In Re: Tonopah Solar Energy, LLC et al.

Filing 6

Recommendation that Bankruptcy Appeal be withdrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 2/17/21. (cak)

Case 1:20-cv-01749-MN Document 6 Filed 02/17/21 Page 1 of 3 PageID #: 935

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

In re:

:
:
Tonopah Solar Energy, LLC, et al.,
:
:
Debtors.
:
___________________________________:
:
CMB EXPORT, LLC, CMB
:
INFRASTRUCTURE INVESTMENT
:
GROUP IX, LP, SOLARRESERVE CSP
:
HOLDINGS, LLC,
:
:
Appellants,
:
:
v.
:
:
TONOPAH SOLAR ENERGY, LLC,
:
:
Appellees.
:

Chapter 11
Bankruptcy No. 20-11884 (KBO)
BAP No. 20-00065

C. A. No. 20-1749-MN

RECOMMENDATION
At Wilmington this 17th day of February, 2021.
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.

Case 1:20-cv-01749-MN Document 6 Filed 02/17/21 Page 2 of 3 PageID #: 936

As a result of the parties on this appeal joint letter submission, both agree
that mediation of this Appeal would be futile.
This appeal arises out of a chapter 11 case filed by Appellee in the Unites
States Bankruptcy Court for the District of Delaware. On December 9, 2020, that court
entered Findings of Fact, Conclusions of Law and Order Confirming Chapter 11 PLan
for Tonopah Solar Energy, LLC, confirming the Second Amended Chapter 11 Plan for
Tonopah Solar Energy, LLC (the “Plan.”). The effective date of the Plan occurred on
December 18, 2020. On December 23, 2020, Appellants filed a notice of appeal
regarding the Confirmation Order. Appellants maintain that the Plan does not satisfy
the requirements for confirmation under 11 U.S.C. § 1129. Appellee does not believe
that the nature of the issues on this Appeal are susceptible to a negotiated resolution.
Further, the parties previous mediation efforts in connection with confirmation of the
Plan before the Honorable Brendan L. Shannon were unsuccessful in resolving the
Plan confirmation related issues. Therefore, the parties on appeal do not believe that
further mediation would be productive. Both request removal of this Appeal from the
mandatory mediation requirement.
The appealing parties are unable to agree on when the briefing on the
merits of Appeal should occur in relation to dispositive motions. That is, one party
asserts that briefing on the merits should not be held in abeyance until such time as
this Court rules upon any dispositive motions. The other party requests that briefing on
the merits of this Appeal not occur until after this Court rules upon any dispositive
motion. Thus, the parties propose conflicting timing and order of briefing on the merits
and dispositive motions.
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Case 1:20-cv-01749-MN Document 6 Filed 02/17/21 Page 3 of 3 PageID #: 937

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. No
objections to this Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), F ED. R. CIV.
P. 72(a) and D. DEL. LR 72.1 are anticipated since it is consistent with the position of the
parties dueling requests.
Local counsel are obligated to inform out-of-state counsel of this Order.

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge

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