COUNSELS TO THE COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF REVENUE

Transcription

1 Celine E. Jackson (BBO # Jeffrey S. Ogilvie (BBO # Cambridge Street, P.O. Box Cambridge Street, P.O. Box 9565 Boston, MA Boston, MA Tel: ( Tel: ( Fax: ( Fax: ( jacksonc@dor.state.ma.us ogilvie@dor.state.ma.us COUNSELS TO THE COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF REVENUE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION In re: MIRANT CORPORATION, et al., Chapter 11 Case No: (DML Debtors Jointly Administered MASSACHUSETTS DEPARTMENT OF REVENUE S EX PARTE MOTION TO VACATE ORDER SANCTIONING THE COMMONWEALTH OF MASSACHUSETTS TO THE HONORABLE DENNIS MICHAEL LYNN, UNITED STATES BANKRUPCTY JUDGE: NOW COMES Alan LeBovidge, Commissioner of the Massachusetts Department of Revenue (hereinafter, MDOR, a creditor and party in interest in the abovecaptioned matter, and filed this Motion to Vacate the Order Sanctioning the Commonwealth of Massachusetts. In support thereof, MDOR states the following: 1. On August 9, 2006, a hearing regarding the Tier III Objection to Certain Proofs of Claim was scheduled to be held at the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division. 2. MDOR filed a Motion to Appear Telephonically since MDOR did not have an office in the Northern District of Texas, and physical appearance by the MDOR s representative was cost prohibitive.

2 3. The Motion to Appear Telephonically was allowed. 4. MDOR set up with CourtCall the Court Conference scheduled for 10:30 A.M. Central Time. 5. As requested in the confirmation provided by CourtCall, MDOR s counsel dialed into the call fifteen (15 minutes prior to the hearing. 6. At the beginning of the hearing, the Courtroom Deputy verified that all parties appearing telephonically were present. MDOR s counsel stated that she was present. 7. As the hearing was in progress and the parties were conferring on Matter A of the Agenda, MDOR s counsel, by no fault of her own, was disconnected from the conference call. 8. Immediately, MDOR s counsel contacted CourtCall, which re-established the line to the Court Conference. 9. The Courtroom Deputy informed the Court that MDOR s counsel was once again connected to the conference call. 10. From, the bench, the Court sanctioned MDOR s counsel for disrupting the hearing and imposed a $1, fine. 11. On August 16, 2006, the Court entered an order sanctioning the Commonwealth of Massachusetts for a loud noise originating from Counsel s phone line [which] resounded though the courtroom, disrupting the hearing. 12. MDOR apologizes for unintentionally disrupting the hearing. However, the disconnection was not the result of MDOR s counsel s actions and MDOR should not be sanctioned for technical difficulties beyond counsel s control. 13. In support of this Motion, MDOR attached Counsel s affidavit. WHEREFORE, Alan LeBovidge, Commissioner of the Massachusetts Department of Revenue, respectfully requests that this Honorable Court: 1. Vacate the order sanctioning MDOR; and

3 2. Enter an order for such other relief as the Court deems proper and just. Respectfully submitted, Dated: August 18, 2006 COMMONWEALTH OF MASSACHUSETTS, By and through Alan LeBovidge, Commissioner of the By its Attorney, THOMAS F. REILLY, ATTORNEY GENERAL OF MASSACHUSETTS Kevin W. Brown, General Counsel and Special Assistant Attorney General Designated Local Counsel: Mark Browning, Esq. Office of the Texas Attorney General Bankruptcy and Collections Division Capitol Station, P.O. Box Austin, TX Tel: ( Fax: ( /s/ Celine E. Jackson Celine E. Jackson (BBO # Tel: ( jacksonc@dor.ma.state.us Jeffrey S. Ogilvie (BBO # Tel: ( Ogilvie@dor.ma.state.us Counsels to the Commissioner 100 Cambridge Street, P.O. Box 9565 Boston, MA 02114

4 UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION In re: MIRANT CORPORATION, et al., Chapter 11 Case No: (DML Debtors Jointly Administered AFFIDAVIT OF CELINE E. JACKSON IN SUPPORT OF MASSACHUSETTS DEPARTMENT OF REVENUE S MOTION TO VACATE ORDER SANCTIONING THE COMMONWEALTH OF MASSACHUSETTS The undersigned, CELINE E. JACKSON, having been duly sworn under oath, hereby deposes and say: 1. I am counsel with the ( MDOR, 100 Cambridge Street, P.O. Box 9565, Boston, Massachusetts I filed a Motion to Appear Pro Hac Vice in the above referenced proceeding and said motion was allowed. 3. I filed a Motion to Appear Telephonically at the hearing scheduled to be held on August 9, 2006 at 10:30 A.M. 4. The Motion to Appear Telephonically was allowed. 5. I contacted CourtCall to arrange for my telephonic appearance on August 9, I dialed into the call fifteen (15 minutes prior to the scheduled time. 7. I was put on hold until the hearing started. 8. At 10:30 A.M. the Court Deputy verified that all parties appearing telephonically were present. 9. When my name was called, I stated that I was present.

