Case: 12-1263

Document: 003110806602

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Date Filed: 02/10/2012

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT February 6, 2012 Panel No. BCO-057-E Panel No. BCO-058-E

No. 12-1263 Washington Mutual, Inc., et al, Debtors Black Horse Capital Master Fund Ltd; Black Horse Capital (QP) LP; Greywolf Capital Partners II; Greywolf Overseas Fund; Guggenheim Portfolio Company VII, LLC: HFR RVA Combined Master Trust ; IAM Mini-Fund 14 Limited; LMA SPC; Lonestar Partners LP; Mariner LDC; Nisswa Convertibles Master Fund Ltd; Nisswa Fixed Income Master Fund Ltd; Nisswa Master Fund Ltd; Paige Opportunity Partners LP; Paige Opportunity Partners Master Fund; Pandora Select Partners, LP; Pine Edge Value Investors Ltd; Riva Ridge Capital Management LP; Riva Ridge Master Fund Ltd.; Scoggin Capital Management II LLC; Scoggin International Fund Ltd.; Scoggin Worldwide Fund Ltd.; Visium Global Fund Master Fund, Ltd; VR Global Partners LP.; Whitebox Asymmetric Partners, LP; Whitebox Combined Partners, LP; Whitebox Combined Partners, LP; Whitebox Convertible Arbitrage Partners, LP; Whitebox Hedged High Yield Partners, LP; Whitebox Special Opportunities Fund LP, Series B, v. JP Morgan Chase Bank, N.A., JP Morgan Chase & Co; Washington Mutual, Inc; Washington Mutual Preferred Funding, LLC; Washington Mutual Preferred Funding (Cayman) I Ltd, LLC; Washington Mutual Preferred Funding Trust I; Wilmington Trust Company; Washington Mutual Preferred Funding Trust II: Wilmington Trust Company; Washington Mutual Preferred Funding Trust III: Wilmington Trust Company; Washington Mutual Preferred Funding Trust IV: Wilmington Mutual Trust Company; Washington Mutual Preferred Funding

Black Horse Capital, LP; Black Horse Capital Master Fund Ltd,; Greywolf Capital Partners II, LP; Pines Edge Value Investors, Ltd.; Pine River Convertibles Master

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Fund Ltd, (f/k/a Nisswa Convertibles Master Fund Ltd.); Pine River Fixed Income Master Fund Ltd. (f/k/a/ Nisswa Fixed Income Master Fund Ltd.); Pine River Master Fund Ltd. (f/k/a/Nisswa Master Fund, Ltd.); LMA SPC for and on behalf of the Map 89 Segregated Portfolio; Scoggin Worldwide Fund, Ltd.; Scoggin Capital Management II LLC: Scoggin International Fund Ltd.; Visium Global Master Fund, Ltd; VR Global Partners, L.P., Appellants
(D. Del. No. 1-11-cv-00124) 1. Motion by Appellants for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing; Clerks submission for possible dismissal due to jurisdictional defect; Response by Appellants In Support of Jurisdiction; Response by Appellee Washington Mutual, Inc. in Opposition to Motion for Expedited Review and to Stay Bankruptcy Plan Confirmation Hearing; Corrected Response by Appellee Washington Mutual to Clerks order dated 2/02/12 advising of possible dismissal due to lack of jurisdiction; Joinder by Appellee JP Morgan Chase Bank N.A to Washington Mutual, Incs Response to Clerks order dated 2/02/12 advising of possible dismissal due to lack of jurisdiction; Joinder filed by Appellee JP Morgan Chase Bank NA to Washington Mutual Inc.s Response in Opposition to Motion for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing; Joinder of Official Committee of Equity Security Holders to Washington Mutual Inc.s Response in Opposition to Motion for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing; Joinder of Official Committee of Equity Security Holders to Washington Mutual Inc.s to Clerks order dated 2/02/12 advising of possible dismissal due to lack of jurisdiction; Joinder of Official Committee of Unsecured Creditors to Washington Mutual Inc.s Response in Opposition for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing;

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11.

Joinder of Official Committee of Unsecured Creditors to Washington Mutual Inc.s Response to the Clerks Order Regarding the Immediate Appealability Under 28 U.S.C. 1292(a)(1) and Denial of a Stay of Confirmation Hearing Proceedings; Motion filed by Official Committee of Equity Security Holders to proceed as Intervenors in Support of Appellees in No. 12-1263.

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No. 12-1264
In re: BLACK HORSE CAPITAL, LP et al, Petitioners (D. Del. No. 1-11-cv-00124) 1. 2. 3. Petition by Petitioners for Writ of Mandamus; Appendix by Petitioners In Support of Petition for Writ of Mandamus; Motion by Petitioners for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing; Response by Respondent Washington Mutual, Inc in Opposition to Motion for Expedited Review and to Stay Bankruptcy Plan Confirmation Hearing; Joinder filed by Respondent JP Morgan Chase Bank N.A. to Washington Mutual Inc.s Response in Opposition to Motion for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing; Joinder by Official Committee of Equity Security Holders to Response by Washington Mutual, Inc. in Opposition to Motion for Expedited Review and to Stay Bankruptcy Plan Confirmation Hearing; Joinder of Official Committee of Unsecured Creditors to Washington Mutual Inc.s Response in Opposition for Expedited Review and to Stay the Bankruptcy Plan Confirmation Hearing; Motion filed by Official Committee of Equity Security Holders to proceed as Intervenors in Support of Respondents in No. 12-1264.

