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In re Zacky Farms, LLC

United States District Court, Ninth Circuit

October 23, 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, THE LAW OFFICES OF THOMAS H. ARMSTRONG, Fresno, CA, Attorneys for Big Feather Ranch, LLC, Lucky Wishbone Ranch, LLC and American Huntsman, LLC.

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

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

FURTHER STIPULATION TO ENLARGE TIME TO FILE APPELLANTS' OPENING BRIEF PENDING BANKRUPTCY COURT APPROVAL OF SETTLEMENT; ORDER

JOHN A. MENDEZ, District Judge.

This Further Stipulation to Enlarge Time to File Appellants' Opening Brief Pending Bankruptcy Court Approval of Settlement ("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. On July 2, 2013, the parties timely filed a Further Stipulation to Enlarge Time to File Appellants' Opening Brief ("Second Stipulation"). The Second Stipulation sought a further twenty-one (21) day enlargement of time for Appellants to file their opening brief. On July 3, 2013, the Court granted the Second Stipulation and ordered that Appellants' opening brief be filed by July 29, 2013.

C. On July 26, 2013, the parties timely filed a Further Stipulation to Enlarge Time to File Appellants' Opening Brief ("Third Stipulation"). The Third Stipulation sought a further thirty (30) day enlargement of time for Appellants to file their opening brief. On July 26, 2013, the Court granted the Third Stipulation and ordered that Appellants' opening brief be filed by August 28, 2013.

D. On August 27, 2013, the parties timely filed a Further Stipulation to Enlarge Time to File Appellants' Opening Brief ("Fourth Stipulation"). The Fourth Stipulation sought a further thirty (30) day enlargement of time for Appellants to file their opening brief. On August 28, 2013, the Court granted the Fourth Stipulation and ordered that Appellants' opening brief be filed by September 27, 2013.

E. On September 25, 2013, the parties timely filed a Further Stipulation to Enlarge Time to File Appellants' Opening Brief ("Fifth Stipulation"). The Fifth Stipulation sought a further thirty (30) day enlargement of time for Appellants to file their opening brief. On September 26, 2013, the Court granted the Fifth Stipulation and ordered that Appellants' opening brief be filed by October 28, 2013.

F. As previously reported to the Court, Appellants, the Creditors' Committee and the Debtor (collectively, "Parties") had reached a tentative settlement of this matter and were in the process of negotiating terms for a written settlement agreement. On or about September 27, 2013, the Parties executed a written settlement agreement ("Settlement"). On September 30, 2013, the Creditor's Committee and Debtor jointly filed in U.S. Bankruptcy Court a motion to approve the Settlement. That motion is currently scheduled to be heard on October 29, 2013.

G. The Settlement provides in relevant part:

Effective on the date this Agreement is approved by the Bankruptcy Court by entry of a final and non-appealable order (the "Effective Date"), the Parties wish to resolve their disputes related to the Debtor and the Chapter 11 Case....
ΒΆ...Upon the Effective Date, the [instant Appeal] shall be deemed withdrawn. Immediately after the Effective Date, [Appellants] shall take all actions necessary to cause the [instant Appeal] to be dismissed with prejudice.

H. Rule 8002 of the Federal Rules of Bankruptcy Procedure provides, in relevant part: "The notice of appeal shall be filed... within 14 days of the date of the entry of the judgment, order, or decree appealed from."

I. Because (1) the motion to approve the Settlement is scheduled to be heard the day after Appellants' opening brief is due, and (2) if the motion to approve the Settlement is granted by the U.S. Bankruptcy Court, Appellants will dismiss the appeal once said order becomes final, the Parties desire to once again enlarge the time within which Appellants may file their opening brief. This time, the requested enlargement is expected to allow sufficient time for the U.S. Bankruptcy Court to issue its order on the motion to approve the Settlement and, if approved and not appealed, to become final. This 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 the Settlement is approved by the U.S. Bankruptcy Court. Accordingly, the Parties have entered into this further 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 allow sufficient time for the U.S. Bankruptcy Court to consider and rule upon the motion for approval of the Settlement and, if approved, to allow sufficient time to determine whether an appeal to said Settlement has been timely filed. If an order approving the Settlement becomes final, Appellants will dismiss the instant appeal with prejudice. Thus, a further enlargement of time is expected to result in the economical use of judicial resources in that the District Court will be able to avoid hearing and deciding the instant appeal and the Parties will be spared the added and unnecessary expense of prosecuting or defending the instant appeal.

4. The Parties are requesting that the time to file Appellants' opening brief be further enlarged by 50 days.

5. Accordingly, the Parties agree, subject to the District Court's approval, that Appellants' opening brief shall be due no sooner than December 17, 2013.

ORDER

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

1. Appellants' opening brief shall be due on December 17, 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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