5 The parties agreed to start the proceeding with Matter 0 listed on the Agenda- Status Conference regarding adversary proceeding No: The parties then moved to Matter A listed on the Agenda - Motion to Approve Settlement Agreement with Mitsui & Co (USA. At that time, I was disconnected by no fault of my own. I immediately contacted CourtCall, which reconnected me to the Court Conference Call. I did not place the call on hold or press any button that would have caused the call to be disconnected. I do not know why the call was disconnected. I subsequently contacted CourtCall again and asked why the call had been disconnected. No reason was given. ~b6j~oob,.-", --r-./ Celine' Eych{Ckson,Counsel II ~usetts Department of Revenue, P.O. Box Cambridge Street, 7th Floor Boston, MA Tel: ( Fax: ( iacksonc@dor.state.ma.us c Subscribed and sworn to before me this ~ day of August, 2006 "",,''f,-..~".; ~o. /::- E!~~; ~;g $".-.,. '.:: '~ ~--:-::--:-.:, bhc \ -' ""-""'''''-;;:' ~ ',.. 'r.r:~"""" ~-::::::(~:%ps-t~ini~~ion expires: ~ ( -;:,. "v":; ~ - Htc, ".-,..r- - '?!.r''(-''''-~ ~ /' r-.'".: ~<>,C';r;-",-~;""",";",,,:- /"r -" -. " / rrrrrrrr~'.'~ ~ 5

6 Celine E. Jackson (BBO # Jeffrey S. Ogilvie (BBO # Cambridge Street, P.O. Box Cambridge Street, P.O. Box 9565 Boston, MA Boston, MA Tel: ( Tel: ( Fax: ( Fax: ( jacksonc@dor.state.ma.us ogilvie@dor.state.ma.us COUNSELS TO THE COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF REVENUE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION In re: MIRANT CORPORATION, et al., Chapter 11 Case No: (DML Debtors Jointly Administered CERTIFICATE OF SERVICE I, Celine E. Jackson, hereby certify that on this 18 th day of August 2006, I caused to be served a true and accurate copy of the s Ex- Parte Motion to Vacate Order Sanctioning the Commonwealth of Massachusetts, by first class United States mail, postage prepaid, or by electronic notice (EN, where indicated, upon the following parties: Counsels for UST U.S. Trustee Erin Marie Schmidt, Esq. (EN Ustpregion06.da.ecf@usdoj.gov George McElreath, Esq. (EN Ustpregion06.da.ecf@usdoj.gov William T. Neary, Esq. (EN Ustpregion06.da.ecf@usdoj.gov

7 Counsels for Mirant Corporation Alison Kirshner, Esq. 200 S. Biscayne Boulevard, Suite 4900 Miami, FL Amy M.Walters, Esq. (EN Benjamin D. Singer, Esq. White & Case, LLP 1155 Avenue of the Americas New York, NY Brian K. Fielden, Esq. Alston & Bird 1201 W. Peachtree Street Atlanta, GA Bryan A. Merryman, Esq. 200 S. Biscayne Blvd, Suite 4900 Miami, FL Craig H. Averch, Esq. (EN Daniel Ginsberg, Esq. 200 S. Biscayne Blvd, Suite 4900 Miami, FL Daniel A. Mullen McDermott Will & Emery LLP 227 W. Monroe Street Chicago, IL Douglas P. Baumstein, Esq. White & Case, LLP 1155 Avenue of the Americas New York, NY Ellliot D. Schuler, Esq. (EN

8 Eric N. Macey, Esq. Novack and Macey LLP 100 North Riverside Plaza Chicago, IL G. Larry Engel, Esq. 3 Embarcadero Center Suite 2210 San Francisco, CA Ian T. Peck, Esq. (EN Ian.peck@haynesboone.com J. Robert Forshey, Esq. (EN jrf@forsheyprostok.com Jason B. Binford, Esq. (EN binfordj@haynesboone.com Jeff P. Prostok, Esq. (EN jpp@forsheyprostok.com John David Penn, Esq. (EN John.penn@haynesboone.com Judith Elkin, Esq. (EN elkinj@haynesboone.com Kerri A. Lyman, Esq. 633 W. 5 th Street, Suite 1900 Los Angeles, CA Mark Joseph Elmore, Esq. (EN Mark.elmore@haynesboone.com Michelle C. Campbell, Esq. (EN mcampbell@whitecase.com Richard L. Miller, II Novack & Macey 100 North Riverside Plaza Chicago, IL Robin Eric Phelan, Esq. (EN

9 Ronald Kevin Gorsich, Esq. (EN Stacey C. Jernigan, Esq. (EN Stephen J. Siegel, Esq. Novak and Macey LLP 100 North Riverside Plaza Chicago, IL Creditor Committee MAGI Committee Gregory M. Petrick, Esq. Caldwalader, Wickersham & Taft 1 World Financial Center New York, NY Thomas Rice, Esq. (EN trice@coxsmith.com Creditor Committee Andrew S. Dash, Esq. Danielle Bennett, Esq. Brown Rudnick Berlack Israels LLP 120 West 45 th St. New York, NY Brendan C. Recupero, Esq. William R. Baldiga, Esq. Brown Rudnick Berlack Israels LLP 1 Financial Center Boston, MA /s/ Celine E. Jackson Celine E. Jackson