In re: Flintkote Company et al

Filing 24

MEMORANDUM ORDER GRANTING 18 MOTION to Dismiss Appeal for Lack of Jurisdiction filed by Flintkote Mines, LTD, Flintkote Company, James J. McMonagle, Official Committe of Asbestos Personal Injury Claimants. Signed by Judge Leonard P. Stark on 5/21/12. (ntl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
INRE:
THE FLINTKOTE COMPANY and
FLINTKOTE MINES LIMITED,

Chapter 11
Bankr. Case No. 04-11300-JKF

f

;

Debtors.
IMPERIAL TOBACCO CANADA LIMITED,
Movant/Appellant,
v.

Civ. No. 11-00063-LPS

THE FLINTKOTE COMPANY,
FLINTKOTE MINES LIMITED, THE OFFICIAL
COMMITTEE OF ASBESTOS PERSONAL
INJURY CLAIMANTS, and JAMES J.
McMONAGLE, in his capacity as FUTURE
CLAIMANTS REPRESENTATIVE, 1
Respondents/Appellees.

MEMORANDUM ORDER

At Wilmington this 21st day ofMay, 2012, this matter coming before the Court upon (i)
the appeal ("Appeal") (D.I. 1) oflmperial Tobacco Canada Limited ("ITCAN") from a portion of
the October 25, 2010 "Order Granting in Part and Denying in Part Imperial Tobacco Canada
Limited's Amended Motion for Leave to File Out-of-Time Proof of Claim" (the "Order") (Bankr.
Case No. 04-11300-JKF, Bankr. D.l. 5425), entered by Judge Judith K. Fitzgerald for the United
States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), and (ii) the Plan
Proponents' Motion to Dismiss ITCAN's Appeal for Lack of Jurisdiction (the "Motion") (D.I.
'The above-captioned respondents/appellees, The Flintkote Company ("Flintkote"),
Flintkote Mines Limited ("Mines" and, together with Flintkote, the "Debtors"), the Official
Committee of Asbestos Personal Injury Claimants, and James J. McMonagle, in his capacity as
the Future Claimants Representative, shall be collectively referred to as the "Plan Proponents."

18), and having considered the parties' papers submitted in connection therewith;
IT IS ORDERED that the Plan Proponents' Motion requesting dismissal of the Appeal
for lack of jurisdiction (D.I. 18) is GRANTED, for the reasons that follow:
1.

Background. 2 ITCAN filed a Notice of Appeal ofthe Order with the Bankruptcy

Court on November 8, 2010 (the "Notice of Appeal") (see Bankr. Case No. 04-11300-JK.F, D.l.
5462; see also Bankr. D.l. 5485 (Appellant's Statement of Issue to be Presented and Designation
ofltems to Be Included in Record on Appeal); D.l. 20 (Appellant's supplemental record
designation)), and the Notice of Appeal was entered on the docket of this Court on January 20,
2011 (see D.l. 4). By its notice, ITCAN seeks limited appellate review of the October 25, 2010
Order, specifically requesting reversal of only that portion of the decision - paragraph 13 insofar as that provision denied ITCAN's motion requesting leave to file an out-of-time proof of

2

Because the Court writes primarily for the benefit of the parties, who are well acquainted
with this matter and who have been patiently awaiting decision in the thick of a bankruptcy plan
confirmation process, the Court presumes reader familiarity with the pertinent background facts.
3

Paragraph 1 of the Order provides:

1.
The Motion is DENIED as to ITCAN's request for leave to file an
out-of-time proof of claim with respect to its alleged Alter Ego Contribution and
Indemnity Claim; provided however that, in the event the Amended Joint Plan of
Reorganization in Respect of The Flintkote Company and Flintkote Mines
Limited (As Modified August 5, 2010) [D.I. 5220] (the "Plan") is confirmed and
becomes effective, then the denial of the Motion in respect of the Alter Ego
Contribution and Indemnity Claim provided for in this paragraph shall not
prejudice or impair (i) IT CAN' s ability to assert the Alter Ego Contribution and
Indemnity Claim as a Flintkote Indirect Asbestos Personal Injury Claim against
the Trust (established pursuant to the Plan) in accordance with the procedure set
forth in section 5.6 of the Trust Distribution Procedures for individual review of
Indirect Asbestos Personal Injury Claims or (ii) the Trust's defenses in respect of
any such claim;

(Bankr. D.l. 5425

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claim with respect to its alleged alter ego contribution and indemnity claim. (See D.l. 1; D.l. 2;
D.l. 4; see also Bankr. D.I. 5425)
2.

ITCAN presents one issue for appellate review by this Court, that is, "[w]hether,

given the change in otherwise applicable law effected on June 2, 2010, by the Third Circuit's
decision in Jeld-Wen, Inc. v. Van Brunt (In re Grossman's Inc.) ('Grossman's'), 607 F.3d 114
(3d Cir. 2010), the Bankruptcy Court erred in denying ITCAN the right to file an out-of-time
proof of claim with respect to its Alter Ego Contribution and Indemnity Claim."4 (D.I. 2)
3.

According to ITCAN, the Bankruptcy Court erred in denying ITCAN the right to

file its "out-of-time proof of claim with respect to its potential future demand for contribution
and indemnification." (D.I. 21 at 2; see id. at 2-3, 18-29) ITCAN explains that, under the Third
Circuit's previous Frenville decision, see Avellino & Bienes v. M Frenville Co. (In re: M

Frenville Co.), 744 F.2d 332 (3d Cir. 1984), and its "accrual test," ITCAN- an entity lacking any
indemnity agreement with the Debtors - held no "claim" for alter ego contribution and indemnity
cognizable under Section 101(5) ofthe United States Bankruptcy Code, 11 U.S.C. §§ 101, et seq.
(the "Bankruptcy Code"), that could be filed. (See id. at 19-27) According to ITCAN, under
applicable state law, it would simply have no claim or right to payment for contribution and
indemnity until such claim accrued under state law, that is, until ITCAN suffered some loss or

4

0n October 13,2004, the Bankruptcy Court entered an order establishing January 31,
2005 as the "Bar Date" for filing proofs of claim against the Debtors. (See D.l. 18 at 3; D.I. 21 at
5) At that time, ITCAN alleges, "it did not have any known claims against the Debtors" (id.),
"only a 'demand' for potential future payment in the event it were ever determined to be
Flintkote's alter ego" (D.I. 23 at 2, 10), and therefore filed no formal proof of claim. On April 5,
2006 - beyond the established Bar Date - Flintkote and certain asbestos claimants sued ITCAN
in California state court seeking a determination that ITCAN was, or is, the alter ego of Flintkote.
(See D.l. 21 at 5)
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damage by the payment of the underlying claim. (See id. at 22) "[B]ecause ITCAN has not yet
been found to be Flintkote's alter ego and, therefore, is not liable for any ofFlintkote's asbestos
liability, its cause of action against the Debtors has not yet accrued and did not qualify as a
'claim' under Bankruptcy Code section 101(5) as interpreted in Frenville." (!d. at 22; see also
id. at 2; D.I. 23 at 2, 10, 17, 19)

4.

ITCAN insists it was not until after the Third Circuit's issuance of its Grossman's

decision on June 2, 2010 that ITCAN held a "claim" for bankruptcy purposes; prior to that
decision, ITCAN "held only a 'demand' for potential future payment in the event it were ever
determined to be Flintkote's alter ego." 5 (D.I. 23 at 2; see D.I. 21 at 18-27) ITCAN offers that
"Grossman's did not merely address the allowability of claims, but fundamentally redefined what

constitutes a 'claim' under the Bankruptcy Code" by its determination, "contrary to conclusions
reached in earlier decisions, [that] a party holds a 'claim' within the meaning of section 101 (5) if
it holds a contingent cause of action, even if no payment obligation currently exists." (!d. at 2,
27) Thus, "in broadening the definition of 'claim' previously defined under Frenville,
Grossman 's effected a substantial change in law that, on its face, gave rise to ITCAN' s right to

file an out-of-time proof of claim." (!d. at 27; see also D.I. 23 at 3-12)
5.

