In re: KiOR, Inc.

Filing 8

Recommendation that Bankruptcy Appeal be withrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 1/20/16. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re:

:
:
KiOR, Inc.,
:
:
Debtor.
:
___________________________________:
KiOR, INC.,
:
:
Appellant,
:
:
v.
:
:
LEIDOS ENGINEERING, LLC,
:
:
Appellee.
:

Bankruptcy No. 14-12514
BAP 15-62

C. A. No. 15-1009-GMS

RECOMMENDATION
At Wilmington this 20th day of January, 2016.
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, a teleconference was held on January 19, 2016 for an initial review
and discussion with counsel to determine the appropriateness of mediation in this matter;
WHEREAS, as a result of the above screening process, the issues involved
in this case are not amenable to mediation and mediation at this stage would not be a
productive exercise, a worthwhile use of judicial resources nor warrant the expense of the
process.
Prior to the teleconference, counsel provided the respective positions of their clients
regarding mediation. The decision under consideration in this appeal was the denial by the

Bankruptcy Court of Appellant’s application for allowance and payment of a claim under 11
U.S.C. § 503(b)(3) and (4), a substantial contribution argument. Prior to the hearing in
Bankruptcy Court, Appellant and Appellee Reorganized Debtor had attempted to resolve
the matter. The offer made by the Reorganized Debtor during negotiations was made
before its success during the Bankruptcy proceeding. On appeal, only Appellant desires
to mediate. Appellee Trustee, because of its position during the hearing and its fiduciary
duty and obligations, cannot be directly involved in mediation. The Reorganized Debtor
requests the following briefing schedule be entered: (a) Appellant serve and file its
introductory brief within thirty (30) days of the final decision on mandatory mediation; (b)
the Reorganized Debtor serve and file its responsive brief within thirty (30) days of service
of Appellant’s brief; and (c) Appellant serve and file a reply brief within fourteen (14) days
of service of the Reorganized Debtor’s brief.
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this District and 28 U.S.C. § 636(b), this matter be withdrawn from the mandatory referral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. The parties were
advised of their right to object 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.
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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