IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
)
In re: ) Chapter 11
)
BOUCHARD TRANSPORTATION CO., INC., et al.,1 ) Case No. 20-34682 (DRJ)
)
Debtors. ) (Jointly Administered)
)
DEBTORS’ MOTION FOR ENTRY OF AN ORDER (I) EXTENDING THE TIME WITHIN WHICH THE DEBTORS MAY REMOVE ACTIONS AND (II) GRANTING RELATED RELIEF
This motion seeks an order that may adversely affect you. If you oppose the motion, you should immediately contact the moving party to resolve the dispute. If you and the moving party cannot agree, you must file a response and send a copy to the moving party. You must file and serve your response within 21 days of the date this was served on you. Your response must state why the motion should not be granted. If you do not file a timely response, the relief may be granted without further notice to you. If you oppose the motion and have not reached an agreement, you must attend the hearing. Unless the parties agree otherwise, the court may consider evidence at the hearing and may decide the motion at the hearing. Represented parties should act through their attorney.
The above-captioned debtors and debtors in possession (collectively, the “Debtors”) respectfully state as follows in support of this motion (this “Motion”):
Relief Requested
1. The Debtors seek entry of an order, substantially in the attached form (the “Order”): (a) extending the period (the “Removal Period”) within which the Debtors may remove actions (each individually, an “Action,” and, collectively, the “Actions”) pursuant to 28 U.S.C. § 1452 and rule 9027 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy
1 Due to the large number of Debtors in these chapter 11 cases, a complete list of the Debtor entities and the la s t four digits of their federal tax identification numbers is not provided herein. A complete list may b e o b t a in ed on the website of the Debtors’ proposed claims and noticing agent at https://cases.stretto.com/bo uch ard . Th e location of the Debtors’ service address is: 58 South Service Road, Suite 150, Melville, New York 11747.
Rules”) by 120 days, up to and including April 26, 2021, without prejudice to the Debtors’ right to seek further extensions, and (b) granting related relief.
Jurisdiction and Venue
2. The United States Bankruptcy Court for the Southern District of Texas (the “Court”) has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). The Debtors confirm their consent, pursuant to rule 7008 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), to the entry of a final order by the Court.
3. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
4. The bases for the relief requested herein are section 1452 of title 28 of the United States Code, Bankruptcy Rules 9006 and 9027, and rule 9013-1 of the Bankruptcy Local Rules for the Southern District of Texas (the “Local Rules”).
Background
5. The Debtors comprise one of the nation’s largest independently-owned ocean-going petroleum barge companies. Since their establishment over 100 years ago, the Debtors have expanded their fleet to encompass 25 barges and 25 tugs, all with state-of-the-art equipment and fuel-efficient technologies. Headquartered in Melville, New York, the Debtors provide extensive oil and petroleum product transportation along the Eastern Seaboard and Gulf Coast of the United States.
6. On September 28, 2020 and September 29, 2020 (as applicable to each Debtor, the “Petition Date”), each Debtor filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). A detailed description surrounding the facts and circumstances of these chapter 11 cases is set forth in the Declaration of Matthew Ray of
[Docket No. 79] (the “First Day Declaration”), filed on October 12, 2020. The Debtors are operating their business and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On September 30, 2020, the Court entered orders [Docket Nos. 30, 31] authorizing procedural consolidation and joint administration of these chapter 11 cases pursuant to Bankruptcy Rule 1015(b). No request for the appointment of a trustee or examiner has been made in these chapter 11 cases, and no committees have been appointed or designated.
The Actions
7. As of the date of the filing of this Motion, the Debtors are involved in a number of civil actions commenced prepetition in various forums across the United States, including Actions on account of various disputes, such as personal injury, contract, and maritime lien disputes. Beginning on September 29, 2020, the Debtors filed various suggestions of bankruptcy in the jurisdictions where cases were pending prior to the Petition Date, which identified the Actions known as of that date. The Debtors may become aware of further Actions before the closure of these chapter 11 cases. The Debtors continue to review their books and records and are in the process of determining whether to remove any Actions to a district court pursuant to 28 U.S.C. § 1452. In light of the Debtors’ focus on time-critical operational restructuring matters, the Debtors are not yet prepared to decide which, if any, Actions they will seek to remove.
Basis for Relief
8. Section 1452 of the Judicial Code and Bankruptcy Rule 9027 govern the removal of pending civil actions related to chapter 11 cases and Bankruptcy Rule 9027 sets forth the time periods for filing notices to remove claims or causes of action. Bankruptcy Rule 9006(b)(1), in turn, permits the Court to extend the period to remove actions provided by
Bankruptcy Rule 9027 “for cause shown . . . if the request therefor is made before the expiration of the period originally prescribed.”
9. The Debtors’ decision regarding whether to seek removal of any particular Action depends on a number of factors, including: (a) the importance of the Action to the expeditious resolution of these chapter 11 cases; (b) the time required to complete the Action in its current venue; (c) the presence of federal subject matter jurisdiction in the proceeding that may allow for one or more aspects thereof to be heard by a federal court; (d) the relationship between the Action and matters to be considered in connection with the reorganization process, the chapter 11 plan, the claims allowance process, and the assumption or rejection of executory contracts and unexpired leases; and (e) the progress made to date in the Action. To make the appropriate determination, the Debtors must analyze each Action in light of such factors.
