ML021690157
| ML021690157 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/07/2002 |
| From: | Nexon J Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Pacific Gas & Electric Co |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California |
| References | |
| 01-30923 DM, 94-0742640 | |
| Download: ML021690157 (7) | |
Text
1 JAMES L. LOPES (No. 63678)
JANET A. NEXON (No. 104747) 2 CEIDE ZAPPARONI (No. 200708)
HOWARD, RICE, NEMEROVSKI, CANADY, 3 FALK & RABKIN A Professional Corporation 4 Three Embarcadero Center, 7th Floor San Francisco, California 94111-4065 5 Telephone: 415/434-1600 Facsimile: 415/217-5910 6
Attorneys for Debtor and Debtor in Possession 7 PACIFIC GAS AND ELECTRIC COMPANY 8
9 UNITED STATES BANKRUPTCY COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 HOWARD 113 RXIE In re Case No. 01 30923 DM I 14
&RAWN PACIFIC GAS AND ELECTRIC Chapter 11 Case A_**o*Q* 15 COMPANY, a California corporation, Date: June 27, 2002 16 Debtor. Time: 1:30 p.m.
Place: 235 Pine Street, 22nd Floor 17 Federal I.D. No. 94-0742640 San Francisco, California 18 19 NOTICE OF MOTION AND MOTION OF PACIFIC GAS AND ELECTRIC COMPANY FOR CLARIFICATION OF ORDER AUTHORIZING DEBTOR 20 TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 21
[SUPPORTING DECLARATION OF LESSLY ANN WIKLE FILED 22 CONCURRENTLY HEREWITH]
23 24 25 26 27 28 MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS
1 NOTICE OF MOTION AND MOTION 2 PLEASE TAKE NOTICE that on June 27, 2002, at 1:30 p.m., or as soon 3 thereafter as the matter may be heard, in the Courtroom of the Honorable Dennis Montali, 4 located at 235 Pine Street, 22nd Floor, San Francisco, California, Pacific Gas and Electric 5 Company, the debtor and debtor in possession in the above-captioned Chapter 11 case 6 ("PG&E" or the "Debtor"), will and hereby does move the Court (the "Motion") for entry of 7 an order clarifying this Court's Order entered on March 29, 2002 authorizing the Debtor to 8 expeditiously pay certain pre-petition claims, including allowed claims of $5,000 or less, 9 upon terms set forth in PG&E's motion filed herein on March 5, 2002 (the "Original 10 Motion").
11 The Motion is based on this Notice of Motion and Motion, the accompanying 12 Memorandum of Points and Authorities in support thereof, the Declaration of Lessly Ann presented at or HCWA RKE 13 Wikle filed concurrently herewith, the record of this case and any evidence 14 prior to the hearing on this Motion.
15 PLEASE TAKE FURTHER NOTICE that pursuant to Rule 9014-1 (c)(2) of the 16 Bankruptcy Local Rules for the United States District Court for the Northern District of 17 California, any written opposition to the Motion and the relief requested therein must be 18 filed with the Bankruptcy Court and served upon appropriate parties (including counsel for 19 PG&E, the Office of the United States Trustee and the Official Committee of Unsecured 20 Creditors) at least five (5) days prior to the scheduled hearing date. If there is no timely 21 opposition to the requested relief, the Court may enter an order granting such relief without 22 further hearing.
23 24 MEMORANDUM OF POINTS AND AUTHORITIES 25 I.
26 INTRODUCTION 27 On March 29, 2002; the Court entered its order granting PG&E's Original Motion 28 seeking leave to pay certain pre-petition claims, and authorizing PG&E to pay undisputed MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS 1 claims of $5,000 or less, among other claims, on an expedited basis (the "March 29 Order").
2 However, the Original Motion inadvertently failed to provide that claims of $5,000 or less in 3 Class 8 (Environmental, Fire Suppression, Pending Litigation and Tort claims) and Class 12 4 (Workers' Compensation Claims) under the Plan of Reorganization Under Chapter 11 of the 5 Bankruptcy Code for Pacific Gas and Electric Company, dated April 19, 2002 (the "Plan")
6 would not be paid on such an expedited basis until they were resolved in an appropriate 7 form. The Plan provides that such classes of claims will "pass through" PG&E's bankruptcy 8 and be liquidated and paid as if PG&E's bankuptcy case had not been commenced.
