Case 12-12882-PJW Doc 385 Filed 07/16/13 Page 1 of 6 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re BACK YARD BURGERS, INC., et al. 1 Debtors. Chapter 11 Case No. 12-12882 (PJW) (Jointly Administered) Objection Deadline: TBD Hearing Date: TBD MOTION OF THE REORGANIZED DEBTORS FOR ENTRY OF AN ORDER PURSUANT TO RULE 9006(b) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE FURTHER ENLARGING THE TIME WITHIN WHICH TO FILE NOTICES OF REMOVAL PURSUANT TO BANKRUPTCY RULE 9027 The above-captioned debtors and debtors-in-possession (collectively, the Reorganized Debtors ) hereby move the Court (the Motion ), pursuant to Rule 9006(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) for entry of an order further enlarging the time within which to file notices of removal of proceedings pursuant to Bankruptcy Rule 9027(a). In support of this Motion, the Reorganized Debtors state as follows: Status of the Case and Jurisdiction 1. On October 17, 2012 (the Petition Date ), each of the above-captioned debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. 2. No request has been made for the appointment of a trustee or examiner. On November 2, 2012, the Official Committee of Unsecured Creditors (the Committee ) was appointed in these cases. The Committee was dissolved on January 30, 2013, the effective date of the Plan (as defined herein). 3. The Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157 and 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Back Yard Burgers, Inc. (7163), BYB Properties, Inc. (9046), Nashville BYB, LLC (6507) and Little Rock Back Yard DEL 86457041v2
Case 12-12882-PJW Doc 385 Filed 07/16/13 Page 2 of 6 1334. Venue is proper in this district pursuant to 28 U.S.C. 1408. This matter is core within the meaning of 28 U.S.C. 157(b)(2). 4. The statutory predicates for the relief requested herein are 28 U.S.C. 1452 and Bankruptcy Rules 9006(b) and 9027(a). The Plan Process 5. By Order dated December 5, 2012, [Docket No. 217], the Court approved the Debtors Amended Disclosure Statement with Respect to the First Amended Joint Plan of Reorganization for Back Yard Burgers, Inc., BYBI, Inc., Nashville BYB, LLC and Little Rock Back Yard Burgers, Inc., Under Chapter 11 of the Bankruptcy Code [Docket No. 221] and set January 11, 2013, at 9:30 a.m. (Prevailing Eastern Time) as the hearing date for confirmation of the Debtors First Amended Joint Plan of Reorganization for Back Yard Burgers, Inc., BYBI, Inc., Nashville BYB, LLC and Little Rock Back Yard Burgers, Inc., Under Chapter 11 of the Bankruptcy Code [Docket No. 219] (the Plan ). 6. On January 11, 2013, the Court entered its Findings of Fact, Conclusions of Law, and Order Under 11 U.S.C. 1129(a) and (b) and Federal Rule of Bankruptcy Procedure 3020 Confirming the Modified First Amended Joint Plan of Reorganization for Back Yard Burgers, Inc., BYB Properties, Inc., Nashville BYB, LLC and Little Rock Back Yard Burgers, Inc. Under Chapter 11 of the Bankruptcy Code [Docket No. 287] confirming the Plan, as modified. 7. On January 30, 2013, the Plan became effective. 8. Pursuant to Bankruptcy Rule 9027, the current deadline for the Reorganized Debtors to file notices to remove claims or causes of action is July 16, 2013. Burgers, Inc. (9133). The mailing address of the Debtors is: St. Clouds Building, 500 Church Street, Suite 200, Nashville, TN 37219. DEL 86457041v2 2
Case 12-12882-PJW Doc 385 Filed 07/16/13 Page 3 of 6 Relief Requested 9. On February 4, 2013, the Court entered the Order Pursuant to Rule 9006(b) of the Federal Rules of Bankruptcy Procedure Extending the Time Within Which to File Notices of Removal Pursuant to Bankruptcy Rule 9027 [Docket No. 316] (the First Extension Order ). Pursuant to the First Extension Order, the deadline for the Reorganized Debtors to file notices of removal was extended through and including March 18, 2013. 10. On June 11, 2013, the Court entered the Order Pursuant to Rule 9006(b) of the Federal Rules of Bankruptcy Procedure Further Extending the Time Within Which to File Notices of Removal Pursuant to Bankruptcy Rule 9027 [Docket No. 380] (the Second Extension Order ). Pursuant to the Second Extension Order, the deadline for the Reorganized Debtors to file notices of removal was extended through and including May 17, 2013. 