Davis v. State of California et al

Filing 24

Recommendation that Bankruptcy Appeal be withdrawn from mandatory mediation. Signed by Judge Mary Pat Thynge on 10/14/2022. (DAT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

In re:

Chapter 11

Venoco, LLC,

Bankruptcy Case No.17-10828 (JTD)
Adv. Pro. No. 18-50908 (JTD)
Debtor.

Eugene Davis, in his capacity as
Liquidating Trustee of Venoco Liquidating
Trust
Appellant,
v.

C.A. No. 22-1174-CFC
Bankr. BAP No. 22-48

State of California, California Lands
Commission
Appellees.

RECOMMENDATION
At Wilmington this 14th day of October, 2022.
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,1 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.
The parties participated in a Court-ordered mediation on April 29, 2019. The
parties participated in an all day mediation before the Honorable Christopher J. Burke,
which was unsuccessful. At that time, Appellees had filed a motion to dismiss the
Trust’s claims in Bankruptcy Court on sovereign immunity, the motion was denied, and
appealed to the District Court. Mediation before Judge Burke was not limited to the
issues on appeal, but covered the entire dispute between the parties. This mediation
was unsuccessful. Thereafter the District Court and the Third Circuit resolved the
appeal in the Trust’s favor. In response, Appellees filed a petition for writ of certiorari to
the United States Supreme Court, which was denied on October 4, 2021.
Thereafter, the parties conducted discovery and filed motions for summary
judgement . On February 16, 2022, the Bankruptcy Court conducted a hearing on the
parties’ competing summary judgment motions and granted summary judgment against
the Trustee on Count 2. After the hearing, the Bankruptcy Court recommended the
parties to either participate in mediation or conduct settlement discussions. They chose
exploring with each avenues to resolve their dispute, which were unsuccessful. The
case was tried before the Honorable John T. Dorsey in March 2022. Thereafter, Judge
1

Written information was provided by counsel for the parties which is not made
part of the court record because it relates to mediation.
2

Dorsey ruled against the Trustee on the final remaining count in a 51-page opinion and
entered final judgement on August 23, 2022 in favor of Appellees, which is the subject
of the present appeal.
Appellees are neutral on further mediation. Appellant does not believe mediation
would be productive given the prior mediation efforts, the nature of the final judgment
and issues on appeal. As a result, the parties request this matter be removed fro
mandatory mediation. In light of the parties prior efforts to resolve, this judge agrees.
The parties propose the following briefing schedule be adopted:
Appellant’s Opening Brief

Due 30 days after the date of Appellees
file their counter-designation of record
on appeal, if any, which is due 10/10/22.

Appellees Answering Brief

Due 45 days after service of the
opening brief

Appellant’s Reply Brief

Due within 21 days after service of
Appellees’ 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 that this matter be withdrawn from
mandatory mediation and proceed through the appeal process. No objections 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 parties’ joint request.
Date: October 14, 2022

/s/ Chief Magistrate Judge Mary Pat Thynge

3