9 While the Court has authorized PG&E to pay all claims of $5,000 or less 10 regardless of their classification under the Plan, PG&E now seeks that the Court's March 29 11 Order be clarified to specify that such ruling does not extend to claims in Class 8 or Class 12 12, except to the extent that PG&E has already settled (or will settle in the future) such HRD 13 claims for an amount of $5,000 or less. This approach will obviate the otherwise necessary RKI W-Nx 14 step of filing objections to each of the disputed claims in Class 8 and Class 12, thereby 15 saving the estate and the claimants the needless effort and expense that would be incurred if 16 objections were required, as well as unnecessarily consuming scarce judicial resources.
17 Moreover, it will enable relatively small claims in Class 8 and Class 12 to be treated 18 consistently with all other similarly situated claims in such classes-that is, that they will 19 pass through PG&E's bankruptcy unaffected thereby and be satisfied as they are resolved 20 pursuant to litigation in the appropriate forum or by settlement. PG&E submits that this 21 practical and efficient approach will provide consistency in the treatment of Class 8 and 22 Class 12 claims, while not detracting from the overall efficiency promoted by the Court's 23 March 29 Order allowing early payment generally of certain claims.
24 25 26 27 28 MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS 1 II.
1 2 FACTUAL AND PROCEDURAL BACKGROUND 3 As the Court is aware, over 13,000 proofs of claim have been filed in this case.
4 In order to facilitate the efficient administration of the estate, PG&E sought and obtained the 5 Court's authorization to pay certain categories of pre-petition claims in advance of plan 6 confirmation and consummation by its Original Motion. Pursuant to the March 29, 2002 7 Order, 2 the Court authorized PG&E to pay, on or before July 31, 2002, allowed pre-petition 8 claims of $5,000 or less (or which were voluntarily reduced by the claimant to $5,000),
9 undisputed mechanics' lien and reclamation claims, on and subject to the terms set forth in 10 the Original Motion.
11 In the Original Motion, PG&E sought to pay all "undisputed claims" of $5,000 or 12 less-i.e., those that were not subject to a pending objection. The Original Motion did not and/or Class 12 under the Plan (i.e.
13 distinguish between claims of $5000 or less in Class 8 drRABMgl 14 Environmental, Fire Suppression, Pending Litigation and Tort claims and Workers' 15 Compensation claims, respectively) and claims of $5,000 or less classified in all other 16 17 'The evidentiary basis and support for the facts set forth in this Motion are contained in the Declaration of Lessly Ann Wilde filed concurrentlynled herewith. Docket numbers are 18 provided for all referenced documents that have been herein and are available on the 19 Court's website.
2The March 29 Order provides in full: "PG&E is authorized to pay allowed pre 20 petition claims of $5000 or less (or which are voluntarily reduced by the claimant to $5000),
undisputed mechanics' lien claims, and undisputed reclamation claims, on or before July 31, 21 2002, on and subject to the terms set forth in the Motion." (Docket No. 5592). PG&E does not seek that the Court clarify its March 29 Order with respect to the treatment of 22 mechanics' lien or reclamation claims.
3In the Original Motion, PG&E proposed that it would pay all undisputed claims of 23 $5,000 or less, as well as valid reclamation and mechanics' lien claims, on or before July 31, 2002, together with post-petition interest at the federal judgment rate in effect on April 6, 24 2001 (the date of the filing of PG&E's Chapter 11 petition)-4.19% per annum-accrued on the allowed amount of such claims from April 6, 2001 through June 30, 2002. With respect 25 to disputed claims, upon the resolution of such claims, either by Court order or settlement, PG&E proposed to pay the allowed amount of those claims, plus interest at the federal 26 judgment rate (4.19 % per annum), accrued from April 6, 2001 through the date of payment.
Such payments were proposed on a monthly basis from and after August 1, 2002, with 27 respect to those claims that had been resolved during the prior month. Original Mot. at 6 28 (Docket No. 5011).
MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS 1 classes, which are not "pass through" claims. To the extent that the March 29 Order is not 2 clarified, PG&E faces the prospect of being required to file objections to those Class 8 and 3 Class 12 claims that PG&E believes are invalid, even though the Plan contemplates that any 4 disputes with respect to such claims will be determined in the appropriate non-bankruptcy 4
5 forum.
6 Accordingly, PG&E now seeks a clarification of the March 29 Order with respect 7 to Class 8 and Class 12 claims. PG&E proposes that all Class 8 claims and Class 12 claims 8 will not be adjudicated or paid pursuant to the bankruptcy proceedings, but rather will pass 9 through PG&E's bankruptcy and be liquidated in the appropriate forum. PG&E requests, 10 however, that the Court's order on this Motion not affect PG&E's authority to pay such Date.5 11 claims to the extent that they are resolved prior to the Effective 12 HUNAD 13 III.
RICE t 14 DISCUSSION MTX
.
