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Case 2:13-cv-01413-TLN-AC Document 13 Filed 08/05/13 Page 1 of 4

MICHAEL J. STORTZ (SBN 139386)
[email protected]
MATTHEW J. ADLER (SBN 273147)
[email protected]
DRINKER BIDDLE & REATH LLP
50 Fremont Street, 20th Floor
San Francisco, CA 94105-2235
Telephone:
Facsimile:

(415) 591-7500
(415) 591-7510

Attorneys for Plaintiff
C&S WHOLESALE GROCERS, INC., on behalf of
Estate of DeLano Retail Partners, LLC






UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

C&S WHOLESALE GROCERS, INC., a
Vermont corporation, on behalf of Estate of
DeLano Retail Partners, LLC,

Case No. 2:13-cv-01413-TLN-AC

STIPULATION AND ORDER TO REFER
CASE

Plaintiff,

v.

HARLEY DELANO, an individual;
DENNIS DELANO, an individual;
JOSEPH NERI, an individual; 2040
FAIRFAX, INC., a California corporation;
and DOES 1 through 25,

Defendants.



















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A T T O R N E Y S A T L A W

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CASE NO. 2:13-CV-01413-TLN-AC






Case 2:13-cv-01413-TLN-AC Document 13 Filed 08/05/13 Page 2 of 4

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WHEREAS, on July 15, 2013, Plaintiff C&S Wholesale Grocers, Inc. (“CSWG”) filed a

Complaint in this action on behalf of the bankruptcy Estate of DeLano Retail Partners, LLC

(“DRP”) and against Defendants Harley DeLano, Dennis DeLano, Joseph Neri, and 2040 Fairfax,

Inc (collectively “Defendants”);

WHEREAS, CSWG filed the Complaint in this action pursuant to a ruling made by the

United States Bankruptcy Court, Eastern District of California (“Bankruptcy Court”) at a June 18,

2013 hearing in DRP’s pending Chapter 7 bankruptcy proceedings (In re DeLano Retail Partners,

LLC, Case No. 11-37711-B-7), wherein the Bankruptcy Court granted the Trustee’s Motion for

Approval of Compromise of Controversies, Including Approval of Stipulation and Sale of Estate

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Assets (D.E. 119, Case No. 11-37711-B-7);

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WHEREAS, before CSWG filed the Complaint in this action, the parties met and

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conferred to stipulate that the Bankruptcy Court would have plenary jurisdiction over this action

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if filed in the first instance in the Bankruptcy Court;

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WHEREAS, as the parties could not reach agreement on this point, CSWG filed the

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Complaint in this Court in the first instance;

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WHEREAS, on July 17, 2013, CSWG filed a Notice of Related Cases in this action to

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direct this Court’s attention to DRP’s bankruptcy proceedings and CSWG’s Adversary

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Proceeding against the Defendants herein (C&S Wholesale Grocers, Inc. v. Harley DeLano et al.,

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Adversary Proceeding No. 12-02686-B), both of which are currently pending before the

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Honorable Thomas C. Holman in the Bankruptcy Court;

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WHEREAS, since the filing of the Notice of Related Cases, the parties herein have agreed

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that this action is indeed “related,” within the meaning of Local Rule 123, to the two above-

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referenced matters currently pending before Judge Holman in the Bankruptcy Court;

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WHEREAS, the parties further agree that this action is properly referred to the

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Bankruptcy Court pursuant to Part 1.01 of this Court’s General Order No. 182, which states “all

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proceedings arising under Title 11 [of the United States Code] or arising in or related to cases

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under Title 11” shall be referred to the Bankruptcy Judges of this District;

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WHEREAS, on July 25, 2013, Judge Holman entered the Order attached hereto as Exhibit

DRINKER BIDDLE &

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CASE NO. 2:13-CV-01413-TLN-AC






Case 2:13-cv-01413-TLN-AC Document 13 Filed 08/05/13 Page 3 of 4

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A, which formally grants the Trustee’s above-referenced Motion and requires CSWG to actually

prosecute and reasonably pursue the claims of the Estate of DRP (D.E. 125, Case No. 11-37711-

B-7);

WHEREAS, in the interest of compliance with the July 25, 2013 Order of the Bankruptcy

Court, the parties herein have agreed to submit this Stipulation to effect a prompt reassignment of

this action to the Bankruptcy Court in accordance with General Order No. 182, but without

waiver of any other positions, rights, claims, or defenses, including any jurisdictional defenses;

WHEREAS, by Order filed July 30, 2013 (D.E. 9), this Court declined to relate this case,

without prejudice to the parties to file a stipulation or motion to refer this action to the

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Bankruptcy Court;

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THEREFORE, IT IS HEREBY STIPULATED by and between the parties and their

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respective counsel as follows:

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1. Pursuant to General Order No. 182 and the agreement of the parties, this action should

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be referred to the Bankruptcy Court, for assignment to Judge Holman;

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2. Pursuant to the Court’s inquiry (see July 30, 2013 Order at 2:7-8), the Bankruptcy

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Court has not yet made a determination as to whether the claims in this action are “core” or “non-

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core,” within the meaning of 28 U.S.C. Section 157(b)(3); and

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3. Pursuant to the Court’s further inquiry (see July 30, 2013 Order at 2:18-19), the parties

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note that issues related to jurisdiction may be addressed by the Supreme Court of the United

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States in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance Agency,

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Inc.), 702 F.3d 553 (9th Cir. 2012), cert. granted, 81 U.S.L.W. 3582 (U.S. June 24, 2013) (No.

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12-1200). The parties reserve their respective positions, including their positions regarding

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jurisdiction. In the interim, this action is appropriately referred to the Bankruptcy Court.

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IT IS SO STIPULATED.

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CASE NO. 2:13-CV-01413-TLN-AC






Case 2:13-cv-01413-TLN-AC Document 13 Filed 08/05/13 Page 4 of 4

Dated: July 31, 2013












Dated: July 31, 2013




DRINKER BIDDLE & REATH LLP

By: /s/ Michael J. Stortz

Michael J. Stortz

Attorneys for Plaintiff
C&S Wholesale Grocers, Inc., on behalf of
Estate of DeLano Retail Partners, LLC



KORNFIELD, NYBERG, BENDES & KUHNER, P.C.

By: /s/ Eric A. Nyberg
(as authorized on July 31, 2013)

Eric A. Nyberg


Attorneys for Defendants
2040 Fairfax Inc., Harley DeLano, and Dennis
DeLano


Dated: July 31, 2013


By: /s/ Joseph M. Neri
(as authorized on July 31, 2013)

Joseph M. Neri



Defendant in Pro. Per.




ORDER





Dated: August 2, 2013


Pursuant to Stipulation, IT IS SO ORDERED.



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CASE NO. 2:13-CV-01413-TLN-AC