In Re: Zacky Farms, LLC

Filing 13

STIPULATION and ORDER signed by Judge John A. Mendez on 9/26/2013 ORDERING that Appellants' opening brief shall be due on 10/28/2013. 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.)

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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: 559.432.5400 Facsimile: 559.432.5620 5 Email: jmarchini@bakermanock.com Email: crefuerzo@bakermanock.com 6 Attorneys for Richard Zacky, individually and in his capacity as trustee of the 7 Richard N. Zacky Irrevocable Trust dated 11/25/07, the Survivor's Trust of Albert and Beverly Zacky Trust Dated 8 2/10/88, and the Barbara Jean Zacky Irrevocable Trust Dated 12/30/06, and ZF Enterprises, LLC, 9 Mark Gorton #99312 10 BOUTIN JONES, INC. 555 Capitol Mall, Suite 1500 11 Sacramento, CA 95814 Telephone: (916) 321-4444 12 Facsimile: (916) 441-7597 Email: mgorton@boutinjones.com 13 Attorneys for Creditor Integrated Grain & Milling, Inc. 14 Thomas H. Armstrong #146016 15 THE LAW OFFICES OF THOMAS H. ARMSTRONG 5250 N. Palm Avenue, Suite 224 16 Fresno, CA 93704 Telephone: (559) 447-4700 17 Facsimile: (559) 449-2693 Email: lawoffices5250@sbcglobal.net 18 Attorneys for Big Feather Ranch, LLC, Lucky Wishbone Ranch, LLC and 19 American Huntsman, LLC 20 UNITED STATES DISTRICT COURT 21 EASTERN DISTRICT OF CALIFORNIA 22 In re CASE No. 2:13-CV-00455 JAM 23 ZACKY FARMS, LLC, Bankruptcy Court Case No. 12-37961 24 Debtor, 25 RICHARD ZACKY, ET AL., 26 FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; ORDER Appellants. 27 28 1377669v2 / 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. 9 10 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. 20 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. 25 D. On August 27, 2013, the parties timely filed a Further Stipulation to Enlarge 26 Time to File Appellants' Opening Brief ("Fourth Stipulation"). The Fourth Stipulation sought a 27 further thirty (30) day enlargement of time for Appellants to file their opening brief. On August 28 1377669v2 / 18027.0004 2 FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and [PROPOSED] ORDER 1 28, 2013, the Court granted the Fourth Stipulation and ordered that Appellants' opening brief be 2 filed by September 27, 2013. 3 E. As previously reported to the Court, Appellants, the Creditors' Committee 4 and the Debtor (collectively, "Parties") have reached a tentative settlement of this matter. Since 5 the filing of the Second Stipulation, a change in management had occurred at Integrated Grain & 6 Milling, Inc. ("IGM") and IGM's new management needed additional time to evaluate the tentative 7 settlement. The Parties are still working toward final settlement and continue to believe that a 8 final settlement will be forthcoming at which time a suitable, written settlement agreement among 9 the Parties will be finalized, and the Parties will seek U.S. Bankruptcy Court approval of the 10 settlement. Upon approval by the U.S. Bankruptcy Court, Appellants will dismiss the appeal. 11 F. The Parties desire to again further enlarge the time within which Appellants 12 may file their opening brief. As with the prior enlargements, the requested enlargement will serve 13 to avoid unnecessary expense and effort on the part of the Parties in prosecuting and defending the 14 appeal, and the unnecessary expenditure of judicial resources in hearing and deciding the Appeal 15 in the event a final settlement is approved by the U.S. Bankruptcy Court. Accordingly, the Parties 16 have entered into this further Stipulation. 17 G. The Committee is willing to stipulate to Appellants' request for a further 18 enlargement of time within which to file Appellant's opening brief but the Committee does not 19 stipulate to other assertions made in this Stipulation. 20 STIPULATION 21 IT IS HEREBY STIPULATED as follows: 22 1. The Parties fully incorporate herein the Recitals set forth above. 23 2. The Parties acknowledge that Federal Rules of Bankruptcy Procedure, Rule 24 9006(b)(1) provides, in relevant part: …[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 25 26 27 28 1377669v2 / 18027.0004 3 FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and [PROPOSED] ORDER 1 expiration of the period originally prescribed or as extended by a previous order…. 2 3. The Parties acknowledge that good cause exists for a further enlargement of 3 time within which Appellants may file their opening brief . Appellants assert that a further 4 enlargement of time, as requested, will continue to allow the Parties time to finalize a settlement 5 and a suitable, written settlement agreement for presentment to the U.S. Bankruptcy Court for its 6 approval without having to incur the added and potentially unnecessary expense of prosecuting or 7 defending the appeal. Appellants assert that a further enlargement of time will also result in the 8 economical use of judicial resources in that the District Court will be able to avoid hearing and 9 deciding the appeal in the event a final settlement is approved by the U.S. Bankruptcy Court. 10 4. The Parties are requesting that the time to file Appellants' opening brief be 11 further enlarged by 31 days. 12 5. Accordingly, the Parties agree, subject to the District Court's approval, that 13 Appellants' opening brief shall be due no sooner than October 28, 2013. 14 15 DATED: September 25, 2013. BAKER MANOCK & JENSEN, PC 16 17 By: /s/ Peter G. Fashing 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, 18 19 20 21 22 23 [Signatures continued on next page.] 24 25 26 27 28 1377669v2 / 18027.0004 4 FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and [PROPOSED] ORDER 1 DATED: September 25, 2013. BOUTIN JONES, INC. 2 By: /s/ Mark Gorton Mark Gorton Attorneys for Intergrated Grain & Milling, Inc. 3 4 5 DATED: September 25, 2013. 6 7 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 8 9 10 11 DATED: September 25, 2013. FELDERSTEIN FITZGERALD WILLOUGHBY & PASCUZZI, LLP 12 13 By: /s/ Thomas A. Willoughby Thomas A. Willoughby Attorneys for Zacky Farms, LLC 14 15 16 DATED: September 25, 2013. LOWENSTEIN SANDLER LLP 17 By: /s/ Wojciech F. Jung Wojciech F. Jung Attorneys for the Official Committee of Unsecured Creditors 18 19 20 21 22 23 24 25 26 ORDER Having read the Stipulation of the Parties, and good cause appearing, IT IS HEREBY ORDERED: 1. Appellants' opening brief shall be due on October 28, 2013. 2. The appellee's opening brief shall be due within fourteen (14) days after service of Appellants' opening brief. 27 28 1377669v2 / 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: 9/26/2013 7 8 /s/ John A. Mendez____________ United States District Court Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1377669v2 / 18027.0004 6 FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; and [PROPOSED] ORDER

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