Because the Bankruptcy Court, however, "fundamentally misunderstood" the en

bane decision, ITCAN alleges that the Bankruptcy Court erred and abused its discretion by

denying ITCAN's subsequent request for leave to file an out-of-time proof of claim regarding its
potential future demand for contribution and indemnification, in the event it is ever determined to

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ITCAN filed its Motion for Leave to Allow Out of Time Filing of a Proof of Claim
(Bankr. D.I. 5172) on July 13, 2010 and amended the motion on August 20, 2010 (Bankr. D.I.
5242).
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be Flintkote's alter ego. (See D.I. 21 at 2-3, 6-7, 25-31) While the Bankruptcy Court held that
ITCAN met the standards for excusable neglect and permitted it to file proofs of claim for its two
environmental claims, ITCAN submits that the Court "ruled in summary fashion" that ITCAN
failed to meet the excusable neglect standards with respect to its contribution and indemnity
claim. (See id. at 7-8)
6.

ITCAN asserts: (i) while the Bankruptcy Court declined the invitation to engage

in an informal proof of claim analysis, ITCAN should have at least been deemed to have filed an
informal claim given its various pleadings and participation during the course of the bankruptcy
proceedings, which placed all parties on notice of its demand against the estate and interpretation
ofthe law (see id. at 27-29, 32-33; see also D.I. 23 at 3, 12-14); and (ii) ITCAN should be
granted leave to file a formal proof of claim, on excusable neglect grounds, for failure to abide by
the Bar Date order - a failure which was the product of circumstances beyond ITCAN' s control
(see 0.1. 21 at 29-30; D.l. 23 at 15-20). According to ITCAN, the Bankruptcy Court abused its
discretion by failing to comprehensively analyze the factors typically considered in deciding
whether excusable neglect exists, as set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380 (1993). 6 (See D.l. 21 at 30-31; D.l. 23 at 15-20) ITCAN argues that

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ITCAN complains:
Here, the Bankruptcy Court issued no findings of fact. Nor did it
prepare a memorandum opinion addressing its denial of ITCAN' s
right to file its Contribution/Indemnity Claim. The hearing
transcript contains no indication that the Bankruptcy Court
undertook a robust analysis. Nor did the Bankruptcy Court purport
to analyze all ofthe relevant factors. Instead, having rejected out
of hand the notion that Grossman's resulted in any meaningful
change in precedent, the Bankruptcy Court failed to give
meaningful consideration to the merits of ITCAN' s position. The
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Debtors would suffer no prejudice if an out-of-time proof of claim for contribution and
indemnity was filed. (See D.I. 21 at 31-38; see also D.I. 23 at 3, 15-20)
7.

Plan Proponents have a different view. They contend that the Bankruptcy Court

committed no error or abuse of discretion and, further, that ITCAN's appeal must be dismissed
for lack of jurisdiction. (See generally D.I. 18) According to Plan Proponents, ITCAN has
improperly appealed from an interlocutory order of the Bankruptcy Court - without seeking
leave to do so under 28 U.S.C. § 158(a)(3). (See id. at 8, 15) According to Plan Proponents, the
Order being appealed granted in part and denied in part IT CAN' s motion for leave to file an
untimely proof of claim against the Flintkote bankruptcy estate. (See id. at 2; Bankr. D.I. 5425)
Such Order is interlocutory "because it resolved only one aspect of ITCAN' s proposed proof of
claim against Flintkote's estate, and only a fraction of the broader dispute between ITCAN and
the Plan Proponents." (D.I. 18 at 8) Plan Proponents further explain:
The Bankruptcy Court has yet to rule on Debtors' substantive objection to the
proof of claim ITCAN was permitted to file, and has yet to rule on confirmation
ofFlintkote's plan of reorganization (the "Plan"). ITCAN alone maintains
objections to confirmation. And those objections are intertwined with the legal
arguments ITCAN purports to raise in this appeal.
(D.I. 18 at 2; see also D.I. 3 (Plan Proponents' additional record designation); D.I. 19 (Plan