11. On June 11, 2013, the Court also entered the Order Pursuant to Rule 9006(b) of the Federal Rules of Bankruptcy Procedure Further Extending the Time Within Which to File Notices of Removal Pursuant to Bankruptcy Rule 9027 [Docket No. 381] (the Third Extension Order ). Pursuant to the Third Extension Order, the deadline for the Reorganized Debtors to file notices of removal was extended through and including July 16, 2013. 12. By this Motion, the Reorganized Debtors seek entry of an order further enlarging the time within which to file notices of removal under Bankruptcy Rule 9027(a) by 62 days through and including September 16, 2013. Basis for Relief Requested 13. 28 U.S.C. 1452 provides for the removal of actions related to bankruptcy cases. Section 1452 provides in pertinent part: (a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental DEL 86457041v2 3
Case 12-12882-PJW Doc 385 Filed 07/16/13 Page 4 of 6 unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. (b) 28 U.S.C. 1452. The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise.... 14. Bankruptcy Rule 9027 sets forth the time period for the filing of notices to remove claims or causes of action. Bankruptcy Rule 9027 provides in pertinent part: FED. R. BANKR. P. 9027. (a)(2) If the claim or cause of action in a civil action is pending when a case under the Code is commenced, a notice of removal may be filed only within the longest of (A) 90 days after the order for relief in the case under the Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under 362 of the Code, or (C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief. (a)(3) If a claim or cause of action is asserted in another court after commencement of a case under the Code, a notice of removal may be filed with the clerk only within the shorter of (A) 30 days after receipt, through service or otherwise, or a copy of the initial pleading setting forth the claim or cause of action sought to be removed or (B) 30 days after receipt of the summons if the initial pleading has been filed with the court but not served with the summons. 15. Bankruptcy Rule 9006 permits the Court to enlarge the period to remove actions provided for by Bankruptcy Rule 9027. Bankruptcy Rule 9006(b) provides in pertinent part: (1) Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specific period by these rules or by a notice given thereunder or by order of the 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 or DEL 86457041v2 4
Case 12-12882-PJW Doc 385 Filed 07/16/13 Page 5 of 6 FED. R. BANKR. P. 9006(b). (2) on motion made after the expiration of the specific period permit the act to be done where the failure to act was the result of excusable neglect. 16. It is well settled that this Court is authorized to expand the removal period provided for by Bankruptcy Rule 9027. See Pacor, Inc. v. Higgins, 743 F.2d 984, 996 n.17 (3d Cir. 1984) (overruled on other grounds by Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995)); Raff v. Gordon, 58 B.R. 988, 990 (E.D. Pa. 1986); see also In re World Fin. Serv. Ctr., Inc., 81 B.R. 33, 39 (Bankr. S.D. Cal. 1987). 17. On and after the Petition Date, the Debtors, and now the Reorganized Debtors, had civil causes of action and proceedings pending in the courts of various states, including those listed on the Debtors Statements of Financial Affairs. Since the Petition Date, the attention of the Debtors personnel and management, was focused primarily on transitioning into chapter 11, stabilizing their operations, the chapter 11 plan process, and administering these chapter 11 cases. Since confirmation of the Plan, the attention of the Reorganized Debtors personnel and management has been focused primarily on successfully emerging from chapter 11 protection, its business operations, and the claims administration process pursuant to the Plan. As a result, the Reorganized Debtors and its professionals have not yet determined whether to seek removal of any proceedings pursuant to Bankruptcy Rule 9027(a). The Reorganized Debtors anticipate such determination will be made in the near future. 18. Accordingly, the Reorganized Debtors believe that the most prudent and efficient course of action is to further extend the removal period by 62 days through and including September 16, 2013. Notice 19. Notice of this Motion has been given to the following parties or, in lieu thereof, to DEL 86457041v2 5
