Apple Inc. v. Psystar Corporation

Filing 69

SUGGESTION OF BANKRUPTCY Upon the Record as to Psystar Corporation by Psystar Corporation. (Springer, Colby) (Filed on 5/26/2009)

Apple Inc. v. Psystar Corporation

Doc. 69

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1 ROBERT J. YORIO (SBN 93178) [e-mail] 2 COLBY B. SPRINGER (SBN 214868) [e-mail] 3 CHRISTINE S. WATSON (SBN 218006) [e-mail] 4 CARR & FERRELL LLP 2200 Geng Road 5 Palo Alto, California 94303 Telephone: [phone] Facsimile: [phone] 7 Attorneys for Defendant/Counterclaimant PSYSTAR CORPORATION 8 9 10 11 12 13 14 15 16 17 18 AND RELATED COUNTERCLAIMS. 19 20 PLEASE TAKE NOTICE that on May 21, 2009, defendant and counterclaimant Psystar v. PSYSTAR CORPORATION, Defendant. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION APPLE INC., a California corporation, Plaintiff, DEFENDANT AND COUNTERCLAIMANT PSYSTAR CORPORATION'S SUGGESTION OF BANKRUPTCY CASE NO. CV-08-03251-WHA

21 Corporation filed a voluntary petition in the United States Bankruptcy Court for the Southern 22 District of Florida for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy 23 Code") in the case In re Psystar Corporation, Case No. 09-19921. A copy of the voluntary petition 24 is attached hereto as Exhibit "A". 25 PLEASE TAKE FURTHER NOTICE that pursuant to section 362(a) of the Bankruptcy

26 Code, the Debtor's filing of its voluntary petition operates as a stay, applicable to all entities, of, 27 among other things: (a) the commencement or continuation of all judicial, administrative, or other 28 actions or proceedings against the Debtor (i) that were or could have been commenced before the
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-1Defendant and Counterclaimant Psystar Corporation's Suggestion of Bankruptcy (Case No. CV-08-03251-WHA)
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1 commencement of the Debtor's case or (ii) to recover any claims against the Debtor that arose 2 before the commencement of the Debtor's cases; (b) the enforcement, against the Debtor or against 3 any property of the Debtor's bankruptcy estates, of a judgment obtained before the commencement 4 of the Debtor's cases; or (c) any act to obtain possession of property of or from the Debtor's 5 bankruptcy estate, or to exercise control over property of the Debtor's bankruptcy estate. 6 7 Dated: May 26, 2009 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CARR & FERRELL LLP

By: ROBERT J. YORIO J. YORIO OLBY SPRINGER COLBY B. SPRINGER CHRISTINE S. WATSON HRISTINE S. WATSON T Attorneys for Defendant/Counterclaimant PSYSTAR CORPORATION

-2Defendant and Counterclaimant Psystar Corporation's Suggestion of Bankruptcy (Case No. CV-08-03251-WHA)

Case3:08-cv-03251-WHA Document69
B1 (Official Form 1)(1/08)

Filed05/26/09 Page3 of 5

United States Bankruptcy Court
Southern Di stri ct o f Fl ori da
} b k 1 { F o r m . V l u n t a y P e i

Voluntary Petition

Name of Debtor (if individual, enter Last, First, Middle):

Name of Joint Debtor (Spouse) (Last, First, Middle):

Psystar Corporation
All Other Names used by the Debtor in the last 8 years (include married, maiden, and trade names): All Other Names used by the Joint Debtor in the last 8 years (include married, maiden, and trade names):

Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN) No./Complete EIN
(if more than one, state all)

Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN) No./Complete EIN
(if more than one, state all)

260-58-0221
Street Address of Debtor (No. and Street, City, and State): Street Address of Joint Debtor (No. and Street, City, and State):

10475 NW 28 Street Miami, FL
ZIP Code ZIP Code

33172
County of Residence or of the Principal Place of Business: County of Residence or of the Principal Place of Business:

Miami-Dade
Mailing Address of Debtor (if different from street address): Mailing Address of Joint Debtor (if different from street address):

10475 NW 28 Street Miami, FL
ZIP Code ZIP Code

Location of Principal Assets of Business Debtor (if different from street address above):

33172 10475 NW 28 Street Miami, FL 33172
Nature o f Busine ss
(Check o n e b o x )

Type of Debtor
(Form of Organization) (Check o n e b o x )

Chapter of Bankruptcy Code Under Which the Petition is Filed (Check one box) Chapter 7 Chapter 9 Chapter 11 Chapter 12 Chapter 13 Chapter 15 Petition for Recognition of a Foreign Main Proceeding Chapter 15 Petition for Recognition of a Foreign Nonmain Proceeding Nature of Deb ts
(Check o n e b o x ) Debts are primarily consumer debts, defined in 11 U.S.C. § 101(8) as "incurred by an individual primarily for a personal, family, or household purpose." Debts are primarily business debts.