Bankruptcy Court merely stated, "the Pioneer factors on balance
mean that Flintkote would be prejudiced by having to deal with
that claim at this time, especially a week before the confirmation
hearing starts when this has been going on since at least 2006 or
[2007]." 2010-10-18 Hr'g Tr. 62.
(D.I. 21 at 30-31)
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Proponents' supplemental record designation)) 7
8.

Plan Proponents also question much ofiTCAN's approach throughout the

bankruptcy proceedings. (See D.I. 18 at 3-5) Plan Proponents contend the Bankruptcy Court did,
indeed, pay attention to the Pioneer factors; in denying leave to include the alter ego claim, the
Bankruptcy Court offered three reasons:
First, as the Bankruptcy Court had cautioned ITCAN, Frenville never
barred ITCAN from filing a proof of claim. See Transcript of Omnibus Hearing
[D.I. 5411] at 10:9-12 (Oct. 18, 2010) (Frenville "had nothing to do with the fact
that if you think you have a contingent, unmatured or unliquidated claim you
should file it. ... It had nothing to do with bar dates."); id. at 12:14-19 ("I think
I've expressed on this record before that you had notice, that if nothing else you
could have filed a prompt request to file a late proof of claim, if that's what was
necessary, because that claim was contingent and still is contingent. So,
Grossman's has had nothing to do with the change in nature of that specific
claim."). Therefore, the Third Circuit's decision to overrule Frenville had no
impact on whether ITCAN should have filed a proof of claim years before. See
id. at 10:17-18 ("I don't see that Grossman's did anything to change bar date
issues.")
Second, ITCAN had "many, many opportunities to pursue a late filed
claim" in the preceding years, and simply chose not to do so. See id. at 62:6-7; id.
at 53:21-24 ("Clearly, there have been numerous opportunities throughout this
case where a late proof of claim request could have been made before now, and I
simply don't see it now.")
Third, "Flintkote would be prejudiced by having to deal with that claim at
this time, especially a week before the confirmation hearing starts when [the
alter-ego litigation] has been going on since at least 2006 or [2007]. It's been a
long time, in any event." ld. at 62:8-11.

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The Court takes judicial notice of the fact that, subsequent to the completion of briefing
in the instant matter, the Bankruptcy Court's docket reflects that it has concluded its hearing on
plan confirmation, the parties have completed post-confirmation briefing, the Bankruptcy Court
heard final arguments on the post-confirmation briefs and Plan confirmation on March 28, 2012,
and post-argument briefing has recently been completed. (See, e.g., Bankr. D.I. 6366, 6696;
Bankr. Case No. 04-11300-JKF) ITCAN is the only remaining Plan objector. (See D.I. 18 at 4,
7-8)
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(D.I. 18 at 6) 8
9.

