Case No. 02-13533 Jointly Administered.United States Bankruptcy Court, S.D. New York.
April 5, 2005
David A. Handzo, J. Alex Ward, Jenner Block LLP, Washington, DC, Attorneys for Reorganized Debtors.
Donald K. Vowell, Vowell Associates, Knoxville, TN, Attorneys for Louis Hunt Irving.
STIPULATION REGARDING APPEAL OF DENIAL OF CLASS CERTIFICATION MOTION OF LOUIS HUNT IRVING
ARTHUR GONZALEZ, Bankruptcy Judge
MCI, Inc. (formerly WorldCom, Inc.) and certain of its direct and indirect subsidiaries, each reorganized debtors in the above-captioned cases (collectively “MCI” or the “Reorganized Debtors”), and Louis Hunt Irving (“Irving”) hereby stipulate and agree as follows:
WHEREAS, on July 21, 2002 (the “Commencement Date”) and November 8, 2002, WorldCom, Inc. and certain of its direct and indirect subsidiaries (the “Debtors”) commenced cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). By Orders, dated July 22, 2002 and November 12, 2002, these chapter 11 cases were consolidated for procedural purposes; and
WHEREAS, on January 21, 2003, Irving filed Proof of Claim No. 004541 in the Chapter 11 Cases (the “Claim”); and
WHEREAS, on May 19, 2003, Irving filed a Motion for Class Certification or, in the Alternative, Motion for Relief from Stay to Permit Case to Proceed in State Court (the “Class Certification Motion”); and
WHEREAS, MCI timely objected to the Class Certification Motion; and
Page 2
WHEREAS, on December 28, 2004, this Court issued a Memorandum Decision and Order Regarding Certain Right-of-Way Claimants’ Request for Class Certification (the “Right-of-Way Claimants Class Certification Decision”), denying the class certification motion of a separate group of right of way claimants (the “Right-of-Way Claimants”); and
WHEREAS, on January 3, 2005, this Court issued a Memorandum Decision and Order Regarding Proof of Claim of Louis Hunt Irving (the “Irving Class Certification Decision”), denying Irving’s Class Certification Motion; and
WHEREAS, the Right-of-Way Claimants filed a timely motion for leave to appeal the Right-of-Way Claimants Class Certification Decision under Federal Rule of Civil Procedure 23(f) (the “Right-of-Way Claimants’ Motion for Leave to Appeal”), which motion has been briefed and currently is pending before the U.S. District Court for the Southern District of New York; and
WHEREAS, Irving did not file a timely motion for leave to appeal the Irving Class Certification Decision under Federal Rule of Civil Procedure 23(f); and
WHEREAS, rather than litigate Irving’s right belatedly to seek leave for an interlocutory appeal of the Irving Class Certification Decision, Irving and MCI have agreed as follows;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between MCI and Irving that Irving’s right to appeal the Irving Class Certification Decision under Federal Rule of Civil Procedure 23(f) shall be governed by the resolution of the Right-of-Way Claimants’ Motion for Leave to Appeal. Accordingly, if that motion is denied, Irving shall have no right to an interlocutory appeal of the Irving Class
Page 3
Certification Decision. Alternatively, if that motion is granted, Irving’s appeal shall proceed together with the Right-of-Way Claimants’ appeal, with MCI and Irving seeking leave to consolidate the two appeals and litigate them together. This stipulation and agreement is limited to the issue of Irving’s right to appeal the Irving Class Certification Decision under Federal Rule of Civil Procedure 23(f) and neither precludes MCI or Irving from taking any other action regarding Irving’s Claim nor requires MCI or Irving to take any such action.
SO ORDERED: