FIN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 FIN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) OMTRON USA, LLC ) Case No.: (BLS) ) Debtor. ) Hearing Date: January 23, 2012 at 10:00 a.m. ) Objection Deadline: December 17, 2012 at 4:00 p.m. MOTION TO TRANSFER VENUE OF CASE TO UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Now come John Benton, Suzanne Benton, and B&B Poultry Farm, Inc. (collectively, Mr. Benton or movant ), and move for entry of an order transferring venue of the bankruptcy case filed by Omtron USA, L.L.C. ( Omtron ) to the United States Bankruptcy Court for the Middle District of North Carolina. This motion is made pursuant to 28 U.S.C and 1412, and Rule 1014 of the Federal Rules of Bankruptcy Procedure. In support hereof, Mr. Benton respectfully states as follows: I. PRELIMINARY STATEMENT AND SUMMARY 1. On November 9, 2012, Omtron filed a voluntary petition in this Court seeking relief under Chapter 11 of the Bankruptcy Code. Omtron is in possession of its assets as a debtor-in-possession pursuant to section 1107 of the Bankruptcy Code. Omtron is a limited liability company formed in Delaware on February 16, Omtron is the owner and former operator of non-operating chicken processing facilities in Mocksville, Pittsboro and Siler City, North Carolina; and of feed mills in Bonlee, North Carolina. Omtron is the defendant in pending legal actions in North Carolina brought by

2 approximately 133 farms that entered into contracts with Omtron to grow chickens. A list of North Carolina actions pending against Omtron is attached hereto as Exhibit As set forth in greater detail below, Mr. Benton is a party-in-interest and creditor in this Chapter 11 case. 4. Mr. Benton seeks a change of venue for this case to the United States Bankruptcy Court for the Middle District of North Carolina because Omtron s assets are located in North Carolina. Those assets have enormous significance to the citizens and governmental bodies in Chatham County, Davie County and Moore County, North Carolina. Omtron s creditors are located principally in North Carolina. The economic effect of Omtron s idle assets is felt most acutely in North Carolina. Transfer of this case to North Carolina would facilitate North Carolina stakeholders participation in determinations affecting Omtron s debts and the future utilization of Omtron s assets. In contrast, few of Omtron s creditors reside in or near Delaware, to the best of Mr. Benton s knowledge none of Omtron s assets are located in Delaware, and Delaware citizens have little interest in the future utilization of Omtron s idle North Carolina facilities. 5. Mr. Benton is among the plaintiffs in a civil action that is pending against Omtron (case no. 11-CV-840, M.D.N.C.). One hundred and ten other farms have litigation pending against Omtron and are represented by the same counsel as Mr. Benton. These creditors will take the same position as Mr. Benton: that venue should be transferred to North Carolina. II. JURISDICTION AND GOVERNING LAW 6. This Court has jurisdiction over this motion under 28 U.S.C. 157 and Motions to transfer venue are core proceedings. In re DBSI, Inc., 478 B.R. 192, 194 (Bankr. D. Del. 2012) 2

3 7. Rule 1014(a)(1) provides: If a petition is filed in the proper district, the court, on the timely motion of a party in interest or on its own motion, and after hearing on the notice to the petitioners, the United States trustee, and other entities as directed by the court, may transfer the case to any other district if the court determines that the transfer is in the interest of justice or for the convenience of the parties. 8. Statutory grounds for the relief requested in this motion are 28 U.S.C (concerning change of venue generally) and 1412 (concerning transfer of cases or proceedings under title 11 ). Section 1412 employs precisely the same language as Rule 1014(a)(1): in the interest of justice or for the convenience of the parties. Section 1404 uses similar language, referencing the same two standards: the interests of justice and the convenience of the parties. III. FACTS 9. On information and belief, Omtron is the owner of most of the assets formerly owned by Townsends, Inc. and affiliates ( Townsends ), who were debtors in proceedings before this Court instituted in December of In re Townsends, Inc., case no (Bankr. D. Del.). By order entered February 18, 2011 (doc. no. 330 in In re Townsends), this Court approved the sale of Townsends North Carolina assets to Omtron. 10. The scale of the Townsends operation is reflected in the following summary, which is quoted from Townsends motion requesting approval of the sale: 6. The Debtors [Townsends] are leading producers and marketers of quality, value added poultry products to the foodservice and retail grocery markets throughout the world. 7. Through vertical integration, the Debtors manage breedstock egg production, hatching and the growing of chickens including both breed stock and broiler chickens. The Debtors also manage the feed manufacturing, growing, processing, packaging and distribution functions to support their operations. 8. The Debtors own three processing plants in North Carolina and one processing plant in Arkansas. The breeding and hatching operations in 3

