Post on 29-Apr-2018
- 1 -
Bruce S. Bennett (admitted pro hac vice) Hearing Date and Time: January 21, JONES DAY 2016 at 9:45 a.m. EST 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Objection Deadline: January 14, Tel: (213) 489-3939 2016 at 4:00 p.m. EST John W. Spiegel (admitted pro hac vice) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 [additional counsel listed on signature page] Attorneys for Nonparty First Trust Advisors, L.P. and for Term Loan Lenders as listed in Appendix A to the Answer [Dkt. 241]
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re: MOTORS LIQUIDATION COMPANY et al.,
Debtors.
) ) ) ) ) ) )
Chapter 11 Case Case No. 09-50026 (REG) (Jointly Administered)
MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee,
Plaintiff, vs. JPMORGAN CHASE BANK, N.A., et al.,
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Adversary Proceeding Case No. 09-00504 (REG)
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 1 of 8
- 2 -
NOTICE OF HEARING ON MOTION OF NONPARTY FIRST TRUST ADVISORS L.P. TO QUASH PROCESS AND SERVICE OF PROCESS
PLEASE TAKE NOTICE that a hearing to consider the relief requested in the Motion
to Quash Process and Service of Process, enclosed herein, filed by Nonparty First Trust Advisors
L.P., by special appearance through its attorneys, shall be held before the Honorable Robert E.
Gerber, United States Bankruptcy Judge, at the United States Bankruptcy Court for the Southern
District of New York, Courtroom 523, One Bowling Green, New York, New York 10004 (the
“Bankruptcy Court”), on January 21, 2016 at 9:45 a.m. EST, or as soon thereafter as counsel
may be heard.
PLEASE TAKE FURTHER NOTICE that any responses or objections to this Motion
must be made in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the
Local Rules of the Bankruptcy Court, and shall be filed with the Bankruptcy Court (a)
electronically in accordance with General Order M-399 (which can be found at
www.nysb.uscourts.gov) by registered users of the Bankruptcy Court’s filing system, and (b) by
all other parties in interest, on a CD-ROM, in text-searchable portable document format (PDF),
with a hard copy delivered directly to Chambers, in accordance with the customary practices of
the Bankruptcy Court and General Order M-399, to the extent applicable, and served in
accordance with General Order M-399 and on the First Trust Advisors L.P.’s attorneys, Jones
Day, 555 South Flower Street, Fiftieth Floor, Los Angeles, California, 90071 (Attn: Bruce
Bennett, Esq.), and Munger, Tolles & Olson LLP, 355 South Grand Avenue, 35th Floor, Los
Angeles, California, 90071 (Attn: John W. Spiegel), so as to be received no later than January
14, 2015 at 4:00 p.m. EST (the “Objection Deadline”).
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 2 of 8
- 3 -
PLEASE TAKE FURTHER NOTICE that if no objections are timely filed and served
with respect to the Motion, the Nonparty may, on or after the Objection Deadline, submit to the
Bankruptcy Court an order substantially in the form of the proposed order annexed to the Motion,
which order may be signed and entered with no further notice or opportunity to be heard.
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 3 of 8
- 4 -
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re: MOTORS LIQUIDATION COMPANY et al.,
Debtors.
) ) ) ) ) ) )
Chapter 11 Case Case No. 09-50026 (REG) (Jointly Administered)
MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee,
Plaintiff, vs. JPMORGAN CHASE BANK, N.A., et al.,
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Adversary Proceeding Case No. 09-00504 (REG)
MOTION OF NONPARTY FIRST TRUST ADVISORS L.P.
TO QUASH PROCESS AND SERVICE OF PROCESS
Nonparty First Trust Advisors L.P. (“First Trust Advisors”), by special appearance
through its attorneys, hereby moves to quash process and service of process under Federal Rules
of Civil Procedure 12(b)(4) and 12(b)(5) and Federal Rule of Bankruptcy Procedure 7012(b).
Like the other Nonparties who have so moved (Dkt. 239), First Trust Advisors is not a named
Defendant, yet it received a copy of a summons and complaint directed to a named Defendant
(“First Trust/Four Corners Senior Floating Rate Income Fund”), one that no longer exists. See
Jardine Decl., attached hereto. To confirm that First Trust Advisors is not required to do
anything further in this lawsuit, it hereby asks this Court to quash as insufficient the complaints
and summons that it has received, and their service.
