge that Federal Rules of Bankruptcy Procedure, Rule

19 9006(b)(1) provides, in relevant part:
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…[W]hen an act is required or allowed to be done at
or within a specified period by these rules or by a
notice given thereunder or by order of court, the court
for cause shown may at any time in its discretion (1)
with or without motion or notice order the period
enlarged if the request therefor is made before the
expiration of the period originally prescribed or as
extended by a previous order….

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3.

The Parties acknowledge that good cause exists for a further enlargement of

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time within which Appellants may file their opening brief . Appellants assert that a further
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enlargement of time, as requested, will continue to allow the Parties time to finalize a settlement
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and a suitable, written settlement agreement for presentment to the U.S. Bankruptcy Court for its
1367103v2 / 18027.0004
3
FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and
[PROPOSED] ORDER

1 approval without having to incur the added and potentially unnecessary expense of prosecuting or
2 defending the appeal. Appellants assert that a further enlargement of time will also result in the
3 economical use of judicial resources in that the District Court will be able to avoid hearing and
4 deciding the appeal in the event a final settlement is approved by the U.S. Bankruptcy Court.
5

4.

The Parties are requesting that the time to file Appellants' opening brief be further

6 enlarged by 30 days.
7

5.

Accordingly, the Parties agree, subject to the District Court's approval, that

8 Appellants' opening brief shall be due no sooner than September 27, 2013.
9
10 DATED: August 23, 2013.

BAKER MANOCK & JENSEN, PC

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By: /s/ Joseph M. Marchini
Joseph M. Marchini
Carl R. Refuerzo
Peter G. Fashing
Attorneys for Richard Zacky, individually and in his
capacity as trustee of the Richard N. Zacky Irrevocable
Trust dated 11/25/07, the Survivor's Trust of Albert and
Beverly Zacky Trust Dated 2/10/88, and the Barbara
Jean Zacky Irrevocable Trust Dated 12/30/06, and ZF
Enterprises, LLC,

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[Signatures continued on next page.]
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1367103v2 / 18027.0004

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FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and
[PROPOSED] ORDER

1 DATED: August 23, 2013.

BOUTIN JONES, INC.

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By: /s/ Mark Gorton
Mark Gorton
Attorneys for Intergrated Grain & Milling, Inc.

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5 DATED: August 23, 2013.
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THE LAW OFFICES OF THOMAS H.
ARMSTRONG

By:/s/ Thomas H. Armstrong
Thomas H. Armstrong
Attorneys for Big Feather Ranch, LLC, Lucky
Wishbone Ranch, LLC and American Huntsman, LLC

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11 DATED: August 27, 2013.

FELDERSTEIN FITZGERALD WILLOUGHBY &
PASCUZZI, LLP

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By: /s/ Thomas A. Willoughby
Thomas A. Willoughby
Attorneys for Zacky Farms, LLC

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16 DATED: August 23, 2013.

LOWENSTEIN SANDLER LLP

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By: /s/ Wojciech F. Jung
Wojciech F. Jung
Attorneys for the Official Committee of Unsecured
Creditors

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ORDER
Having read the Stipulation of the Parties, and good cause appearing, IT IS
HEREBY ORDERED:
1.

Appellants' opening brief shall be due on September 27, 2013.

2.

The appellee's opening brief shall be due within fourteen (14) days after

service of Appellants' opening brief.

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1367103v2 / 18027.0004

5

FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and
[PROPOSED] ORDER

1

3.

Appellants may file a reply brief with the District Court, within fourteen

2 (14) days after service of appellee's opening brief.
3

4.

Once all briefs have been submitted, the Appellants are to notify the court

4 in writing, within fourteen (14) days after service of Appellants' reply brief, that the appeal is
5 ready for oral argument.
6 DATED: 8/27/2013
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/s/ John A. Mendez____________
United States District Court Judge

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1367103v2 / 18027.0004

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FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and
[PROPOSED] ORDER