Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 1 of 7 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP. (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), et al., Debtors. Chapter 11 Case No. 13-13087 (KG) Jointly Administered EMERALD CAPITAL ADVISORS CORP., in Its Capacity as Trustee for the FAH Liquidating Trust, Plaintiff, - versus - WALLENIUS WILHELMSEN LOGISTICS ZEEBRUGGE N.V., Adv. Pro. No. 15-51900 (KG) Hearing Date: January 26, 2016, 2:00 p.m. Objection Deadline: January 4, 2016, 4:00 p.m. Defendant. MOTION OF THE LIQUIDATING TRUSTEE FOR ENTRY OF AN ORDER (I) EXTENDING DEADLINE FOR SERVICE OF PROCESS IN FOREIGN COUNTRY, (II) WAIVING LOCAL RULE 7004-1 WITH RESPECT THERETO, AND (III) SETTING DEADLINE FOR FOREIGN DEFENDANT TO RESPOND TO COMPLAINT Plaintiff Emerald Capital Advisors Corp., in its capacity as trustee (the Liquidating Trustee ) for the FAH Liquidating Trust (the Trust ), hereby moves the Court for entry of an order (i) extending the deadline by which it may serve Defendant Wallenius Wilhelmsen Logistics Zeebrugge N.V. ( Wallenius ) with process in Belgium, (ii) waiving the requirements of Rule 7004-1 of the Local Rules of Bankruptcy Practice of the United States Bankruptcy Court for the District of Delaware (the Local Rules ) with respect thereto, and (iii) setting a deadline for Wallenius to answer or otherwise respond to the Liquidating Trustee s Complaint to Avoid and Recover Transfers Pursuant to 11 U.S.C. 547, 548, and 550 and to
Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 2 of 7 Disallow Claims Pursuant to 11 U.S.C. 502 [D.I. 1] (the Complaint ). 1 As grounds therefor, the Liquidating Trustee respectfully states as follow: BACKGROUND 1. On November 22, 2013 (the Petition Date ), FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (together, the Debtors ) filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. 2. On July 28, 2014, the Court entered an order confirming the Debtors Second Amended Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code (with Technical Modifications) [Bankr. D.I. 1059] (the Plan ). 3. Under the Plan, the Debtors reserve[d] and, as of the Effective Date, assign[ed] to the Liquidating Trust, any and all [estate] Causes of Action, Plan Art. IV.L, including any and all actual or potential claims and causes of action to avoid a transfer of property or an obligation incurred by the Debtors pursuant to any applicable section of the Bankruptcy Code, including sections 502, 510, 542, 544, 545, 547-553, and 724(a) of the Bankruptcy Code, id. Art. I.A.7. 4. On November 20, 2015, the Liquidating Trustee filed the Complaint against Wallenius. RELIEF REQUESTED 5. The Liquidating Trustee respectfully requests that the Court enter an order, substantially in the form attached hereto as Exhibit A, (i) extending the deadline by which it may 1 Capitalized terms used but not defined herein have the meanings given them in the Complaint. Citations herein to [D.I. ] are to the docket maintained in the instant proceeding; citations herein to [Bankr. D.I. ] are to the docket maintained in In re FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), et al., Case No. 13-13087 (KG). 2
Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 3 of 7 serve Wallenius, (ii) waiving Local Rule 7004-1 with respect thereto, and (iii) setting a deadline for Wallenius to answer or otherwise respond to the Complaint. GROUNDS FOR RELIEF I. Extension of the Deadline to Serve the Complaint and Summons. 6. Rule 4(m) of the Federal Rules of Civil Procedure (the Civil Rules ), made applicable by Rule 7004(a)(1) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), requires that a defendant be served within 120 days after the complaint is filed. 2 Although Rule 4(m) does not apply to service in foreign country under [Civil] Rule 4(f) entitled Serving an Individual in a Foreign Country there is no similar exception for serving a corporation abroad under Civil Rule 4(h)(2). 3 Thus, the default deadline for the Liquidating Trustee to serve the Complaint and summons is March 21, 2016. 4 7. The Liquidating Trustee is currently in the process of serving Wallenius in Belgium. This requires the translation of the Complaint and summons, the transmission of those documents to the local Central Authority, 5 and the service of Wallenius by the Central 2 3 4 5 Although Civil Rule 4(m) has since been amended, the 120-day service period was in effect at the time this action was commenced and therefore applies here. Civil Rule 4(h) provides that a foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served... at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual. This deadline falls on March 19 but is extended to March 21 by operation of Bankruptcy Rule 9006(a)(1). See Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters art. 3, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (the Hague Convention ) ( The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. ). 3
Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 4 of 7 Authority under applicable Belgian procedural law. 6 The Liquidating Trustee has been advised by the agency assisting it that this will take a minimum of three to five months. 8. Rather than waiting until the 120-day service period has run and burdening the Court with a request for emergency relief, the Liquidating Trustee is now seeking an extension of the default period prescribed by Civil Rule 4(m). In an abundance of caution, the Liquidating Trustee respectfully requests that the Court, pursuant to Bankruptcy Rule 9006(b)(1), 7 grant an initial 60-day extension (i.e., until May 18, 2016) of the deadline by which Wallenius must be served with process in Belgium. II. Waiver of Local Rule 7004-1. 9. Local Rule 7004-1 provides: In all cases in which there is a claims agent appointed, the claims agent is authorized to serve foreign defendants as an agent of the Clerk s Office in accordance with Fed. R. Bankr. P. 7004(a) and Fed. R. Civ. P. 4(f). In all other cases, requests for service of a summons and complaint on a foreign party shall be submitted to the Clerk s Office together with a copy of all documents to be served on the foreign party and a stamped, addressed envelope. 10. Here, however, Wallenius must be served pursuant to the Hague Convention, as ratified by Belgium. As discussed above, this requires transmission of the Complaint and summons to the local Belgian Central Authority, which shall itself serve the document or shall arrange to have it served by an appropriate agency... by a method prescribed by its internal law 6 7 See id. art. 5 ( The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. ). Bankruptcy Rule 9006(b)(1) provides that when an act is required or allowed to be done at or within a specified period by these rules..., the court for cause shown may at any time in its discretion... with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed. 4
Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 5 of 7 for the service of documents in domestic actions upon persons who are within its territory. 8 Moreover, the Bankruptcy and Civil Rules expressly permit service of process by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. 9 11. To resolve this apparent conflict, the Liquidating Trustee respectfully requests that the Court, pursuant to Local Rule 1001-1, 10 waive Local Rule 7004-1 with respect to serving Wallenius with process. III. Establishing Wallenius Response Deadline. 12. Bankruptcy Rule 7012(a) provides that [i]f a complaint is duly filed, the defendant shall serve an answer within 30 days after the issuance of the summons. But when service of a complaint is made... upon a party in a foreign country, instead of this 30-day period, the court shall prescribe the time for service of the answer. 11 13. Here, as discussed above, it is anticipated that serving Wallenius with process under the Hague Convention will take several months and, in any event, longer than 30 days. Given this, and to allow ample time for the foreign party to respond, 12 the Liquidating Trustee 8 9 10 11 12 Hague Convention art. 5. Civil Rule 4(f)(1). Local Rule 1001-1 provides that [t]hese Local Rules shall be followed insofar as they are not inconsistent with... the Federal Rules of Bankruptcy Procedure and that [t]he application of these Local Rules in any case or proceeding may be modified by the Court in the interest of justice. Bankruptcy Rule 7012(a). Local Rule 7004-1. 5
Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 6 of 7 respectfully requests that the Court, pursuant to Local Rule 7012-2, 13 set the deadline for Wallenius to answer or otherwise respond to the Complaint at 30 days following service. RESERVATION OF RIGHTS 14. The Liquidating Trustee reserves the right to seek additional relief with respect to the subject matter hereof. * * * 13 Local Rule 7012-2 provides that [t]he deadline to plead or move in response to a complaint or other pleading in an adversary proceeding may be extended for a period of up to thirty (30) days by stipulation of the parties docketed with the Court or, for a longer period of time, by order of the Court. 6