4 Arkansas and North Carolina have a capacity of 1.3 million eggs per week. The Debtors produce approximately 700 million pounds of poultry annually. The Debtors also have approximately 950,000 tons of annual finished feed capacity in their feed milling operations to support their live chicken operations. In addition, the Debtors have an innovation center located in Atlanta, Georgia, which specializes in creating distinctive products and adapt quickly to consumer trends while working hand-in-hand with key foodservice customers to achieve their specific poultry product objectives. 9. As of December 8, 2010, the Debtors had approximately 3017 employees. As of December 5, 2010, the Debtors unaudited consolidated financial statements reflected $504.2 million of revenue for the prior 12-month period, assets of approximately $131 million and liabilities of approximately $127 million. Debtors Motion for Orders [etc.] filed January 24, 2011 (doc. no. 195 in In re Townsends). 11. The personal property assets acquired by Omtron were [a]ll personal property of [Townsends and affiliates], including all dressed poultry and Accounts Receivable, except for the personal property to be transferred by Sellers to Peco Foods, Inc. pursuant to the Peco Purchase Agreement. In re Townsends doc. no. 330, Schedule 2.1(b). The Peco Purchase Agreement (In re Townsends doc. no. 240, part 2) reflects that Peco was to receive assets associated with activities conducted by [Townsends] in the State of Arkansas (id., pp. 1, 6). 12. What Omtron received from Townsends was located principally in North Carolina. The list of real estate received by Omtron reflects 17 parcels of real estate located in North Carolina. See Schedule 2.1(a) from Townsends-Omtron sale contract (In re Townsends doc. no. 330) (Exhibit 2 hereto). The only other listed real estate was four parcels in Pennsylvania. Id. 13. Omtron also received assignments of Townsends contracts and business operations, including assignments of Townsends contracts with numerous North Carolina poultry growers. 4

5 14. Thereafter, in June of 2011, Omtron entered into written three-year contracts with numerous North Carolina poultry growers, including with Mr. Benton. In August of 2011, Mr. Benton and Omtron s other poultry growers received notices of termination from Omtron. At no time did Omtron contend that Mr. Benton or any of the other growers were in any breach or default of the Omtron Contract, and at no time did Omtron provide any of the growers with the ninety (90) days advance written notice that the contract required prior to termination by reason of breach or default. 15. Litigation is now pending against Omtron in North Carolina. See paragraph 2, above, and Exhibit 1 hereto. In some of the litigation, courts have issued orders of attachment against Omtron property. 16. The Creditor Matrix filed by Debtor on November 9, 2012 reflects that the great majority of Omtron s creditors are located in North Carolina, and that very few of Omtron s creditors are in Delaware. See Declaration of Counsel attached hereto as Exhibit 3, summarizing entries on the matrix. As set out in this Declaration: the matrix lists approximately 3,748 creditors 2.5% of the listed creditors (95 out of 3,748) are from Delaware 80.5% of the listed creditors (3,017 out of 3,748) are from North Carolina. 17. On September 25, 2012, a Motion for Appointment of Receiver was filed by plaintiffs in Benton et al v. Omtron USA, L.L.C., case no. 1:11-CV-840 in the United States District Court for the Middle District of North Carolina (doc. no 49), supported by a brief (doc. no. 50) and by numerous affidavits (docs. no through 50-27). Among the affiants who submitted affidavits in support of the appointment of a receiver were: The North Carolina Commissioner of Agriculture (doc. no ), stating in part [i]t is the position of North Carolina Department of Agriculture and Consumer Services that a Receiver should be appointed.... 5

