In Re: W.R. Grace & Co., et al.

Filing 7

Recommendation that Bankruptcy Appeal be withdrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 11/30/16. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: W. R. Grace & Co., et al.

:
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Debtors.
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__________________________________ :
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JEREMY B. CARR, et al.,
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Appellants,
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v.
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CONTINENTAL CASUALTY
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COMPANY, et al.,
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Appellees.
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Bankruptcy Case No. 01-01136-KJC
Bankruptcy Adv. No. 15-50766-KJC
BAP No. 16-51

C. A. No. 16-1010-LPS

RECOMMENDATION
At Wilmington this 30th day of November, 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, 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, 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. This matter involves an appeal from the denial of appellants’
motion to dismiss and the granting of appellees motion for summary judgment. The
appeal raises questions of law that will determine whether certain tort claimants may

proceed with their claims in state court against appellee CNA in relation to asbestos
exposure and will likely impact hundreds of other plaintiffs. The parties advise that they
have extensively discussed the issues involved, and at this stage do not feel that
settlement can be achieved, which would involve hundreds of claims in addition to those
at issue in the Adversary Action, without an appellate decision addressing the scope of
the Asbestos PI Channeling Injunction. Further, in 2012 the parties agreed to mediate
their claims at an appropriate time before an agreed upon mediator, whose is
knowledgeable concerning the history and issues presented by these claims.
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. Since
the parties are in agreement that this matter should be removed from mandatory
mediation, no objections will be filed 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.
In addition, the parties are presently considering whether to certify a direct
appeal to the Third Circuit. As a result, they respectfully request that this court stay
entry of a briefing schedule in this matter unless and until (1) the Third Circuit declines
to authorize a direct appeal following certification, (2) the District Court declines to
certify a direct appeal upon a motion, or (3) more than sixty (60) elapse from entry of
judgment in Bankruptcy Court and no party has filed a motion to certify a direct appeal.

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Local counsel are obligated to inform out-of-state counsel of this Order.
/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge Mary Pat Thynge

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