VYR - Motion to Extend Deadline to Remove (2024-10-02, 2)

Summary

A Motion of Debtors for Entry of an Order (I) Enlarging the Period Within Which the Debtors May Remove Actions and (II) Granting Related Relief, filed as Doc 495 on September 4, 2024 in Case No. 24-11217 (BLS), U.S. Bankruptcy Court for the District of Delaware, with a hearing date of October 2, 2024 at 1:30 p.m. (ET) and an objection deadline of September 18, 2024. The Debtors ask the Court to enlarge the Removal Period by 120 days, up to and including January 6, 2025, without prejudice to seeking additional extensions. The motion states that the Debtors are involved in certain civil actions commenced prepetition and have not yet decided which, if any, of the Actions they will seek to remove.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re:
)
Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1
)
Case No. 24-11217 (BLS)
)
Debtors.
)
(Jointly Administered)
)
)
Hearing Date: October 2, 2024 at 1:30 p.m. (ET)
)
Obj. Deadline: September 18, 2024 at 4:00 p.m. (ET)
MOTION OF DEBTORS FOR ENTRY
OF AN ORDER (I) ENLARGING THE PERIOD WITHIN WHICH THE
DEBTORS MAY REMOVE ACTIONS AND (II) GRANTING RELATED RELIEF
The above-captioned debtors and debtors in possession (collectively, the “Debtors” and
each, a “Debtor”), state as follows in support of this motion: 2
Relief Requested
1.
The Debtors seek entry of an order, substantially in the form attached hereto as
Exhibit A (the “Proposed Order”), (a) enlarging the period of time (the “Removal Period”) set
forth in Rule 9027(a)(2)(A) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy
Rules”) during which the Debtors may seek removal of actions (collectively, the “Actions”)
pursuant to 28 U.S.C. § 1452 and Bankruptcy Rule 9027 by 120 days, up to and including
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495.  A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire.  The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2
A detailed description of the Debtors and their business, including the facts and circumstances giving rise to the
Debtors’ chapter 11 cases, is set forth in the Declaration of John Bibb, Group Chief Executive Officer of Vyaire
Medical, Inc., in Support of Debtors’ Chapter 11 Petitions and First Day Motions [Docket No. 15] (the “First
Day Declaration”). Capitalized terms not defined herein shall have the meanings ascribed to such terms in the
First Day Declaration.
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January 6, 2025,3 without prejudice to the Debtors’ right to seek additional extensions of the
Removal Period; and (b) granting related relief.
Jurisdiction and Venue
2.
The United States District Court for the District of Delaware has jurisdiction over
this matter pursuant to 28 U.S.C. § 1334, which was referred to the United States Bankruptcy
Court for the District of Delaware (the “Court”) under 28 U.S.C. § 157 and the Amended Standing
Order of Reference from the United States District Court for the District of Delaware, dated
February 29, 2012.  The Debtors confirm their consent, pursuant to Rule 9013-1(f) of the Local
Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District
of Delaware (the “Local Rules”), to the entry of a final order by the Court in connection with this
motion to the extent that it is later determined that the Court, absent consent of the parties, cannot
enter final orders or judgments in connection herewith consistent with Article III of the United
States Constitution.
3.
Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
4.
The statutory bases for the relief requested herein are 28 U.S.C. § 1452, Bankruptcy
Rules 9006 and 9027 and Local Rule 9006-2.
Background
5.
Vyaire Medical, Inc., together with its direct and indirect subsidiaries (collectively,
“Vyaire” or the “Company”), is a global company focused on developing products and providing
related services for the diagnosis, treatment and monitoring of various cardiology, pulmonology
and respiratory health conditions.  With a 70-year history of pioneering breathing technology, the
3
Because 120 days from the current Removal Period deadline is January 5, 2025, which is a Sunday, the Debtors
request an extension through and including January 6, 2025.
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integrated solutions offered by the Company help enable, enhance and extend lives.
Headquartered in Mettawa, Illinois, Vyaire operates approximately 27 offices and manufacturing
facilities and employs approximately 950 individuals around the world.  The Company has a global
reach, and Vyaire products are available in more than 100 countries.  Its customers are the
hospitals, health centers and private practice facilities delivering life-enhancing products and
services to patients every day.
6.
On June 9, 2024 (the “Petition Date”), Vyaire Medical, Inc. and certain of its
subsidiaries filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code.  The
Debtors are operating their business and managing their property as debtors in possession pursuant
to sections 1107(a) and 1108 of the Bankruptcy Code.  On June 11, 2024, the Court entered an order
authorizing the procedural consolidation and joint administration of these chapter 11 cases pursuant
to Bankruptcy Rule 1015(b) and Local Rule 1015-1.  See Docket No. 84.  No request for the
appointment of a trustee or examiner has been made in these chapter 11 cases.
7.
On June 26, 2024, the Office of the United States Trustee for the District of
Delaware (the “U.S. Trustee”) appointed the Official Committee of Unsecured Creditors (the
“Committee”).  See Docket No. 121.
The Actions
8.
The Debtors are currently involved in certain civil actions commenced prepetition
in various fora.  The Debtors continue to review their books and records and are in the process of
determining whether to remove any Actions pursuant to 28 U.S.C. § 1452.  Since the Petition Date,
the Debtors have worked diligently on a number of critical matters and have not yet decided which,
if any, of the Actions they will seek to remove.  Specifically, the Debtors and their professionals
have been focused on, among other things:
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
obtaining relief that has enabled the Debtors to continue their
operations and administration of these chapter 11 cases,
including obtaining approval of “first day” motions, “second
day” motions, and retention applications;

