In re Skybridge Spectrum Found.
| Decision Date | 03 June 2021 |
| Docket Number | Case No. 21-00005-ELG |
| Parties | In re: Skybridge Spectrum Foundation, Alleged Debtor. |
| Court | United States Bankruptcy Courts – District of Columbia Circuit |
By this Opinion, this Court becomes the latest in a long line of courts - state and federal, trial and appellate - to hear and consider litigation arising from and related to a decades-long dispute between two individuals - Warren Havens and Arnold Leong. In this case, the Court has before it the Chapter 11 Involuntary Petition Against a Non-Individual (the "Initial Petition") (ECF No. 1) filed on January 5, 2021, by petitioning Creditor Warren Havens (the "Petitioning Creditor" and/or "Havens") commencing the instant involuntary proceeding against "Skybridge Spectrum Foundation a/k/a SkyTel Joint Venture (with assets outside of California)" (the "Alleged Debtor"). The Petitioning Creditor further disclosed that the entities he alleges comprise the SkyTel Joint Venture are "Skybridge Spectrum Foundation ("Skybridge"), Verde Systems LLC, Telesaurus Holdings GB LLC, Environmental LLC [the spelling is correct], Environmental-2 LLC, Intelligent Transportation & Monitoring Wireless LLC, V2G LLC, and ATLIS Wireless LLC." Request to Accept Amendment 1 of Jan. 20, 2021 to Form 205 Attached Statements 8 (Jan. 20, 2021), ECF No. 10.1 However a summons of the Initial Petition was only served on Skybridge. ECF No. 9, 11. No summons was issued, requested, or served in any way on the remaining entities in the Alleged Debtor.
Shortly after service of the summons, Susan L. Uecker, the receiver appointed by the Superior Court of California2 (the "Receiver") for Skybridge Spectrum Foundation, Atlis Wireless LLC, Environmentel LLC, Environmentel-2 LLC, Intelligent Transportation and Monitoring Wireless LLC, Telesaurus Holdings GB LLC, Verde Systems LLC and V2G LLC (together with Skybridge, the "Receivership Entities"), by counsel, filed a Notice of Appearance in this case. ECF No. 14. Notably, the Receivership Entities and the Alleged Debtor consist of the same eight entities. Compare ECF No. 10-1, at 8 of 9 with the Receivership Order (listing same eight entities). In conjunction with her appearance in this case, on January 29, 2021, the Receiver in her official capacity on behalf of the Alleged Debtor filed three pleadings: the Motion of the Receiver for Alleged Debtor for an Order (I) Dismissing Involuntary Bankruptcy Case, or, in the Alternative, (II) Directing Petitioning Creditor to Post Bond and (III) Transferring Venue to the Northern District of California (the "Motion to Dismiss") (ECF No. 19); the Motion of Receiver for Alleged Debtor for Order Excusing Compliance with Section 543 of the Bankruptcy Code (the "Motion to Excuse") (ECF No. 21); and the Declaration of David A. DeGroot in Support of Motion of the Receiver for Alleged Debtor for an Order (I) Dismissing Involuntary Bankruptcy Case, or, in the Alternative, (II) Directing Petitioning Creditor to Post Bond and (III) Transferring Venue to the Northern District of California (the "DeGroot Declaration") (ECF No. 24).3 The Receiverappropriately filed a notice of deadline to file objections and a notice of hearing to be held on March 3, 2021 on the Motion to Dismiss and the Motion to Excuse. ECF Nos. 20, 22, and 23.
Thereafter, the Petitioning Creditor filed the following series of pleadings (collectively, the "Supplemental Pleadings"), all of which the Court reviewed prior to the hearing held March 3, 2021 (the "Hearing"):
In response, the Receiver filed her Reply Memorandum in Support of Motion of the Receiver for Alleged Debtor for an Order (I) Dismissing Involuntary Bankruptcy Case, or, in the Alternative, (II) Directing Petitioning Creditor to Post Bond and (III) Transferring Venue to the Northern District of California (Mar. 2, 2021), ECF No. 47, which the Court also reviewed prior to the Hearing.
