In re Eagle-Picher Industries, Inc.
| Decision Date | 24 December 1997 |
| Docket Number | Bankruptcy No. 1-91-00100. |
| Citation | 216 BR 611 |
| Parties | In re EAGLE-PICHER INDUSTRIES, INC., et al., Debtors. |
| Court | U.S. Bankruptcy Court — Southern District of Ohio |
Stephen Karotkin, New York City, for EPI.
Ernie L. Brooks, Southfield, MI, for Therma-Tru.
John N. MacKay, Toledo, OH, for Therma-Tru.
Douglas S. Tripp, Cincinnati, OH, for EPI.
Lawrence R. Elleman, Cincinnati, OH, for Therma-Tru.
Neal J. Weill, Asst. U.S. Trustee, Cincinnati, OH.
DECISION ON MOTION OF EAGLE-PICHER INDUSTRIES, INC. RE THERMA-TRU CORP.
Reorganized debtor Eagle-Picher Industries, Inc. has filed a Motion for Order Enforcing the Plan and the Confirmation Order to Stay Actions of Therma-Tru Corporation (the "Motion"). . Therma-Tru Corporation, in January, 1997 had filed suit against Pease Industries, Inc. in the U.S. District Court for the Eastern District of Michigan ("Michigan suit") for patent infringement. On May 29, 1997, Therma-Tru moved in that suit to add EPI as a defendant. Therma-Tru is suing Pease for infringement of its patent for fiberglass skins, and seeks to add (and now evidently has added) EPI to the litigation as a defendant as the supplier of the skins. In its papers on this Motion, Therma-Tru indicates that it is proceeding against EPI separately with regard to acts which occurred pre-petition, pre-confirmation date, and post-confirmation date, asserting that the infringing acts of EPI or the debtor extended throughout those periods.
In support of the Motion, EPI appended several exhibits. It attached a copy of the page from bankruptcy Schedule A-3 showing that Therma-Tru was scheduled as a creditor in its bankruptcy. In addition, it attached the affidavit of David E. Troller to which several exhibits were attached, including a proof of claim form filed by Therma-Tru in the bankruptcy case of EPI, and a copy of an amended claim replacing the individual proof of claim form filed by Therma-Tru. EPI included as well a copy of the Order on Confirmation of Plan entered in the bankruptcy case. EPI also attached the affidavit of Robert N. Kent, a vice-president of a division of EPI. Finally, EPI attached as an exhibit a copy of Therma-Tru's Motion for Leave to Amend the Complaint to Join Eagle-Picher Industries, Inc. as Defendant in the Michigan suit.
In opposition to the Motion, Therma-Tru filed with its memorandum an excerpt from the deposition of David Lennox, a representative of the debtor. In addition, Therma-Tru offered the affidavits of David D. Haddix, an officer of Therma-Tru, and also an affidavit of Janie W. McFarlin, an attorney with a law firm representing a group of potentially responsible parties ("PRP") (this is CERCLA terminology) with regard to a Diaz refinery site in Arkansas. Therma-Tru was a member of the PRP committee. Exhibits A and B are attached to the McFarlin affidavit. Exhibit A consists of copies of letters from the debtor addressed to several members of the PRP committee requesting a corrected address. Exhibit B is a copy of a letter received by Ms. McFarlin from David E. Troller of the debtor. With the responsive memorandum filed by EPI, it included a supplemental affidavit of David E. Troller. After submission of the memoranda of the parties, a hearing was held on the Motion.
At the time of that hearing, the court heard arguments on a parallel motion brought by EPI against Caradon Doors and Windows, Inc., which had filed suit against EPI in the U.S. District Court in Georgia. We have now issued a decision and judgment in regard to the Caradon motion. The jurisdictional considerations which we found applicable on that motion apply here as well, and we therefore quote that portion of our Caradon decision:
We hold that we have jurisdiction to determine whether Caradon has violated the injunction of § 524 and § 1141 of the Bankruptcy Code, the Plan and/or the Confirmation Order, hereafter referred to collectively as "the confirmation injunction." We do not, however, have jurisdiction to consider the merits of Caradon\'s claims if they are free thereof. If there is no violation of the confirmation injunction, Plan or Confirmation Order, Caradon may pursue its claims in the Georgia suit.
(We will in the present decision use the phrase "the confirmation injunction" with the same content as in the quotation.) Thus, we will not consider the merits of Therma-Tru's claim. If Therma-Tru is not barred by the confirmation injunction it can pursue the Michigan suit against EPI.