6 The Town Manager of the City of Mocksville, North Carolina (doc. no. 50-9), stating [i]t is the position of the Town that a Receiver should be appointed.... The Town Manager for the Town of Pittsboro, North Carolina (doc. no. 50-7) (same) The Town Manager for the Town of Siler City, North Carolina (doc. no. 50-5) ( [t]he Town of Siler City strongly supports the request... to have the [Omtron] assets placed in receivership. ) The County Manager for Chatham County, North Carolina (doc. no. 50-6) (same). IV. RELIEF REQUESTED 18. By this motion, Mr. Benton requests that this Court enter an order, substantially in the form attached hereto, transferring venue of the bankruptcy case filed by Omtron to the United States Bankruptcy Court for the Middle District of North Carolina. V. LEGAL STANDARD 19. Under the statutes and under Rule 1014, the standard for transfer of venue of a case is the interest of justice or for the convenience of the parties. 20. The most recent discussion of the governing standard by this Court appears to be In re Qualteq, Inc., 2012 WL (Bankr. D. Del. 2012), which states: It has been observed that 1412 is written in the disjunctive, making transfer of venue appropriate either in the interest of justice or for the convenience of the parties, and that this statutory provision creates two distinct analytical bases upon which transfer of venue may be grounded. Consideration of both is appropriate here. The parties have spent much time and effort wading deeply through the thicket of the wellworn six-factor test. Needlessly so. The Agreed Facts, alone, reveal that no factor weighs in favor of the Debtors and all, to one degree or another, weigh in favor of [movants for change of venue]. Debtors' lead (although not litigation) counsel is located in Chicago. I accord little weight to the argument that other estate professionals, located in Delaware, Pennsylvania, New York, and New Jersey, have invested themselves here. (See Agreed Facts, 46 52). Transfer of venue is appropriate for the convenience of the parties. 6

7 It is oft-repeated that the factor accorded the most weight is promotion of the economic and efficient administration of the estate. The great weight for administration of these related chapter 11 cases lies in Chicago, Illinois, not only in the management and economic administration of the estate, but in the related proceedings described above. The same considerations arise in applying the interest of justice prong of the statutory standard, which has been described ably by Judge Gonzalez in Enron [In re Enron Corp., 274 B.R. 327, 349 (Bankr. S.D.N.Y. 2002)]: The interest of justice prong is a broad and flexible standard that is applied based on the facts and circumstances of each case. In evaluating the interest of justice, the Court must consider what will promote the efficient administration of the estate, judicial economy, timeliness and fairness. Id. at *6 (emphasis in original, citations, ellipses and footnote omitted). 21. The wellworn six factor test referenced by this Court in Qualteq, supra, addresses the following considerations: (a) (b) (c) (d) (e) (f) proximity of creditors of every kind to the court; proximity of the debtor; proximity of witnesses who are necessary to the administration of the estate; the location of the debtor's assets; the economic administration of the estate; and the necessity for ancillary administration in the event of liquidation. Id. at * In In re Rehoboth Hospitality, LP, 2011 WL (Bankr. D. Del. 2011), this Court identified an eight-factor test, stating: In determining whether to transfer venue, bankruptcy courts generally take the following eight factors into account: (1) the location of the plaintiff and defendant; (2) the ease of access to the necessary proof; (3) the availability of subpoena power for the unwilling witnesses; (4) the expense related to obtaining willing witnesses; (5) the enforceability of any judgment rendered; (6) the ability to receive a fair trial; 7

