In Re: Zacky Farms, LLC

Filing 9

STIPULATION and ORDER signed by Judge John A. Mendez on 7/26/13 ORDERING that Appellant's Brief shall be due on 8/28/2013. The appellee's opening brief shall be due within fourteen (14) days after service of Appellants' opening 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. (Mena-Sanchez, L)

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 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.

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1337099v1 / 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 the time for Appellants to file their opening brief. On
18 July 3, 2013, the Court granted the Second Stipulation and ordered that Appellants' opening brief
19 be filed by July 19, 2013.
20

C.

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

21 and the Debtor (collectively, "Parties") have reached a tentative settlement of this matter. Since
22 the filing of the previous Stipulation, a change in management has occurred at Integrated Grain &
23 Milling, Inc. ("IGM"). IGM's new management needs additional time to evaluate the tentative
24 settlement. The Parties continue to believe that a final settlement will be forthcoming at which
25 time a suitable, written settlement agreement among the Parties will be finalized, and the Parties
26 will seek U.S. Bankruptcy Court approval of the settlement. Upon approval by the U.S.
27 Bankruptcy Court, Appellants will dismiss the appeal.
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1337099v1 / 18027.0004

2

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

1

D.

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

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

E.

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

8 enlargement of time within which to file Appellant's opening brief but the Committee does not
9 stipulate to other assertions made in this Stipulation.
10

STIPULATION

11 IT IS HEREBY STIPULATED as follows:
12

1.

The Parties fully incorporate herein the Recitals set forth above.

13

2.

The Parties acknowledge that Federal Rules of Bankruptcy Procedure, Rule

14 9006(b)(1) provides, in relevant part:
15

…[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

20
time within which Appellants may file their opening brief . Appellants assert that a further
21
enlargement of time, as requested, will continue to allow the Parties time to finalize a settlement
22
and a suitable, written settlement agreement for presentment to the U.S. Bankruptcy Court for its
23
approval without having to incur the added and potentially unnecessary expense of prosecuting or
24
defending the appeal. Appellants assert that a further enlargement of time will also result in the
25
economical use of judicial resources in that the District Court will be able to avoid hearing and
26
deciding the appeal in the event a final settlement is approved by the U.S. Bankruptcy Court.
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1337099v1 / 18027.0004

3

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

1

4.

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

2 further enlarged by 30 days.
3

5.

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

4 Appellants' opening brief shall be due no sooner than August 28, 2013.
5
6 DATED: July 26, 2013.

BAKER MANOCK & JENSEN, PC

7

13

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,

14 DATED: July 26, 2013.

BOUTIN JONES, INC.

8
9
10
11
12

15
By: /s/ Tom Mouzes
Mark Gorton
Tom Mouzes
Attorneys for Intergrated Grain & Milling, Inc.

16
17
18
19

DATED: July 26, 2013.

THE LAW OFFICES OF THOMAS H.
ARMSTRONG

20
By:Thomas H. Armstrong
Thomas H. Armstrong
Attorneys for Big Feather Ranch, LLC, Lucky
Wishbone Ranch, LLC and American Huntsman, LLC

21
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24 [Signatures continued on next page.]
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1337099v1 / 18027.0004

4

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

1
2

DATED: July 26, 2013.

FELDERSTEIN FITZGERALD WILLOUGHBY &
PASCUZZI, LLP

3
By: /s/ Thomas A. Willoughby
Thomas A. Willoughby
Attorneys for Zacky Farms, LLC

4
5
6
7

DATED: July 26, 2013.

8

LOWENSTEIN SANDLER LLP

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

9
10
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12
13

ORDER
Having read the Stipulation of the Parties, and good cause appearing, IT IS

14 HEREBY ORDERED:
15

1.

Appellants' opening brief shall be due on August 28, 2013.

16

2.

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

17 service of Appellants' opening brief.
18

3.

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

19 (14) days after service of appellee's opening brief.
20

4.

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

21 in writing, within fourteen (14) days after service of Appellants' reply brief, that the appeal is
22 ready for oral argument.
23 DATED: 7/26/2013
24
25

/s/ John A. Mendez____________
United States District Court Judge

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1337099v1 / 18027.0004

5

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