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Present: SCIRICA, SMITH and CHAGARES, Circuit Judges

______________________________ORDER________________________________ The foregoing appeal, No. 12-1263, is dismissed for lack of jurisdiction. The District Court did not certify an appeal, and the order is not appealable as a final order. See 28 U.S.C. 158(d). The District Courts decision to decline to stay a hearing scheduled to take place in Bankruptcy Court on February 16, 2012, does not amount[] to an effective dismissal of the underlying suit, CTF Hotel Holdings, Inc. v. Marriott Intl, Inc., 381 F.3d 131, 135 (3d Cir. 2004), or qualify as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), or deny a procedurally proper independent mandamus action, see Fed. R. App. P. 21; see also Detroit & Mackinac Ry. Co. v. Mich. R.R. Commn, 240 U.S. 564, 571 (1916). In addition, the District Courts order is not immediately appealable under 28 U.S.C. 1292(a)(1). The decision was not designed to accord or protect some or all of the substantive relief sought by a complaint in more than a [temporary] fashion. In re Pressman-Gutman Co., Inc., 459 F.3d 383, 392 (3d Cir. 2006); see also In re Trans World Airlines, 18 F.3d 208 (3d Cir. 1994) (grant of stay pending appeal in bankruptcy proceeding does not constitute an injunction under 1292). Because the Court lacks jurisdiction over the appeal, the pending motions are dismissed as moot. In the alternative, even assuming jurisdiction exists, we would conclude the Bankruptcy Court and the District Court did not err in denying the stay at this stage in the proceedings. To determine whether to grant a stay pending appeal, a court must consider: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991). These factors do not warrant a stay pending appeal in this instance. Nor have Petitioners offered to post a supersedeas bond.1 Petitioners also seek a writ of mandamus which appellate courts issue only in exceptional cases where the traditional bases for jurisdiction do not apply. United
1

Fed. R. Bankr. P. 8005 grants the bankruptcy judge discretion to stay or continue proceedings pending appeal. Collier states, Once a bankruptcy court order, judgment or decree has been entered . . . the prevailing party is free to execute upon or otherwise seek to enforce it. However, the losing party is permitted to seek a stay of the judgment to maintain the status quo pending appeal. 10 Collier on Bankruptcy 8005.1 (16th ed. 2011). Collier also notes that Rule 8005 permits a bankruptcy court to go forward with respect to hearings on a plan pending [an] appeal of disputed ownership of estate assets. Id. 8005.13. 4

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States v. Higdon, 638 F.3d 233, 245 (3d Cir. 2011). This drastic, very rare, and discretionary remedy is proper only when (1) the petitioner has no other adequate means to obtain the desired relief and (2) the petitioner has met its burden of showing that its right to the writ is clear and indisputable. Id. (citing Cheney v. U.S. Dist. Ct. D.C., 542 U.S. 367, 380-81 (2004)). Because petitioners right to the writ here is not clear and indisputable, we decline to issue a writ of mandamus. Petitioners Motion for Expedited Review and To Stay the Bankruptcy Plan Confirmation Hearing and their Petition for Writ of Mandamus in No. 12-1264 are accordingly denied.2 By the Court,

/s/ Anthony J. Scirica Circuit Judge DATED: February 10, 2012 cc: Julie Ann Finocchiaro, Esq. Adam G. Landis, Esq. Travis A. Mc Roberts, Esq. Matthew B. McGuire, Esq. John H. Schanne, II, Esq. David B. Stratton, Esq. Joseph J. Langkamer, Esq. Timothy K. Lewis, Esq. Robert J. Stark, Esq. Nancy Winkelman, Esq. Richard A. Barkasy, Esq. Bernard G. Conaway, Esq. Kathleen C. Davis, Esq. Marla R. Eskin, Esq. Mark T. Huford, Esq. L. Rachel Lerman, Esq. Gregory A. taylor, Esq. William O. Bowden, Esq. Stacy L. Newman, Esq. Brian D. Glueckstein, Esq.
A True Copy Marcia M. Waldron, Clerk Certified order issued in lieu of mandate.

Official Committee of Equity Security Holders Motion to Proceed as Intervenors in Support of Respondents is dismissed as moot. 5

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Appeal Nos. 12-1263 and 12-1264 In re: Washington Mutual, et al. In re: Black Horse Capital, et al Page 2 Adam P. Strochak, Esq. Miles Jarrad Wright, Esq. Mark D. Collins, Esq. Marcos A. Ramos, Esq. Travis A. McRoberts, Esq.