09-00504-reg doc 270 filed 11/23/15 entered 11/23/15...

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Bruce S. Bennett (admitted pro hac vice) Hearing Date and Time: January 21, JONES DAY 2016 at 9:45 a.m. EST 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Objection Deadline: January 14, Tel: (213) 489-3939 2016 at 4:00 p.m. EST John W. Spiegel (admitted pro hac vice) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 [additional counsel listed on signature page] Attorneys for Nonparty First Trust Advisors, L.P. and for Term Loan Lenders as listed in Appendix A to the Answer [Dkt. 241]

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

In re: MOTORS LIQUIDATION COMPANY et al.,

Debtors.

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Chapter 11 Case Case No. 09-50026 (REG) (Jointly Administered)

MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee,

Plaintiff, vs. JPMORGAN CHASE BANK, N.A., et al.,

Defendants.

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Adversary Proceeding Case No. 09-00504 (REG)

09-00504-reg Doc 270 Filed 11/23/15 Entered 11/23/15 18:11:53 Main Document Pg 1 of 8

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NOTICE OF HEARING ON MOTION OF NONPARTY FIRST TRUST ADVISORS L.P. TO QUASH PROCESS AND SERVICE OF PROCESS

PLEASE TAKE NOTICE that a hearing to consider the relief requested in the Motion

to Quash Process and Service of Process, enclosed herein, filed by Nonparty First Trust Advisors

L.P., by special appearance through its attorneys, shall be held before the Honorable Robert E.

Gerber, United States Bankruptcy Judge, at the United States Bankruptcy Court for the Southern

District of New York, Courtroom 523, One Bowling Green, New York, New York 10004 (the

“Bankruptcy Court”), on January 21, 2016 at 9:45 a.m. EST, or as soon thereafter as counsel

may be heard.

PLEASE TAKE FURTHER NOTICE that any responses or objections to this Motion

must be made in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the

Local Rules of the Bankruptcy Court, and shall be filed with the Bankruptcy Court (a)

electronically in accordance with General Order M-399 (which can be found at

www.nysb.uscourts.gov) by registered users of the Bankruptcy Court’s filing system, and (b) by

all other parties in interest, on a CD-ROM, in text-searchable portable document format (PDF),

with a hard copy delivered directly to Chambers, in accordance with the customary practices of

the Bankruptcy Court and General Order M-399, to the extent applicable, and served in

accordance with General Order M-399 and on the First Trust Advisors L.P.’s attorneys, Jones

Day, 555 South Flower Street, Fiftieth Floor, Los Angeles, California, 90071 (Attn: Bruce

Bennett, Esq.), and Munger, Tolles & Olson LLP, 355 South Grand Avenue, 35th Floor, Los

Angeles, California, 90071 (Attn: John W. Spiegel), so as to be received no later than January

14, 2015 at 4:00 p.m. EST (the “Objection Deadline”).


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PLEASE TAKE FURTHER NOTICE that if no objections are timely filed and served

with respect to the Motion, the Nonparty may, on or after the Objection Deadline, submit to the

Bankruptcy Court an order substantially in the form of the proposed order annexed to the Motion,

which order may be signed and entered with no further notice or opportunity to be heard.


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Debtors.

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Defendants.

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MOTION OF NONPARTY FIRST TRUST ADVISORS L.P.

TO QUASH PROCESS AND SERVICE OF PROCESS

Nonparty First Trust Advisors L.P. (“First Trust Advisors”), by special appearance

through its attorneys, hereby moves to quash process and service of process under Federal Rules

of Civil Procedure 12(b)(4) and 12(b)(5) and Federal Rule of Bankruptcy Procedure 7012(b).

Like the other Nonparties who have so moved (Dkt. 239), First Trust Advisors is not a named

Defendant, yet it received a copy of a summons and complaint directed to a named Defendant

(“First Trust/Four Corners Senior Floating Rate Income Fund”), one that no longer exists. See

Jardine Decl., attached hereto. To confirm that First Trust Advisors is not required to do

anything further in this lawsuit, it hereby asks this Court to quash as insufficient the complaints

and summons that it has received, and their service.


