IN RE HART SKI MFG. CO., INC., Bankruptcy No. 3-80-200

• Decision Date: 05 May 1982
• Docket Number: Bankruptcy No. 3-80-200,Adv. Proceeding No. 80-0165.
• Citation: 22 BR 762
• Parties: In re HART SKI MFG. CO., INC., Debtor. HART SKI MFG. CO., INC., Plaintiff, v. MASCHINEFABRIK HENNECKE, GmbH, a West German corporation, Defendant.
• Court: U.S. Bankruptcy Court — District of Minnesota

22 B.R. 762 (1982)

In re HART SKI MFG. CO., INC., Debtor HART SKI MFG. CO., INC., Plaintiff, v. MASCHINEFABRIK HENNECKE, GmbH, a West German corporation, Defendant.

Bankruptcy No. 3-80-200, Adv. Proceeding No. 80-0165.

United States Bankruptcy Court, D. Minnesota, Third Division.

May 5, 1982.

Robert S. Brill, Minneapolis, Minn., for Hart Ski Mfg. Co., Inc.

William M. Barron, New York City, for Maschinefabrik Hennecke, GmbH.

JOHN J. CONNELLY, Bankruptcy Judge.

Plaintiff commenced adversary proceeding # 81-0165 in the above-entitled Chapter 11 proceedings on July 18, 1980 by filing a complaint objecting to Defendant's claim of $174,680.73 filed in the Chapter 11 proceedings and counter claimed against Defendant for judgment in damages in the total sum of $13,000,000.00. Defendant obtained an extension of time in which to respond to the complaint and subsequently responded to Plaintiff's said complaint by filing a motion on October 28, 1980 for an order of this Court dismissing the complaint and staying all proceedings in the Bankruptcy Court pending resolution of all issues by arbitration by the International Chamber of Commerce in accordance with the arbitration clause of the agreement involved herein between the parties to this action. The motion was made pursuant to (a) The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 21 U.S.T. 2517, T.I.A.S. 6997 (December 29, 1970), implemented by Chapter 2 of the United States Arbitration Act, 9 U.S.C., § 201 et seq., and (b) 28 U.S.C. § 1471(d).

PREFACE

Pursuant to notice duly given, a hearing was held on said motion on December 2, 1980. Briefs were filed subsequently at the request of the Court. In July 1981, the Court granted Plaintiff permission to file a further memorandum in opposition to Defendant's motion without prior confering with the Defendant's counsel. The Defendant's counsel by letter to the Court dated July 9, 1981 expressed displeasure with this allowance and expressed "outrage" with his perceived complete change of the Plaintiff's position as had been expressed previously in the Plaintiff's earlier briefs and oral hearing before the Court on December 2, 1980. The Defendant, nevertheless, responded to Plaintiff's memorandum of July 1981 by filing a reply thereto on August 24, 1981. This Court in its Findings and Conclusions contained in its Memorandum Order and Decision of March 1, 1982, 18 B.R. 154, gave full and complete consideration to the Plaintiff's July 1981 memorandum and the Defendant's August 1981 reply thereto.

PLAINTIFF'S MOTION FOR AN ORDER ALTERING OR AMENDING MEMORANDUM DECISION AND ORDER OF MARCH 1, 1982

Plaintiff's motion as above-stated was based on the grounds that this Court's Memorandum Decision and Order misapprehends and misconstrues the controlling fact, misconceives the applicable law and misapplies both to produce an erroneous decision. In addition to the foregoing grounds, Plaintiff in its brief filed March 18, 1982 in support of its motion, at page 8, asserts that "Part IV of the Memorandum, Decision and Order, raised sua sponte by the Court, is erroneous." Part IV of the Court's Memorandum Order dealt with the undersigned Bankruptcy Judge's understanding of the meaning and effect of the United States District Court's decision in the Marathon Pipeline v. Northern Pipeline Construction Company case, 12 B.R. 946, 5 C.B.C....