Motion for Administrative Expense Claim 503(b)(9) (Cadence) (00408044-3).DOC

Summary

A motion by Pavese AG Prazisionsmechanik for allowance and payment of an administrative expense claim, filed December 27, 2024 as Doc 898 in In re Vyaire Medical, Inc., et al., Case No. 24-11217(BLS), in the U.S. Bankruptcy Court for the District of Delaware. It asks for an order allowing an administrative claim of $33,177.96 under 11 U.S.C. §§ 503(b). The motion states that Pavese, a Swiss manufacturer of medical device accessories, delivered goods to Vyaire on June 2, 2024, within 20 days before the June 9, 2024 petition date, and that the amount remains unpaid. It relies on Section 503(b)(9) and In re World Imports, Ltd, 862 F.3d 338 (3d Cir. 2017), and notes objections due January 20, 2025 and a hearing on January 29, 2025. The five-page motion is signed by Brian J. McLaughlin of Offit Kurman.

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                 Case 24-11217-BLS               Doc 898       Filed 12/27/24         Page 1 of 5




                        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)
                                                             Objections Due: January 20, 2025 at 4:00 p.m.
                                                             Hearing Date: January 29, 2025 at 10:30 a.m.



                    MOTION OF PAVESE AG PRAZISIONSMECHANIC
                 FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE
                     EXPENSE CLAIM PURSUANT TO 11 U.S.C. §§ 503

         PAVESE AG PRAZISIONSMECHANIK, (hereinafter referred to as PAVESE”), by and

through its undersigned attorneys, hereby requests the entry of an order, pursuant to 11 U.S.C. §§

503(b), allowing PAVESE an administrative expense claim in the amount of $33,177.96. This

Motion is timely submitted pursuant to the Notice of (I) Entry of Confirmation Order, (II)

Occurrence of Effective Date, and (III) Related Bar Dates, (Dkt. No. 810) which states that “all

requests for payment of an Administrative Claim (other than DIP Claims, Professional Fee

Claims or claims subject to section 503(b)(1)(D) of the Bankruptcy Code) must be Filed with the

Bankruptcy Court and served on the Wind-Down Debtors no later than December 27, 2024

(which is the Administrative Claims Bar Date or thirty days after the Effective Date).” In support

of the relief requested, PAVESE asserts the following:




1
  The last four digits of Debtor Vyaire Medical, Inc. tax identification number are 6495 Due to
the large number of debtor entities in these chapter 11 cases, which are jointly administered, a complete list of the
debtor entities and the last four digits of their federal tax identification numbers are not provided herein.
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                                       I. BACKGROUND

       1.      On June 9, 2024 (the “Petition Date”), the Debtor Vyaire Medical, Inc.

(“Vyaire”) and its affiliated each filed a voluntary petition for relief under Chapter 11 of title 11

of the Unites States Code (the “Bankruptcy Code”).

       2.      On November 14, 2024, the Court entered its Findings of Fact, Conclusions of

Law and Order Approving the Debtors’ Disclosure Statement for, and Confirming the Second

Amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and its Debtor Affiliates pursuant to

Chapter 11 of the Bankruptcy Code (Dkt. No. 745)(the “Confirmation Order”).

       3.      On November 27, 2024, a Notice of Enry of Confirmation Order, (II) Occurrence

of Effective Date, and (III) Related Bar Dates (the “Notice of Effective Date”) was filed.

       4.      PAVESE is a corporation, duly established under the laws of Switzerland, a

manufacturer of medical device accessories and supplier to Vyaire. See Declaration of Ms. Beate

Reichle, Chief Financial Officer of PAVESE.

       5.      Vyaire is indebted and liable for goods delivered by PAVESE on June 2, 2024 in

the ordinary course of Vyaire’s business. See Exhibit 1 and 2 to the Declaration Ms. Beate

incorporated herein by reference.

       6.      No protest or objection has been made by Vyaire with regard to the products

supplied by PAVESE.

                                       II. JURISDICTION

       7.      This Court has subject matter jurisdiction to consider this matter pursuant to 28

U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States

District Court for the District of Delaware dated as of February 29, 2012. This is a core




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proceeding pursuant to 28 U.S.C. §157(b). Venue is proper before this Court pursuant to 28

U.S.C. §§1408 and 1409.

        8.      The statutory predicates for the relief requested herein is contained in 11 U.S.C.

§§ 507 and 503(b).

        9.      PAVESE consents, 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

(“Local Rules”), to the entry of a final order by this Court in connection with this Motion to the

extent that it is later determined that this Court, absent consent of the parties, cannot enter final

orders or judgment in connection herewith consistent with Article III of the United States

Constitution.

                                  III. RELIEF REQUESTED

        10.     By this Motion, PAVESE seeks an Order from this Court pursuant to Section

503(a) of the Bankruptcy Code directing the allowance and payment of an administrative claim

in the amount of $33,177.96.

                                    IV. BASIS FOR RELIEF

                                  Section 503 of the Bankruptcy Code

        11.      Section 503(a) of the Bankruptcy Code provides in relevant part that an entity

“may timely file a request for payment of an administrative expense.” Section 503(b)(9) then

provides in relevant part that “[a]fter notice and a hearing, there shall be allowed administrative

expenses, other than claims allowed under section 502(f) of this title, including . . . the value of

any goods received by the debtor within 20 days before the date of commencement of a case

under this title in which the goods have been sold to the debtor in the ordinary course of such

debtor’s business . . . ”




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       12.     As set forth in the Declaration, Vyaire purchased certain goods delivered to

Debtors within 20 days of the commencement of Debtors’ bankruptcy proceeding in the ordinary

course of their businesses in the amount of $33,177.96, and such amount remains past-due and

owing to PAVESE. “[R]eceipt as used in 11 U.S.C. § 503(b)(9) requires physical possession by

the buyer or its agent,” and it is well-established that “common carriers do not qualify as agents.”

In re World Imports, Ltd, 862 F.3d 338, 345-346 (3d Cir. 2017). Accordingly, this claim is

properly characterized as an administrative expense under Section 503(b)(9) of the Bankruptcy

Code. Therefore, PAVESE is authorized to seek the payment of the invoice pursuant to Section

503(b)(9) of the Bankruptcy Code.

                                  V. NO PRIOR REQUEST

       13.     No previous application for the relief sought herein has been made to this or to

any other Court.

                              VI. RESERVATION OF RIGHTS

       14.     PAVESE reserves the right to amend, modify or supplement this Motion as

necessary and appropriate, and nothing herein shall prevent PAVESE from asserting and

pursuing any additional claims against any of the Debtors, Wind-Down Debtor, Plan

Administrator, and/or any other party in interest, whether at law or in equity, in these chapter 11

cases. Nothing in this Motion shall be deemed a waiver, release, abridgment, alteration,

modification, reduction or termination of any such rights, claims, remedies, or defense, whether

at law or in equity, that PAVESE may have.

       WHEREFORE, PAVESE requests entry of an Order allowing administrative claim in

favor of PAVESE and directing payment pursuant to Section 503(a) as an Administrative

Expense Claim and granting any further relief that is just and proper.




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Dated: December 27, 2024
                                OFFIT | KURMAN

                                By:     /s/ Brian J. McLaughlin
                                Brian J. McLaughlin (#2462)
                                222 Delaware Avenue, Suite 1105
                                Wilmington, Delaware 19801
                                Phone: 302.351.0916
                                Fax: 302.351.0915
                                E-mail: Brian.McLaughlin@offitkurman.com
                                Attorney for Pavese AG PRAZISIONSMECHANIK




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