Case 12-12882-PJW Doc 385 Filed 07/16/13 Page 6 of 6 their counsel, if known: (a) the Office of the United States Trustee; and (b) all parties who have requested notice in these Cases pursuant to Bankruptcy Rule 2002. The Reorganized Debtors submit that, in light of the nature of the relief requested, no other or further notice need be given. No Prior Request 20. No prior request for the relief requested herein has been made to this or any other Court, except for the Debtors prior requests to extend the deadline for filing notices of removal Bankruptcy Rule 9027(a). Conclusion WHEREFORE, the Reorganized Debtors respectfully request that this Court enter an order granting the relief requested herein and that it grant the Reorganized Debtors such other and further relief as is just and proper. Dated: July 16, 2013 GREENBERG TRAURIG, LLP /s/ Dennis A. Meloro Dennis A. Meloro (DE Bar. No. 4435) 1007 North Orange Street, Suite 1200 Wilmington, Delaware 19801 Telephone: 302-661-7000 Facsimile: 302-661-7360 Email: melorod@gtlaw.com -and- Nancy A. Mitchell Maria J. DiConza 200 Park Avenue New York, New York Telephone: (212) 801-9200 Facsimile: (212) 6400 Email: mitchelln@gtlaw.com diconzam@gtlaw.com Counsel for the Reorganized Debtors DEL 86457041v2 6
Case 12-12882-PJW Doc 385-1 Filed 07/16/13 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re BACK YARD BURGERS, INC., et al. 1 Debtors. Chapter 11 Case No. 12-12882 (PJW) (Jointly Administered) Ref. Docket No. ORDER PURSUANT TO RULE 9006(b) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE FURTHER ENLARGING THE TIME WITHIN WHICH TO FILE NOTICES OF REMOVAL PURSUANT TO BANKRUPTCY RULE 9027 Upon consideration of the Motion for Entry of an Order Pursuant to Rule 9006(b) of the Federal Rules of Bankruptcy Procedure Further Enlarging the Time within which to File Notices of Removal Pursuant to Bankruptcy Rule 9027 (the Motion ) 2 filed by the above-captioned debtors (the Reorganized Debtors ) whereby the Reorganized Debtors seek, pursuant to Rule 9006(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), an enlargement until September 16, 2013 of the time within which to file notices of removal under Bankruptcy Rule 9027(a); good cause having been shown; and no further notice or hearing on the Motion being required; therefor, THE COURT FINDS AND CONCLUDES THAT: A. This Court has jurisdiction over these cases under 28 U.S.C. 1334(b). B. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2). C. Due and adequate notice has been given to all parties entitled thereto, and no other or further notice is necessary or required. 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Back Yard Burgers, Inc. (7163), BYB Properties, Inc. (9046), Nashville BYB, LLC (6507) and Little Rock Back Yard Burgers, Inc. (9133). The mailing address of the Debtors is: St. Clouds Building, 500 Church Street, Suite 200, Nashville, TN 37219. DEL 86457041v2
Case 12-12882-PJW Doc 385-1 Filed 07/16/13 Page 2 of 2 D. The relief requested in the Motion is necessary and in the best interests of the Debtors, their estates and their creditors. THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: 1. The Motion is granted. 2. The Reorganized Debtors shall have through and including September 16, 2013, within which to file notices of removal under Bankruptcy Rule 9027(a). 3. The foregoing is without prejudice to the Reorganized Debtors right to seek further extensions of the time within which to remove related proceedings. 4. This Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated:, 2013 Wilmington, Delaware Honorable Peter J. Walsh United States Bankruptcy Judge 2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion. DEL 86457041v2 2