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In re Zacky Farms, LLC

United States District Court, Ninth Circuit

July 3, 2013

In re ZACKY FARMS, LLC, Debtor, RICHARD ZACKY, ET AL., Appellants. Bankruptcy Court Case No. 12-37961.

Joseph M. Marchini #082427, Carl R. Refuerzo #106253, Peter G. Fashing #195756, BAKER MANOCK & JENSEN, PC, Fresno, California, Attorneys for Richard Zacky, individually and in his capacity as trustee of the Richard N. Zacky Irrevocable Trust dated 11/25/07, the Survivor's Trust of Albert and Beverly Zacky Trust Dated 2/10/88, and the Barbara Jean Zacky Irrevocable Trust Dated 12/30/06, and ZF Enterprises, LLC.

Mark Gorton #99312, BOUTIN JONES, INC., Sacramento, CA, Attorneys for Creditor Integrated Grain & Milling, Inc.

Thomas H. Armstrong #146016, THE LAW OFFICES OF THOMAS H. ARMSTRONG, Fresno, CA, Attorneys for Big Feather Ranch, LLC, Lucky Wishbone Ranch, LLC and American Huntsman, LLC.

Thomas A. Willoughby, FELDERSTEIN FITZGERALD WILLOUGHBY & PASCUZZI, LLP Attorneys for Zacky Farms, LLC.

Wojciech F. Jung, LOWENSTEIN SANDLER LLP, Attorneys for the Official Committee of Unsecured Creditors.

FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF; ORDER

JOHN A. MENDEZ, District Judge.

This Further Stipulation to Enlarge Time to File Appellants' Opening Brief ("Stipulation") is entered into by and between appellants Richard Zacky (individually and in his capacity as trustee of the Richard N. Zacky Irrevocable Trust dated 11/25/07, the Survivor's Trust of Albert and Beverly Zacky Trust Dated 2/10/88, and the Barbara Jean Zacky Irrevocable Trust Dated 12/30/06), ZF Enterprises, LLC, Integrated Grain & Milling, Inc., American Huntsman, LLC, Big Feather Ranch, LLC, and Lucky Wishbone Ranch, LLC (collectively, "Appellants"), the Official Committee of Unsecured Creditors ("Creditors' Committee"), and Zacky Farms, LLC ("Debtor"), by and through their respective attorneys of record.

RECITALS

A. On May 9, 2013;, the Clerk of Court for the United States District Court, Eastern District of California ("District Court") filed its Briefing Schedule in Bankruptcy Appeal ("Briefing Schedule"). A previous Stipulation to Enlarge Time to File Appellants' Opening Brief was timely filed by the parties to this Stipulation on May 22, 2013. The Court granted the Stipulation on May 23, 2013, and ordered that Appellants' opening brief be filed by July 8, 2013.

B. As previously reported to the Court, Appellants, the Creditors' Committee and the Debtor (collectively, "Parties") have reached a tentative settlement of this matter. Since the filing of the previous Stipulation, a change in management has occurred at Integrated Grain & Milling, Inc. ("IGM"). IGM's new management needs additional time to evaluate the tentative settlement. The Parties continue to believe that a final settlement will be forthcoming at which time a suitable, written settlement agreement among the Parties will be finalized, and the Parties will seek U.S. Bankruptcy Court approval of the settlement. Upon approval by the U.S. Bankruptcy Court, Appellants will dismiss the appeal.

C. The Parties desire to further enlarge the time within which Appellants may file their opening brief. As with the prior enlargement, the requested enlargement will serve to avoid unnecessary expense and effort on the part of the Parties in prosecuting and defending the appeal, and the unnecessary expenditure of judicial resources in hearing and deciding the Appeal in the event a final settlement is approved by the U.S. Bankruptcy Court. Accordingly, the Parties have entered into this further Stipulation.

D. The Committee is willing to stipulate to Appellants' request for a further enlargement of time within which to file Appellant's opening brief but the Committee does not stipulate to other assertions made in this Stipulation.

STIPULATION

IT IS HEREBY STIPULATED as follows:

1. The Parties fully incorporate herein the Recitals set forth above.

2. The Parties acknowledge that Federal Rules of Bankruptcy Procedure, Rule 9006(b)(1) provides, in relevant part:

...[W]hen an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order....

3. The Parties acknowledge that good cause exists for a further enlargement of time within which Appellants may file their opening brief. Appellants assert that a further enlargement of time, as requested, will continue to allow the Parties time to finalize a settlement and a suitable, written settlement agreement for presentment to the U.S. Bankruptcy Court for its approval without having to incur the added and potentially unnecessary expense of prosecuting or defending the appeal. Appellants assert that a further enlargement of time will also result in the economical use of judicial resources in that the District Court will be able to avoid hearing and deciding the appeal in the event a final settlement is approved by the U.S. Bankruptcy Court.

4. The Parties are requesting that the time to file Appellants' opening brief be further enlarged by 21 days.

5. Accordingly, the Parties agree, subject to the District Court's approval, that Appellants' opening brief shall be due no sooner than July 29, &mdash

ORDER

Having read the Stipulation of the Parties, and good cause appearing, IT IS HEREBY ORDERED:

1. Appellants' opening brief shall be due on July 29, 2013.

2. The appellee's opening brief shall be due within fourteen (14) days after service of Appellants' opening brief.

3. Appellants may file a reply brief with the District Court, within fourteen (14) days after service of appellee's opening brief.

4. Once all briefs have been submitted, the Appellants are to notify the court in writing, within fourteen (14) days after service of Appellants' reply brief, that the appeal is ready for oral argument.


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