HomeContact InfoMotion To Withdraw


 
UNITED STATES BANKRUPTCY COURT DISTRICT OF MASSACHUSETTS (Eastern Division)


In re
V&M MANAGEMENT, INC., Debtor.


Chapter 11
CaseNo.96-10123.CJK


OMNIBUS OBJECTION OF CREDITORS' TRUSTEE TO "COUNSEL'S MOTION TO WITHDRAW," "PLAINTIFF'S MOTION TO STRIKE TRUSTEE'S CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS," "PLAINTIFF'S MOTION FOR CHANGE IN VENUE" AND "MOTION FOR RECONSIDERATION OF THE COURT'S ORDER PRECLUDING PLAINTIFF, ALPHONSE MOURAD, FROM OBTAINING DISCOVERY AND, ALTERNATIVELY. REQUEST FOR A STAY"


Stephen S. Gray, as Creditors' Trustee ("Mr. Gray" or the "Creditors' Trustee") pursuant to the Joint Plan of Reorganization of Stephen S. Gray, Chapter 11 Trustee, Mandela Residents Cooperative Association, Inc., Beacon Residential Properties Limited Partnership and Winter Hill Federal Savings Bank (the "Plan"), confirmed by order of this Court dated September 26, 1997 (the "Confirmation Order"), hereby files this omnibus opposition to the "Counsel's Motion to Withdraw," "Plaintiffs Motion to Strike Trustee's Cross-Motion for Judgment on the Pleadings," "Plaintiffs Motion for a Change in Venue," and "Motion for Reconsideration of the Court's Order Precluding Plaintiff, Alphonse Mourad From Obtaining Discovery and, Alternatively, Request for a Stay" (collectively, the "Mourad Motions"). The Mourad Motions were filed in a flurry as Attorney Riordan, Mr. Mourad's latest in a long line of attorneys who have appeared and withdrawn, conspicuously exited stage left. For the numerous reasons set forth below, as well as the history of this case and the significant delay and further depletion of
the Creditors' Trustee's limited remaining assets caused by Attorney Riordan's brief appearance and subsequent withdrawal, the Mourad Motions should all be denied.


In further support of this omnibus opposition1, the Creditors' Trustee states as follows:
BACKGROUND


1. On January 8,1996 (the "Petition Date"), V&M Management, me. ("V&M") filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. 101, et seq. (the "Bankruptcy Code"). On February 5, 1996, this Court appointed an examiner to investigate the Debtor's affairs pursuant to Section 1104 of the Bankruptcy Code. After a lengthy hearing, Stephen S. Gray was appointed Chapter 11 Trustee pursuant to an order of this Court dated April 2, 1996.


2. On September 26, 1997, this Court entered an order confirming the Plan submitted by Mr. Gray as Chapter 11 Trustee and various other creditors and parties in interest. Mr. Gray was appointed Creditors' Trustee of the Creditors' Trust formed pursuant to the confirmed Joint Plan. The Plan expressly provides that, other than with respect to his duties and responsibilities to make the payments required under the Plan:
The Creditors' Trustee, the Creditors' Trust and their employees, attorneys, associates, consultants or agents, shall (i) not have or incur any liability to any person or entity for any act or omission in connection with, or arising out of, the administration of this Plan or the property to be distributed under this Plan, except if such act or omission is determined by a Final Order to reflect bad faith or to constitute willful misconduct or gross negligence. ...
See, Plan, Art. 7.13 [Docket No. 696].
' Rather than address each of the motions separately, the Creditors' Trustee has filed one opposition to all of the Mourad Motions as a means to curtail the recitation of applicable facts and history and present the oppositions to this Court in a cohesive manner.
BOSM 06030.2


3. Upon confirmation of the Plan, the parties proceeded to substantially consummate the Plan in accordance with its terms. Among other things, all or substantially all of the Debtor's assets were transferred to the Creditors' Trust and sold, and the proceeds received were distributed to creditors holding allowed claims by Mr. Gray as Creditors' Trustee in accordance with the Plan.