Case 13-13087-KG Doc 1750 Filed 12/18/15 Page 7 of 7 WHEREFORE, the Liquidating Trustee respectfully requests that the Court enter an order, substantially in the form attached hereto as Exhibit A, (i) extending the deadline by which it may serve Wallenius, (ii) waiving Local Rule 7004-1 with respect thereto, and (iii) setting a deadline for Wallenius to answer or otherwise respond to the Complaint. Date: December 18, 2015 KASEN & KASEN, P.C. /s/ Jenny R. Kasen Jenny R. Kasen (DE Bar No. 5849) Brandywine Building 1000 North West Street, Suite 1200 Wilmington, Delaware 19801 Telephone: (302) 652-3300 and BROWN RUDNICK LLP William R. Baldiga Seven Times Square New York, New York 10036 Telephone: (212) 209-4800 Sunni P. Beville Brian T. Rice One Financial Center Boston, Massachusetts 02111 Telephone: (617) 856-8200 Counsel to the Liquidating Trustee 7
Case 13-13087-KG Doc 1750-1 Filed 12/18/15 Page 1 of 3 Exhibit A (Proposed Order)
Case 13-13087-KG Doc 1750-1 Filed 12/18/15 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP. (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), et al., Debtors. Chapter 11 Case No. 13-13087 (KG) Jointly Administered EMERALD CAPITAL ADVISORS CORP., in Its Capacity as Trustee for the FAH Liquidating Trust, Plaintiff, - versus - WALLENIUS WILHELMSEN LOGISTICS ZEEBRUGGE N.V., Adv. Pro. No. 15-51900 (KG) Related to D.I. Defendant. ORDER (I) EXTENDING DEADLINE FOR SERVICE OF PROCESS IN FOREIGN COUNTRY, (II) WAIVING LOCAL RULE 7004-1 WITH RESPECT THERETO, AND (III) SETTING DEADLINE FOR FOREIGN DEFENDANT TO RESPOND TO COMPLAINT The Court having considered the Motion of the Liquidating Trustee for Entry of an Order (I) Extending Deadline for Service of Process in Foreign Country, (II) Waiving Local Rule 7004-1 with Respect Thereto, and (III) Setting Deadline for Foreign Defendant to Respond to Complaint (the Motion ), 1 and good cause appearing therefor, it is hereby ordered that: 18, 2016; 1. The Motion is granted on the terms set forth herein; 2. The deadline for the Liquidating Trustee to serve Wallenius is extended to May 1 Capitalized terms used but not defined herein have the meanings given them in the Motion.
Case 13-13087-KG Doc 1750-1 Filed 12/18/15 Page 3 of 3 3. Local Rule 7004-1 is waived with respect to serving Wallenius with process; 4. The deadline for Wallenius to answer or otherwise respond to the Complaint shall be 30 days following service of the Complaint and summons; 5. Nothing herein shall limit the right of the Liquidating Trustee to seek additional relief with respect to the subject matter hereof; and 6. The Court shall retain jurisdiction over all matters related hereto or arising hereunder. Date:, 2015 The Honorable Kevin Gross United States Bankruptcy Judge
Case 13-13087-KG Doc 1750-2 Filed 12/18/15 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP. (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), et al., Debtors. Chapter 11 Case No. 13-13087 (KG) Jointly Administered EMERALD CAPITAL ADVISORS CORP., in Its Capacity as Trustee for the FAH Liquidating Trust, Plaintiff, - versus - WALLENIUS WILHELMSEN LOGISTICS ZEEBRUGGE N.V., Adv. Pro. No. 15-51900 (KG) Hearing Date: January 26, 2016, 2:00 p.m. Objection Deadline: January 4, 2016, 4:00 p.m. Defendant. NOTICE OF MOTION PLEASE TAKE NOTICE that on December 18, 2015, Emerald Capital Advisors Corp., in its capacity as trustee for the FAH Liquidating Trust, by and through its undersigned counsel, filed the Motion of the Liquidating Trustee for Entry of an Order (I) Extending Deadline for Service of Process in Foreign Country, (II) Waiving Local Rule 7004-1 with Respect Thereto, and (III) Setting Deadline for Foreign Defendant to Respond to Complaint (the Motion ) with the United States Bankruptcy Court for the District of Delaware. PLEASE TAKE FURTHER NOTICE that any response or objection to the Motion, if any, must be in writing and served on or before January 4, 2016 at 4:00 p.m. (prevailing Eastern Standard Time) (the Objection Deadline ). PLEASE TAKE FURTHER NOTICE that a hearing with respect to the Motion will be held on January 26, 2016 at 2:00 p.m. before the Honorable Kevin Gross, United States Bankruptcy Court for the District of Delaware, at 824 Market Street, 6 th Floor, Courtroom #3, Wilmington, DE 19801.
Case 13-13087-KG Doc 1750-2 Filed 12/18/15 Page 2 of 2 IF NO OBJECTION OR RESPONSE TO THE MOTION IS TIMELY FILED, SERVED OR RECEIVED IN ACCORDANCE WITH THIS NOTICE, THE BANKRUPTCY COURT MAY GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT FURTHER NOTICE OR HEARING. Date: December 18, 2015 KASEN & KASEN, P.C. /s/ Jenny R. Kasen Jenny R. Kasen (DE Bar No. 5849) Brandywine Building 1000 North West Street, Suite 1200 Wilmington, Delaware 19801 Telephone: (302) 652-3300 and BROWN RUDNICK LLP William R. Baldiga Seven Times Square New York, New York 10036 Telephone: (212) 209-4800 Sunni P. Beville Brian T. Rice One Financial Center Boston, Massachusetts 02111 Telephone: (617) 856-8200 Counsel to the Liquidating Trustee 2