In Re: Zacky Farms, LLC

Filing 5

STIPULATION and ORDER signed by Judge John A. Mendez on 5/22/13 ORDERING Appellants' opening brief due 7/8/13; the appellee's opening brief shall be due within 14 days after service of Appellants' opening brief. Appellants may file a reply brief with the District Court, within 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 14 days after service of Appellants' reply brief, that the appeal is ready for oral argument. (Meuleman, A)

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]
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: [phone]
12 Facsimile: [phone]
Email: [e-mail]
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: [phone]
17 Facsimile: [phone]
Email: [e-mail]
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
23 In re

CASE No. 2:13-CV-00455

24 ZACKY FARMS, LLC,

Bankruptcy Court Case No. 12-37961

25

Debtor,

26 RICHARD ZACKY, ET AL.,
27

STIPULATION TO ENLARGE TIME TO
FILE APPELLANTS' OPENING BRIEF;
ORDER

Appellants.

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1299055v4 / 18027.0004

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

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1

This Stipulation to Enlarge Time to File Appellants' Opening Brief ("Stipulation")

2 is entered into by and between appellants Richard Zacky (individually and in his capacity as
3 trustee of the Richard N. Zacky Irrevocable Trust dated 11/25/07, the Survivor's Trust of Albert
4 and Beverly Zacky Trust Dated 2/10/88, and the Barbara Jean Zacky Irrevocable Trust Dated
5 12/30/06), ZF Enterprises, LLC, Integrated Grain & Milling, Inc., American Huntsman, LLC, Big
6 Feather Ranch, LLC, and Lucky Wishbone Ranch, LLC (collectively, "Appellants"), the Official
7 Committee of Unsecured Creditors ("Creditors' Committee"), and Zacky Farms, LLC ("Debtor"),
8 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"). According to the Briefing Schedule and, as provided by Federal Rule of
13 Bankruptcy Procedure 8009, Appellants' opening brief and excerpts of record must be filed with
14 the District Court within fourteen (14) days of May 9, 2013. Accordingly, the Appellants'
15 opening brief and excerpts of record are due on or before May 23, 2013.
16

B.

Appellants, the Creditors' Committee and the Debtor (collectively,

17 "Parties") have reached a tentative settlement of this matter.
18

C.

Appellants believe that a final settlement will be forthcoming at which time

19 a suitable, written settlement agreement among the Parties will be finalized, and the Parties will
20 seek U.S. Bankruptcy Court approval of the settlement. Upon approval by the U.S. Bankruptcy
21 Court, Appellants will dismiss the appeal.
22

D.

In order to avoid unnecessary expense and effort on the part of the Parties in

23 prosecuting and defending the appeal, and the unnecessary expenditure of judicial resources in
24 hearing and deciding the Appeal in the event a final settlement is approved by the U.S. Bankruptcy
25 Court, the Parties desire to enlarge the time within which Appellants may file their opening brief.
26 Accordingly, the Parties have entered into this Stipulation.
27

E.

The Committee is willing to stipulate to Appellants' request for an

28 enlargement of time within which to file Appellant's opening brief but the Committee does not
1299055v4 / 18027.0004
2
STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; [PROPOSED] ORDER

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1 stipulate to other assertions made in this Stipulation.
2

STIPULATION

3 IT IS HEREBY STIPULATED as follows:
4

1.

The Parties fully incorporate herein the Recitals set forth above.

5

2.

The Parties acknowledge that Federal Rules of Bankruptcy Procedure, Rule

6 9006(b)(1) provides, in relevant part:
7

…[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 the enlargement of time

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within which Appellants may file their opening brief . Appellants assert that an enlargement of
13
time, as requested, will allow the Parties time to finalize a settlement and a suitable, written
14
settlement agreement for presentment to the U.S. Bankruptcy Court for its approval without
15
having to incur the added and potentially unnecessary expense of prosecuting or defending the
16
appeal. Appellants assert that enlargement of time will also result in the economical use of
17
judicial resources in that the District Court will be able to avoid hearing and deciding the appeal in
18
the event a final settlement is approved by the U.S. Bankruptcy Court.
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4.

Because motions in the Bankruptcy Court generally require 28 days notice,

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the Parties are requesting that the time to file Appellants' opening brief be enlarged by 45 days or
21
more.
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1299055v4 / 18027.0004

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

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1

5.

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

2 Appellants' opening brief shall be due no sooner than July 8, 2013.
3 DATED: May 22, 2013.

BAKER MANOCK & JENSEN, PC

4

10

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,

11 DATED: May 21, 2013.

BOUTIN JONES, INC.

5
6
7
8
9

12
By: /s/ Mark Gorton
Mark Gorton
Attorneys for Intergrated Grain & Milling, Inc.

13
14
15 DATED: May 22, 2013.
16
17

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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19
20
21

DATED: May 21, 2013

22

FELDERSTEIN FITZGERALD WILLOUGHBY &
PASCUZZI, LLP

23
By: /s/ Thomas A. Willoughby
Thomas A. Willoughby
Attorneys for Zacky Farms, LLC

24
25

26 [Signatures continued on next page]
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STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; [PROPOSED] ORDER

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1 DATED: May 22, 2013

LOWENSTEIN SANDLER LLP

2
By: /s/ Wojciech F. Jung
Wojciech F. Jung
Attorneys for Co-Counsel to the Official Committee of
Unsecured Creditors

3
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5
6

ORDER

7
8
9

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

Appellants' opening brief shall be due on July 8, 2013.

2.

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

10
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service of Appellants' opening brief.
12
3.

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

13
(14) days after service of appellee's opening brief.
14
4.

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

15
in writing, within fourteen (14) days after service of Appellants' reply brief, that the appeal is
16
ready for oral argument.
17
DATED: May 22, 2013
18
/s/ John A. Mendez__________________
19
U. S. DISTRICT COURT JUDGE

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1299055v4 / 18027.0004

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

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