4. On or about November 19,1998, the Creditors' Trustee filed his Amended Motion for Entry of Final Decree Closing Bankruptcy Case (the "Amended Motion for Final Decree") [Docket No. 858] along with his Amended Affidavit of Stephen S. Gray in Support of Motion for Entry of Final Decree Closing Bankruptcy Case (the "Gray Affidavit") [Docket No. 859]. In the Amended Motion for Final Decree and Gray Affidavit, Mr. Gray stated "the Debtor's case met the definition of 'substantial consummation' contained in 11 U.S.C. 1101(2)." See Amended Motion for Final Decree at p. 7; Gray Affidavit at p. 2. Specifically, the Creditors' Trustee stated that (i) the Plan "has been substantially consummated and has been duly administered in accordance with the terms and provisions of the Plan and Confirmation Order," (ii) "with minor exceptions which would not preclude entry of a final decree, the Trustee has disbursed payment in full to all administrative creditors (including Court authorized professional compensation and costs) of the Debtor of the sum due to such creditors under the Plan," (iii) "with minor exceptions which would not preclude the entry of a final decree, the Trustee has paid all secured creditors in full," and (iv) " all administrative claims for goods and service and all administrative claims of professionals employed in the Debtor's case which were incurred by the Debtor subsequent to the date that the Debtor filed its petition have been paid in full in accordance with their terms". See Amended Motion for Final Decree at pp. 5-8.


5. On or about July 18, 2000, the Creditors' Trustee filed the Creditors' Trustee's Statement Concerning Remanded Motion ofAlphonse Mourad to Allow Administrative Claims Late (the "Statement") [Docket No. 920], which was filed pursuant to this Court's Procedural
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Order on Remanded Motion ofAlphonse Mourad to Allow Administrative Claim Late [Docket No. 915], in which the Creditors' Trustee reported that he held, as of July, 2000, "the sum of $121,974.27," and did not "anticipate receiving any other funds from any source whatsoever." See Statement at para. 1. He additionally reported that he had made "all payments mandated by the Plan on account of secured, administrative and priority claims, as well as interim distributions on account of unsecured claims, in the aggregate amount of $4,402,899.19" and that the remaining balance of $121,974.72 was to be "disbursed to pay the administrative expenses of the Creditors' Trustee, with any balance paid pro rata to holders of allowed unsecured claims." See Statement at para. 2.


6. Prior to the Petition Date and throughout the course of its bankruptcy case, the Debtor was and remained a Subchapter S corporation. Accordingly, pursuant to applicable law, shareholders of the Debtor are solely responsible for payment of any taxes arising as a result of any income of the Debtor.


7. On or about September 17,1998, almost one year after confirmation of the Joint Plan, Alphonse Mourad ("Mr. Mourad"), the sole shareholder of the Debtor, filed his Motion To Allow Administrative Claim OfAlphonse Mourad Late (the "Late Claim Motion") with this Court, seeking permission to file a late administrative claim in the amount of $1.3 million against the Debtor on account of his personal income tax liability as a shareholder of the Debtor.


8. The Creditors' Trustee filed an Opposition Of Creditors' Trustee To Motion To Allow Administrative Claim ofAlphonse Mourad Late (the "Opposition") [Docket No. 840] on or about September 30, 1998, asserting that Mr. Mourad had not shown "cause" to warrant the submission or allowance of a late administrative claim, and that there was no basis for the claim as Mr. Mourad, as the Debtor's shareholder, was solely liable for the taxes at issue and neither the Creditors' Trustee, the Debtor nor its estate bore any responsibility whatsoever.
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9. On November 16, 1998, this Court entered an Order On Motion OfAlphonse Mourad To Allow Administrative Claim Late (the "Bankruptcy Court Order") [Docket No. 851] denying the Late Claim Motion. In the Memorandum of Decision accompanying the Bankruptcy Court Order [Docket No. 852], this Court ruled that the Late Claim Motion failed to state a valid claim upon which relief could be granted, and that Mr. Mourad had failed to cite any law that would justify shifting tax liability from Mr. Mourad to the Debtor or its estate.