In response, ITCAN- which appealed from the subject Order pursuant to 28

U.S.C. § 158(a)(1) and Federal Rule of Bankruptcy Procedure 8001 et seq., but not pursuant to
§ 158(a)(3)- contends no interlocutory decision is at issue. ITCAN argues that "the Order is the

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According to Plan Proponents, while IT CAN was aware of the Debtors' 2004 bankruptcy
petitions and the 2005 Bar Date, it waited until 2010 before seeking leave to file a proof of claim
-on the eve of confirmation of the Debtors'§ 524(g) plan. (See D.I. 18 at 3; D.I. 22 at 11)
"Two years earlier, in 2008, the Bankruptcy Court had informed ITCAN that, if it believed it had
a claim against Flintkote, it should have filed it," yet ITCAN did not do so. (D.I. 18 at 3; see also
D.l. 22 at 11-13 (discussing ITCAN's timing and citing Transcript of July 21, 2008 Hearing
[Bankr. D.l. 3522] at 67:22-68:18 ("MR. PARDO: ... I have an indirect asbestos claim[.] THE
COURT: Then you should have filed it. MR. PARDO: I can't [file] because Frenville won't
allow me. THE COURT: Oh, absolutely not. THE COURT: ... [Y]ou clearly are not in a
position of [the] personal injury- potential asbestos claimant in the nature of the footnote in
Frenville. And Frenville' s an automatic stay case in any event.")); D .I. 18 at 3 (same)) Plan
Proponents also point out that, when it denied ITCAN leave to file a proof of claim for the alter
ego indemnity claim (yet approved of the inclusion of environmental claims) at an October 18,
2010 hearing [Bankr. D.I. 5411], the Bankruptcy Court explained:
[T]he bar date has always covered contingent, unliquidated and
unmatured claims, always. The statute says that. And nothing in
[Frenvillej said that you don't honor a bar date."). ld (emphasis
added). As a consequence, the Bankruptcy Court concluded that
Grossman's overruling ofFrenville had no bearing whatsoever on
ITCAN' s failure to file a timely proof of claim. Id. at 12-13 ("You
had notice, that if nothing else you could have filed a prompt
request to file a late proof of claim, if that's what was necessary,
because th[ e] [Alter Ego] claim was contingent and still is
contingent. So Grossman's has had nothing to do with the change
in nature of that specific claim. The bar date's the bar date.")
(D.I. 22 at 14-15; see also id at 15 n.8 (citing Transcript of July 14, 2010 Hearing [Bankr. D.l.
5179] at 26:24-29:4 ("MR. PARDO: [W]e haven't been able to file the proof of claim before the
Third Circuit's decision in Grossman's. THE COURT: Oh, of course, you could .... Frenville
doesn't deal with the concept of the contingent claim filing .... And Frenville had that famous
footnote that says and we're not saying that Frenville would apply to [the] mass tort context
anyway. So there is nothing in Frenville that prohibits a creditor from filing a contingent
claim." (emphasis added)).")

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Bankruptcy Court's final word on ITCAN's ability to file its out-of-time proof of claim for
contribution and indemnification," adding "[b]ecause no further action by the Bankruptcy Court
is necessary with respect to the Contribution/Indemnity Claim, the Order with respect to that
claim is final and appealable." (D.I. 21 at 3-4, 15 (emphasis added); see also id. at 12-18)
10.

To the extent, however, the Order is interlocutory, ITCAN submits it meets the

test for appealing an interlocutory order, in that: (i) the Appeal involves a controlling issue of
law, i.e., whether a change in law as to what constitutes a "claim" under Grossman's gave rise to
a claim that ITCAN could file; (ii) a substantial difference of opinion on the issue exists; and
(iii) permitting an immediate appeal will materially advance the termination of the litigation
regarding the contribution and indemnity claim because there is nothing left for the Bankruptcy

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Court to decide as to that claim. (See D.I. 21 at 17-18)
11.

