No. BK-S-00-10533(AgriBioTech, Inc.), Jointly Administered With: No. BK-S-00-10534 (AgriBioTech Canada), No. BK-S-00-10535 (Las Vegas Fertilizer Co.), No. BK-S-00-10536 (Garden West Distributors, Inc.), No. BK-S-00-10537 (Geo W. Hill Co., Inc.)United States Bankruptcy Court, D. Nevada
December 18, 2001
Candace C. Canyon, Shea Canyon, Ltd., Las Vegas, Nevada; Deborah D. Williamson, Diann M. Bartek, Carol B. Jendrzey, COX SMITH INCORPORATED, San Antonio, Texas, Counsel for Plaintiff(s).
Ronald J. Thompson, Esq., SANTORO, DRIGGS, WALCH, KEARNEY, JOHNSON
Las Vegas, Nevada, Linda d. Sartin, Toby L. Gerber, Lynette r. Warman, Mark A. Platt, JENKENS GILCHRIST, A Professional Corporation, Dallas, Texas, Counsel for Defendant(s) Bank of America.
AMENDED PROPOSED SCHEDULING ORDER OF H.N. SCHNELLING, CREDITOR TRUSTEE AND BANK OF AMERICA, N.A., DEUTSCHE FINANCIAL SERVICES CORPORATION AND BRANCH BANKING AND TRUST COMPANY
LINDA B. RIEGLE, United States Bankruptcy Judge
COME NOW Anthony H. N. Schnelling, Creditor Trustee for the AgriBioTech Creditor Trust (the “Creditor Trustee”), the plaintiff in these cases and Bank of America, N.A., Deutsche Financial Services Corporation and Branch Banking and Trust Company (the “Bank Group”), the defendants in these cases and file this their Amended Proposed Scheduling Order.
1. Discovery Plan
___ Request for waiver of requirement to prepare and file a formaldiscovery plan.
The parties certify that all discovery can be completed informally, without the need of court intervention and in conformance of the Standard Discovery Plan, and that the matter will be ready for trial within 120 days, or
X A discovery plan is needed or useful in this case. Check one:
___ The parties agree to the standard discovery plan and scheduling order. The first defendant answered or otherwise appeared on _______________. Discovery shall be completed within _______ days, measured from the date the first defendant answered or otherwise appeared. Discovery will close by _____________.
X The parties jointly propose to the court the attached discovery plan and scheduling order (Use Official Form 35 to the Federal Rules of Civil Procedure.)
____ The parties cannot agree on a discovery plan and scheduling order. The attached sets forth? the parties’ disagreements and reasons for each party’s position. (Use Official Form 35 of the Federal Rules of Civil Procedure.)
Complete parts 2-6.
2. Nature of the Case.
Brief description of the nature of the case, i.e., disagreeability, denial of discharge, turnover contract, etc.
This adversary action was commenced by the Unsecured Creditors’ Committee (the “Committee”) and then assumed by the Creditor Trustee. The Creditor Trustee contends that the Bank Group is not secured, or in the alternative, is undersecured because of one or more of the following: (1) the seed growers’ liens are superior to the alleged liens of liens of the Bank Group; (2) the Bank Group failed to perfect its security interests; and (3) to the extent the Bank Group had an interest, it is avoidable under the Bankruptcy Code because the Bank Group’s liens (a) were not perfected as of the date of bankruptcy. (b) were preferential or (c) constituted a fraudulent conveyance.
The Bank Group contends that it was fully secured at all relevant times; that a significant number and amount of the growers’ liens were not properly perfected and therefore not senior to the Bank Group’s liens; and that the Bank Group’s liens are not avoidable under the Bankruptcy Code or otherwise.
3. Jury trials: Check one:
X A demand for a jury trial has not been made.
___ A demand for a jury trial has been made pursuant to Fed.R.Civ.P. 38(b), and in conformity with LR 7038, but one or more of the parties does not consent to a jury trial pursuant to 28 U.S.C. § 157 (e).
___ It is expressly understood by the undersigned parties they have demanded a jury trial pursuant to Fed.R.Civ.P. 3 8(b), and in conformity with LR 7038, and have consented to a jury trial pursuant to 28 U.S.C. § 157(e).
4. Additional Pleadings.
Are there any counterclaims, cross claims or amendments to the pleadings expected to be filed’
___ Yes
X No
5. Settlement (cannot be/can be) evaluated prior to additional discovery. (Circle one).
6. The case should be ready for trial on November 4, 2002 and should take 20 to 30 days.
7. All parties (consent/do not consent) to this court entering final judgment. (Circle one).
ORDER RE: PRE-TRIAL MATTERS; TRIAL; AND SETTLEMENT CONFERENCE
The parties having filed a discovery plan or a request for waiver in this case, and for good cause appearing,
IT IS HEREBY ORDERED that the provisions checked below are hereby adopted by this court as its order.
___ The request for waiver is granted and no formal discovery plan is required to be filed.
X The discovery plan attached hereto as Exhibit “A” filed by the parties shall govern the matters set forth therein.
___ Discovery shall be completed by the date shown in the Standard Discovery Plan.
___ The pre-trial conference set with the issuance of the summons (or the continuance of the pre-trial conference) is hereby vacated.
X The parties shall participate with their clients in a settlement conference in accordance with the Settlement Conference Order (a copy of which has been sent by the court).
The Court may, at a later time, either upon its own motion or at the request of counsel, order a settlement conference.
X A pre-trial conference will be held on October 17, 2002 at 12:00 noon in the Courtroom of Judge Linda B. Riegle.
X Each party shall file a trial statement (or counsel may meet and file a joint trial statement containing the information as shown on, and in the form of; Part “A” attached hereto. Filing of the The Statement(s)shall be on or before noon three days before the last court day beforethe date set for a pretrial conference. OR if no pretrial conference isheld, then on or before noon three days before the last court day beforetrial.
X Each party shall lodge with the Courtroom Deputy Clerk not later than the morning of the date of trial the following:
(a) EXHIBITS: A log of exhibits. A copy of the exhibit log may be obtained from the Courtroom Deputy Clerk. All exhibits shall be marked and stickers shall be affixed or the lower right-hand corner of the exhibit whenever possible. All exhibits to which there are no objection shall be admitted by stipulation. Counsel may stipulate to an exhibit on one ground (e.g., foundation) while preserving an objection or another ground (e.g., relevance).
(b) WITNESSES: A list of witnesses with addresses of each witness to be called by such party.
X Trial of this matter is set for November 4, 2002, at 9:30 a.m.
IT IS SO ORDERED.