Individual (includes Joint Debtors) See Exhibit D on page 2 of this form. Corporation (includes LLC and LLP) Partnership Other (If debtor is not one of the above entities,
check this box and state type of entity below.)

Health Care Business Single Asset Real Estate as defined in 11 U.S.C. § 101 (51B) Railroad Stockbroker Commodity Broker Clearing Bank Other Tax-Exempt Entity
(Check b o x , if app licable)

Debtor is a tax-exempt organization under Title 26 of the United States Code (the Internal Revenue Code). Filing Fee (Check one box) Full Filing Fee attached Filing Fee to be paid in installments (applicable to individuals only). Must attach signed application for the court's consideration certifying that the debtor is unable to pay fee except in installments. Rule 1006(b). See Official Form 3A. Filing Fee waiver requested (applicable to chapter 7 individuals only). Must attach signed application for the court's consideration. See Official Form 3B.

Chapter 11 Debtors Check one box: Debtor is a small business debtor as defined in 11 U.S.C. § 101(51D). Debtor is not a small business debtor as defined in 11 U.S.C. § 101(51D). Check if: Debtor's aggregate noncontingent liquidated debts (excluding debts owed to insiders or affiliates) are less than $2,190,000. Check all applicable boxes: A plan is being filed with this petition. Acceptances of the plan were solicited prepetition from one or more classes of creditors, in accordance with 11 U.S.C. § 1126(b).
THIS SPACE IS FOR COURT USE ONLY

Statistical/Administrative Information Debtor estimates that funds will be available for distribution to unsecured creditors. Debtor estimates that, after any exempt property is excluded and administrative expenses paid, there will be no funds available for distribution to unsecured creditors. Estimated Number of Creditors
149 5099 100199 200999 1,0005,000 5,00110,000 10,00125,000 25,00150,000 50,001100,000 OVER 100,000

Estimated Assets
$0 to $50,000 $50,001 to $100,000 $100,001 to $500,000 $500,001 to $1 million $1,000,001 to $10 million $10,000,001 to $50 million $50,000,001 to $100 million $100,000,001 $500,000,001 More than to $500 to $1 billion $1 billion million

Estimated Liabilities
$0 to $50,000 $50,001 to $100,000 $100,001 to $500,000 $500,001 to $1 million $1,000,001 to $10 million $10,000,001 to $50 million $50,000,001 to $100 million $100,000,001 $500,000,001 More than to $500 to $1 billion $1 billion million

A

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B1 (Official Form 1)(1/08)

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Page 2

Voluntary Petition
(This page must be completed and filed in every case) Location Where Filed: - None Location Where Filed:

Name of Debtor(s): Psystar Corporation

All Prior Bankruptcy Cases Filed Within Last 8 Years (If more than two, attach additional sheet) Case Number: Date Filed: Case Number: Date Filed:

Pending Bankruptcy Case Filed by any Spouse, Partner, or Affiliate of this Debtor (If more than one, attach additional sheet) Name of Debtor: Case Number: Date Filed: - None District: Exhibit A (To be completed if debtor is required to file periodic reports (e.g., forms 10K and 10Q) with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 and is requesting relief under chapter 11.) Exhibit A is attached and made a part of this petition. Relationship: Judge: Exhibit B
(To be completed if debtor is an individual whose debts are primarily consumer deb ts.)

I, the attorney for the petitioner named in the foregoing petition, declare that I have informed the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, and have explained the relief available under each such chapter. I further certify that I delivered to the debtor the notice required by 11 U.S.C. §342(b).

X

Signature of Attorney for Debtor(s)

(Date)

Exhibit C
Does the debtor own or have possession of any property that poses or is alleged to pose a threat of imminent and identifiable harm to public health or safety? Yes, and Exhibit C is attached and made a part of this petition. No.

