• No results found

Case TLS Doc 2344 Filed 05/01/20 Entered 05/01/20 13:38:52 Desc Main Document Page 1 of 11

N/A
N/A
Protected

Academic year: 2021

Share "Case TLS Doc 2344 Filed 05/01/20 Entered 05/01/20 13:38:52 Desc Main Document Page 1 of 11"

Copied!
11
0
0

Loading.... (view fulltext now)

Full text

(1)

US_Active\114673171\V-1

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEBRASKA

In re:

SPECIALTY RETAIL SHOPS HOLDING CORP., et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 19-80064-TLS (Jointly Administered) SUPPLEMENT TO ZURU LLC’S AMENDED REPLY TO DEBTORS’ FIRST OMNIBUS RESPONSE AND OBJECTION TO CLAIMS FILED UNDER 11 U.S.C.

503(b)(9); DECLARATION OF CARA LI IN SUPPORT THEREOF

Zuru LLC (“Zuru”), by and through the undersigned counsel, hereby files this supplement (the “Supplement”) to Zuru LLC’s Amended Reply to Debtors’ First Omnibus Response and

Objection to Claims Filed under 11 U.S.C. 503(b)(9) [Docket No. 2326] (the “Amended Reply”),

and declaration of Cara Li in support hereof (the “Li Declaration”), all in opposition to the Debtors’

First Omnibus Response And Objection To Claims Filed Under 11 U.S.C. 503(B)(9) [Docket No.

2230] (the “Objection”) filed by Specialty Retail Shops Holdings Corp. and its debtor affiliates, as debtors and debtors in possession (collectively, the “Debtors”) with the United States Bankruptcy Court for the District of Nebraska (the “Court”) in the above-captioned chapter 11 cases (the “Cases”). In support of its Amended Reply and timely-filed proofs of claim [Claim Nos. 1636 and 2092] (the “Claims”), and in support hereof, Zuru respectfully supplements as follows:

1The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: Specialty Retail Shops Holding Corp. (0029); Pamida Stores Operating Co., LLC (6157); Pamida Transportation, LLC (4219); Penn-Daniels, LLC (0040); Place’s Associates’ Expansion, LLC (7526); Retained R/E SPE, LLC (6679); Shopko Finance, LLC (1152); Shopko Gift Card Co., LLC (2161); ShopKo Holding Company, LLC (0171); ShopKo Institutional Care Services Co., LLC (7112); ShopKo Optical Manufacturing, LLC (6346); ShopKo Properties, LLC (0865); ShopKo Stores Operating Co., LLC (6109); SVS Trucking, LLC (0592). The location of the Debtors’ service address is: 700 Pilgrim Way, Green Bay, Wisconsin 54304.

(2)

2 US_Active\114673171\V-1

I. SUPPLEMENT

As mentioned previously, the Debtors have not been forthright with the Court or Zuru, and this Court should overrule the Debtors’ Objection. As mentioned in the Amended Reply, although Zuru contends the Invoices attached to its Claims are sufficient evidence to support its Claims, and that any further supporting documents (e.g., any documents evidencing the Debtors’ bailee/agent’s handling of the Goods after Zuru delivered the Goods to the Debtors’ bailee/agent at Yantian, China, as well as any documents evidencing the exact date the Debtors took physical possession of the Goods from their bailee/agent at the Goods’ final destination) are within the control of the Debtors who have refused to provide such documents to Zuru despite multiple requests, Zuru nonetheless attempted to locate further supporting documents. This Supplement provides the Court updated information based on that search and further inquiry of other Zuru employees regarding the matters at issue here.

Specifically, Shopko Stores Operating Co. LLC (“Shopko”) directed Zuru to deliver the Goods to Yusen Logistics (Hong Kong) Limited (“Yusen Logistics”), who was hired by Shopko. Li Declaration at ¶ 4; see also Docket No. 836 (the “Yusen Admin Request”) (discussing the terms and circumstances of Yusen Logistics’ business relationship with the Debtors as “origin cargo management and logistics services, including supply chain monitoring services and related software”).2 Zuru did not hire or pay Yusen Logistics. Li Declaration at ¶ 4. Zuru delivered the

2For the avoidance of doubt, Yusen Logistics is not a common carrier, as the Debtors would have this Court believe when they directed the Court to In re World Imports, 862 F.3d 338, 343-44 (3rd Cir. 2017) (“While it is true that a buyer may be deemed to have received goods when his agent takes physical possession of them, common carriers are not agents. Constructive receipt thus does not include “FOB delivery” to a common carrier, as the Bankruptcy Court and District Court assumed.”). In any event, as mentioned in the Amended Reply, whoever took possession of the Goods at Yantian, China, here Yusen Logistics, is the Debtors’ agent/bailee, and actual receipt by Yusen Logistics is sufficient for 11 U.S.C. §503(b)(9) purposes. See O.W. Bunker Holding North

America Inc., (In re O.W. Bunker), 607 B.R. 32 (Bankr. D. Conn. 2019) (“‘received by the debtor’

(3)

3 US_Active\114673171\V-1

Goods to Yusen Logistics at Yantian, China on or about January 2, 2019. Li Declaration at ¶ 5. Zuru received the Forwarder’s Cargo Receipt No. SHK-YAT-1900003 dated January 3, 2019 (the “Forwarder’s Cargo Receipt”) from Yusen Logistics after delivering the Goods to Yusen Logistics. Li Declaration at ¶ 5. A true and correct copy of the Forwarder’s Cargo Receipt is attached hereto as Exhibit A. After receiving physical possession of the Goods, Yusen Logistics ensured the Goods were transported via the Hyundai Goodwill to Tacoma, Washington. See Forwarder’s Cargo Receipt at 1; see also Docket No. 836 at 25, line 9 (listing vessel and destination).