10. On November 27, 1998, Mr. Mourad filed a Notice of Appeal in this Court [Docket No. 872]. Pursuant to a Memorandum and Order dated April 12, 2000 (the "BAP Order"), the Bankruptcy Appellate Panel for the First Circuit (the "BAP") [Docket Nos. 910 and 911], noting that Mr. Mourad "amplified or developed" his argument that the Creditors' Trustee was negligent in the performance of his duties as trustee on appeal, found that "the bankruptcy court's order dismissing the motion did not resolve Mourad's claim that Mr. Gray was negligent in the performance of his duties as trustee." BAP Order at p.5. Accordingly, the BAP remanded the matter to this Court on two very narrow and specific issues, namely, to consider Mr. Mourad's allegations that the Creditors' Trustee administered the estate negligently, causing Mr. Mourad's tax liability, or increasing his tax liability, and whether Mr. Mourad had asserted his claim in a timely fashion.


11. On December 23,1998, this Court (Kenner, J.) entered an Order on Amended Motion for Final Decree [Docket No. 889], indicating that a final decree would enter with the exception of two pending matters. This remand from the BAP is now the only matter awaiting adjudication for this case to be fully and finally resolved.


A. The Pretrial Order


12. Subsequent to the remand by the BAP, on October 31,2001, Judge Kenner issued the Pretrial Order on Remanded Motion ofAlphonse Mourad to Allow Administrative Claim Late (the "Pretrial Order") [Docket No. 984] setting forth deadlines with respect to the filing of
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pretrial statements. Notably, the Pretrial Order afforded Mr. Mourad three and one half months to file his pretrial statement, and upon the filing of the Creditors' Trustee's pretrial statement, afforded Mr. Mourad an additional two months in order to file a further pretrial statement "as to his rebuttal evidence only." Although the Pretrial Order does not address specific deadlines for any discovery, it did not preclude discovery. Accordingly, Mr. Mourad was afforded over seven months from the issuance of the Pretrial Order to the deadline for filing his final pretrial statement in order to conduct any discovery he deemed necessary or relevant. Indeed, only when Mr. Mourad's latest counsel asserted a need for further time to take discovery at the "final" pretrial conference on June 3, 2004, more than two and one half years later, did this Court deny any such request.


13. On February 15, 2002, Mr. Mourad filed his Pretrial Statement, indicating that he intended to present twenty two witnesses to testify at trial. On April 12, 2002, the Creditors' Trustee served Mr. Mourad and his counsel with his Pretrial Memorandum With Respect to Remanded Motion ofAlphonse Mourad to Allow Administrative Expense Claim Late [Docket No. 989], identifying the two witnesses he proposed would testify at trial, as well as a list of certain exhibits, most, if not all of which are documents from the record if this proceeding. Declining his invitation to file a further pretrial memo with respect to rebuttal evidence, Mr. Mourad did not file any further pretrial memos under the deadlines imposed by the Pretrial Order, nor has he or any of his various counsel sought any discovery since he first filed his late administrative claim on September 17, 1998, nearly six years ago.


B. Creditors' Trustee's Cross Motion for Judgment on the Pleadings


14. On or about March 19, 2004, the Creditors' Trustee filed his Opposition to Alphonse Mourad's Motion for Change of Venue of this Case to Another State and Cross-
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Motion for Judgment on the Pleadings (the "Motion for Judgment") [Docket No. 996].2 The Creditors' Trustee moved for judgment on the pleadings primarily on two grounds. First, the Creditors' Trustee indicated that there remain no funds in the Debtor's estate as to which Mr. Mourad could assert his late administrative claim, as all such funds have been transferred under the terms of the Plan, free and clear of all liens, claims and interests to the Creditors Trust established under the Plan. Second, to the extent that Mr. Mourad seeks to establish a late administrative claim based upon the negligence of the Creditors' Trustee, the Plan expressly provides that, other than with respect to his duties and responsibilities to make payments required under the Plan, the Creditors' Trustee has no liability and cannot incur liability, for negligence.