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The grounds in support of this motion are summarized below and stated more fully in the

Memorandum in Support of Nonparties’ Motion to Quash Process and Service of Process, filed

on November 16, 2015 (Dkt. 240), which First Trust Advisors hereby incorporates. First, that

the Plaintiff caused papers to be served on First Trust Advisors should have no legal effect on

First Trust Advisors in its own right. First Trust Advisors is not a Defendant; hence, it is not

named in the summons; and a party “not named in the summons has not effectively been served,

and the service of process on that [entity], as well as the process itself, is therefore insufficient.”

In re Bavelis, 453 B.R. 832, 862 (Bankr. S.D. Ohio 2011). And, of course, First Trust Advisors

remains a nonparty: “Merely serving a complaint on a nonparty does not make the nonparty a

party.” Wasson v. Riverside Cnty., 237 F.R.D. 423, 424 n.2 (C.D. Cal. 2006).

Second, by causing First Trust Advisors to be served, the Plaintiff also did not impose

any obligation on First Trust Advisors with respect to the named Defendant. Most

fundamentally, the named Defendant does not exist, see Jardine Decl., and therefore could not be

properly served. See, e.g., Sevits v. McKiernan-Terry Corp. (N.J.), 264 F. Supp. 810, 812

(S.D.N.Y. 1966). First Trust Advisors is not an officer or agent of the non-existing entity, nor

could it be, given that no officers or agents of the entity exist. Likewise, First Trust Advisors is

not an entity upon whom service is prescribed to be served by law on behalf of the Defendant,

nor could it be, given that the Defendant no longer exists. Finally, because it does not exist, the

named Defendant at issue is also incapable of conducting business at First Trust Advisors’

addresses. See Fed. R. Bankr. P. 7004(b). Therefore, by causing First Trust Advisors to be

served with copies of the summons and complaint directed to the non-existing Defendant, the

Trust has not properly served anyone. Therefore, process and service of process, as to First Trust

Advisors, should be quashed.


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Dated: November 23, 2015 Respectfully submitted, /s/ Bruce S. Bennett

Bruce S. Bennett Erin L. Burke JONES DAY 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Tel: (213) 489-3939 Email: [email protected] Email: [email protected] Gregory M. Shumaker Christopher DiPompeo JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 Tel: (202) 879-3939 Email: [email protected] Email: [email protected]

/s/ John W. Spiegel John W. Spiegel George M. Garvey Todd J. Rosen Matthew A. Macdonald MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Kristin Linsley Myles MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Tel: (415) 512-4000 Email: [email protected]


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Attorneys for Nonparty First Trust Advisors L.P. and for Term Loan Lenders as listed in Appendix A to the Answer


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Debtors.

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Defendants.

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[PROPOSED] ORDER GRANTING MOTION OF NONPARTY FIRST TRUST

ADVISORS L.P. TO QUASH PROCESS AND SERVICE OF PROCESS

Upon the motion of Nonparty First Trust Advisors L.P., it is hereby

ORDERED that service and process of service as to Nonparty First Trust Advisors L.P.

be, and hereby is, quashed.

Dated: _________________, 2016 SO ORDERED New York, New York

____________________________________ HON. ROBERT E. GERBER


Bruce S. Bennett (admitted pro hac vice) JONES DAY 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Tel: (213) 489-3939 John W. Spiegel (admitted pro hac vice) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 [additional counsel listed on signature page] Attorneys for Nonparty First Trust Advisors, L.P. and for Term Loan Lenders as listed in Appendix A to the Answer [Dkt. 241]


In re: MOTORS LIQUIDATION COMPANY, et al.,

Debtors.

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Defendants.

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09-00504-reg Doc 270-1 Filed 11/23/15 Entered 11/23/15 18:11:53 Exhibit Declaration of First Trust Advisors L.P. Pg 1 of 9

EXHIBIT A


EXHIBIT B


09-00504-reg doc 270 filed 11/23/15 entered 11/23/15...

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