IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TROPICANA ENTERTAINMENT, LLC, et al., Debtors. Chapter 11 Case No (KJC) Jointly Administered ICAHN AGENCY SERVICES LLC, ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II LP, ICAHN PARTNERS MASTER FUND III LP, TROPICANA ENTERTAINMENT INC., AND NEW TROPICANA HOLDINGS, INC., v. Plaintiffs, Adv. Proc. No (KJC) Re: Docket No. 11 TROPICANA LAS VEGAS, INC. and HOTEL RAMADA OF NEVADA, LLC. Defendants. PLAINTIFFS OBJECTION TO DEFENDANTS REQUEST FOR JUDICIAL NOTICE Plaintiffs Icahn Agency Services LLC, as administrative and collateral agent (the Exit Facility Agent ) for the lenders under the December 29, 2009 OpCo Exit Facility (the OpCo Exit Facility Lenders ), Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP, Tropicana Entertainment Inc. ( New Tropicana ), and New Tropicana Holdings, Inc. ( New BAY: v1

2 Tropicana Holdings ) (collectively, Plaintiffs ) by and through their undersigned counsel, respectfully submit this objection to defendants Tropicana Las Vegas, Inc. and Hotel Ramada of Nevada, LLC s ( Defendants ) request that the Court take judicial notice of various documents ( Defendants Motion ). 1. Plaintiffs acknowledge that the Court may take judicial notice of the existence of certain statements that were made in a brief or on the record. However, as set forth Plaintiffs accompanying Objection ( Plaintiffs Objection ) to Defendants Motion to Dismiss and/or Abstain, Defendants Motion should be denied to the extent any document is offered for the truth of the facts recited therein. (See Plaintiffs Objection, 22-24). 2. As set forth in Plaintiffs Objection, it is well-established that a district court can take judicial notice of judicial proceedings to demonstrate the existence of the same, but not for the truth of the facts asserted. Neuberger v. Gordon, 567 F.Supp.2d 622, (D. Del. 2008) (noting [e]xamining a prior judicial proceeding for facts would require converting a motion to dismiss into a motion for summary judgment. ); See Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (holding that a court may not take judicial notice of the truth of the facts recited in another court s order); Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007) (district court properly took judicial notice of a trial court order solely to determine that defendant knew of the order, and not to determine the truth of the facts therein); TD Ameritrade, Inc. v. Nevada Agency and Trust Co., 2008 WL , at *5 (D. Nev. Oct. 30, 2008) (noticing court order solely for [its] existence and not for the truth of any facts recited therein ). BAY: v1-2 -

3 3. Thus, the Defendants should not be permitted to use the judicial notice doctrine to transform the Provisional Nevada Order s tentative findings into some form of a conclusive judgment with preclusive effect. (Plaintiffs Objection, 22-24). This argument clearly fails for all the reasons stated in Plaintiffs Objection. (Id.) 4. Defendants also request the Court to take judicial notice of other documents to resolve disputed factual issues. For example, the Defendants request the Court to take judicial notice of Kirkland & Ellis time entries to support their conspiracy theory that the 1980 Trade Name Agreement was hidden from the LandCo Debtors and that Kirkland & Ellis prepared a secret memo concerning that agreement. (Def. Br., 56 n. 60). Consistent with Kirkland & Ellis letter stating that they never had the 1980 Trade Name Agreement, none of the cited time entries mention the 1980 Trade Name Agreement. (Johnston Decl., Exs. 7, 10). In any event, this is precisely the type of factual dispute that cannot be resolved through judicial notice. 5. For the foregoing reasons, and the reasons set forth in Plaintiffs Objection, the Court should deny Defendants request for judicial notice to the extent that any document is offered for the truth of the facts contained therein. BAYARD, P.A. /s/ Justin R. Alberto Charlene D. Davis (No. 2336) Justin R. Alberto (No. 5126) 222 Delaware Avenue, Suite 900 Wilmington, Delaware Telephone: (302) Facsimile: (302) and BAY: v1-3 -

4 SNR DENTON US LLP Peter D. Wolfson (admitted pro hac vice) David R. Baum (admitted pro hac vice) Jo Christine Reed Ben Delfin 1221 Avenue of the Americas New York, New York Telephone: (212) Facsimile: (212) Attorneys for Plaintiffs Icahn Agency Services LLC, Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP RICHARDS, LAYTON & FINGER, P.A. /s/ Lee E. Kaufman Daniel J. DeFranceschi (No. 2732) Lee E. Kaufman (No. 4877) One Rodney Square 920 North King Street Wilmington, Delaware Telephone: (302) Facsimile: (302) and PROSKAUER ROSE LLP James H. Shalek (admitted pro hac vice) Scott K. Rutsky (pro hac vice forthcoming) Richard J. Corbi (pro hac vice forthcoming) 1585 Broadway New York, New York Telephone: (212) Facsimile: (212) BAY: v1-4 -

5 Attorneys for Plaintiffs Tropicana Entertainment Inc and New Tropicana Holdings, Inc. Dated: October 13, BAY: v1-5 -