Case No. 02-00979-KL3-11United States Bankruptcy Court, M.D. Tennessee, Nashville Division
June 10, 2002
Craig V. Gabbert, Jr., Attorney for Debtors
Sam Braver, Attorney for Debtors. (Telephonically)
Joel Walker, Attorney for Debtors.
James R. Kelley, Attorney for Movants.
Edward D. Hassi, Attorney for Movants. (Telephonically)
Bill Russell, Attorney for Movants. (Telephonically)
CONTESTED MATTER SECOND PRETRIAL ORDER
KEITH M. LUNDIN, United States Bankruptcy Judge
At the pretrial conference held in Nashville, Tennessee on June 3,2002 the following were present:
PLEADINGS
No further pleadings will be filed in this contested matter. Forthcoming objection to claim will be filed by June 10, 2002, and is consolidated for trial with this contested matter.
STATEMENT OF THE ISSUES
1. Whether IM should be permitted to recoup its damages against monies nominally owed to Pen Coal under the IM Agreement.
2. Whether OPCo should be permitted to recoup its damages against monies nominally owed to Pen Coal under the OPCo Agreement.
3. Whether KEPCo should be permitted to recoup its damages against monies nominally owed to Pen Coal under the KEPCo I Agreement.
4. Whether KEPCo should be permitted to setoff any monies nominally owing to Pen Coal under the KEPCo I Agreement against the damages it suffered as a result of Pen Coal’s breach of the KEPCo II Agreement.
5. Whether Debtors assertion of force majeure under the KEPCo, IM and OPCo CSAs is valid, and whether these AEP subsidiaries have waived or are otherwise estopped from disputing the validity of Debtor’s force majeure
assertion.
6. Whether KEPCo is required to pay to Debtor $437,651.52, including post-petition amounts due, for coal delivered under the KEPCo CSA.
7. Whether IM is required to pay to Debtor $2,537,810.16, including post petition amounts due, for coal delivered under the IM CSA.
8. Whether OPCo is required to pay to Debtor $998,112.39. including post petition damages, for coal delivered under the OPCo CSA.
9. Whether AEP has acted inequitably and unjustly under the KEPCo, IM and OPCo CSAs precluding recoupment and set off.
10. Whether claimant can unilaterally extend the contract for damage calculation purposes.
11. Whether the damages claimed are too speculative.
12. Whether claimant had a duty to cover or otherwise mitigate damages and if so, did they?
DISPOSITION
All parties consent to final disposition of this contested matter by the bankruptcy court.
DISCOVERY
The parties are directed to conduct discovery so that all discovery will be completed not later than September 6, 2002. Discovery which would require a later due date shall be permitted only on an order of court or by filed stipulation of the parties, and only if it will not delay the trial.
ALTERNATIVE DISPUTE RESOLUTION
Mediation by an ADR neutral will be scheduled in this cause upon request by any party.
WITNESSES
The names of witnesses, their addresses and a brief summary of the area of testimony of each witness shall be furnished to opposing counsel immediately upon discovery, but in no event later than five (5) days
prior to the trial date. The length of time required for giving notice of taking of depositions as to any witness not disclosed until five days before trial shall be reduced if the usual time cannot be given.
Inability to require the attendance of a witness at trial shall not be the basis for a motion for continuance of the trial unless a written subpoena has been issued at least seven (7) days prior to the trial date.
EXHIBITS By close of business on October 24, 2002, the parties shall:
1. Pre-mark all exhibits, with the plaintiff using numbers and the defendant using letters:
2. Exchange copies of pre-marked exhibits and make available for inspection, upon request, the originals there of;
3. File and exchange exhibit lists; and
4. Deliver a copy of the exhibits and exhibit list to Carmen Atkins,Courtroom Deputy.
STIPULATIONS
The parties will confer and file with the court by close of businesson October 24, 2002, detailed stipulations of fact and stipulations concerning the authenticity and admissibility of documents and exhibits.An extra copy shall be delivered to Carmen Atkins, Courtroom Deputy, atthe time of the filing.
MOTIONS
Terminal motions — that is, motions under Rule 12, Rule 56 or motions which convert to a motion under Rule 56 — will be filed on or before September 13, 2002. Argument on cross-motions for summary judgment will be heard on September 24, 2002 at 1:30 P.M. in Courtroom Two, Customs House, 701 Broadway, Nashville, Tennessee.
TRIAL
Trial will commence on October 31, 2002 at 9:00 A.M. in Courtroom Two, Second Floor, Customs House, 701 Broadway, Nashville, Tennessee.
This action shall proceed to trial pursuant to the stipulations of the parties and this order and no amendments shall be made to this order except upon written motion and for good cause shown. Failure to complywith requirements of this order may result in dismissal of the action,default, assessment of costs including attorney’s fees, or otherpenalties.
IT IS SO ORDERED.