15. The Motion for Judgment relies entirely upon documents in the record and docket of this case, other than the decision of the United States Tax Court, dated July 2, 2003, which the Creditors' Trustee attached to bring to this Court's attention that Mr. Mourad has raised, and lost on, the same issues he has sought to assert herein, that is, the respective obligations of the Creditors' Trustee and Mr. Mourad to the IRS for the income tax liabilities that are the subject of Mr. Mourad's late administrative claim. Notably, in his Motion for Change of Venue of this Case to Another State ("Motion for Change of Venue") [Docket No. 995] filed on February 24, 2004, Mr. Mourad conveniently failed to advise this Court of the United States Tax Court's decision deeming him liable for the taxes due. Indeed, he alludes to his inability to accept the decision of the Tax Court that he is responsible for paying the taxes by stating "Judge Kenner's delay of the remand trial to determine who is responsible to pay the IRS income taxes for the
2 Mr. Mourad's motion for change of venue to another state is not highly relevant to the matters at issue herein, other than the irony that he now is moving for a change of venue back to Boston, after previously requesting that the case be moved to "New York, Connecticut or Rhode Island" on the grounds that it would be a hardship to proceed in Worcester, Massachusetts.
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profit V&M incurred fro the years 1997 and 1999 ... has cost Mourad approximately $400,000 owed to the IRS " See Motion for Change of Venue at p. 3. Notwithstanding, the Tax Court opinion is published and available to the public at Alphonse Mourad v. Commission of Internal Revenue. 121 T.C. 1 (2003) and 2003 U.S. Tax Ct. Lexis 20.


16. No response to the Motion for Judgment was filed within the time frame set forth by the local rules. However, one day prior to Attorney Riordan's appearance, he contacted counsel for the Creditors' Trustee seeking, among other things, the Creditors' Trustee's assent to an extension of time to file a response, to which the Creditors' Trustee agreed. As a result, Mr. Mourad and his latest counsel were afforded some two and one half months to respond to the March 15, 2004 Motion for Judgment.


C. Attorney Riordan's "Conditional" Appearance


17. Mr. Mourad has retained numerous attorneys over the course of the nearly eight years since this case commenced. At the time of issuance of the Pretrial Order, Mr. Mourad was represented by Attorney Dow. Most recently, on or about May 4,2004, one day prior to the date scheduled by this Court for the final pretrial conference, Attorney Riordan entered a notice of appearance. Attorney Riordan requested that, based upon his recent notice of appearance and need to familiarize himself with the case histrionics, the Creditors' Trustee assent to a continuance of the final pretrial conference. As additional grounds for the need for an extension, Attorney Riordan indicated the need to concentrate on a brief, on behalf of Mr. Mourad, which was due to the United States Court of Appeals for the First Circuit on a "related tax case."3 As a
3 Notably, in the Affidavit ofLester E. Riordan III filed in connection with the Plaintiffs Motion for Leave to File His Opposition Two Days Late to Creditors' Trustee's Cross-Motion for Summary Judgment (the "Riordan Affidavit"), Attorney Riordan indicates that he appeared on behalf of Mr. Mourad in Alphonse Mourad v. Commissioner of Internal Revenue. Docket No. 03-2367" but later "withdrew due to a disagreement relating to handling of the case."
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matter of professional courtesy, the Creditors' Trustee agreed, and, accordingly, the "final" pretrial conference was continued to June 3, 2004 before this Court.
18. It was not until Attorney Riordan filed the Plaintiffs Motion for Leave to File His Opposition Two Days Late to Creditor's Trustee's Cross-Motion for Judgment on the Pleadings that the true nature of Attorney Riordan's appearance was revealed. In the Riordan Affidavit, Attorney Riordan reveals that his "appearance" in the case was rather a "conditional" appearance. The Riordan Affidavit states "[representation in the bankruptcy matter was conditioned upon my review of the case and a determination of my ability to adequately represent Mr. Mourad in light of the complex issues and claims raised in the case." The Riordan Affidavit further indicates that his review was not yet complete, but could possibly be complete sometime by the end of July 2004, which, notably, was long after the date scheduled for the final pretrial conference and the further hearing scheduled by this Court for July 21, 2004.