Standard of review. Appeals from the Bankruptcy Court to this Court are

governed by 28 U.S.C. § 158. Pursuant to§ 158(a), district courts "shall have jurisdiction to hear
appeals" from "final judgments, orders, and decrees," and from certain interlocutory orders
relating to time periods not at issue here. 28 U.S.C. § 158(a)(1) & (2). With respect to "other
interlocutory orders and decrees," the district court's jurisdiction can be invoked only "with leave
of the court." !d. § 158(a)(3). This Court reviews the Bankruptcy Court's findings of fact for
clear error and exercises plenary review over decisions oflaw. See Am. Flint Glass Workers

Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir. 1999). When an appeal involves
mixed findings of fact and conclusions of law, the Court must "break down [such] mixed
questions of law and fact, applying the appropriate standard to each component." Meridian Bank

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v. Alten, 958 F.2d 1226, 1229 (3d Cir. 1992).
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12.

Analysis. As noted above, the parties dispute whether this matter presents an

appeal from an interlocutory or final order. The Court concludes the Order is not a final order.
Additionally, interlocutory review of the Order is not warranted.
13.

Here, the underlying suit survives. As Plan Proponents point out, the Order

"merely denied ITCAN leave to file proof of its Alter Ego Indemnity Claim, and granted ITCAN
leave to file proof oftwo other claims." (D.I. 22 at 4) Moreover, "ITCAN continues to press
objections to plan confirmation that invoke the very issues ITCAN raises in this appeal (namely,
the impact of Grossman's)." (!d.; see also D .I. 18 at 9-15) The Order lacks finality because it
"only partially den[ies] ITCAN' s motion for leave to file an untimely proof of claim in
Flintkote's chapter 11 case" and "adjudicates less than all related disputes between a creditor and
the estate"- it simply "does not 'end[] the litigation' between ITCAN and the Debtors." (D.I. 22
at 1, 5; see also D.I. 18 at 9-15)
14.

Although the Order is not a final order, this Court may exercise its discretion to

review "interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings
referred to the bankruptcy judges under section 157 ofthis title." 28 U.S.C. § 158(a)(3). Section
158(a) does not identify the standard district courts should use in deciding whether to grant an
interlocutory appeal. See id. The Court will follow the practice of many others and use the
standards of28 U.S.C. § 1292(b), which govern interlocutory appeals from a district court to a
court of appeals. See In re Philadelphia Newspapers, LLC, 418 B.R. 548, 556 (E.D. Pa. 2009)
("[C]ourts within this Circuit confronted with the decision whether to grant leave to allow an
interlocutory appeal are informed by the criteria in 28 U.S.C. § 1292(b)."); see also In re

SemCrude, L.P., 2010 WL 4537921, at *2 (D. Del. Oct. 26, 2010) ("In deciding whether an
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interlocutory order is appealable in the bankruptcy context, courts have typically borrowed the

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standard found in 28 U.S.C. § 1292(b), which governs whether an appeal of a district court's
interlocutory order to a court of appeals is warranted.").
15.

Under Section 1292(b), an interlocutory appeal will be granted only when the

order at issue (1) involves a controlling question of law upon which there is (2) substantial
grounds for a difference of opinion as to its correctness and, (3) if appealed immediately, may
materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b); Katz v.
Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974).

16.

Moreover, entertaining an appeal of an interlocutory order under § 1292(b) is

appropriate only where the party seeking leave to appeal "establishes [that] exceptional
circumstances justify a departure from the basic policy of postponing review until after the entry
of final judgment." In re Del. and Hudson Ry. Co., 96 B.R. 469,472-73 (D. Del. 1989), aff'd,
884 F.2d 1383 (3d Cir. 1989). The Court is mindful that "[p]iecemeallitigation is generally
disfavored by the Third Circuit." In re SemCrude, 2010 WL 4537921, at *2 (citing In re White
Beauty View, Inc., 841 F .2d 524, 526 (3d Cir. 1988)).

17.

The Court is not persuaded that an interlocutory appeal of the October 25, 2010

Order is justified.
a.