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 4 of 8
- 5 -
The grounds in support of this motion are summarized below and stated more fully in the
Memorandum in Support of Nonparties’ Motion to Quash Process and Service of Process, filed
on November 16, 2015 (Dkt. 240), which First Trust Advisors hereby incorporates. First, that
the Plaintiff caused papers to be served on First Trust Advisors should have no legal effect on
First Trust Advisors in its own right. First Trust Advisors is not a Defendant; hence, it is not
named in the summons; and a party “not named in the summons has not effectively been served,
and the service of process on that [entity], as well as the process itself, is therefore insufficient.”
In re Bavelis, 453 B.R. 832, 862 (Bankr. S.D. Ohio 2011). And, of course, First Trust Advisors
remains a nonparty: “Merely serving a complaint on a nonparty does not make the nonparty a
party.” Wasson v. Riverside Cnty., 237 F.R.D. 423, 424 n.2 (C.D. Cal. 2006).
Second, by causing First Trust Advisors to be served, the Plaintiff also did not impose
any obligation on First Trust Advisors with respect to the named Defendant. Most
fundamentally, the named Defendant does not exist, see Jardine Decl., and therefore could not be
properly served. See, e.g., Sevits v. McKiernan-Terry Corp. (N.J.), 264 F. Supp. 810, 812
(S.D.N.Y. 1966). First Trust Advisors is not an officer or agent of the non-existing entity, nor
could it be, given that no officers or agents of the entity exist. Likewise, First Trust Advisors is
not an entity upon whom service is prescribed to be served by law on behalf of the Defendant,
nor could it be, given that the Defendant no longer exists. Finally, because it does not exist, the
named Defendant at issue is also incapable of conducting business at First Trust Advisors’
addresses. See Fed. R. Bankr. P. 7004(b). Therefore, by causing First Trust Advisors to be
served with copies of the summons and complaint directed to the non-existing Defendant, the
Trust has not properly served anyone. Therefore, process and service of process, as to First Trust
Advisors, should be quashed.
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 5 of 8
- 6 -
Dated: November 23, 2015 Respectfully submitted, /s/ Bruce S. Bennett
Bruce S. Bennett Erin L. Burke JONES DAY 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Tel: (213) 489-3939 Email: bbennett@jonesday.com Email: eburke@jonesday.com Gregory M. Shumaker Christopher DiPompeo JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 Tel: (202) 879-3939 Email: gshumaker@jonesday.com Email: cdipompeo@jonesday.com
/s/ John W. Spiegel John W. Spiegel George M. Garvey Todd J. Rosen Matthew A. Macdonald MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Email: john.spiegel@mto.com Email: george.garvey@mto.com Email: todd.rosen@mto.com Email: matthew.macdonald@mto.com Kristin Linsley Myles MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Tel: (415) 512-4000 Email: kristin.myles@mto.com
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 6 of 8
- 7 -
Attorneys for Nonparty First Trust Advisors L.P. and for Term Loan Lenders as listed in Appendix A to the Answer
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 7 of 8
- 8 -
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re: MOTORS LIQUIDATION COMPANY et al.,
Debtors.
) ) ) ) ) ) )
Chapter 11 Case Case No. 09-50026 (REG) (Jointly Administered)
MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee,
Plaintiff, vs. JPMORGAN CHASE BANK, N.A., et al.,
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Adversary Proceeding Case No. 09-00504 (REG)
[PROPOSED] ORDER GRANTING MOTION OF NONPARTY FIRST TRUST
ADVISORS L.P. TO QUASH PROCESS AND SERVICE OF PROCESS
Upon the motion of Nonparty First Trust Advisors L.P., it is hereby
ORDERED that service and process of service as to Nonparty First Trust Advisors L.P.
be, and hereby is, quashed.
Dated: _________________, 2016 SO ORDERED New York, New York
____________________________________ HON. ROBERT E. GERBER
09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 8 of 8
Bruce S. Bennett (admitted pro hac vice) JONES DAY 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Tel: (213) 489-3939 John W. Spiegel (admitted pro hac vice) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 [additional counsel listed on signature page] Attorneys for Nonparty First Trust Advisors, L.P. and for Term Loan Lenders as listed in Appendix A to the Answer [Dkt. 241]
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re: MOTORS LIQUIDATION COMPANY, et al.,
Debtors.
) ) ) ) ) ) )
Chapter 11 Case Case No. 09-50026 (REG) (Jointly Administered)
MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee,
Plaintiff, vs. JPMORGAN CHASE BANK, N.A., et al.,
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Adversary Proceeding Case No. 09-00504 (REG)
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 1 of 9
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 2 of 9
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 3 of 9
EXHIBIT A
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 4 of 9
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 5 of 9
EXHIBIT B
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 6 of 9
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 7 of 9
09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 8 of 9