negotiating and obtaining final approval for the Debtors’
debtor-in-possession financing facility and use of cash
collateral to address the Debtors’ liquidity needs in
chapter 11;

continuing an extensive marketing and auction process to
identify, develop and, subject to Court approval,
consummate value-maximizing transactions for the Debtors’
assets;

obtaining entry of the Bidding Procedures Order [Docket
No. 249];

working with their advisors to implement and effectuate the
sale of certain assets following entry of the sale orders, see
Docket Nos. [●] and [●], to Zoll Medical Corp. and Trudell
Medical Limited, respectively, including transition-related
planning;

addressing questions, concerns and issues raised by
employees, vendors, utility companies and other parties in
interest;

obtaining entry of an order setting the claims bar date to
facilitate the timely administration of their claims pool and
beginning the process of reconciling claims and interests as
promptly and efficiently as possible, see Docket No. 227;

obtaining entry of the contract rejection procedures order
[Docket No. 250];

responding to diligence requests from the Committee and
other key stakeholder groups; and

continuing significant negotiations with key stakeholders
regarding the terms of a consensual resolution to these
chapter 11 cases.
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9.
As a result of the Debtors’ focus on other key matters associated with these chapter
11 cases to this point, the Debtors are not yet in a position to undertake a thorough analysis of the
Actions or develop a strategy with respect to whether they should remove certain Actions.
10.
It is also possible that the Debtors may become aware of Actions following their
review of proofs of claim, at which point the Debtors will need to analyze such potential Actions
to determine whether to remove any such Actions.  Consequently, the Debtors are seeking an
extension of the Removal Period to provide them with time to decide whether to remove any such
Actions.
Basis for Relief
11.
Section 1452 of title 28 of the United States Code and Bankruptcy Rule 9027
govern the removal of pending civil actions related to chapter 11 cases.  Specifically, section
1452(a) provides:
A party may remove any claim or cause of action in a civil action other
than a proceeding before the United States Tax Court or a civil action
by a governmental unit to enforce such government unit’s police or
regulatory power, to the district court for the district where such civil
action is pending, if such district court has jurisdiction of such claim
or cause of action under section 1334 of this title.
28 U.S.C. § 1452(a).
12.
Bankruptcy Rule 9027 sets forth the time periods for filing notices to remove claims
or causes of action.  Specifically, Bankruptcy Rule 9027(a)(2) provides, in pertinent part:
If the claim or cause of action in a civil action is pending when a case
under the [Bankruptcy] Code is commenced, a notice of removal may
be filed in the bankruptcy court only within the longest of (A) 90 days
after the order for relief in the under the Code, (B) 30 days after entry
of an order terminating a stay, if the claim or cause of action in a civil
action has been stayed under § 362 of the Code, or (C) 30 days after a
trustee qualifies in a chapter 11 reorganization case but not later than
180 days after the order for relief.
FED.R.BANKR.P. 9027(a)(2).
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13.
Bankruptcy Rule 9006 permits the Court to extend the period to remove actions
provided by Bankruptcy Rule 9027.  Specifically, Bankruptcy Rule 9006(b)(1) provides, in
pertinent part:
[W]hen an act is required or allowed to be done at or within a
specified period by these rules or by a notice given thereunder or by
order of court, the court for cause shown may at any time in its
discretion . . . with or without motion or notice order the period
enlarged if the request therefor is made before the expiration of the
period originally prescribed or extended by a previous order . . . .
FED.R.BANKR. P. 9006(b)(1).
14.
