In Re: Longview Power LLC et al

Filing 12

Recommendation that Bankruptcy Appeal be withrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 5/15/14. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: Longview Power LLC et al.
_____________________________________________________________________
Kvaerner North American Construction
Inc.,
Appellant,
v.
Longview Power LLC, et al.,
Appellees.

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C. A. No. 14-507
Bankruptcy Case No. 13-12211 (BLS)
AP No. 14-8

RECOMMENDATION
At Wilmington this 15th day of May, 2014.
WHEREAS, pursuant to paragraph 2(a) of the Procedures to Govern
Mediation of Appeals from the United States Bankruptcy Court for this District dated
September 11, 2012, the court conducted an initial review, which included information from
counsel, to determine the appropriateness of mediation in this matter;
WHEREAS, as a result of the above screening process, mediation in this
court would not be a productive exercise, a worthwhile use of judicial resources nor warrant
the expense of the process.
The appellate parties and certain other non-appellate parties have been engaged
in an arbitration proceeding for nearly three years arising from the design, construction,
commissioning and operation of the plant owned by Longview, the chapter 11 debtor in the
bankruptcy case. After filing for chapter 11 protection, Longview sought bankruptcy court
approval of the terms of a settlement agreement with Foster Wheeler which effects a global

resolution of all issues between them. The bankrutpcy court entered an order approving
the settlement over the objection of Appellant Kvaerner, which lead to the present appeal.
Presently the appellate parties and others, who are not parties to the appeal, but
who are essential to efforts to reach resolution, are currently engaged in ongoing
bankruptcy court approved mediation regarding various disputes between them. The
subject matter of the bankruptcy court ordered mediation is broader than, but inclusive of
the issues on appeal, and involves disputes at issue in the arbitration, the bankruptcy
proceedings, and two related adversary proceedings pending in the bankruptcy court. As
a result, mediation on this appeal would be duplicative of the current mediation proceedings
in bankruptcy court.
THEREFORE, IT IS RECOMMENDED that, pursuant to paragraph 2(a) Procedures
to Govern Mediation of Appeals from the United States Bankruptcy Court for this District
and 28 U.S.C. § 636(b), this matter be withdrawn from the mandatory referral for mediation.
The parties, through this order, are advised of their right to file objections to this
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72(a) and D. DEL.
LR 72.1. However, all were in agreement with removal from this court’s Standing Order
requirement of mandatory mediation.
Since the parties are in negotiations to resolve this matter and other related issues,
it is unknown as to the timing of any briefing schedule.
Local counsel are obligated to inform out-of-state counsel of this Order.

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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