10. Ample cause exists to extend the Removal Period. Absent the relief requested herein, the Removal Period will otherwise expire on December 27, 2020. Moreover, since the commencement of these chapter 11 cases, the Debtors have been focused on addressing time-critical matters related to their restructuring efforts and the safe and efficient restart of the Debtors’ business operations. Specifically, the Debtors and their professionals have obtained Court approval of important procedural and operational relief, obtained Court interim approval of a $60 million new money debtor-in-possession facility, obtained the release of certain vessels previously under arrest, hired and/or rehired additional employees, and taken critical steps towards restarting business operations.
11. The extension requested herein will provide the Debtors with time to make informed decisions concerning the removal of the Actions and will ensure that the Debtors’ rights provided by 28 U.S.C. § 1452 can be exercised in an appropriate manner. The rights of
parties to the Actions will not be unduly prejudiced by the Debtors’ requested extension of the Removal Period. If the Debtors ultimately seek to remove Actions pursuant to Bankruptcy Rule 9027, parties will retain their rights to seek remand with respect to such Actions pursuant to 28 U.S.C. § 1452(b). There is therefore sufficient cause to extend the removal period.
Notice
12. Notice of the hearing on the relief requested in this Motion will be provided by the Debtors in accordance and compliance with Bankruptcy Rules 4001 and 9014, as well as the Local Rules, and is sufficient under the circumstances. Without limiting the foregoing, due notice will be afforded, whether by facsimile, electronic mail, overnight courier or hand delivery, to parties-in-interest, including: (a) the Office of the U.S. Trustee for the Southern District of Texas; (b) entities listed as holding the 30 largest unsecured claims against the Debtors (on a consolidated basis); (c) Wells Fargo Bank, National Association, and counsel thereto; (d) Fortress Credit Co, LLC, and counsel thereto; (e) the DIP Lenders, and counsel thereto; (f) the United States Attorney’s Office for the Southern District of Texas; (g) the Internal Revenue Service; (h) the United States Securities and Exchange Commission; (i) the Environmental Protection Agency and similar state environmental agencies for states in which the Debtors conduct business; (j) the state attorneys general for states in which the Debtors conduct business; (k) parties to the Actions; and (l) any party that has requested notice pursuant to Bankruptcy Rule 2002. In light of the nature of the relief requested, no other or further notice need be given.
The Debtors respectfully request that the Court enter the Order, granting the relief requested in this Motion and granting such other and further relief as is appropriate under the circumstances.
Houston, Texas December 7, 2020
/s/ Matthew D. Cavenaugh
JACKSON WALKER L.L.P. KIRKLAND & ELLIS LLP
Matthew D. Cavenaugh (TX Bar No. 24062656) KIRKLAND & ELLIS INTERNATIONAL LLP Genevieve M. Graham (TX Bar No. 24085340) Ryan Blaine Bennett, P.C. (admitted pro hac vice) 1401 McKinney Street, Suite 1900 W. Benjamin Winger (admitted pro hac vice) Houston, Texas 77010 300 North LaSalle Street
Telephone: (713) 752-4200 Chicago, Illinois 60654 Facsimile: (713) 752-4221 Telephone: (312) 862-2000 Email: mcavenaugh@jw.com Facsimile: (312) 862-2200
ggraham@jw.com Email: ryan.bennett@kirkland.com benjamin.winger@kirkland.com Co-Counsel to the Debtors Co-Counsel to the Debtors
Certificate of Service
I certify that on December 7, 2020, I caused a copy of the foregoing document to be served by the Electronic Case Filing System for the United States Bankruptcy Court for the Southern District of Texas.
/s/ Matthew D. Cavenaugh Matthew D. Cavenaugh
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
)
In re: ) Chapter 11
)
BOUCHARD TRANSPORTATION CO., INC., et al.,1 ) Case No. 20-34682 (DRJ)
)
Debtors. ) (Jointly Administered)
)
) Re: Docket No. __ ORDER (I) EXTENDING THE TIME WITHIN WHICH THE
DEBTORS MAY REMOVE ACTIONS AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) for entry of an order (this “Order”), extending the time period within which the Debtors may remove Actions pursuant to 28 U.S.C. § 1452 and Bankruptcy Rule 9027, all as more fully set forth in the Motion; and upon the First Day Declaration; and this Court having jurisdiction over this matter pursuant to 28 U.S.C. § 1334; and this Court having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having found that venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the relief requested in the Motion is in the best interests of the Debtors’ estates, their creditors, and other parties in interest; and this Court having found that the Debtors’ notice of the Motion and opportunity for a hearing on the Motion were appropriate under the circumstances; and this Court having reviewed the Motion and having heard the statements in support of the relief requested therein at a hearing
1 Due to the large number of Debtors in these chapter 11 cases, a co mplete list of the Debtor entities and the la s t
four digits of their federal tax identification numbers is not provided herein. A complete list may b e o b t a in ed on the website of the Debtors’ proposed claims and noticing agent at https://cases.stretto.com/bo uch ard . Th e location of the Debtors’ service address is: 58 South Service Road, Suite 150, Melville, New York 11747.
before this Court (the “Hearing”); and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT:
1. The period within which the Debtors may seek removal of the Actions pursuant to 28 U.S.C. § 1452 and Bankruptcy Rule 9027 is extended by 120 days, through and including April 26, 2021, without prejudice to the Debtors’ right to seek further extensions thereof.
2. All time periods set forth in this Order shall be calculated in accordance with Bankruptcy Rule 9006(a).
3. Notice of the Motion as provided therein shall be deemed good and sufficient notice of such Motion and the requirements of the Bankruptcy Rules and the Local Rules are satisfied by such notice.
4. The Debtors are authorized to take all actions necessary to effectuate the relief granted in this Order in accordance with the Motion.
5. This Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation, interpretation, and enforcement of this Order.
Dated: __________, 2020
Houston, Texas DAVID R. JONES