8 Id. at *3. (7) the state's interest in having local controversies decided within its borders; and (8) the economics of the estate administration. 23. Rehoboth Hospitality also set forth this Court s views concerning venue for cases involving real estate partnerships and for what [are] essentially... single asset case[s]: [T]his Court agrees with other courts in this Circuit which have held that the estate of a real estate partnership is most efficiently administered in the district where the principal asset is located. In the context of what is essentially a single asset case, the location of the lone improved real estate asset is of particular concern to the Court, especially in the event of a potential liquidation, and the case is better administered by a court in the district in which it is located.... On balance of the factors, the Court holds that transferring this case to the Northern District of Texas, the jurisdiction in which the Debtor's asset is located, is in the interest of justice and appropriate in the context of the facts of this case. Id. at *5 (citations and quote marks omitted). 24. Zazzali v. Swenson, 852 F. Supp. 2d 438 (D. Del. 2012) addressed a motion to transfer venue in litigation brought by the trustee for a litigation trust arising from a Delaware bankruptcy proceeding. The District Court identified various factors to be considered in a motion to transfer venue under 28 U.S.C and Jumara v. State Farm Ins. Co., 55 F.3d 873 (3rd Cir. 1995), including the local interest in deciding local controversies at home and the familiarity of the trial judge with the applicable state law in diversity cases. Zazzali, 852 F. Supp. 2d at 449. VI. WHY TRANSFER IS APPROPRIATE 25. Applying the foregoing factors to the instant case, movant respectfully submits it is appropriate that his case be transferred to the United States Bankruptcy Court for the Middle District of North Carolina. 8

9 26. Proximity of creditors. Omtron s petition includes Official Form 4, which purports to list Omtron s 15 largest unsecured creditors. Eight of the 15 creditors have North Carolina addresses. No other state has more than one of these 15 creditors. None of these 15 creditors is listed as having a Delaware address. Most of the dollar amount of the 15 listed creditors ($954, out of $1,255,501.59) is owed to creditors with North Carolina addresses. 27. As indicated in paragraph 16, above, the Creditor Matrix filed by Omtron reflects that the great majority of Omtron s creditors are located in North Carolina and very few are in Delaware: 2.5% of the listed creditors (95 out of 3,748) are from Delaware; 80.5% (3,017 out of 3,748) are from North Carolina. See Exhibit Proximity of the debtor. Movant believes Omtron does not have any current business operations and does not have an office. Movant believes that substantially all of Omtron s former operations are located in North Carolina. 29. Location of assets. Omtron s major assets-- three chicken processing plants-- are located in North Carolina. See Exhibit Witnesses. There are a number of cases pending against Omtron in North Carolina. See Exhibit 1. The plaintiffs in those cases are from North Carolina and witnesses in those cases come principally from North Carolina. If a motion for appointment of a trustee is made on grounds similar to the grounds for the motion for appointment of a receiver (see paragraph 17, above), the witnesses associated with that motion would probably come principally from North Carolina. 31. State s interest in having local controversies decided within its borders. Omtron s operations were in North Carolina. Omtron s business relationships were principally with North Carolina residents. The litigation pending against Omtron is in North Carolina. 9

10 32. Familiarity with applicable state law. The law to be applied to determine the validity of claims against Omtron is North Carolina law. Mr. Benton s contract with Omtron contains a North Carolina choice of law clause. 33. Considerations applicable to real estate partnerships and single asset cases. Mr. Benton contends the instant case is, in some ways, similar to a real estate partnership case or a single asset case : Omtron is believed to have no ongoing business operations, so its sole current business is believed to be ownership of real estate (principally poultry processing facilities) and associated equipment. While Omtron owns multiple assets, substantially all of its assets are believed to be the real estate and machinery associated with North Carolina poultry processing plants. 34. Case precedents. In addition to the cases cited above (Qualteq and Rehoboth Hospitality), cases decided by this Court approving transfers of venue of bankruptcy cases include: In re Innovative Communication Co., 358 B.R. 120 (Bankr. D. Del. 2006), in which this Court transferred bankruptcy cases from Delaware to the Virgin Islands because the corporate debtors principal places of business, creditors, employees, shareholders, operating subsidiaries, and assets were in the Virgin Islands. In re Ocean Properties of Delaware, Inc., 95 B.R. 304, 306 (Bankr. D. Del. 1988), in which this Court transferred bankruptcy cases from Delaware to Florida ex mero motu, stating: It would be more economical to administer the estate in Florida. The greater portion of applicable non-bankruptcy law is that of Florida.... Moving these cases through a Delaware court would result in not only a waste of judicial time in becoming acquainted with Florida law but also a waste of Debtors' resources. There would be the expense of paying two or more sets of counsel. Local rules require local counsel. Local counsel must sign all pleadings and stand charged with certifying as to their content. This, even if local counsel did not 10