D. The "Final" Pre-Trial Conference


19. On June 3, 2004, this Court held the "final" pre-trial conference on the remanded matters. At the conference, Attorney Riordan requested that this Court allow him discovery, some two years after Mr. Mourad filed his final pretrial statement. This Court refused to allow additional discovery, stating that "this case should have been ready for trial when [the Pretrial Order] was complied with". See Transcript of the Pre-Trial Conference Dated June 3, 2004 (the "June 3 Transcript"). A true and accurate copy of the June 3 Transcript is attached hereto as Exhibit A.


20. This Court stated that Attorney Riordan's filing of an appearance does not obviate the fact that this case should be, as far as the Court is concerned, ready for trial." June 3 Transcript at p. 9. At the conference, counsel for the Creditors' Trustee indicated that they are ready, willing and able to proceed with trial if this Court so wishes. However, as set forth in the
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Creditors' Trustee's Cross Motion for Judgment on the Pleadings, and as set forth below, this case is ripe for judgment based upon the pleadings filed in this case and this Court's ability to take judicial notice of such pleadings. At the conclusion of the hearing before this Court on June 3, this Court continued the conference to July 21.
ARGUMENT


21. The flurry of motions filed by Attorney Riordan, simultaneously with his Motion to Withdraw based upon "irreconcilable differences with the Plaintiff regarding the conduct of this matter," should be denied. In point of fact, this Court should accept Attorney Riordan's invitation for sanctions which took place at the "final" pretrial conference, due to his deliberate delay in these cases, and egregious professional behavior in seeking further delay only to subsequently withdraw his appearance. The Mourad Motions are factually and legally deficient, absurd to the extent they contradict Mr. Mourad's previous requests of this Court, and seek relief that will only further delay the conclusion of these proceedings and this case in which a final decree entered well over five years ago, subject to the resolution of this last remaining matter.


A. The Motion for Reconsideration of The Court's Order Precluding Plaintiff, Alphonse Mourad, from Obtaining Discovery and, Alternatively, for a Stay Should Be Denied


22. In the Motion for Reconsideration of The Court's Order Precluding Plaintiff, Alphonse Mourad, from Obtaining Discovery and. Alternatively, for a Stay (the "Motion for Reconsideration"), Mr. Mourad sets forth a laundry list of matters as to which he asserts he requires "at least minimal discovery", and argues as grounds for reconsideration that this Court's denial of any further discovery will deprive him of his due process rights. Mr. Mourad further opines that he has been precluded from seeking basic information necessary to support his claims.


23. Mr. Mourad's and his counsel's argument that this Court somehow deprived Mr. Mourad of the right to take discovery by not fixing any deadline not only is counterintuitive but, quite frankly, defies logic. Having made no effort while under no prohibition to take such discovery since his claim was filed on September 17,1998, it is beyond absurd for Mr. Mourad and his counsel to suggest that this Court somehow is depriving Mr. Mourad of "his basic due process rights" in failing to permit time for Mr. Mourad to commence discovery at the final pretrial conference almost six years after the claim was filed. That is particularly true where the motion itself, at paragraph 2 on page 3, notes that Mr. Dow, one of Mr. Mourad's prior counsel, filed a motion for speedy hearing in November, 1998.


24. Moreover, all or substantially all of the discovery Mr. Mourad purports to require appears to bear little or no relationship to the remaining matters on remand to this Court. By way of example, those subjects include the Creditors' Trustee's compensation and expenses, as well as the "business conducted by the Creditors' Committee," in a case where no such Committee ever existed. See Motion for Reconsideration at p. 5, para. 9. Indeed, after listing the subjects as to which Mr. Mourad purports to require discovery, the Motion for Reconsideration itself states "[fjurther. Plaintiff requests sufficient time to allow for the amendment of pleadings."