- 15 Section 105(a) of the Bankruptcy Code vests this Court with authority to "issue 16 6 17 any order ...that is necessary or appropriate to carry out the provisions of this title." The 17 18 purpose of Section 105 is "to assure the bankruptcy court's power to take whatever action is appropriate or necessary in aid of the exercise of its jurisdiction." 2 Lawrence P. King, 19 20 Collier on Bankruptcy ¶105.01, at 105-106 (15th ed. rev. 2000). It is well established that Section 105 authorizes the Court to clarify and amend its orders where necessary. See, eg*,.
21 22 4 PG&E's claims analysis shows that there are 577 Class 8 claims that are $5,000 or 23 and there under,5PG&E are 27 such claims in Class 12.
proposes that the Court's Order amending the March 29 Order provide as 24 follows: "PG&E is authorized to pay allowed pre-petition claims of $5,000 or less (or which are voluntarily reduced by the claimant to $5,000), undisputed mechanics' lien claims, and 25 undisputed reclamation claims, on or before July 31, 2002, on and subject to the terms set forth in the Motions filed March 5, 2002 and June 6, 2002." (amended language 26 emphasized) 66Section 105(a) states in pertinent part: "The court may issue any order, process, or 27 judgment that is necessary or appropriate to carry out the provisions of this title." 11 U.S.C.
28 §105(a).
MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS 1 Maryland Hotel Supply Co. v. Seats (In re Seats), 537 F.2d 1176, 1177 (4th Cir. 1976) 2 ("[r]equests to reopen estates or to modify or vacate orders lie within the sound discretion of 3 the bankruptcy court"). See also In re Thornburg, 2002 WL 958389 at *l(Bankr. E.D. Tex.
a 4 March 12, 2002) (bankruptcy court has jurisdiction to clarify and enforce its own orders in 5 core proceeding).
6 Moreover, under Section 105(a), this Court has the inherent power to amend its 7 March 29 Order to reflect PG&E's suggested changes for the purpose of ensuring judicial 8 efficiency and to do justice. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) 9 (discussing courts' inherent authority). Bankruptcy courts likewise have inherent power to 10 manage their own proceedings. See Caldwell v. Unified Capital Corp. (In re Rainbow 11 Magazine, Inc.), 77 F.3d 278, 284 (9th Cir. 1996) (Section 105 is "intended to imbue the 12 bankruptcy courts with the inherent powers recognized by the Supreme Court in Chambers")
Cir. 1999)
RKE 13 (citation omitted); Levander v. Prober (In re Levander), 180 F.3d 1114, 1118 (9th N 14 (holding bankruptcy court had inherent power to amend judgment); Johnson v. McDow (In
&RlAHON 15 re Johnson), 236 B.R. 510, 521 (D.D.C. 1999) (bankruptcy court has inherent power to strike 16 irrelevant allegations). As the Johnson court explained:
17 Section 105 specifically codifies what are traditionally called "inherent powers" to give the Bankruptcy Courts the necessary ability 18 to manage the cases on their docket. It is imperative that courts have the necessary authority to manage the arguments and conduct of 19 parties to ensure judicial efficiency and to do justice .... Inherent powers take into account the fact that legislatures cannot foresee the 20 infinite circumstances of life and all the necessary orders that courts (Id. (citation omitted))
21 may have to issue to do justice.
2In the interests of the efficient administration of the estate, it would be fair and 22 such an reasonable to treat similarly situated Class 8 and Class 12 claims alike. Moreover, 24 24 approach would obviate the otherwise needed step of filing objections to each of the 577 25 Class 8 and 27 Class 12 claims thereby saving the resources of the estate and the court alike, 26 without detracting from the overall efficiency promoted by the March 29 Order. Thus, 27 granting PG&E's request for the clarification of the Court's March 29 Order is consistent 28 with the exercise of this Court's inherent power to manage PG&E's Chapter 11 case, and MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS 1 should be permitted.
2 IV.
3 CONCLUSION 4 For all of the foregoing reasons, PG&E respectfully requests that this Court enter 5 its Amended Order clarifying its March 29 Order and granting such other and further relief 6 as the Court deems just and appropriate.
7 DATED: June _,2002.
Respectfully, 8
HOWARD, RICE, NEMEROVSKI, CANADY, 9 FALK & RABKIN A Professional Corporation 10 11 By: UAJ- A&C>l &-A9 12 JANET A. NEXON HOWAD 13 Attorneys for Debtor and Debtor in Possession RIM "NECA 14 PACIFIC GAS AND ELECTRIC COMPANY
&RAW*N WD 060602/1-1419913/997265/v3 A*Q 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOT. FOR CLARIFICATION OF ORDER AUTH. TO PAY CERTAIN CATEGORIES OF PRE-PETITION CLAIMS