Controlling question of law. First, to demonstrate that a controlling issue

of law exists, ITCAN asserts that the issue on appeal is "whether a change in law as to what
constitutes a 'claim' under Grossman's gave rise to a claim that ITCAN could file." (D.I. 21 at
17) ITCAN argues that denial of the ability to file a late proof of claim was in error because
Grossman's altered the landscape of bankruptcy law in the Third Circuit as to when a "claim"

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exists for bankruptcy purposes. (See id at 17-27)
Plan Proponents respond that, in reality, "ITCAN has appealed from the Bankruptcy
Court's fact-intensive, discretionary application of the Pioneer standard for 'excusability' and
'neglect."' (D.I. 18 at 6)
The Court agrees with Plan Proponents. ITCAN's appeal presents the fact-intensive
Bankruptcy Court determination that ITCAN had ample time within which to raise its "claim" or
seek an extension to do so and inexcusably failed. 9 Under the circumstances, the Court is not
persuaded that ITCAN presents any controlling question of law.
b.

Substantial grounds for difference of opinion. ITCAN submits that there

are substantial differences of opinion as to when its claim arose, differences that are "evidenced
by Judge Fitzgerald's own contradicting opinions on Grossman's. Compare 2010-10-18 Hr'g
Tr. at 62 ('As to the alter ego liability and whatever Flintkote's claim might be on that score, I
just can't see that Grossman's changed the law.'), with Hon. Judith K. Fitzgerald & Maribeth
Thomas, Third Circuit Review, NORTON BANKRUPTCY LAW ADVISER, at 7 (March 2011)

(Grossman's determines '[w]hen a [c]laim [a]rises in [b]ankruptcy')." (D.I. 21 at 17-18)
Plan Proponents counter that ITCAN cannot establish the issue on appeal involves a
substantial difference of opinion because here there is no "genuine doubt" regarding "the correct
legal standard." (D .I. 18 at 16) "Because Pioneer indisputably governs the inquiry into whether
a party is entitled to late-file a proof of claim, ITCAN cannot demonstrate a 'genuine doubt'
regarding 'the correct legal standard.'" (!d. at 16-17)

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As ITCAN recognizes, "determination of excusable neglect 'is at bottom an equitable
one, taking account of all relevant circumstances surrounding the party's omission."' (D.I. 21 at
30 (citing Pioneer, 507 U.S. at 395))

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The Court is not persuaded that substantial grounds for difference of opinion exist.
c.

Materially advance termination of litigation. While IT CAN asserts that

immediate review of the Order is justified and would accelerate the litigation's termination (see
D.I. 21 at 18), the Court does not agree.
ITCAN mainly argues that permitting immediate appeal will materially advance the
termination of the litigation with respect to its contribution and indemnity claim "because there is
nothing left for the Bankruptcy Court to decide with respect to that claim." (D .I. 21 at 18) Plan
Proponents counter that "[r]esolution of this appeal could not decide the allowance or amount of
ITCAN' s proof of claim, because ITCAN' s claim for attorneys' fees remains pending in the
Bankruptcy Court. Nor could resolution of this appeal eliminate the need for the confirmation
hearing, which would occur regardless of what happens in this appeal, or resolve the precise legal
issues raised in ITCAN's confirmation objections." (D.I. 18 at 17)
For the reasons cited by Plan Proponents- as well as the recent developments in the
Bankruptcy Court, see supra n. 7 - the Court does not believe that interlocutory review would
materially advance the termination of litigation.
d.

Other considerations. Furthermore, ITCAN fails to present exceptional

circumstances justifying the need for immediate or piecemeal review. Additionally, ITCAN will
have an opportunity to show that the Bankruptcy Court was in error should it choose to appeal a
final judgment of that court.

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18.

Conclusion. For the foregoing reasons, the Court concludes that the Bankruptcy

Court's October 25, 2010 Order is not a final order and, further, an interlocutory review of the
Order is not warranted. Plan Proponents' Motion to Dismiss ITCAN' s Appeal for Lack of
Jurisdiction (D.I. 18) is, therefore, GRANTED.

UNITED TATES DISTRICT JUDGE

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