It is well-established that this Court has authority to extend the Removal Period.
See Pacor, Inc. v. Higgins, 743 F.2d 984, 996 n.17 (3d Cir. 1984), overruled on other grounds by
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 134-35 (1995) (holding the bankruptcy
court’s power to grant an extension of the removal period pursuant to Bankruptcy Rule 9006(b) is
“clear”); see also Caperton v. A.T. Massey Coal Co., Inc., 251 B.R. 322, 325 (S.D. W. Va. 2000)
(explaining that Bankruptcy Rule 9006(b) provides authority to enlarge time periods for removing
actions under Bankruptcy Rule 9027); In re Jandous Elec. Constr. Corp., 106 B.R. 48 (Bankr.
S.D.N.Y. 1989) (holding the period in which to file a motion to remove may be expanded pursuant
to Bankruptcy Rule 9006); In re World Fin. Servs. Ctr., Inc., 81 B.R. 33, 39 (Bankr. S.D. Cal.
1987) (explaining the United States Supreme Court intended to give bankruptcy judges the power
to enlarge the filing periods under Bankruptcy Rule 9027(a), pursuant to Bankruptcy Rule
9006(b)); Raff v. Gordon, 58 B.R. 988, 990 (E.D. Pa. 1986) (holding an expansion of time to file
notices of removal is authorized under the Bankruptcy Rules).
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15.
The Debtors are seeking to extend the Bankruptcy Rule 9027(a)(2)(A) deadline,
which would otherwise expire on September 9, 2024,4 to ensure the Debtors’ right to remove is
preserved and that creditors are on notice of such extended removal deadline.  The Debtors believe
they have additional time to remove the Actions under Bankruptcy Rule 9027(a)(2)(C) and, to the
extent such Actions are subject to the automatic stay, Bankruptcy Rule 9027(a)(2)(B), but
nevertheless seek entry of this motion out of an abundance of caution.
16.
The Debtors’ decision regarding whether to seek removal of any particular Action
depends on a number of factors, including: (a) the importance of the Action to the expeditious
resolution of these chapter 11 cases; (b) the time required to complete the Action in its current
venue; (c) the presence of federal subject matter jurisdiction in the proceeding that may allow for
one or more aspects thereof to be heard by a federal court; (d) the relationship between the Action
and matters to be considered in connection with a chapter 11 plan, the claims allowance process
and the assumption or rejection of executory contracts and unexpired leases; and (e) the progress
made to date in the Action.  To make the appropriate determination, the Debtors must analyze each
Action (if any) in light of such factors.
17.
Based on the nature of the scheduled Actions, as well as any other prepetition
claims that may involve the assertion of a new Action (subject to relief from the stay being
obtained), the Debtors need additional time to review and address the issues involved.  To date,
the Debtors have not yet had an opportunity to determine conclusively which Actions, if any, they
may seek to remove.  The Debtors believe that the extension requested herein will provide the
4
Local Rule 9006-2 provides that “[u]nless otherwise provided in the [Bankruptcy] Code or in the [Bankruptcy
Rules], if a motion to extend the time to take any action is filed before the expiration of the period prescribed by
the [Bankruptcy] Code, the [Bankruptcy Rules], these Local Rules or Court order, the time shall automatically be
extended until the Court acts on the motion, without the necessity for the entry of a bridge order.”  DEL. BANKR.
L.R. 9006-2.  Accordingly, under such circumstances, Local Rule 9006-2 would automatically extend the
Removal Period until the Court acts on this motion.
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Debtors with the ability to make fully informed decisions concerning the removal of any such
Actions and will ensure that the Debtors’ rights provided by 28 U.S.C. § 1452 can be exercised in
an appropriate manner.  Alternately, if such an extension is not granted, the Debtors may not
become aware of Actions until after the Removal Period expires.  Moreover, the rights of parties
to the Actions will not be unduly prejudiced by the Debtors’ requested extension of the Removal
