New Bankruptcy Opinion: IN RE SS BODY ARMOR I, INC. – Dist. Court, D. Delaware, 2016

In re SS BODY ARMOR I, INC., et al., Debtors.

D. DAVID COHEN, Appellant,


SS BODY ARMOR I, INC., Appellee.

Bankruptcy Case No. 10-11255-CSS, BAP No. 15080, C. A. No. 15-1154-SLR.

United States District Court, D. Delaware.

January 21, 2016.


MARY PAT THYNGE, Magistrate Judge.

WHEREAS, pursuant to paragraph 2(a) of the Procedures to Govern Mediation of Appeals from the United States Bankruptcy Court for this District dated September 11, 2012, the parties provided a joint letter, as ordered, regarding their positions on mandatory mediation.

WHEREAS, as a result of the above screening process, the issues involved in this case are not amenable to mediation and mediation at this stage would not be a productive exercise, a worthwhile use of judicial resources nor warrant the expense of the process.

The parties are currently involved in another appeal pending in this court, D. David Cohen v. SS Body Armor, Inc., C.A. No 15-633 (SLR). That matter has been removed from the mandatory mediation requirement and a briefing schedule has been entered. The parties jointly request that this appeal also be removed from mandatory mediation because they have been engaged in litigation for approximately eight years and involved in unproductive settlement discussions.

The Appellee Debtor requests the following briefing schedule be entered:

Appellant’s Opening Brief: February 29, 2016

Appellee’s Response: May 2, 2016

Appellant’s Reply: June 1, 2016

Appellant Cohen advised of his pending appeal before the United States Court of Appeals for the Second Circuit which he claims will moot or materially affect the issues presented in the bankruptcy appeals in this Court, and thus appears to disagree with an entry of a briefing schedule. Appellee strongly disagrees that the outcome of the Second Circuit will moot the issues raised in both appeals in this Court contending the Second Circuit can find in favor of either party without affecting the fee-related disputes at issue here.

THEREFORE, IT IS RECOMMENDED that, pursuant to paragraph 2(a) Procedures to Govern Mediation of Appeals from the United States Bankruptcy Court for this District and 28 U.S.C. § 636(b), this matter be withdrawn from the mandatory referral for mediation and proceed through the appellate process of this Court. Because both parties requested the matter be removed from mandatory mediation, it is not expected that objections will be raised to this Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72(a) and D. DEL. LR 72.1.

Local counsel are obligated to inform out-of-state counsel of this Order.

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