Exhibit D (To be completed by every individual debtor. If a joint petition is filed, each spouse must complete and attach a separate Exhibit D.) Exhibit D completed and signed by the debtor is attached and made a part of this petition. If this is a joint petition: Exhibit D also completed and signed by the joint debtor is attached and made a part of this petition. Information Regarding the Debtor - Venue (Check any applicable box) Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District. There is a bankruptcy case concerning debtor's affiliate, general partner, or partnership pending in this District. Debtor is a debtor in a foreign proceeding and has its principal place of business or principal assets in the United States in this District, or has no principal place of business or assets in the United States but is a defendant in an action or proceeding [in a federal or state court] in this District, or the interests of the parties will be served in regard to the relief sought in this District. Certification by a Debtor Who Resides as a Tenant of Residential Property (Check all applicable boxes) Landlord has a judgment against the debtor for possession of debtor's residence. (If box checked, complete the following.)
(Name of landlord that obtained judgment)

(Address of landlord)

Debtor claims that under applicable nonbankruptcy law, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after the judgment for possession was entered, and Debtor has included in this petition the deposit with the court of any rent that would become due during the 30-day period after the filing of the petition. Debtor certifies that he/she has served the Landlord with this certification. (11 U.S.C. § 362(l)).

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Page 3

Voluntary Petition
(This page must be completed and filed in every case)

Name of Debtor(s): Psystar Corporation Signatures

Signature(s) of Debtor(s) (Individual/Joint)
I declare under penalty of perjury that the information provided in this petition is true and correct. [If petitioner is an individual whose debts are primarily consumer debts and has chosen to file under chapter 7] I am aware that I may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, understand the relief available under each such chapter, and choose to proceed under chapter 7. [If no attorney represents me and no bankruptcy petition preparer signs the petition] I have obtained and read the notice required by 11 U.S.C. §342(b). I request relief in accordance with the chapter of title 11, United States Code, specified in this petition.

Signature of a Foreign Representative
I declare under penalty of perjury that the information provided in this petition is true and correct, that I am the foreign representative of a debtor in a foreign proceeding, and that I am authorized to file this petition.
(Check only one box.)

I request relief in accordance with chapter 15 of title 11. United States Code. Certified copies of the documents required by 11 U.S.C. §1515 are attached. Pursuant to 11 U.S.C. §1511, I request relief in accordance with the chapter of title 11 specified in this petition. A certified copy of the order granting recognition of the foreign main proceeding is attached.

X
Signature of Debtor

X
Signature of Foreign Representative Printed Name of Foreign Representative Signature of Joint Debtor Date Telephone Number (If not represented by attorney) Date Signature of Attorney* Signature of Non-Attorney Bankruptcy Petition Preparer
I declare under penalty of perjury that: (1) I am a bankruptcy petition preparer as defined in 11 U.S.C. § 110; (2) I prepared this document for compensation and have provided the debtor with a copy of this document and the notices and information required under 11 U.S.C. §§ 110(b), 110(h), and 342(b); and, (3) if rules or guidelines have been promulgated pursuant to 11 U.S.C. § 110(h) setting a maximum fee for services chargeable by bankruptcy petition preparers, I have given the debtor notice of the maximum amount before preparing any document for filing for a debtor or accepting any fee from the debtor, as required in that section. Official Form 19 is attached.

X

X

/s/ Lazaro J. Lopez Signature of Attorney for Debtor(s) Lazaro J. Lopez 879861 Printed Name of Attorney for Debtor(s) Lazaro J. Lopez Firm Name 2333 Brickell Ave, Ste A-1 Miami, FL 33129

Printed Name and title, if any, of Bankruptcy Petition Preparer Social-Security number (If the bankrutpcy petition preparer is not an individual, state the Social Security number of the officer, principal, responsible person or partner of the bankruptcy petition preparer.)(Required by 11 U.S.C. § 110.)

Address Email: [e-mail] 305-477-5933 Fax: [phone] Telephone Number May 21, 2009 Date
*In a case in which § 707(b)(4)(D) applies, this signature also constitutes a certification that the attorney has no knowledge after an inquiry that the information in the schedules is incorrect.

Address

X
Date
Signature of Bankruptcy Petition Preparer or officer, principal, responsible person,or partner whose Social Security number is provided above. Names and Social-Security numbers of all other individuals who prepared or assisted in preparing this document unless the bankruptcy petition preparer is not an individual:

Signature of Debtor (Corporation/Partnership)
I declare under penalty of perjury that the information provided in this petition is true and correct, and that I have been authorized to file this petition on behalf of the debtor. The debtor requests relief in accordance with the chapter of title 11, United States Code, specified in this petition.

X

/s/ Rodolfo Pedraza Signature of Authorized Individual Rodolfo Pedraza Printed Name of Authorized Individual President Title of Authorized Individual May 21, 2009 Date

If more than one person prepared this document, attach additional sheets conforming to the appropriate official form for each person. A bankruptcy petition preparer's failure to comply with the provisions of title 11 and the Federal Rules of Bankruptcy Procedure may result in fines or imprisonment or both 11 U.S.C. §110; 18 U.S.C. §156.