25. At the pretrial conference, this Court indicated that "We're not going to have discovery. Discovery is long - years ago passed. Years ago; not weeks ago, not by a little bit; by years, and I'm not going to reopen this case." See June 3 Transcript, p. 10. Mr. Mourad does not address in his motion for reconsideration why he failed to take discovery when he had the opportunity, nor does he bother to address those same concerns that this Court voiced. Rather,
he obliquely argues that because specific discovery cut off dates were not included in the Pretrial Order, and were not listed on the docket, he was somehow denied his due process rights.


26. It is well established in this jurisdiction that reconsideration of an order is appropriate only upon the grounds of mistake, inadvertence, surprise, excusable neglect, or newly discovered evidence. See In re Wedgestone Financial. 152 B.R. 786 (Bankr. D. Mass. 1993). Mr. Mourad does not allege any of the foregoing as grounds for reconsideration. Presumably, he does not argue such grounds because no grounds exist. There is no excusable neglect warranting reconsideration, nor is there any newly discovered evidence. Accordingly, the Motion for Reconsideration should be denied.


27. Mr. Mourad alternatively seeks, in the event his Motion for Reconsideration is denied, a stay of this action sufficient to allow Mr. Mourad "acting pro se" to pursue the Court's decision relative to discovery through an interlocutory appeal. At the pretrial conference, this Court stated, echoing the sentiment of the Creditors' Trustee, that this case should be moved forward. Mr. Mourad has single handedly exhausted the assets of this estate, and has caused a relatively simple Chapter 11 case to turn into an epic story. Any stay requested while Mr. Mourad proceeds with yet another appeal, particularly an admittedly interlocutory appeal, should be summarily denied.


B. The Motion to Strike Trustee's Cross-Motion for Judgment on the Pleadings Should Be Denied


28. As noted above, Mr. Mourad and his counsel requested an extension of time to respond to the Motion for Judgment and were given some two and one half months to respond to it. Having done so, Mr. Mourad's counsel now seeks to strike the Motion for Judgment. Any such effort should be denied as untimely and/or Mr. Mourad should be estopped from now seeking to strike the Motion for Judgment.

29. In any event, the Creditor's Trustee's Motion for Judgment relies entirely upon the record in this case, with the sole exception the United States Tax Court opinion which entered well over three years after the BAP Order, addressing the same issues Mr. Mourad seeks to pursue in this Court. As such, there is nothing raised in the Motion for Judgment which requires that it be treated as a motion for summary judgment. Fed. R. Bankr. P. 7012(c) states that:
[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed. R. Bankr. P. 7012(c). In this case, the Creditors' Trustee did not present matters that are outside the pleadings in support of its Motion for Judgment.4 Rather, as set forth in Paragraphs 2, 14 and 15 above, the Creditors' Trustee has relied solely upon the record of pleadings in this case, as well as the Tax Court opinion, of which this Court can take judicial notice.5 As set forth below, if this Court were to construe all alleged facts in favor of Mr. Mourad, his claim attributing negligence to the Creditors' Trustee cannot prevail as a matter of law.
4 The Creditors' Trustee's motion can be considered, and should be allowed, if the undisputed facts alleged in the pleadings, together with any facts of which the Court will take judicial notice, establish that no relief can be granted for Mr. Mourad. Geupel v. Bensen. 704 F. Supp. 312, 313 (D. Mass. 1989) citing J.M.Blvthe Motor Lines Corp. v Blalock. 310 F.2d 77, 79 (5th Cir. 1962).
5 The Creditors' Trustee's cross motion for judgment on the pleadings is abundantly supported by the facts of this case and the documents and pleadings on record in the approximately 200 page docket of this eight year old case. See Fed R. Evid. 201; Papatones v. Papatones. 143 F.3d 623 (1st Cir. 1998) citing In re Henderson. 197 B.R. 147, 156 (Bankr. N.D. Ala. 1996) (The court may take judicial notice of its own records and of records in a case before the court, and of documents filed in another court"). Where this Court can take judicial notice of its own pleadings, affidavits and other supporting affidavits which simply state that the orders and pleadings are what they are would be duplicitous and wasteful.


