The Allar Company v. MTE Holdings LLC

Filing 8

Recommendation that Bankruptcy Appeal be withdrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 10/20/2021. (Taylor, Daniel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

In re:

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:
MTE HOLDINGS LLC, et al.,
:
:
Debtor.
:
__________________________________ :
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THE ALLAR COMPANY,
:
:
Appellant,
:
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v.
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MTE HOLDINGS LLC, et al.,
:
:
Appellee.
:
__________________________________ :

Chapter 11
Bankruptcy Case No. 19-12269 (CTG)

C.A. No. 21-1318-LPS
Bankr. BAP No. 21-67

RECOMMENDATION
At Wilmington this 20th day of October, 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.
This Appeal is from an Order of the Bankruptcy Court Denying Stay Pending
Appeal. Appellant filed this appeal based on case law holding that a bankruptcy court

order denying a stay pending appeals is a final appealable order. The Plan
administrator disputes this proposition. Although the parties have not engaged in
mediation or any other ADR and requested that this matter be removed from
mandatory, the issues involved in this Appeal are not conducive to mediation.
The present appeal is related to another previously filed appeal by Appellant
which confirmed Appellee’s chapter 11 plan in 21-1297 LPS. T he issues in this Appeal
have been substantively briefed in connection with an expedited briefing schedule on
Appellant’s emergency Motion for Stay Pending Appeal on September 17, 2021. The
parties have no position on whether this briefing qualifies as the merits briefing in the
instant appeal. The Plan Administrator does not believe there should be additional
briefing in this Appeal, as well as consolidation with 12-1297 for briefing purposes
because the substantive issues are identical or have substantial overlap. Appellant
does not oppose consolidation for briefing purposes as long as the Motion for Stay and
the merits on appeal are briefed separately because a different standard applies to any
same/similar issues pursuant to Fed. R. Civ. P. 42.
Should this Court deem additional briefing necessary, Appellant proposed the
following briefing schedule:
Appellant’s Opening Brief:

Appellees’s Brief

Appellant’s Reply Brief

October 17, 2021 (30 days after Record on
Appeal filed) with the brief not exceeding 20
pages.
On or before November 16, 2021 (30 days
after Appellant’s Brief is served) and the brief
not to exceed 20 pages
On or before November 30, 2021 (14 days
after Appellee’s Brief is served) and this brief
not to exceed 10 pages.

THEREFORE, IT IS RECOMMENDED that, pursuant to paragraph 2(a)
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Procedures to Govern Mediation of Appeals from the United States Bankruptcy Court
for this District and 28 U.S.C. § 636(b), this be withdrawn from the mandatory referral
for mediation and proceed through the appellate process of this Court. No objections
are anticipated 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 since it is consistent with the joint position of the
parties.
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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