Period.  If the Debtors ultimately seek to remove Actions pursuant to Bankruptcy Rule 9027,
parties will retain their rights to have such Actions remanded pursuant to 28 U.S.C. § 1452(b).
Accordingly, the Debtors submit that cause exists for the relief requested herein.
18.
Further, the rights of any party to the Actions will not be unduly prejudiced by the
Debtors’ requested extension.  Inasmuch as section 362(a) of the Bankruptcy Code automatically
stays actions against the Debtors, most of the Actions will not proceed in their respective courts
during these chapter 11 cases, even absent the relief requested herein.
19.
Courts in this district have regularly granted the relief requested herein in other
large chapter 11 cases.  See, e.g., In re Yellow Corporation, No. 23-11069 (CTG) (Bankr. D. Del.
Nov. 8, 2023) (granting a 120-day extension, without prejudice to the debtors’ ability to seek
further extensions); In re PGX Holdings, Inc., No. 23-10718 (CTG) (Bankr. D. Del. Sept. 13, 2023)
(same); In re Town Sports Int’l, LLC, No. 20-12168 (CSS) (Bankr. D. Del. Dec. 16, 2021) (same);
In re Alex and Ani, LLC, No. 21-10918 (CTG) (Bankr. D. Del. Sept. 20, 2021) (same); In re
Bluestem Brands, Inc., No. 20-10566 (MFW) (Bankr. D. Del. June 23, 2020) (same).  The 120-
day extension requested herein is consistent with the extensions granted by this and other courts
in this district under similar circumstances.  Accordingly, the Debtors’ requested extension is
reasonable and should be granted.
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Reservation of Rights
20.
Nothing contained in this motion or any actions taken pursuant to any order granting
the relief requested by this motion is intended or should be construed as: (a) an admission as to the
validity of any particular claim against the Debtors, (b) a waiver of the Debtors’ rights to dispute any
particular claim on any grounds, (c) a promise or requirement to pay any particular claim, (d) an
implication or admission that any particular claim is of a type specified or defined in this motion or
any order granting the relief requested by this motion, or (e) a waiver or limitation of the Debtors’
rights under the Bankruptcy Code or any other applicable law.
No Prior Request
21.
No prior request for the relief sought in this motion has been made to this Court
or any other court.
Notice
22.
The Debtors will provide notice of this motion to: (a) the U.S. Trustee; (b) counsel
to the Committee; (c) counsel to the 1L Ad Hoc Group; (d) the agent of the DIP Facility and
counsel thereto; (e) the agent of the First Lien Credit Agreement and counsel thereto; (f) the Second
Lien Credit Agreement Agent and counsel thereto; (g) the agent of the First Lien Notes and counsel
thereto; (h) all parties to the Actions; and (i) any party that has requested notice pursuant to
Bankruptcy Rule 2002.  The Debtors submit that, in light of the nature of the relief requested, no
other or further notice need be given.
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WHEREFORE, the Debtors respectfully request entry of the Proposed Order, substantially
in the form attached hereto as Exhibit A, (a) granting the relief requested herein and (b) granting
such other relief as the Court deems appropriate under the circumstances.
Dated: September 4, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C.
KIRKLAND & ELLIS LLP
Patrick J. Reilley (No. 4451)
KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410
Joshua A. Sussberg, P.C. (admitted pro hac vice)
Wilmington, Delaware 19801
601 Lexington Ave.
Telephone:
(302) 652-3131
New York, New York 10022
Facsimile:
(302) 652-3117
Telephone:
(212) 446-4800
Email:
preilley@coleschotz.com
Facsimile:
(212) 446-4900
Email:
joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice)
Spencer A. Winters, P.C. (admitted pro hac vice)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (admitted pro hac vice))
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Co-Counsel to the Debtors
Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
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