The outcome for Therma-Tru, at least in part, must be different from that we reached for Caradon. Therma-Tru's Michigan suit alleges infringing acts by EPI post-confirmation date of debtor's reorganization plan. It is well established that each sale of an infringing item is a separate and distinct act of infringement of a patent. Curtis Mfg. Co., Inc. v. Plasti-Clip Corp., 933 F.Supp. 107, 114 (D.N.H.1995). Consequently, the Motion of EPI must fail with regard to staying Therma-Tru from seeking relief for post-confirmation date acts.
As we indicated earlier, however, Therma-Tru in the Michigan suit also seeks relief on account of alleged pre-petition acts and pre-confirmation acts of the debtor. We therefore must separately consider whether the Michigan suit against EPI, insofar as these acts are concerned, is barred by the confirmation injunction. EPI says that Therma-Tru is precluded from seeking relief by reason of any allegedly infringing acts which occurred pre-petition or pre-confirmation date by reason of the confirmation injunction, and there is no reason why the confirmation injunction should not be applied here with respect to pre-confirmation claims. EPI says that Therma-Tru had formal notice of the pendency of the Chapter 11 cases and the general claims bar date, but failed to file a claim in the bankruptcy case. In addition, EPI says that Therma-Tru was adequately informed of debtor's confirmation hearing by notice by publication. In support of these assertions, it relies upon the Troller affidavits. The Troller affidavits testify that notice of the bankruptcy and claims bar date were sent to Therma-Tru, a scheduled creditor. In addition, the first Troller affidavit includes a proof of claim form filed in debtor's bankruptcy in which Therma-Tru is the claimant. Further, EPI says, and it is not denied, that notice by publication of the hearing on confirmation of the plan was published in the Wall Street Journal and the New York Times.
Therma-Tru vigorously disputes EPI's assertion that Therma-Tru received notice of debtor's bankruptcy. Therma-Tru says that the Haddix affidavit evidences that it never received such notice. It responds to the evidence offered by EPI of a Therma-Tru proof of claim in the bankruptcy, by asserting that it did not file such a proof of claim. In opposition to the Motion, Therma-Tru argues, and offers evidence to support the fact, that it had no knowledge of the allegedly infringing sales to Pease. In its memorandum, it says: "Therma-Tru's claims arising out of the Pease Sales must be distinguished from Therma-Tru's claims against Peachtree Doors, Inc., now known as Caradon Doors and Windows, Inc. ("Caradon")."
In opposing the motion of EPI, Therma-Tru asserts (1) that it cannot be bound by the confirmation injunction because it had no notice of any proceedings on the plan; (2) that it is not bound by the confirmation injunction because it knew nothing of the sales by debtor to Pease; and (3) that it has an administrative expense claim which is provided for in debtor's plan.
We have paid close attention to the evidentiary offerings of the respective parties on the present Motion and now reach conclusions based upon that review. This is not a motion for summary judgment governed by F.R.C.P. 56 which would require that where there is a genuine issue of material fact, the motion must be denied. Rather is this a motion seeking enforcement of the injunction which arises following confirmation of a Chapter 11 plan, and we decide it based on the evidentiary record presented by the parties. Even if this were a Rule 56 motion, we would hold that there is no genuine issue of fact. Neither party has requested an evidentiary hearing on the issues presented.
We find as a fact that notice of the bankruptcy and the claims bar date was given by debtor to Therma-Tru. The Troller affidavit establishes that a proof of claim form was sent to Therma-Tru on August 8, 1991, but returned as undeliverable on August 21, 1991. A second mailing was sent to Therma-Tru on September 5, 1991, to 1684 Woodlands Drive, Suite 150, Maumee, Ohio, XXXXX-XXXX. Therma-Tru has not denied that this was a correct address. Establishment of a mailing raises a presumption that the mailing was received. In re Eagle-Picher Industries, Inc., 175 B.R. 943, 945-46 (Bankr.S.D.Ohio 1994). The assertions by Haddix in his affidavit cannot avoid that conclusion. His affidavit is dated June 27, 1997, and it can surprise no one that a search at that time for documents sent in 1991 was unproductive. The Haddix statement that this establishes that such notice was never received cannot be given credence. We hold that actual notice of the bankruptcy and bar date were given by debtor to Therma-Tru.
There is another basis for holding that Therma-Tru had actual notice of the bankruptcy. Attached to the Troller affidavit is a proof of claim form filed on behalf of Therma-Tru by its counsel regarding a certain superfund site. With respect to this evidence, Haddix responds:
Neither I nor any other person who had the appropriate responsibility within Therma-Tru had any knowledge of the proofs of claim described in the Troller...
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