30. Mr. Mourad's Motion to Strike Tmstee's Cross Motion for Judgment on the Pleadings (the "Motion to Strike") is largely premised on the fact that the Motion for Judgment "must contain additional factual material" or the BAP would not have remanded. As noted above, however, Judge Kenner's decision was on appeal from a finding that Mr. Mourad had failed to state a claim upon which relief could be granted. In remanding, however, the BAP noted that Mr. Mourad "amplified or developed" his theory of negligence before the BAP, which allegations "provide a theory not adjudicated by the appealed order." BAP Opinion, p. 9. In so doing, however, the BAP hardly was in a position to know or otherwise ascertain the various reasons, under the facts and circumstances of the protracted case, why no such negligence claim can stand as a matter of law. For example, the Plan itself expressly precludes any such negligence claim, providing:
The Creditors' Trustee, the Creditors' Trust and their employees, attorneys, associates, consultants or agents, shall (i) not have or incur any liability to any person or entity for any act or omission in connection with, or arising out of, the administration of this Plan or the property to be distributed under this Plan, except if such act or omission is determined by a Final Order to reflect bad faith or to constitute willful misconduct or gross negligence. ...
See, Plan, Art. 7.13. Likewise, the Plan provided for the transfer of all assets of the Debtor's estate to the Creditors' Trustee, such that there remain no assets in the estate to satisfy any administrative claim even if Mr. Mourad were to prevail. Indeed, as reflected in this Court's own pleadings docket, the Amended Motion for Final Decree, the Gray Affidavit, and the Statement show that not only were all of the estate's assets transferred to the Creditors' Trust, but virtually all of the Creditors' Trusts assets have likewise been disbursed. The Tax Court decision, meanwhile, shows that since the BAP remand, Mr. Mourad has litigated to a final
judgment, subject only to his pending First Circuit appeal, the same issues he now seeks to litigate in this Court against the Creditors' Trustee.


C. The Motion To [sic] For a Change of Venue to the Eastern District of Massachusetts Should Be Denied


31. Mr. Mourad also seeks, for the third or fourth time during these proceedings, to change the venue - this time back to the Eastern Division - on the grounds that it is too costly and time consuming for him to travel to Worcester. Notably, Mr. Mourad sought several years ago to have this case transferred under an "anywhere but here" premise, to Rhode Island, Connecticut or some other locale. Judge Kenner's order transferring the case to the Western Division was clear in its purpose and intent. Changing the venue and presiding judge yet again will further disrupt and delay these proceedings. Accordingly, the motion to change venue should be denied.


D. The Motion to Withdraw Should Be Set for Hearing and Attorney Riordan Should be Sanctioned for Causing Further Delay and Further Depletion of Limited Estate Assets


32. Attorney Riordan, after causing further delay in these cases and causing further depletion of the estate's limited assets, now seeks to withdraw from yet another representation of Mr. Mourad on the basis of "irreconcilable differences". All this after he appeared, he now claims, "conditionally" subject to his undisclosed right to withdraw sometime before the end of July. As a final service to his client, he filed this myriad of motions alleging technical deficiencies and raising new theories with each motion as to why Mr. Mourad should be entitled to this or that, and how this Court is yet again attempting to deprive Mr. Mourad of his inalienable rights. Attorney Riordan's actions in this case have been contemptible, and he should be sanctioned for causing further delay and for wasting the time of the Creditors' Trustee's attorneys to attend the pretrial conference where he clearly was not prepared to move forward,
and for causing further delay only to abandon Mr. Mourad's cause, while at the same time submitting a flurry of baseless motions which he had no intention of pursuing.
WHEREFORE, the Creditors' Trustee respectfully requests that this Court:
a. Deny in all respects the Mourad Motions; and
b. Grant the Creditors' Trustee such other and further relief as this Court deems just and proper.
By his attorneys, /s/ Jennifer L. Hertz
Paul D. Moore (BBO # 353100)
Jennifer L. Hertz (BBO # 645081)
DUANE MORRIS LLP
470 Atlantic Avenue, Suite 500
Boston, MA 02210
Tel: 617-289-9200
Dated: July 7, 2004




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