In re: Opus East LLC, et al.

Filing 13

Recommendation that Bankruptcy Appeal be withrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 6/18/15. (kjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

In re: Opus East, et al.

Debtors.

Jeffrey L. Burtch, Chapter 7 Trustee for
the Estate of Opus East, L.L.C.

C. A. No. 15-346-LPS
Bankruptcy Case No. 09-12261
Bankruptcy Adv. No. 11-52423 (MFW)
BAP No 15-16

Appellants,
v.

Opus, LLC et al., et al.,
Appellees

Recommendation
At Wilmington this 1ath day of June, 2015.
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WHEREAS, pursuant to paragraph 2(a) of the Procedures to Gove@
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 at this
stage would not be a productive exercise, a worthwhile use of judicial resources nor
warrant the expense of the process.
Previously, the parties have attempted both formal and informal negotiations to
resolve this matter without success. Those attempts involved a meeting among
counsel for the parties on September 27, 2011 and mediation on January 5, 2012.
Neither effort resolved the controversy. Despite continued efforts thereafter through

2014, the parties did not make significant progress toward resolving the dispute.
Although prior efforts have been unsuccessful, the parties, however, have differing
views on whether mediation is appropriate. The Trustee feels that mediation should
proceed because of the complexity of the case and the nature, scope and substance of
the Bankruptcy Court's judgment and opinion, and that mediation will be beneficial by
possibly avoiding the briefing requirements and the time and resources of the Court to
address the issues on appeal. The Trustee further believes that a good faith attempt to
timely resolve this dispute without continued consumption of additional and substantial
resources would be beneficial to the creditors of a challenged estate.
The Opus defendants hold a different view regarding the benefits of mediation
based on prior experience in this matter and that there is no indication that the parties'
settlement positions have changed or are likely to change. They argue mediation would
likely result in the consumption of valuable resources.
Based on this court's review of the parties' positions and their prior unsuccessful
efforts at resolving this matter as recently as 2014, I do not believe mediation is
appropriate in this matter.
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 and proceed through the appellate process of this Court. Through
this Recommendation, the parties are advised of their right to file objections to this
Recommendation pursuant to 28 U.S.C. § 636(b)(1 )(B), FED. R. C1v. P. 72(a) and D.
DEL. LR 72.1. Any objections to this Recommendation shall be filed within fourteen (14)

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days, limited to five (5) pages, after being served with the same. Any response must be
filed within fourteen (14) days after service of objections and is limited to five (5) pages.
The parties are further directed to the Court's Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. C1v. P. 72 dated October 9, 2013, a copy of which is
available on the court's website, www.ded.uscourts.gov.
IT IS FURTHER RECOMMENDED that the following briefing schedule
consistent with the parties' request be entered:
Appellant's opening brief be due forty-five (45) days following the later of
(i) an order from this Court consistent with this Recommendation removing this matter
from mandatory mediation or (ii) the completion of mediation; Appellees' answering
brief due forty-five (45) days after the submission of Appellant's opening brief; and
Appellant's reply brief due twenty (21) days after the submission of Appellees'
answering brief.
IN ADDITION, the parties respectfully request that due to the complexity
of the issues for review and the disposition, scope and length of the Bankruptcy Court's
opinion and order, enlargement of the page limitation be as follows: opening and
answering briefs each not to exceed fifty (50) pages in length and the reply brief not to
exceed twenty-five (25) pages in length.
Local counsel are obligated to inform out-of-state counsel of this Order.

Isl Marv Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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