In Re The Village at Lakeridge, LLC
Filing
15
ORDER granting 14 Stipulation to Abate Appeal. Signed by Chief Judge Miranda M. Du on 7/16/2021. (Copies have been distributed pursuant to the NEF - PAV)
Case 3:21-cv-00160-MMD Document 15 Filed 07/19/21 Page 1 of 5
TRACY HOPE DAVIS
United States Trustee
Cameron Gulden, Trial Attorney
State Bar. No. MN 310931
cameron.m.gulden@usdoj.gov
DEPARTMENT OF JUSTICE
Office of the United States Trustee
300 Booth Street, Room 3009
Reno, NV 89509
Telephone: 775-784-5335
Fax: 775-784-5531
Sumi Sakata, Trial Attorney
State Bar No. DC 1019220
sumi.sakata@usdoj.gov
DEPARTMENT OF JUSTICE
Executive Office for United States Trustees
441 G Street, N.W., Suite 6150
Washington, D.C. 20530
Telephone: 202-307-1399
Fax: 202-307-2397
Attorneys for Appellee Tracy Hope Davis,
United States Trustee for Region 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
IN RE: The Village at Lakeridge, LLC :
:
Debtor.
:
The Village at Lakeridge, LLC
Appellant,
v.
United States Trustee,
Appellee.
:
:
:
:
:
:
:
:
:
:
Case No. 3:21-cv-160-MMD
Bankruptcy Case No. 11-51994-BTB
Chapter 11
STIPULATION TO ABATE APPEAL
Case 3:21-cv-00160-MMD Document 15 Filed 07/19/21 Page 2 of 5
Appellant, The Village at Lakeridge, LLC (“Village”), and Appellee, Tracy
Hope Davis, the United States Trustee for Region 17, hereby stipulate to abate this
appeal while the same issues presented in this appeal are before the Ninth Circuit
Court of Appeals in an unrelated case.
RECITALS
1.
This appeal arises out of the chapter 11 bankruptcy case filed by Village. A
chapter 11 debtor is required to pay quarterly fees to the United States Trustee System
Fund while its case is open. The amount of the fee is determined by the amount of
disbursements made by a debtor. See 28 U.S.C. § 1930(a)(6).
2.
In 2017, Congress amended the statute to temporarily increase the quarterly fee
payable in larger chapter 11 cases (the “2017 amendment”).
3.
On September 25, 2019, Village filed a motion in the bankruptcy court for a
determination of the quarterly fees it owed and to waive or reduce its fees. It argued
that the 2017 amendment was unconstitutional in charging it increased fees and
should not apply to cases that were filed before the 2017 amendment was enacted.
The United States Trustee objected, maintaining that the 2017 amendment was both
constitutional and applicable to Village’s chapter 11 case.
4.
On March 19, 2021, the bankruptcy court entered an order denying Village’s
motion. On March 29, 2021, Village filed a timely appeal of the March 19, 2021 order
that is pending in this Court. ECF No. 1.
Case 3:21-cv-00160-MMD Document 15 Filed 07/19/21 Page 3 of 5
6.
While Village’s motion was being litigated in the bankruptcy court, another
chapter 11 debtor, USA Sales, Inc., filed a complaint in the United States District
Court for the Central District of California against the United States Trustee. See
Case. No. 5:19-cv-2133-JWH. USA Sales also contended that the 2017 amendment
did not apply to cases filed before its enactment and was unconstitutional. After the
matter was fully briefed, the district court ruled in USA Sales’ favor on April 1, 2021,
on both grounds. See Case. No. 5:19-cv-2133-JWH; Doc. no. 49 (memorandum
decision).
8.
On June 17, 2021, the United States Trustee appealed the USA Sales decision
to the Ninth Circuit Court of Appeals. The appeal has been assigned case number 2155643.
9.
As the USA Sales decision turned on the same legal issues litigated below, the
parties anticipate that the Ninth Circuit’s ruling in the USA Sales appeal will resolve
the issues that would be briefed and decided in this appeal. To conserve the resources
of the parties and of this Court, a stay of further proceedings in this appeal pending
the outcome of USA Sales is warranted.
11.
“The District Court has broad discretion to stay proceedings as an incident to
its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). “[T]he
power to stay proceedings is incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of time and effort for itself,
for counsel, and for litigants. How this can best be done calls for the exercise of
Case 3:21-cv-00160-MMD Document 15 Filed 07/19/21 Page 4 of 5
judgment, which must weigh competing interests and maintain an even balance.”
Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936).
12.
The parties will promptly inform this Court after the Ninth Circuit has entered
a judgment in USA Sales that has become final and unappealable or the appeal has
otherwise been finally disposed of.
13.
If this Court does not abate this appeal, the parties agree that the United States
Trustee’s brief will be due 45 days from the entry of an order by this Court denying
the parties’ stipulated request to abate this appeal, and Village’s reply brief, if any, will
be due 30 days from the filing and service of the United States Trustee’s responsive
brief.
THE PARTIES HEREBY STIPULATE AND AGREE:
1.
The parties stipulate and agree that all proceedings with regard to this appeal
shall be abated pending further order of the Court, which further order the parties
anticipate would be entered after the Ninth Circuit has issued a decision in USA Sales
that has become final and unappealable or further review has either been denied or
concluded; provided, however, that either party may file a motion at any time asking
the Court to terminate the abatement for good cause shown and to set a new briefing
schedule.
2.
Within 14 days after a decision by the Ninth Circuit in USA Sales becomes final
and unappealable or further review has either been denied or concluded, the parties
Case 3:21-cv-00160-MMD Document 15 Filed 07/19/21 Page 5 of 5
shall jointly submit a status report to this Court, notifying this Court and stating
whether they believe further proceedings will be necessary in this appeal.
3.
Should this Court decline to abate this appeal, the parties agree that the United
States Trustee’s brief shall be due no later than 45 days from the entry of an order by
this Court denying the parties’ request to abate this appeal, and Village’s reply brief, if
any, will be due no later than 30 days from the filing and service of the United States
Trustee’s responsive brief.
Dated: July 16, 2021
By:
/s/ Sumi Sakata
Sumi Sakata
Department of Justice
Executive Office for United States Trustees
441 G St., NW, Suite 6150
Washington, D.C. 20530
Counsel for Appellee
By:
/s/ Alan R. Smith
ALAN R. SMITH, ESQ. #1449
270 Wrondel Way, Apt. B
Reno, Nevada 89502
Telephone (775) 287-6850
Email: arsnevada52@gmail.com
Attorney for Appellant
IT IS SO ORDERED:
UNITED STATES DISTRICT JUDGE
July 16, 2021
DATED: ____________________
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