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IN RE US AIRWAYS, INC. (Bankr.E.D.Va. 2005)
STEPHEN MITCHELL, Bankruptcy Judge
Before the court is the motion of Freeman Enterprises for a temporary injunction blocking the sale of any assets of the debtors until the court "renders a decision about the sale or reorganization plan of USAirways Group, Inc." The motion does not set forth any facts showing that the movant has standing to seek such relief, nor does it contain a certificate showing that it has been served on the debtors, the Official Committee of Unsecured Creditors, or any other party.
The motion is signed on behalf of Freeman Enterprises by Ms. Sallijo A. Freeman, who does not appear to be an attorney, and who gives only her email address. It is not clear whether Freeman Enterprises is a sole proprietorship or some other type of entity. To the extent it is not a sole proprietorship, Freeman Enterprises may appear only by counsel. In any event, any paper or pleading filed by a party in interest must contain, in addition to the signature of the party (if an individual proceeding pro se) or the party's attorney, a mailing address and telephone number. Fed.R.Bankr.P. 9011.
Freeman Enterprises is not listed as a creditor on the debtors' schedules, nor has it filed a proof of claim.
A proceeding for an injunction is an adversary proceeding and must be initiated by complaint, not by motion. Fed.R.Bankr.P. 7001(7) 7003. The motion does not identify any pending or intended disposition of the debtors' assets, and the court can only speculate that the motion is some form of response or objection to the announced merger transaction of the debtors with America West Holdings Corporation. The Bankruptcy Code allows a debtor in possession to sell assets in the ordinary course of business without court approval but requires notice and a opportunity for hearing for sales outside the ordinary course of business. ยง 363(b)(1) (c)(1). With respect specifically to the proposed merger with America West, the transaction is expressly contingent upon approval of a plan of reorganization that incorporates the terms of the merger agreement. Thus, there will be no merger until full disclosure has been made to creditors and creditors have been given an opportunity to vote on the plan and be heard on any objection to confirmation of the plan. It is, accordingly,
ORDERED:
1. The motion for temporary injunction is denied without prejudice to the filing of an adversary proceeding seeking the same relief provided (a) that if Freeman Enterprises is not a sole proprietorship, the complaint is signed by an attorney admitted to practice in this court; (b) the complaint is properly signed under Rule 9011; (c) if a temporary restraining order or preliminary injunction is sought, the complaint is accompanied by an affidavit or declaration under penalty of perjury setting forth facts showing there is a real and substantial likelihood that the debtors' assets are being or will be transferred or disposed of in violation of applicable provisions of the Bankruptcy Code and that Freeman Enterprises will suffer irreparable injury as a result of such transfer or disposition; and (d) the complaint, a summons, and any supporting affidavit are properly served on the debtors.
The fee for commencing an adversary proceeding is $150.00.
2. The clerk shall mail a copy of this order, or give electronic notice of its entry, to the parties listed below.
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