On March 3, 2021, the Court held the Hearing on the Motion to Dismiss and related Supplemental Pleadings, at the conclusion of which, upon request of the Petitioning Creditor, the Court established a briefing schedule for the Petitioning Creditor and the Receiver to file post-Hearing briefs on narrow issues of law pertaining to the Motion to Dismiss. Both parties submitted post-Hearing briefs.4 Thereafter, the Court issued a further order specifically directing the Petitioning Creditor to re-submit certain exhibits in their entirety due to technological limitations of the Court. See Order, ECF No. 72. Those exhibits were submitted on March 30, 2021, at which time the record on the Motion to Dismiss closed (the "Record"). See ECF No. 76. For the reasonsstated herein, the Motion to Dismiss is granted in part, and denied in part as moot. The Petition will be dismissed.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 157(a) and 1334, and DCt.LBR 5011-1. This is a core proceeding under 28 U.S.C. § 157(b)(2) in which final orders or judgments may be entered by a bankruptcy judge. This Memorandum Decision sets forth the Court's findings of facts and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure ().5
On January 5, 2021, Havens filed the instant Petition against the Alleged Debtor which consisted not simply of the Petition, but also a five-page document titled "Form 205 Attached Statements." After submission of the Initial Petition, Havens subsequently filed three separate "supplements" to the Petition ("the Petition Supplements") between February 3, 2021 and March 2, 2021 (the day before the hearing on the Motion to Dismiss).6 The Initial Petition and Petition Supplements contain, at times, contradictory statements or substantial factual differences as the Petitioning Creditor's theory of the case evolved. The Court's factual findings herein condense and distill the filings in the Record into a single factual recitation representing the Court's findings as to the facts relevant to the Motion to Dismiss. There are thousands of pages of additional pleadings and exhibits filed by the parties which, while reviewed by the Court, are not in the Record, nor germane to the Motion to Dismiss, and thus not relied upon herein.
As set forth in the Initial Petition, Havens asserts that the Alleged Debtor is "Skybridge Spectrum Foundation aka SkyTel Joint Venture (with assets outside California)" Pet. 1. Havens further alleges that "Skybridge Spectrum Foundation is a de jure corporation" and "SkyTel Joint Venture is a de facto joint venture or merger that includes Skybridge Spectrum Foundation operated in commerce and profit business since late 2015." Pet. 2. This is the alternatively explained by Havens as the Form 205 Attached Statements, ECF No. 1, at 5 of 8. Expanding on the identity of the Skytel Joint Venture on January 13, 2021, Havens next describes it as "a de facto joint venture involving Skybridge Spectrum Foundation, chartered as a Delaware nonstock nonprofit corporation, and 7 Delaware for-profit LLCs (commonly called the 'SkyTel Joint Venture')." Declaration Petition for Dissolution Under DGCL § 273 of Skybridge Spectrum Foundation, A Delaware Corporation, and the SkyTel Joint Venture Subsuming the Corporation, Havens v. Leong, Case No. 2021-0033 (Del. Ch. Jan. 13, 2021) (). On January 20, 2021, in the first attachment to the Initial Petition, ECF No. 10, Havens further specifies the "component companies making up the SkyTel Joint Venture the SkyTel Joint Venture" as "the lead or subsuming company Skybridge Spectrum Foundation and its joint venturer LLC companies." ECF No. 10-1, at 8 of 9.7 In the fourth supplement to the Initial Petition filed March2, 2021 (the day prior to the hearing on the Motion to Dismiss"), Havens again modifies the description, returning to the basic name in the Initial Petition, and listing the Alleged Debtor as "Skybridge Spectrum Foundation aka SkyTel Joint Venture (with assets outside of California)." Suppl. to Pet. & to Opp'n to Mot. to Dismiss 1, ECF No. 48, at 1. However, in the fourth filing, for the first time, Havens made the legal assertion there that the "Debtor is defined in the Petition including its statements in support in this Case as composed of Skybridge Spectrum Foundation and the SkyTel Joint Venture that includes said Foundation a...
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