Eric C. Rajala, Trustee in Bankruptcy for estate of Generation Resources Holding Company, LLC v. Robert H. Gardner, et al.

Filing 21

MEMORANDUM AND ORDER granting 16 Motion for Leave to File Response Out of Time. Trustee shall file response on or before 11/14/2011. Signed by District Judge Eric F. Melgren on 11/4/2011. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ERIC C. RAJALA,
Trustee in Bankruptcy for the Estate of
Generation Resources Holding Company,
LLC
Plaintiff,

vs.

Case No. 11-2524-EFM

ROBERT H. GARDNER, et al.

Defendants.

ORDER
Before the Court is the Trustee’s Motion for Leave to File a Response to Lookout
Windpower Holding Company, LLC’s Motion to Determine that Judgment Funds are Not Estate
Property and for Distribution of Such Funds from Bankruptcy Court Registry (Doc. 16). Lookout
Windpower opposes the Trustee’s motion.
The Trustee requests the Court to allow him to file out of time because he asserts that he
believed that Lookout Windpower’s motion for distribution was a dispositive motion and he
therefore had 21 days to respond to the motion. He also contends that no party will be prejudiced
by the filing. Although the Trustee spends much of his motion arguing that it was reasonable to
consider Lookout Windpower’s motion a dispositive one, and that the 20 business days it took him
to prepare a response was reasonable, the Court notes that an identical motion by Lookout

Windpower was filed in Case No. 09-2482 on August 25, 2011.1 Instead of filing a response, the
Trustee filed a motion seeking to strike the motion from the docket,2 in part asserting that Defendant
Lookout Windpower should file its motion in the correct case of 11-2524. Lookout Windpower did
just that and filed its motion on September 22, 2011. Yet, the Trustee failed to timely respond and
is now seeking the Court’s leave to file his response out of time. The Trustee’s assertions are
puzzling as the Trustee has been fully aware of Lookout Windpower’s arguments for approximately
two months, rather than the 20 business days Trustee asserts.3
But since the Trustee was only slightly out of time, and it is the Court’s general practice to
be forgiving of initial near-misses of deadlines, the Court is inclined to grant the motion. The Court
would caution, however, that the motion for distribution to which the Trustee seeks to belatedly
respond, may cease to be relevant. The Court will soon separately consider consolidation of the two
cases, as well as motion in the companion case for leave to amend the complaint, and may in light
of such consideration order rebriefing of all outstanding issues on a consolidated basis.

1

Doc. 158 in Case No. 09-2482. A motion to consolidate the two cases is pending.

2

Doc. 166 in Case No. 09-2482.

3

In this case, Freestream (another Defendant) filed a motion, similar to Lookout Windpower’s, on August 12,
2011 seeking a distribution of the funds (Doc. 4). The Trustee timely filed a motion for an extension of time to respond
to that motion (within the 14 day time limit) and then filed his response on September 16, 2011.

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IT IS ACCORDINGLY ORDERED that (Doc. 16) is GRANTED. The Trustee is directed
to file his response within 10 days of this Order.
IT IS SO ORDERED.
Dated this 4th day of November, 2011.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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