11 actively participate in litigation, would result in duplication of attorney time and expenses. The majority of creditors holding undisputed claims are in Florida. Creditors not holding disputed claims have a great interest along with those who do in the administration of a Chapter 11 case. For example, all creditors have the right to attend a 341 meeting and to participate in creditor activities. [Debtors ] creditors should [not[ be put to the expense of having to travel to Delaware in order to participate in these reorganizations. A summary of venue transfer decisions rendered by this Court as of 1996 appears in the Report of the Delaware State Bar Association to the National Bankruptcy Review Commission In Support of Maintaining Existing Venue Choices (October 3, 1996), 1 which states: In cases where the center of gravity is far from Delaware, the Delaware bankruptcy court has transferred venue. Indeed, the bankruptcy court in the District of Delaware has granted eighteen (18) of the twenty-seven (27) motions to transfer venue that have been filed since Id. p. 14 (footnote with citation to 18 cases omitted). VI. CONCLUSION For the foregoing reasons, movant requests that the Court enter an order transferring venue of this bankruptcy case to the United States Bankruptcy Court for the Middle District of North Carolina. Dated: November 28, 2012 BIFFERATO LLC /s/ Thomas F. Driscoll III Thomas F. Driscoll III (No. 4703) 800 North King Street, Plaza Level Wilmington, DE Telephone: Facsimile: and 1 A copy of the Report is available at 11

12 J. Jerome Hartzell Hartzell & Whiteman, L.L.P Glenwood Ave., Suite 500 Raleigh, NC Telephone: Facsimile: Counsel to John Benton, Suzanne Benton, and B&B Poultry Farm, Inc. 12

13 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) OMTRON USA, LLC ) Case No.: (BLS) ) Debtor. ) Hearing Date: January 23, 2012 at 10:00 a.m. ) Objection Deadline: December 17, 2012 at 4:00 p.m. NOTICE OF MOTION TO TRANSFER VENUE OF CASE TO UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA PLEASE TAKE NOTICE that on November 28, 2012, John Benton, Suzanne Benton, and B&B Poultry Farm, Inc. (collectively, Mr. Benton or movant ) filed the Motion to Transfer Venue of Case to United States Bankruptcy Court for the Middle District of North Carolina (the Motion ) in the United States Bankruptcy Court for the District of Delaware, 824 Market Street, Wilmington, Delaware (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE that any objections to the Motion must be made in writing, filed with the Bankruptcy Court, and served upon the undersigned counsel so as to actually be received on or before December 17, 2012 at 4:00 p.m. (Eastern Time). PLEASE TAKE FURTHER NOTICE that if an objection is filed, a hearing on the Motion may be held before the Honorable Brendan L. Shannon in the Bankruptcy Court, 824 Market Street, 6 th Floor, Courtroom 1, Wilmington, Delaware 19801, on January 23, 2012 at 10:00 a.m. (Eastern Time). PLEASE TAKE FURTHER NOTICE that if no objection to the Motion is timely filed in accordance with the procedures enumerated above, the Bankruptcy Court may enter an Order granting the relief sought in the Motion without further notice or a hearing.

14 Dated: November 28, 2012 BIFFERATO LLC /s/ Thomas F. Driscoll III Thomas F. Driscoll III (No. 4703) 800 North King Street, Plaza Level Wilmington, DE Telephone: Facsimile: and J. Jerome Hartzell Hartzell & Whiteman, L.L.P Glenwood Ave., Suite 500 Raleigh, NC Telephone: Facsimile: Counsel to John Benton, Suzanne Benton, and B&B Poultry Farm, Inc.

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