In further support of the above, and as evidence that the Debtors do indeed have these details within their control, Zuru directs the Court to other filings in this case. Specifically, on April 1, 2019, Yusen Logistics (Americas) Inc. filed an amended request for allowance and payment of administrative claims, the Yusen Admin Request. Zuru’s shipment of the Goods is identified in Exhibit A attached thereto. Yusen Admin Request at 25, line 9 (listing the Zuru’s shipment with “Destination (ETD)” as “Tacoma, WA (2019/01/06)”). In response the Debtors filed an omnibus objection to claims for administrative expense [Docket No. 1386] (the “Admin Objection”), attaching as Exhibit A thereto a list of proposed administrative expense claim treatment, which included reference to the Yusen Admin Request. In this treatment, the Debtors did not list any reasons for modifying the amount requested or otherwise specifically dispute that Yusen Logistics was entitled to administrative expense payment for its services.

possession, when a bailee or an agent of the debtor physically possesses the goods. The second part of the question as to whether goods were “received by the debtor” turns on [here, Yusen Logistics’] contractual relationship[] with the [the Debtors]. Because the relationship[] between the [the Debtors] and [here, Yusen Logistics] cannot be ignored, [the] administrative expense claim is allowed . . . .”) see also Storz Brewing Co. v. Brown, 154 Neb. 204, 209, 47 N.W.2d 407, 411 (1951) (“In such case [where FOB is used] the carrier is, in contemplation of law, the bailee of the person to whom and not by whom the goods are sent.”).

(4)

4 US_Active\114673171\V-1

Thus, as discussed in the Amended Reply, (a) the Debtors’ books and records clearly must indicate they received the Goods from Zuru on or after December 27, 2018, the relevant date for § 503(b)(9) priority status in these Cases;3and (b) per the terms of the Debtors’ agreement with Zuru, as evidenced in the Claims, the Forwarder’s Cargo Receipt, and the Yusen Admin Request, Zuru delivered the Goods to the Debtors’ agent/bailee “FOB Point Yantian, China,” “Freight Terms Collect,” meaning the Debtors constructively received, and then took physical possession of, the Goods after December 27, 2018, such that Zuru’s Claims are entitled to § 503(b)(9) priority status.

Zuru has met its prima facie burden in establishing the validity of its Claims for all the reasons set forth in the Claims, the Amended Reply, and herein. The Debtors have submitted no evidence to the contrary, and indeed cannot. The Objection is therefore substantively and procedurally defective, and Zuru respectfully requests that the Court (i) deny the Debtors’ Objection, (ii) allow Zuru’s claim in the full claimed amount of $98,772.42, and (iii) grant any other or further relief as is just and equitable.

[Signature follows]

3 For all the reasons set forth in the Amended Reply, the equitable resolution is to pay Zuru’s Claims in full. Assuming arguendo the Court determines Zuru’s Claims do not meet the standards for § 503(b)(9) priority status, Zuru renews its request that Zuru be permitted to file any additional, required request for payment of its Claims as administrative expenses, such Claims being the actual, necessary costs and expenses of preserving the Debtors’ estates. 11 U.S.C. § 503(b)(1)(A). Zuru further requests, however, that this Court waive such additional filings as unnecessary expense, and instead award Zuru payment in full based on the information already before the Court.

(5)

5 US_Active\114673171\V-1

Dated: May 1, 2020 DENTONS US LLP By: /s/ Sarah M. Schrag

Sarah M. Schrag

Georgia Bar No. 812351 (admitted pro hac vice)

303 Peachtree Street, Suite 5300 Atlanta, Georgia 30308

Telephone: (404) 527-4988 Facsimile: (404) 527-4198

E-Mail: sarah.schrag@dentons.com

(6)
(7)
(8)

US_Active\114673171\V-1

CERTIFICATE OF SERVICE

The undersigned certifies that on the 1st day of May 2020, I electronically filed the

Supplement To Zuru LLC’s Amended Reply To Debtors’ First Omnibus Response And Objection To Claims Filed Under 11 U.S.C. 503(B)(9); Declaration Of Cara Li In Support Thereof in the

above-captioned case with Clerk of the United States Bankruptcy Court using the CM/ECF System which sent electronic notification of such filing to those parties receiving electronic notice therein.

By: /s/ Sarah M. Schrag Sarah M. Schrag

(9)

US_Active\114673171\V-1

Exhibit A

(10)
(11)

References

Related documents

If the enterprise determines that power is, in fact, shared among multiple unrelated parties such that no one party has the power to direct the activities of a variable interest

This research identify the effects of WAKAI and MANGO store windows display at Trans Studio Mall on consumer attractiveness through the implementation of layout

FIRE alerts the o-line that the play includes a alerts the o-line that the play includes a pass pass so they so they cannot move upfield  cannot move upfield when blocking.

By contrast, narrative has been intensely discussed of late by literary critics (especially structuralists), by historians, and by ana- lytic philosophers of history. I have

 16             16

§ 2A:50-52 (“No deficiency judgment”) also prohibits deficiency judgments on foreclosures under this statute.. 22, Defendants’ reply brief, pp. The question for the Court is

I am authorized to execute this Supplemental Declaration on behalf of Hilco and in support of the application (the “Application”) of the Debtors for entry of an order authorizing the

9016 authorizing the examination of a duly authorized representative(s) of Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2005-OPTI Asset