Case 18-1374, Document 43-2, 08/13/2018, 2366772, Page1 of 47

-
IN THE

mntttb &tatt- QCourt of ~ptal-

FOR THE SECOND CIRCUIT
»-«

In Re: Ocean Rig UDW Inc.

Debtor.

Tally Mindy Wiener,

Appellant,
v.

Ocean Rig UDW Inc., Iraklis Sbarounis, Drill Rigs Holdings Inc.,
Drillships Financing Holding Inc., Drillships Ocean Ventures Inc.,

Debtors ~ Appellees,

Simon Appell, Foreign Representative, Eleanor Fisher, Foreign

Representative
Debtors.
»-«

On Appeal from the United States District Court

for the Southern District ofNew York

APPENDIX

TALLY M. WIENER, ESQ.

c/o Law Offices of Tally M. Wiener, Esq.
119 west 72nct Street, PMB 350
New York, NY 10023
(212) 574-7975
 Case 18-1374, Document 43-2, 08/13/2018, 2366772, Page2 of 47

Table of Contents

District Court Docket Entries...................................... Al

Transcript of October 26, 2017 Conference..................... AS

Memorandum Opinion and Order of Judge Jolm J. Koeltl

entered April 6, 2018, Appealed From....................... A23

Judgment of the United States District Court, Southern

District of New York, entered April 6, 2018,
Appealed From... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. A42

Notice of Appeal, dated May 4, 2018........................... .. A43

Appellant's Statement of Issues to be Presented on Appeal

and Designation of Record on Appeal,
dated May 16, 2018............................................. A44
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CLOSED,APPEAL,ECF
A1
U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE#: 1:17-cv-07222-JGK

In Re: Ocean Rig UDW Inc. Date Filed: 09/22/2017

Assigned to: Judge John G. Koeltl Date Terminated: 04/06/2018
Case in other court: USBC-SDNY, l 7-B-10736 (MG) Jury Demand: None
Cause: 28:0158 Notice of Appeal re Bankruptcy Matter (BA Nature of Suit: 422 Bankruptcy Appeal
(801)
Jurisdiction: Federal Question

InRe
Ocean Rig UDW Inc.

Debtor
Ocean Rig UDW Inc.

Am1ellant
Tally Mindy Wiener represented by Tally Mindy Wiener
Law Offices of Tally M. Wiener, Esq.
119 West 72nd Street, PMB 350
New York, NY 10023
(212)-574-7975
Fax: (212)-496-4170
Email: tally.wiener@thecomi.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

v.
A1n1ellee
Ocean Rig UDW Inc. represented by Evan Craig Hollander
Orrick, Herrington & Sutcliffe LLP (NYC)
51 West 52nd Street
New York, NY 10019
212-506-3528
Fax: 212-506-5151
Email: echollander@orrick.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Steven J. Fink
Orrick, Herrington & Sutcliffe LLP (NYC)
51 West 52nd Street
New York, NY 10019
212-506-5000
Fax: 212-506-5151
Email: steven.fink@sjfinkpllc.com
LEAD ATTORNEY
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A2 ATTORNEY TO BE NOTICED

Daniel Adam Rubens

Orrick, Herrington & Sutcliffe LLP (NYC)
51 West 52nd Street
New York, NY 10019
(212)-506-5000
Fax: (212)-506-5151
Email: drubens@orrick.com
ATTORNEY TO BE NOTICED

Kelsi Brown Corkran

Orrick, Herrington & Sutcliffe, LLP (DC)
1152 15th Street, N.W.,
Washington, DC 20005
(202)-339-8400
Fax: (202)-339-8500
Email: kcorkran@orrick.com
ATTORNEY TO BE NOTICED

Al!l1ellee
Simon Appell represented by Evan Craig Hollander
Foreign Representative (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Steven J. Fink
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Al!l1ellee
Eleanor Fisher represented by Evan Craig Hollander
Foreign Representative (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Steven J. Fink
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Al!l1ellee
Iraklis Sbarounis represented by Daniel Adam Rubens
(See above for address)
ATTORNEY TO BE NOTICED

Evan Craig Hollander

(See above for address)
ATTORNEY TO BE NOTICED

Kelsi Brown Corkran

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(See above for address)
A3 ATTORNEY TO BE N OTICED

Annellee
Drill Rigs Holdings fuc. represented by Daniel Adam Rubens
(See above for address)
ATTORNEY TO BE N OTICED

Evan Craig Hollander

(See above for address)
ATTORNEY TO BE N OTICED

Kelsi Brown Corkran

(See above for address)
ATTORNEY TO BE NOTICED

Annellee
Drillships Financing Holding Inc. represented by Daniel Adam Rubens
(See above for address)
ATTORNEY TO BE N OTICED

Evan Craig Hollander

(See above for address)
ATTORNEY TO BE NOTICED

Kelsi Brown Corkran

(See above for address)
ATTORNEY TO BE N OTICED

Annellee
Drillships Ocean Ventures Inc. represented by Daniel Adam Rubens
(See above for address)
ATTORNEY TO BE NOTICED

Evan Craig Hollander

(See above for address)
ATTORNEY TO BE NOTICED

Kelsi Brown Corkran

(See above for address)
ATTORNEY TO BE NOTICED

Date Filed # Docket Text

09/22/2017 1 NOTICE OF APPEAL FROM THE BANKRUPTCY COURT TO THE S.D.N.Y. from the
Order of Judge Martin Glenn dated August 24, 2017. Bankruptcy Court Case Numbers:
17-B-10736 (MG). Certified copies of file received.Document filed by Tally Mindy
Wiener. (Attachments: # 1 Exhibit 1, # 2. Exhibit 2)(bkar) (Entered: 09/22/2017)
09/22/2017 2. CIVIL COVER SHEET filed. (bkar) (Entered: 09/22/2017)
09/22/2017 Magistrate Judge Kevin Nathaniel Fox is so designated. Pursuant to 28 U.S.C. Section
636(c) and Fed. R. Civ. P. 73(b)(l) parties are notified that they may consent to proceed
before a United States Magistrate Judge. Parties who wish to consent may access the
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necessary form at the following ~ httP- : 1/nY.s d. uscourts . gov/foons . P-hP-.. (bkar) (Entered:
09/22/2017)
09/22/2017 Case Designated ECF. (bkar) (Entered: 09/22/2017)
09/22/2017 J DESIGNATION OF BANKRUPTCY RECORD ON APPEAL re: l Bankruptcy Appeal,.
Document filed by Appellant Tally Mindy Wiener. (bkar) (Entered: 09/22/2017)
10/02/2017 1 ORDER, It is hereby ordered that: The appellant shall serve and file a brief with any
supporting papers by October 30, 2017. Response( s) to the appellant's brief shall be served
and filed by November 20, 2017. Any replies to the response(s) shall be served and filed
by December 4, 2017. The Court will contact the parties shortly thereafter for oral
argument. SO ORDERED. (Appellant Brief due by 10/30/2017., Reply to Response to
Brief due by 12/4/2017., Responses to Brief due by 11120/2017) (Signed by Judge John G.
Koeltl on 9/29117) (yv) (Entered: 10/02/2017)
10/04/2017 2 COUNTER DESIGNATION OF BANKRUPTCY RECORD ON APPEAL Document
filed by Appellees Simon Appell, Eleanor Fisher. (bmlo) (Entered: 10/05/2017)
10/ 13/2017 fi NOTICE OF APPEARANCE by Daniel Adam Rubens on behalf of Ocean Rig UDW Inc.,
Iraklis Sbarounis, Drill Rigs Holdings Inc., Drillships Financing Holding Inc., Drillships
Ocean Ventures Inc .. (Rubens, Daniel) (Entered: 10/ 13/2017)
10/ 13/2017 l CERTIFICATE OF SERVICE of Notice of Appearance served on Tally Mindy Wiener on
October 13, 2017. Service was made by Mail. Document filed by Drill Rigs Holdings Inc.,
Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Ocean Rig UDW Inc.,
Iraklis Sbarounis. (Rubens, Daniel) (Entered: 10/13/2017)
10/ 13/2017 £ MOTION for Kelsi Brown Corkran to Appear Pro Hae Vice . Motion and supporting
papers to be reviewed by Clerk's Office staff. Document filed by Drill Rigs Holdings
Inc., Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Ocean Rig UDW
Inc., Iraklis Sbarounis. (Attachments: # l Declaration in Support of Motion for Admission
Pro Hae, # 2 Certificate of Good Standing, # l Text of Proposed Order)(Corkran, Kelsi)
(Entered: 10/ 13/2017)
10/ 13/2017 2 CERTIFICATE OF SERVICE of Motion for Pro Hae Vice and Order for Admission Pro
Hae Vice served on Tally Mindy Wiener on October 13, 2017. Service was made by Mail.
Document filed by Drill Rigs Holdings Inc., Drillships Financing Holding Inc., Drillships
Ocean Ventures Inc., Ocean Rig UDW Inc., Iraklis Sbarounis. (Corkran, Kelsi) (Entered:
10/13/2017)
10/ 13/2017 lQ LETTER MOTION for Conference re: anticipated motion to dismiss addressed to Judge
John G. Koeltl from Evan C. Hollander dated October 13, 2017. Document filed by Drill
Rigs Holdings Inc., Drillships Financing Holding Inc., Drillships Ocean Ventures Inc.,
Ocean Rig UDW Inc., Iraklis Sbarounis.(Hollander, Evan) (Entered: 10/ 13/2017)
10/ 13/2017 11 CERTIFICATE OF SERVICE of Pre-Motion Letter served on Tally Mindy Wiener on
October 13, 2017. Service was made by Mail. Document filed by Drill Rigs Holdings Inc.,
Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Ocean Rig UDW Inc.,
Iraklis Sbarounis. (Hollander, Evan) (Entered: 10/13/2017)
10/ 13/2017 12 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent
Ocean Rig UDW Inc. for Drill Rigs Holdings Inc., Drillships Financing Holding Inc.,
Drillships Ocean Ventures Inc.; Other Affiliate Canyon Capital Advisors LLC, Other
Affiliate Elliott International Capital Advisors Inc., Other Affiliate BlueMountain Capital
Management, LLC, Other Affiliate Avenue Capital Group, Other Affiliate Prime Cap
Shipping Inc. for Ocean Rig UDW Inc .. Document filed by Drill Rigs Holdings Inc.,

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Drillships Financing Holding In~illships Ocean Ventures Inc., Ocean Rig UDW Inc ..
(Hollander, Evan) (Entered: 10/ 3 17)
10/ 13/2017 l l CERTIFICATE OF SERVICE of Corporate Disclosure Statement served on Tally Mindy
Wiener on October 13, 2017. Service was made by Mail. Document filed by Drill Rigs
Holdings Inc., Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Ocean
Rig UDW Inc .. (Hollander, Evan) (Entered: 10/13/2017)
10/ 16/2017 Pro Hae Vice Fee Paid electronically via Pay.gov: for .8. MOTION for Kelsi Brown
Corkran to Appear Pro Hae Vice . Motion and supporting papers to be reviewed by
Clerk's O ffice staff.. Filing fee$ 200.00. Pay.gov receipt number 0208-14242864, paid on
10/13/2017. (wb) (Entered: 10/16/2017)
10/ 16/2017 >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No.~
MOTION for Kelsi Brown Corkran to Appear Pro Hae Vice . Motion and supporting
papers to be reviewed by Clerk's Office staff.. The document h as been reviewed and
there are no deficiencies. (w b) (Entered: 10/ 16/2017)
10/ 16/2017 14 LETTER addressed to Judge John G. Koeltl from Tally M. Wiener dated October 16, 2017
re: Response to Letter of Friday the 13th of October 2017 Seeking to File Motion or Set
Hearing on Emergency Basis. Document filed by Tally Mindy Wiener.(Wiener, Tally)
(Entered: 10/16/2017)
10/ 17/2017 12 ORDER granting 10 Letter Motion for Conference. Conference scheduled for 10/26/17 at
4:30 p.m. So Ordered. (Status Conference set for 10/26/2017 at 04:30 PM before Judge
John G. Koeltl.) (Signed by Judge John G. Koeltl on 10/16/ 17) (yv) (Entered: 10/ 17/2017)
10/26/2017 Minute Entry for proceedings held before Judge John G. Koeltl: Pre-Motion Conference
held on 10/26/2017. (Fletcher, Donnie) (Entered: 11/09/2017)
10/27/2017 16. ORDER: After holding a conference in this matter on October 26, 2017, the Court hereby
orders that the appellee shall file the moving papers for its motion to dismiss by October
30, 2017, the appellant shall file the appellant's opposition papers by November 13, 2017,
and the appellee shall file its reply papers by November 20, 2017. The briefing on the
appellant's appeal is stayed pending the Court's decision on the appellee's motion to
dismiss. The opening and opposition brief should be no more than 25 pages. The appellee's
reply brief should be no more than ten pages. All briefs should be submitted in size 14 font
(both text and footnotes), and all footnotes should be double spaced. The appellee should
provide the appellant with copies of any cases cited in the appellee's briefs that are
reported only on Westlaw or Lexis. The Clerk is directed to correct the mailing address for
the appellee to: 119 West 72nd Street, PMB 350, New York, NY 10023. (Motions due by
10/30/2017. Responses due by 11/13/2017. Replies due by 11120/2017.) (Signed by Judge
John G. Koeltl on 10/26/2017) (ap) (Entered: 10/27/2017)
10/27/2017 17 ORDER FOR ADMISSION PRO HAC VICE granting .8. Motion for Kelsi Brown Corkran
to Appear Pro Hae Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice
Pro Hae Vice in the above captioned case in the United States District Court for the
Southern District of New York. All attorneys appearing before this Court are subject to the
Local Rules of this Court, including the Rules governing discipline of attorneys. So
Ordered. (Signed by Judge John G. Koeltl on 10/27/17) (yv) (Entered: 10/27/2017)
10/30/2017 l l MOTION to Dismiss . Document filed by Drill Rigs Holdings Inc., Drillships Financing
Holding Inc., Drillships Ocean Ventures Inc., Ocean Rig UDW Inc., Iraklis Sbarounis.
(Attachments:# l Exhibit A - Bankruptcy Court Order, # 2. Exhibit B - Bankruptcy Court
Opinion)(Hollander, Evan) (Entered: 10/30/2017)
10/30/2017 12 MEMORANDUM OF LAW in Support re: l l MOTION to Dismiss .. Document filed by
Drill Rigs Holdings Inc. , Drillships Financing Holding Inc., Drillships Ocean Ventures
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Inc., Ocean Rig UDW Inc., IraklA.f)>arounis. (Hollander, Evan) (Entered: 10/30/2017)
10/30/2017 20 DECLARATION oflraklis Sbarounis in Support re: 18. MOTION to Dismiss .. Document
filed by Drill Rigs Holdings Inc., Drillships Financing Holding Inc., Drillships Ocean
Ventures Inc., Ocean Rig UDW Inc., Iraklis Sbarounis. (Attachments:# l Exhibit A-
Restructuring Press Release, # 2. Exhibit B - SEC Form 6-K, # .3. Exhibit C - Valuation)
(Hollander, Evan) (Entered: 10/30/2017)
10/30/2017 2 1 CERTIFICATE OF SERVICE of Motion to Dismiss and Exhibits, Memorandum in
Support of Motion to Dismiss, Declaration in Support of Motion to Dismiss and Exhibits
served on Tally Mindy Wiener on 10/30/2017. Service was made by Mail. Document filed
by Drill Rigs Holdings Inc., Drillships Financing Holding Inc. , Drillships Ocean Ventures
Inc., Ocean Rig UDW Inc., lraklis Sbarounis. (Hollander, Evan) (Entered: 10/30/2017)
11/13/2017 22 Appellant's BRIEF. Document filed by Tally Mindy Wiener. Appellee Brief due by
12/13/2017. (Attachments: # l Declaration, # 2. Exhibit A, # .3. Exhibit B, # :! Exhibit C, #
2 Exhibit D, # §. Exhibit E, # 1 Exhibit F)(Wiener, Tally) (Entered: 11/13/2017)
11/ 13/2017 23 Appellant's BRIEF. Document filed by Tally Mindy Wiener. Appellee Brief due by
12/13/2017. (Wiener, Tally) (Entered: 11/13/2017)
11/20/2017 24 REPLY MEMORANDUM OF LAW in Support re: 18. MOTION to Dismiss .. Document
filed by Drill Rigs Holdings Inc., Drillships Financing Holding Inc., Drillships Ocean
Ventures Inc., Ocean Rig UDW Inc., Iraklis Sbarounis. (Hollander, Evan) (Entered:
11/20/2017)
11/20/2017 25 CERTIFICATE OF SERVICE of Appellees' Reply Memorandum of Law in Support of
Motion to Dismiss served on Tally Mindy Wiener on November 20, 2017. Service was
made by Mail. Document filed by Drill Rigs Holdings Inc., Drillships Financing Holding
Inc., Drillships Ocean Ventures Inc., Ocean Rig UDW Inc., Iraklis Sbarounis. (Hollander,
Evan) (Entered: 11/20/2017)
11/21 /2017 26 LETTER MOTION for Leave to File Excess Pages Letter Motion to StrikeAppellees'
Reply Brieffor Exceeding Page Limit addressed to Judge John G. Koeltl from Tally M.
Wiener dated November 21, 2017. Document filed by Tally Mindy Wiener. (Wiener, Tally)
(Entered: 11/21 /2017)
11/28/2017 27 LETTER RESPONSE to Motion addressed to Judge John G. Koeltl from Evan C.
Hollander dated November 28, 2017 re: 26 LETTER MOTION for Leave to File Excess
Pages Letter Motion to StrikeAppellees' Reply Brieffor Exceeding Page Limit addressed
to Judge John G. Koeltl from Tally M. Wiener dated November 21, 2017 .. Document filed
by Drill Rigs Holdings Inc., Drillships Financing Holding Inc. , Drillships Ocean Ventures
Inc., Ocean Rig UDW Inc., Iraklis Sbarounis. (Hollander, Evan) (Entered: 11/28/2017)
11/28/2017 28 CERTIFICATE OF SERVICE of Letter Response (Dkt. 27) served on Tally Mindy Wiener
on November 28, 2017. Service was made by Mail. Document filed by Drill Rigs Holdings
Inc., Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Ocean Rig UDW
Inc., Iraklis Sbarounis. (Hollander, Evan) (Entered: 11/28/2017)
04/06/2018 29 MEMORANDUM OPINION AND ORDER: re: 18. MOTION to Dismiss, filed by Ocean
Rig UDW Inc., Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Drill
Rigs Holdings Inc., Iraklis Sbarounis. For the reasons stated above, the appellees' motion
to dismiss the appeal is granted. The Clerk is directed to close Docket No.18, dismiss the
appeal, and close this case, and as further set forth in this order. (Signed by Judge John G.
Koeltl on 4/5/2018) ( ap) (Entered: 04/06/2018)
04/06/2018 Transmission to Judgments and Orders Clerk. Transmitted re: 29 Memorandum & Opinion
to the Judgments and Orders Clerk. (ap) (Entered: 04/06/2018)

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04/06/2018 :ill CLERK'S JUDGMENT re: 22 ~randum & Opinion in favor of Drill Rigs Holdings
Inc., Drillships Financing Holding nc., Drillships Ocean Ventures Inc., Ocean Rig UDW
Inc., Eleanor Fisher, Iraklis Sbarounis, Simon Appell against Tally Mindy Wiener. It is
hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the
Court's Memorandum Opinion and Order dated April 6, 2018, the appellees' motion to
dismiss the appeal is granted; accordingly, the case is closed. (Signed by Clerk of Court
Ruby Krajick on 04/06/2018) (Attachments: # 1 Right to Appeal)(km) (Entered:
04/06/2018)
05/04/2018 l l NOTICE OF APPEAL from ;ill Clerk's Judgment,, 29 Memorandum & Opinion,.
Document filed by Tally Mindy Wiener. Filing fee$ 505.00, receipt number 0208-
15029012. Form C and Form Dare due within 14 days to the Court of Appeals, Second
Circuit. (Wiener, Tally) (Entered: 05/04/2018)
05/04/2018 Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of
Appeals re: .ll Notice of Appeal. (tp) (Entered: 05/04/2018)
05/04/2018 Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal
Electronic Files for l l Notice of Appeal, filed by Tally Mindy Wiener were transmitted to
the U.S. Court of Appeals. (tp) (Entered: 05/04/2018)
05/ 16/2018 32 DESIGNATION OF BANKRUPTCY RECORD ON APPEAL Document filed by
Appellant Tally Mindy Wiener. (Wiener, Tally) (Entered: 05/16/2018)
05/23/2018 31 TRANSCRIPT of Proceedings re: CONFERNECE held on 10/26/2017 before Judge John
G. Koeltl. Court Reporter/Transcriber: Kristen Carannante, (212) 805-0300. Transcript
may be viewed at the court public terminal or purchased through the Court
Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that
date it may be obtained through PACER. Redaction Request due 6/13/2018. Redacted
Transcript Deadline set for 6/25/2018. Release of Transcript Restriction set for 8/2 112018.
(McGuirk, Kelly) (Entered: 05/23/2018)
05/23/2018 34 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an
official transcript of a CONFERENCE proceeding held on 10/26/ 17 has been filed by the
court reporter/transcriber in the above-captioned matter. The parties have seven (7)
calendar days to file with the court a Notice oflntent to Request Redaction of this
transcript. If no such Notice is filed, the transcript may be made remotely electronically
available to the public without redaction after 90 calendar days ... (McGuirk, Kelly)
(Entered: 05/23/2018)

I PACER Service Center

I Transaction Receipt

I 08/10/2018 12: 34:58

PACER
Login:
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Description: !Docket Report
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 TALLY MINDY WIENER,

4 Appellant, New York, N.Y.

5 v. 17 Civ. 7222(JGK)

6 OCEAN RIG UDW INC.,

7 Appellee.

8 ------------------------------x Conference

9 October 26, 2017

5:00 p.m.
10
Before:
11
HON. JOHN G. KOELTL,
12
District Judge
13

14
APPEARANCES
15

16 TALLY M. WIENER
Pro Se Appellant
17

18 ORRICK, HERRINGTON & SUTCLIFFE, LLP

Attorneys for Appellee
19 BY: DANIEL A. RUBENS
EVAN C. HOLLANDER
20

21

22

23 ALSO PRESENT:

24 WILLIAMS. HAFT, ESQ., Orrick, Herrington & Sutcliffe, LLP

25

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300
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1 (Case called)

2 THE DEPUTY CLERK: All parties please state who they

3 are for the record.

4 MS. WIENER: Good afternoon. I am Tally Wiener. I'm

5 pro se. I'm the appellant.

6 MR. RUBENS: Good afternoon, your Honor. I am Daniel

7 Rubens with Orrick, Herrington & Sutcliffe, LLP, I am here for

8 the appellees.

9 MR. HOLLANDER: Good afternoon, your Honor Evan

10 Hollander, of Orrick, Herrington & Sutcliffe, also for the

11 appellees.

12 THE COURT: Okay. Please have a seat.

13 The appellees want to make a motion to dismiss the

14 bankruptcy appeal. So, very briefly, Mr. Rubens, do you want

15 to tell me the basis for the motion in view of the appellant's

16 response?

17 MR. RUBENS: Yes, your Honor.

18 Just by way of brief background on this restructuring,

19 Ocean Rig Group is an international offshore oil drilling

20 contractor. It got caught up in a down cycle in the crude oil

21 market in the past few years. So Ocean Rig had some debts

22 coming due and began restructuring negotiations and discussions

23 in 2016 and came to agreement with a large group of affected

24 creditors; and, earlier this year, for affiliated Ocean Rig

25 companies, they reorganized in proceedings in the Cayman

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300
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1 Islands under court supervision.

2 In aid of that restructuring, Ocean Rigs' foreign

3 representatives filed Chapter 15 petitions here in New York,

4 and those were assigned to Judge Glenn. All these proceedings

5 have now concluded. The Cayman court approved four

6 interrelated restructuring plans, and the Chapter 15 court

7 recognized the Cayman proceedings and entered injunctions in

8 aid of the restructuring that came out of those proceedings,

9 and everything became fully consummated on September 22 when

10 that was the effective date under the Cayman plans.

11 THE COURT: What was the date?

12 MR. RUBENS: September 22, 2017.

13 We are here on Ms. Wiener's appeal from the

14 recognition order in the bankruptcy court. Ms. Wiener is the

15 only person who filed an objection to the recognition motion.

16 She did so in her capacity as an alleged shareholder, and she

17 is now appealing. Ms. Wiener did not participate in the any of

18 the Cayman proceedings and she has never sought to stay any

19 court order in the Cayman Islands or in the bankruptcy court

20 proceedings, so the restructuring has become effective.

21 So we are seeking leave to file a motion to dismiss on

22 two grounds:

23 The first is lack of standing. Standing in bankruptcy

24 appeals is more stringent than the typical Article III standing

25 requirement. It requires the appellant be the person

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300
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1 aggrieved, meaning that they have to have a direct pecuniary

2 stake in the restructuring. We submit here that that's lacking

3 because, as an equityholder, an alleged equityholder of

4 insolvent enterprise, Ms. Wiener did not stand to recover in

5 the underlying proceedings.

6 I understand there has been some question raised in

7 Ms. Wiener's letter about solvency, but the entire premise of

8 the proceedings in the Cayman Islands is that the debtors were

9 insolvent, and Ms. Wiener has not participated in those

10 proceedings. There is an extensive record and findings of the

11 Cayman court in respect to the restructuring being in the best

12 interest of creditors who themselves were not made whole, the

13 value available as distributed to creditors, and there is

14 nothing for equity.

15 So, in effect, Ms. Wiener's appeal and challenge to

16 the recognition order is asserting the rights of third parties

17 who are the creditors who overwhelmingly supported the

18 restructuring and have never made any of these objections.

19 THE COURT: How much did the creditors recover?

20 MR. RUBENS: It was about 2.6 billion total. There

21 was new equity issued, there was new secured debt, and there

22 were cash distributions

23 THE COURT: No, no. The creditors were not paid 100

24 cents on the dollar.

25 MR. RUBENS: That's right. The total outstanding debt

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1 involved was about 3.7 billion.

2 THE COURT: 3.7 billion?

3 MR. RUBENS: Yes.

4 THE COURT: And available for distribution was?

5 MR. RUBENS: It was 2.6 billion.

6 THE COURT: And the second part of your argument is

7 equitable mootness because the plan has been consummated?

8 MR. RUBENS: That's right. Everything in the Cayman

9 Islands has been consummated. The injunction entered by the

10 bankruptcy court has gone into effect, and no stay was ever

11 assigned so -- and none of the factors that might be considered

12 the same in applying the doctrine apply here. There is new

13 equity issued, new debt issued, the test of cash equities has

14 been made, management agreements have been entered into. So

15 there are so many things that undoing the recognition order

16 would require the equities on third parties.

17 THE COURT: Okay.

18 Ms. Wiener.

19 MS. WIENER: Your Honor, thank you. Good afternoon.

20 THE COURT: Good afternoon.

21 MS. WIENER: I think that the presentation is a little

22 confusing by the appellees. This is a straight up and down

23 appeal of a Chapter 15 recognition order. Also, what came out

24 of the Cayman schemes, which I am not challenging and have not

25 challenged, is a debt for equity swap mostly. So it is not 2.6

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1 billion in value that was distributed. And analytically,

2 anyway, the shareholders are not out of the money in the same

3 way that they would be in a Chapter 11 plan if creditors

4 weren't paid in full. This is just different, this is --

5 structurally, this is a scheme and shareholders were left with

6 0.02 percent of the equity. So the repetition of the reference

7 in the letter to allegedly asserting creditor rights, I'm not.

8 I'm asserting my right as a shareholder to what's left in the

9 money as part of the scheme

10 THE COURT: Their argument with respect to lack of

11 standing is that in fact, as an equityholder, you have no

12 standing because there was nothing left for equity. The entire

13 estate could have been left to the creditors who were not paid

14 100 percent on the dollar in any event.

15 MS. WIENER: But they didn't do that. They left

16 equity. They could have possibly wiped out equity, but no

17 court has ever entertained that because they left equity with

18 0.02 percent.

19 THE COURT: But the argument is that equity got

20 something that they otherwise wouldn't have gotten.

21 MS. WIENER: Equity got something there for a reason,

22 which is that this is a publicly traded company. It's a NASDAQ

23 traded debtor. Upon the Chapter 15 filing, as is normal,

24 NASDAQ stepped in to try to delist the debtors, but the debtor

25 wanted to stay publicly traded and keep taking money out of the

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1 capital markets; and then now it remains publicly traded under

2 the same ticker symbol, which allows its creditors to sell off

3 the debt that was equitized into the market. So in this case

4 in particular, the shareholders staying in the money was a

5 critical part of the plan.

6 THE COURT: And the argument of equitable mootness?

7 MS. WIENER: That, yeah, I would like to address that.

8 Thank you.

9 I have been reviewing law, including a pretty new

10 decision that just came out of the United States Court of

11 Appeals for the Second Circuit just this -- I think it was last

12 Friday, October 20, and that's -- the case is called In the

13 Matter of MPM Silicones, LLC. I don't know if there is a

14 Westlaw number yet. I can give you the docket number or hand

15 up my copy.

16 So in that case, there was a complicated Chapter 11

17 plan. The debtors moved to dismiss appeals for equitable

18 mootness, and the court didn't allow it. First, the district

19 court was faced with a motion to dismiss and made no ruling on

20 the motion and got to the merits. Then the debtors tried to

21 move to dismiss on equitable mootness grounds with the Second

22 Circuit, which summarily denied without prejudice. So the

23 appellate courts, the district court, and then the circuit

24 court both reached the issue, the substantive issue and

25 declined to cut off the appeals on an equitable mootness basis.

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1 But additionally equitable mootness is a Chapter 11

2 concept. I have been researching thoroughly. I have been

3 looking at the cases that the other side cited, and then other

4 cases. These are Chapter 11 cases.

5 Reading from the Second Circuit's opinion in the

6 Borders bankruptcy, In re: BGI, Inc., 772 F.3d 102, "Equitable

7 mootness was developed judicially in response to the particular

8 problems presented by the consummation of plans of

9 reorganization under Chapter 11. It admits of considerable

10 flexibility and its application depends on and varies according

11 to the specific factors presented in the particular case.'' It

12 goes on to discuss, "There is only a trigger for equitable

13 mootness where there is substantial consummation," which is a

14 term that's defined in the Bankruptcy Code.

15 Chapter 15 is just different. So I think that the

16 appellees are trying to graft on to a straight up and down

17 Chapter 15 recognition order appeal standard from Chapter 11.

18 And the trend and the most recent ruling out of the Second

19 Circuit anyway is not to cut off an appeal summarily, but to

20 let it go to the merits, and then the court can consider in the

21 case-specific context what relief can be granted. Because

22 equitable mootness, I think, as your Honor knows, is not

23 constitutional mootness. So I think it would be very severe to

24 cut off a Chapter 15 appeal on equitable mootness grounds

25 without letting the briefing proceed.

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1 THE COURT: Okay.

2 MS. WIENER: Thank you.

3 THE COURT: All right. Thank you.

4 I have a premotion conference in order to talk out the

5 motions. The parties have an absolute right to make any

6 motions available to them under the rules. I can't tell

7 parties not to make motions. I can't tell parties to give in

8 to motions. All I can do is get a better sense of the motions

9 and, if appropriate, attempt to discourage any motions, but

10 ultimately the parties have the right to make motions.

11 It is clear to me in this case there is going to be a

12 motion, so the next step is how much time?

13 MR. RUBENS: Your Honor, we would be prepared to file

14 our motion papers on Monday, and I would just add, from our

15 perspective, this is a threshold ground for dismissing the

16 appeal.

17 THE COURT: I'm sorry?

18 MR. RUBENS: Because this is a threshold ground for

19 disposing of the appeal, we think it would be sensible to stay

20 the briefing schedule on the merits pending resolution of the

21 motion, but we defer to your Honor on that matter. But we can

22 put in the papers on Monday.

23 THE COURT: Okay.

24 MS. WIENER: Your Honor, I have spent a lot of time

25 reviewing their letter, responding to their letter, preparing

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1 for the conference today. Thank you for hearing us. So I

2 would like a little more time on my opening brief, which is due

3 Monday

4 THE COURT: No, no, you don't have to worry about

5 Monday. The appellee says they can make their motion to

6 dismiss by October 30. That's fine. Motion to dismiss due

7 October 30. You do not have to worry about Monday. You tell

8 me when you reasonably want to oppose the motion to dismiss,

9 and I will give you that time.

10 I will stay the briefing on the ultimate appeal so

11 that you don't have to worry about filing the initial brief on

12 the appeal. I will decide the motion. If I decide that the

13 motion should be denied or deferred or whatever, we will go

14 forward with the briefing on the appeal. But meanwhile, the

15 only thing you have to worry about is when do you want to

16 respond to the motion to dismiss.

17 MS. WIENER: Thank you.

18 Two weeks for my response

19 THE COURT: That would be fine.

20 MS. WIENER: -- if I could have that.

21 THE COURT: That would be fine.

22 So the response is due November 13.

23 MS. WIENER: I would also like to, getting a little

24 bit ahead of the reply date, I would also like, if I could, to

25 have an opportunity to surreply, because as the appellant here

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1 I would have had two briefs -- an opening brief and a reply

2 brief -- but if this is flipped around to a motion to dismiss

3 posture, they have a motion to dismiss, I have a response and

4 they have a reply, so I would like to be able to have two

5 briefs as I would have as had we proceeded first with

6 substantive briefing.

7 THE COURT: No. Surreply briefs are discouraged, and

8 then only appropriate if there is some new matter that is

9 raised in their reply, which they shouldn't be raising new

10 matter in a reply. If for some reason you thought that there

11 was a particular reason for a surreply, you can make a motion

12 for a surreply. I'm not encouraging that. I don't think in

13 general it is a good idea, but I don't preclude anyone from

14 making any motions that they are otherwise entitled to make.

15 So we have a response that is due on November 13.

16 When is the reply due?

17 MR. RUBENS: We would ask for one week, so November

18 20.

19 THE COURT: November 20. Yes.

20 MR. RUBENS: Just a housekeeping matter on the

21 motions. As your Honor may be aware, there are special

22 bankruptcy rules that govern the form of motions that are

23 different than the court's local rules and your Honor's

24 individual practices, so I don't know if your Honor has a

25 preference about just filing it as a normal motion with notice

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1 of motion and 25 pages or if we should adhere to the bankruptcy

2 rules.

3 THE COURT: What are the bankruptcy rules?

4 MR. RUBENS: The bankruptcy rules are 20 pages in 14

5 point font, so it's shorter.

6 THE COURT: Our rules are 25, 25, and 10?

7 MR. RUBENS: Yes.

8 THE COURT: I think we also specify the size of the

9 font.

10 MR. RUBENS: That's right, which is smaller.

11 THE COURT: We go smaller?

12 MR. RUBENS: Yes. These look like a Second Circuit

13 brief.

14 THE COURT: What do the parties want? Do you want the

15 smaller or the larger font?

16 MR. RUBENS: Appellees are prepared to comply with the

17 bankruptcy rules with larger font.

18 THE COURT: I would prefer larger font, but you can

19 use our rules with respect to 25, 25, and 10.

20 MR. RUBENS: Okay.

21 THE COURT: And my own rule is footnotes should be

22 double-spaced to avoid compressing matter in footnotes and

23 circumventing the page limits that way. Footnotes should be

24 double-spaced and the same font size as the text. That also

25 saves me having to use a magnifying glass to read the

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1 footnotes.

2 MR. RUBENS: Thank you, your Honor.

3 THE COURT: I will stay the briefing on the appeal

4 until the motion to dismiss is decided.

5 MS. WIENER: Your Honor, if we would like oral

6 argument on the motion to dismiss, is that something we would

7 be setting now or asking for in the future.

8 THE COURT: I usually have argument on motions to

9 dismiss. I usually don't set them until I have a full set of

10 the papers and I have had an opportunity to review the papers.

11 I appreciate that there is some urgency here because when there

12 is a motion to dismiss based on equitable mootness grounds, I

13 know that I should get to it soon, but I don't want to set an

14 argument date until I have your papers.

15 The defendant also has the obligation to submit the

16 fully briefed motion to the court, a courtesy set of the

17 papers. You both should file the papers on ECF, but I want a

18 courtesy set from the defendant, because that will trigger my

19 office procedures to say this is a fully briefed motion, that I

20 should get to it.

21 MR. RUBENS: All right.

22 THE COURT: Okay?

23 MS. WIENER: Your Honor, I just have one housekeeping

24 matter. I am an attorney, but I am proceeding pro se here.

25 The local rules have some provisions to help pro ses, such as,

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1 for example, getting copies of the cases that are cited by the

2 other side.

3 THE COURT: Right.

4 MS. WIENER: I would really appreciate, that because I

5 don't have Westlaw, or Lexis access on a regular basis. It

6 would really, really help me out to be able to see their cases

7 without going to a library.

8 THE COURT: I think the local rule well, I know

9 that the local rule says that, in decisions by the court, the

10 court should provide the pro se litigant with copies of the

11 otherwise unreported cases. Whether our local rule says with

12 respect to the briefs submitted by the other side or not, the

13 appellee should provide the plaintiff with any cases that are

14 reported only in Lexis or Westlaw.

15 MS. WIENER: Thank you.

16 I think there is a housekeeping issue also. They have

17 been mailing me papers to West 42nd Street and my box is on

18 West 72nd Street, and appellee said there is some kind of

19 docket entry

20 THE COURT: I'm sorry?

21 MS. WIENER: My address for mailing is 119 West 72nd

22 Street.

23 THE COURT: Oh.

24 MS. WIENER: They have been sending to 42nd, because

25 it is docketed that way, but I don't know why that happened,

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1 because I think it was right on the civil cover sheet which I

2 filled out.

3 THE COURT: Okay.

4 MS. WIENER: So how do I fix that?

5 THE COURT: We will enter an order which corrects the

6 plaintiff's mailing address to 119 West 72nd Street, PMB 350,

7 right?

8 MS. WIENER: Yes.

9 THE COURT: I will make sure we enter that order.

10 The rest is correct? The telephone, fax, e-mail?

11 MS. WIENER: I don't have it in front of me, but the

12 phone number is (212) 574-7975.

13 THE COURT: Right.

14 MS. WIENER: The E-mail is Tally.Wiener@thecomi.com.

15 THE COURT: The fax is (212) 496-4170, right?

16 MS. WIENER: Yes.

17 THE COURT: And your e-mail is

18 Tally.Wiener@thecomi.com.

19 MS. WIENER: Yes. Thank you very much.

20 THE COURT: Anything else?

21 MS. WIENER: I'm good. Thank you.

22 THE COURT: Appellee?

23 MR. RUBENS: Nothing from the appellee. We will

certainly send recorded cases and send service to that address.
24 THE COURT: Okay. Thank you all. Good to see you
all.
25 oOo

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

l 7-cv-7222 (JGK)

IN RE OCEAN RIG UDW INC. , ET AL. MEMORANDUM OPINION

AND ORDER

JOHN G. KOELTL, District Judge:

This case is about the recognition under Chapter 15 of the

Bankruptcy Code, 11 U.S.C. § 1501 et seq., of the Cayman

Islands-based reorganization of Ocean Rig UDW Inc. ("UDW"), a

Cayman Islands exempted company, and three of its subsidiaries

(together with UDW, the "appellees," or the "debtors") . 1 Tally M.

Wiener (the "appellant"), an attorney proceeding prose, filed

an appeal of the bankruptcy court's August 24, 2017 Memorandum

Opinion recognizing the debtors' Cayman Islands restructurings

as foreign main proceedings, In re Ocean Rig UDW Inc., 570 B.R.

687 (Bankr. S.D.N.Y. 2017) (the "Recognition Order"), and the

accompanying order of the same date granting related relief, In

re Ocean Rig UDW Inc., 17-10736-mg (Dkt. No. 130) (the

"Enforcement Order"). The debtors now move to dismiss the

_,!

1 UDW' s three subsidiaries are Drill Rigs Holdings Inc. ("DRH"),

Drillships Financing Holding Inc. ("DFH"), and Drillships Ocean
Ventures Inc ("DOV") . Each of the subsidiaries is registered as
a non-resident corporation in the Republic of the Marshal
Islands ("RMI") and as foreign companies under § 186 of the
Cayman Companies Law.
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appeal. For the reasons explained below, the debtors' motion to

dismiss is granted.

I.

On appeal, the Court reviews a bankruptcy court's factual

findings for clear error and its legal conclusions de novo,

Nat'l Union Fire Ins. Co. v. Bonnanzio, 91 F.3d 296, 300 (2d

Cir. 1996); In re Lyondell Chemical Co., et al., No.

17-cv-4375(DLC), 2018 WL 565272, at *5 (S.D.N.Y. Jan. 24, 2018).

The Court may affirm on any ground that finds support in the

record and need not limit its review to the bases raised or

relied upon in the decisions below. See, e.g., Borrero v.

Connecticut Student Loan Found., No. 97-cv-1382, 1997 WL 695515,

at *1 (D.Conn. Oct. 21, 1997); In re Coronet Capital Co., No.

94-cv-1 1 87, 1995 WL 429494, at *3 (S.D.N.Y. July 20, 1995); see

also Freeman v. Journal Register Co., 452 B.R. 367, 369

(S.D.N.Y. 2010).

II.

The debtors are each holding companies that own, through a

large group of non-debtor companies, a fleet of deepwater oil

drilling rigs, which are leased to exploration oil and gas

companies. Recognition Order at 689. Together, they operate as

an international offshore oil drilling contractor, owner, and

operator of drilling rigs and provide drilling services for

offshore oil and gas exploration, development, and production.

2
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Id. at 693. The debtors specialize in the ultra-deepwater and

harsh-environment segments of the offshore drilling industry.

Id.

The joint provisional liquidators and authorized foreign

representatives (the nJPLs") of the debtors petitioned the

bankruptcy court for recognition of the Cayman Provisional

Liquidation Proceedings and subsequent applications for the

sanctioning of schemes of arrangement in respect of foreign

debtors under section 86 of Part IV of the Companies Law (the

ncayman Schemes," together with the Cayman Provisional

Liquidation Proceedings, the "Cayman Proceedings") as a foreign

main proceeding and for certain related relief under Chapter 15

of the Bankruptcy Code. Id. at 690-91.

The appellant filed an objection to the JPL's recognition

request on July 10, 2017, asserting that the appellant was a

shareholder of UDW. Id. at 691; In re Ocean Rig UDW Inc.,

17-10736-mg, Dkt. 89. On August 24, 2017, after a trial where

the appellant was allowed to present evidence and cross-examine

witnesses, the bankruptcy court granted the JPLs' petitions.

Recognition Order at 691, 707; Enforcement Order at 6. Although

the bankruptcy court observed that the appellant "offered no

evidence" supporting her contention that she in fact owned

shares in UDW, and had therefore "failed to establish that she

is a party-in-interest with standing to contest recognition" of

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the Cayman Proceedings, the bankruptcy court nonetheless treated

the appellant's objection as if she had standing and reached the

merits of her objection. Recognition Order at 691-92.

The debtors employ their drilling rigs to drill wells for

customers on a "day rate" basis, charging a fixed price per day

of rig operation dependent upon the level of efficiency with

which the rig is operating. Id. at 693-94. As of the date of the

Recognition Order, the debtors were dependent for revenues on

five drilling rigs, operating offshore near Norway, Brazil, and

Angola. Id. at 694. One of the rigs was under a long-term

contract, expiring in September 2020; two of the rigs were under

contracts set to expire in 2017; and two of the rigs were under

contracts set to expire during the first half of 2018. Id. Rigs

not under use must be deactivated, at a cost of $5 million each,

and either "warm stacked" at a cost of approximately $40,000 per

day, or "cold stacked" at a cost of approximately $5,000 per

day. Id.

Each of UDW's subsidiaries had incurred substantial debt,

which UDW had guaranteed and secured with UDW's shares of each

respective subsidiary. Id. at 692. As of the date of the

Recognition Order, DRH had approximately $460 million in

outstanding debt, DFH had approximately $1.83 billion in

outstanding debt, and DOV had approximately $1.27 billion in

outstanding debt. Id. at 692-93. Additionally, at the time of

4
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the Recognition Order, UDW had approximately $131 million in

outstanding unsecured notes. Id. at 693.

An oil and gas drilling industry down-cycle -- with crude

oil prices falling from $100 per barrel to $52 per barrel

between March 2014 and March 2017 -- together with the debtors'

outstanding debt obligations, their expiring contracts, and the

high costs of deactivating and stacking drilling rigs, combined

to place the debtors under financial pressure. Id. at 694. As of

the date of the Recognition Order, the debtors were experiencing

declining "day rates" and expected continued reduction in

customer demand until at least 2019. Id.

As of the debtors' initiation of the Cayman Proceedings,

UDW was insolvent and had an upcoming interest payment that it

did not have the money to pay without borrowing funds, which UDW

would not have been able to repay. Antonios Kandylidis Deel.

("Kandylidis Deel.") 'JI 15, I n re Ocean Rig UDW Inc.,

17-10736-mg, Dkt. 5. UDW also would not have had sufficient

assets to pay off its debt at maturity later in 2017, which

would have triggered cross-default provisions in the debtors'

credit agreements, accelerating approximately $3.7 billion in

debt. Id. ~ 16; see Recognition Order at 694.

However, the Republic of the Marshall Islands ("RMI"),

where the debtors previously maintained their center of main

interests ("COMI"), does not have a statute or any procedures

5
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permitting reorganization. Recognition Order at 694. The debtors

therefore sought to move their COMI to the Cayman Islands, which

does have statutory law and procedures permitting restructuring.

Id. The bankruptcy court found that none of the debtors have

ever maintained administrative, management, or executive offices

in the RMI, have ever had any directors who were residents or

citizens of the RMI, or have ever held a meeting of its

directors or shareholders in the RMI. Id. at 696. In contrast,

the bankruptcy court determined that, in light of the fact that

several directors of the debtors had residences in the Cayman

Islands, the debtors held regular board meetings in the Cayman

Islands, several significant officers of UDW resided and worked

in the Cayman Islands, office and administrative services for

the debtors were performed from the Cayman Islands, the share

certificates of UOW's subsidiaries securing the various debt

obligations were held in the Cayman Islands, the debtors all had

bank accounts used for the debtors' business in the Cayman

Islands, and the debtors' books and records were held in the

Cayman Islands, that the debtors' COMI was the Cayman Islands.

Id. at 696-98, 702. The bankruptcy court further determined that

the debtors had not manipulated their COMI in bad faith and that

the requirements of sections 109(a) and 1517(a) of the

Bankruptcy Code, necessary for a bankruptcy court to confirm a

6
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foreign proceeding under Chapter 15, were met. Id. at 699-700,

706-707.

The bankruptcy court therefore granted the JPLs' petition

for recognition of the Cayman Proceedings under Chapter 15 of

the Bankruptcy Code and ordered related relief, including an

automatic stay of all proceedings against the debtors in the

United States. See 11 U.S.C. § 1520(a).

Although the appellant did not seek a stay of the

Enforcement Order, on September 7, 2017, the appellant filed a

notice of appeal of both the Recognition Order and the

Enforcement Order. Among the appellant's contentions are that

venue was not proper in the Southern District of New York, that

the debtors' COMI was not in the Cayman Is l ands, tha t the

debtors improperly attempted to change their COMI, and that

recognition of the Cayman Proceedings violates the public policy

of the United States. In re Ocean Rig UDW Inc., 17-10736-mg

(Dkt. No. 89). The debtors' reorganization became final on

September 22, 2017. See U.S. Securities and Exchange Commission

Form 6-K - Report of Foreign Private Issuer Pursuant to Rule

13A-16 or 150-16 of the Securities Exchange Act of 1934 for UDW

(Exhibit B to the debtors' motion to dismiss).

III.

The debtors now move to dismiss the appeal on two grounds.

First, that the appellant lacks standing to appeal the

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bankruptcy court's orders because she is not an "aggrieved

person" with a pecuniary interest in the debtors'

reorganization, but rather is asserting the rights of third

parties. Second, that, in any event, the appeal is equitably

moot because the debtors' reorganization has already been

substantially implemented.

A.

To have standing to appeal a bankruptcy court order, an

appellant must be an "aggrieved person." Licensing by Paolo,

Inc. v. Sinatra (In re Gucci}, 126 F.3d 380, 388 (2d Cir. 1997)

"[A] party to the bankrupt cy proceedings is permitted to appeal

a particular order only if the order directly affects his

pecuniary interests." Kane v. Johns-Manville Corp. (In re Johns-

Manville, Corp.}, 843 F. 2d 636, 642 (2d Cir. 1988). In a

bankruptcy context, "if appellate standing is not limi ted,

bankruptcy litigation will become mired in endless appeals

brought by the myriad of parties who are indirectly affected by

every bankruptcy court order." Id.

In addition to satisfying the aggrieved person standar d, an

appellant must also have prudential standing. This requires that

the appellant assert the appellant's own legal rights and

interests and not those of third parties. In re Quigley Co., 391

B.R. 695, 705 (Bankr. S.D.N.Y. 2008) ("[T]he objecting party can

only challenge the parts of the plan that directly implicate its

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own rights and interests."). Prudential standing is particularly

important in a bankruptcy context where one party may seek to

challenge the plan based on the rights of third parties who

favor the plan. In re Johns-Manville, 843 F.2d at 644. "In this

context, the courts have been understandably skeptical of the

litigant's motives and have often denied standing as to any

claim that asserts only third-party rights." Id.; see also

Freeman v. Journal Register Co., 452 B.R. 367, 371 (S.D.N.Y.

2010).

As a purported shareholder in UDW, the appellant is not an

"aggrieved person" and therefore lacks standing to pursue this

appeal. As of the i nitiation of the Cayman Proceedings, UDW was

insolvent and had an upcoming interest payment that it did not

have the money to pay, and the appellant does not contest the

debtors' insolvency prior to the Cayman Proceedings. UDW also

would not have had sufficient assets to pay off its debt at

maturity later in 2017, which would have triggered cross-default

provisions in the debtors' credit agreements, accelerating

approximately $3.7 billion in debt. Moreover, under the Cayman

Scheme, UDW's debt was to be exchanged for new equity

representing the value of UDW immediately prior to the

restructuring of the other debtors. Kandylidis Deel. ~ 19. That

is, the total value of UDW, represented by the new equity, would

go to UDW's creditors pro rata, with no value left for its

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pre-restructuring shareholders. The appellant, as a purported

shareholder, did not stand to lose anything from, and thus had

no pecuniary interest in, UDW's restructuring. While the Cayman

Scheme called for a small portion of new equity -- 0.02% -- to

go to pre-reorganization shareholders, it did so not because

those shareholders were entitled to those newly issued shares

(i.e., not because the debtors' creditors had all been paid in

full), but rather in an effort to avoid having to re-register

UDW's shares on the NASDAQ, which would have "adversely

affected" the newly issued shares. See Appellant's Mem. Law

Opp'n to Appellees' Mot. Dismiss Ex. C at 2-3.

The appellant also contends that because UDW's

pre-restructuring shareholders were to receive 0.02% of the

UDW's newly issued equity under the Cayman Scheme, that she had

a pecuniary interest in UDW's restructuring. However, the fact

that UDW's creditors chose to provide its pre-restructuring

shareholders with this nominal amount of new equity in an effort

to avoid having to re-register its stock on NASDAQ, thereby

providing increased liquidity for the creditors' own shares of

UDW, does not change the fact that the appellant was not

entitled to receive anything as part of the debtors'

restructuring because the debtors' creditors had not received

the full portion of their claims. While unsecured creditors may

have standing to challenge such "gifts" to shareholders when

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their own recovery is adversely affected, none of the creditors

in this case opposed this plan, and the appellant does not point

to any authority for the proposition that such "gifts" provide

the recipient shareholders with standing to contest the

restructuring. See In re DBSD N. Am., Inc., 634 F.3d 79, 95 (2d

Cir. 2011) ("Absent the consent of all impaired classes of

unsecured claimants, therefore, a confirmable plan must ensure

either (i) that the dissenting class receives the full value of

its claim, or (ii) that no classes junior to that class receive

any property under the plan on account of their junior claims or

interests.").

Rather than contesting the debtors' insolvency, the

appellant contends that under the decision of the Second Circuit

Court of Appeals' in In re Fairfield Sentry Ltd., 714 F.3d 127

(2d Cir. 2013), shareholders of an insolvent entity have

standing to contest recognition of the ent ity's reorganization

under Chapter 15. However, In re Fairfield Sentry is

distinguishable. In that case, a shareholder of Fairfield Sentry

Limited, a feeder fund that invested with Bernard L. Madoff

Investment Securities LLC, appealed the district court's

judgment affirming the bankruptcy court's order recognizing the

liquidation of Fairfield Sentry Limited, the feeder fund, in the

British Virgin Islands under Chapter 15. The shareholder's

standing was not contested, and the shareholder's appeal was

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decided on the merits. However, there wa s no indication that the

case involved any creditors of the feeder fund -- or that any

existed -- other than its shareholders, who therefore would have

had a claim to any proceeds of the liquidation. In fact, the

Court of Appeals explained that, as of the date of the petition

for recognition of the foreign liquidation, the feeder fund had

tens of millions of dollars in liquid assets and billions in

claims and causes of actions. In re Fairfield Sentry Ltd., 714

F.3d at 131. The Court of Appeals did not reference any

liabilities. In re Fairfield, therefore, does not stand for the

proposition that a shareholder of an insolvent foreign company

has standing to appeal the recognition of the company's foreign

reorganization when the company's creditors will not recover in

full.

The appellees' motion to dismiss the appeal because the

appellant lacks standing is therefore granted.

B.

The appellant's appeal must be dismissed for the additional

reason that it is equitably moot because the debtors'

reorganizat i on pursuant to the Cayman Proceedings has already

taken place, and the appellant did not seek a stay of the

bankruptcy court's Recognition Order.

"An appeal [of a reorganization under Chapter 11 of the

Bankruptcy Code] should . be dismissed as moot when, even

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though effective relief could conceivably be fashioned,

implementation of that relief would be inequitable." Official

Comm. of Unsecured Creditors of LTV Aerospace & Def. Co. v.

Official Comm. of Unsecured Creditors of LTV Steel Co. (In re

Chateaugay Corp.), 988 F.2d 322, 325 (2d Cir. 1993) ("Chateaugay

!"l. "Equitable mootness is a prudential doctrine that is

invoked to avoid disturbing a reorganization plan once

implemented." Deutsche Bank AG v. Metromedia Fiber Network, Inc.

(In re Metromedia Fiber Network, Inc.), 416 F.3d 136, 144 (2d

Cir. 2005). Courts have imported the policy from its origin in

Chapter 11 to cases under Chapters 7, 9, and 13 of the

Bankruptcy Code. See Stokes v. Gardner, 483 F. App'x 345 (9th

Cir. 2012) (Chapter 7); In re City of Detroit, 838 F.3d 792,

800-01 (6th Cir. 2016) (Chapter 9); Bace v. Babitt, No.

07-cv-2420 (WHP), 2008 WL 800579 (S.D.N.Y. Mar. 25, 2008)

(Chapter 13) . And the Court of Appeals for the Second Circuit

has dismissed on mootness grounds an appeal from an injunction

that enforced, pursuant to 11 U.S.C. § 304 (the predecessor of

Chapter 15), provisions of a foreign arrangement winding up

foreign companies. Allstate Ins. Co. v. Hughes, 174 B.R. 884

(S.D.N.Y. 1994).

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In the context of a reorganization under Chapter 11, when

a reorganization has been substantially consummated,2 there is a

"strong presumption" that an appeal of an unstayed order is

moot. Allstate, 174 B.R. at 889; see also In re Metromedia Fiber

Network, Inc., 416 F.3d at 144; A & K Endowment, Inc. v. Gen.

Growth Props., Inc. (In re General Growth Props., Inc.),

09-cv-5508, 2010 WL 532504, at *6 (S.D.N.Y. Feb. 16, 2010);

Compania Internacional Financiera S.A. v. Calpine Corp. (In re

Calpine Corp.), 390 B.R. 508, 516 (S.D.N.Y. 2008). This

presumption may only be overcome when five circumstances are

present:

(a) th~ court can still order some effective relief;

(b) such relief will not af feet the re-emergence of
the debtor as a revitalized corporate entity; (c) such
relief will not unravel intricate transactions so as
to knock the props out from under the authorization
for every transaction that has taken place and create
an unmanageable, uncontrollable situation for the
Bankruptcy Court; ( d) the parties who would be
adversely affected by the modification have notice of
the appeal and an opportunity to participate in the
proceedings; and (e) the appellant pursued with
diligence all available remedies to obtain a stay of
execution of the objectionable order if the

2 In the context of Chapter 11, the Bankruptcy Code defines

"substantial consurrunation" as:
(A) transfer of all or substantially all of the
property proposed by the plan to be transferred; (B)
assumption by the debtor or by the successor to the
debtor under the plan of the business or of the
management of all or substantially all of the property
dealt with by the plan; and (C) corrunencement of
distribution under the plan.
11 u.s.c. § 1101(2).
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failure to do so creates a situation rendering it
inequitable to reverse the orders appealed from.

Frito-Lay, Inc. v. LTV Steel Co. (In re Chateaugay, Corp.), 10

F. 3d 94 4, 952-53 ( 2d Cir. 1993) ("Chateaugay II") (internal

citations, quotations, and alterations omitted) .

Courts in this Circuit have emphasized the importance of an

appellant seeking a stay in the context of Chapter 11

proceedings. Loral Stockholders Protective Comm. v. Loral Space

& Commc'ns Ltd. (In re Loral Space & Commc'ns Ltd.), 342 B.R.

132, 141 (Bankr. S.D.N.Y. 2006) ("[S]eeking a stay is of the

utmost importance to an appellant desiring to preserve an appeal

of a confirmation order."). "The failure to seek a stay of the

confirmation order pending appeal, with the result that the

reorganization is substantially consummated, in particular lends

itself to a finding that an appeal is moot." In re Calpine

Corp., 390 B.R. at 517. "In the absence of any request for a

stay, the question is not solely whether we can provide relief

without unraveling the Plan, but also whether we should provide

such relief in light of fairness concerns." In re Metromedia

Fiber Network, Inc., 416 F.3d at 145 (citing Chateaugay I and

II) (emphasis omitted) ; see also Journal Register Co. , 4 52 B. R.

at 372-73. The Second Circuit Court of Appeals has explained

that, while seeking a stay is not explicitly required in order

to pursue an appeal, "[t]he party who appeals without seeking to

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avail himself of that protection does so at his own risk.n

Chateaugay I, 988 F.2d at 326.

In this case, the appellant did not seek a stay of the

bankruptcy court's recognition of the Cayman Proceedings. The

appellees argue persuasively that, since the finalization of the

Cayman restructuring on September 22, 2017, the debtors'

positions have comprehensively changed, and the Cayman

reorganization has been substantially completed, because the

debtors have issued new equity and made cash distributions to

creditors and entered into a new secured debt facility, as well

as a long-term management services agreement. There is thus a

strong presumption that the appellant's appeal is moot because

the debtors' reorganization has already been substantially

completed.

The appellant argues that the cases dealing with

reorganizations under Chapter 11 of the Bankruptcy Code and

recognition under former Bankruptcy Code section 304 have no

force in the context of Chapter 15, which replaced former

section 304. However, the appellant cites no auth ority for this

proposition, and it is unpersuasive. The inequi ty of unwinding a

reorganization that has been substantially completed, and which

the appellant failed to seek to stay, applies equally in the

context of foreign reorganizations as it does to domestic ones.

See Chateaugay I, 988 F.2d at 325 (noting that in the bankruptcy

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context "the ability to achieve finality is essential to the

fashioning of effective remedies."). Moreover, the principles of

comity that underlay the recognitions of foreign reorganizations

under former Bankruptcy Code section 304 apply just as

forcefully in the context of recognitions of foreign proceedings

under Chapter 15. As the Fifth Circuit Court of Appeals

explained, "[c]entral to Chapter 15 is comity." Ad Hoc Group of

Vitro Noteholders v. Vitro S.A.B. de CV (In re Vitro S.A.B. de

CV), 701 F.3d 1031, 1043 & n.13 (5th Cir. 2012) (noting that

"[w]hile § 304 has been replaced by Chapter 15, caselaw applying

that section remains rel evant to evaluating requests for

relief"); Allstate, 174 B.R. at 890 (citing "concerns of comity"

when explaining the court's reluctance to modify an injunction

enforcing certain provisions of a foreign reorganization).

Congress explicitly instructed that "[i]n interpreting [Chapter

15], the court shall consider its international origin, and the

need to promote an application of this chapter that is

consistent with the application of similar statutes adopted by

foreign jurisdictions." 11 U.S.C. § 1508. Refusing to recognize

foreign bankruptcy proceedings that have been substantially

consummated plainly would not promote the application of similar

statutes in foreign jurisdictions, nor would it promote

international cooperation and legal certainty, enumerated

objectives of Chapter 15. 11 u.s.c. § 1501(a).

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Just as in domestic reorganizations, the principles of

finality and fairness weigh heavily in favor of dismissing as

moot the appeal of a substantially consummated reorganization

where the appellant failed to seek a stay of the reorganization.

And just as under former Bankruptcy Code section 304, concerns

of comity and the interest in promoting the application of

statutes in foreign jurisdictions that are similar to United

States bankruptcy proceedings weigh heavily in favor of

recognizing reorganization schemes enacted by foreign

authorities. Because the appellant has failed to show why these

same concerns do not apply in this case, the appellees' motion

to dismiss this appeal as equitably moot is granted.

IV.

The appellant has moved to strike the appellees' reply

brief in support of their motion to dismiss. The gist of the

appellant's argument is that, unless the district court orders

otherwise, under Federal Rule of Bankruptcy Procedure

8013 (f) (3) (B) a reply brief must not exceed ten pages, see Fed.

R. Bankr. P. 8013(f) (3) (B), and that the appellees' reply brief,

"which is 15 pages long, exceeds the 10-page limit . .

,,

Appellant's Letter Mot. Seeking Strike Appellees' Reply Brief

(Dkt. No. 26) at 2.

The appellant's letter motion lacks merit and is denied.

The appellees' reply brief is ten pages long. See Appellees'

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Reply Mem. Law Supp. Mot. Dismiss. (Dkt. No. 24). The

appellant's argument is based on the contention that because

Rule 8013 does not specifically exempt the cover page, table of

contents, table of authorities, and the signature block from the

ten-page limit, that the Rule' ten-page limit is inclusive of

this non-substantive content. The appellant does not posit any

rationale for why non-substantive portions of a brief should

count toward a page limit. Under the appellant's reading of Rule

8013, in fact, no cover page, table of contents, or table of

authorities is required, and litigants would therefore have an

incentive to exclude such non-substantive -- but

useful -- content in order to save space for argument. Such an

outcome is not required by the Rule. In any event, the Court

would grant any necessary motion to include these

non-substantive items nunc pro tune pursuant to Rule 8013(f) (3).

CONCLUSION

For the reasons stated above, the appellees' motion to

dismiss the appeal is granted. The Clerk is directed to close

Docket No.18, dismiss the appeal, and close this case.

SO ORDERED.

Dated: New York, New York

April 5, 2018 \Z'~ {/~
f "<J John G. Koel tl
bni'fed States District Judge

19
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A42 rFusr)c~- s!·iNv · ·- _-:. ·-·-· · -
11 DOCl r ~.11El\ i

UNITED STATES DISTRICT COURT l ED~~:

'I
I I :(' J-P()N·'('t,f l 'y'
#: " . J I . . .
J"7 1 l r-f) ,'
l 1 ! L

lbrE52:,~j:_1/_~Q~~-~ .
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------)(

IN RE OCEAN RIG UDW INC., ET AL. 17 CIVIL 7222 (JGK)

JUDGMENT

-----------------------------------------------------------)(

It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in

the Court's Memorandum Opinion and Order dated Apri I 6, 2018, the appel lees' motion to

dismiss the appeal is granted; accordingly, the case is closed.

Dated: New York, New York

April 6, 2018

RUBY J. KRAJICK

Clerk of Court
BY:

Deputy Clerk
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In r Occun R ig UD\V Inc. et al .

Tally M. W iener, File No. J 7-cv-7222 (J G K)

v.

Ocean Rig D\\' Inc.,

Drill Ri~ Holding Inc.•
Drill hip' Fina ncing H olding Inc.•
Orilhhip Oce n \'eotures Inc,
Eleanor Fbhcr. l raklis barouni
a nti ...'imon ppell

Notice of Appeal to the United S tate· C ourt of Appeals for the cc ond C ircuit
Shareholder 1 ally M. Wiener appeals Lo the Uni Led States Court of Appeals for the Second Circuit from
the Memorandum Opinion and Order and Judgment of the United States District Court !'or the Southern
D1stncl of New York, entered in this c.isc on the sixth day of April. 2018 in faH>r of Ocean Rig UDW
Inc .. Drill Rig~ Holdings [nc .• Drillships FinanLing llolding. Inc .. Drillships Ocean\ cnturcs Inc. Eleanor
Fi her. lrakli::. barounis and Simon Appell dismi. sing the hareholder appeal lo th~ nited . tates District
Court for the Southern District of Nev. York from th~ United rates Bankruptcy oun for the outhern
District of 1 'e\\ York.

·1he panic ~ to the Judgment appealed from and the names and addresses of their re pecth e counsel are as
follO\\ :

Ocean Rig l D\lv Inc .. Drill Rigs Holdings Inc .. Drillsh1ps Financing Holding Inc .. Drillships Ocean
Ventures Inc .. Eleanor Fisher, lraklis Sbamunis and ~imon Appell

Counsel: Evan C. lfollander, Orrick, I lcrrington & Sutcli ffe LLP, 5 l West 52"d Street. New York. NY
10019

Date: The 4th day of~1ay, 2018

.
-~~fl\. w~ll._
Add re c o La\\'Olce of Tall) M. Wiener. Esq.
119 west 72rtd s rect, P~1B 350
'\e\\ York. Y I0023

212.574. 7975
tally .wienerr~thecomi com
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE OCEAN RIG UDW INC., ET AL. 17-cv-07222 (JGK)

STATEMENT OF ISSUES TO BE PRESENTED ON APPEAL

AND DESIGNATION OF RECORD ON APPEAL

Pursuant to Federal Rule of Appellate Procedure 6, Tally M. Wiener,

the Appellant to the United States Court of Appeals for the Second Circuit in

In Re Ocean Rig UDW Inc., USCA Case Number 18-1374, from the

Judgment of the United States District Court for the Southern District of

New York entered in the above-captioned case, respectfully submits the

following statement of issues to be presented on appeal and designation of

record on appeal.

Issues To Be Presented On Appeal

Did the District Court err in dismissing the Chapter 15 appeal to it

from the Bankruptcy Court without reaching the merits of the appeal, on the

basis of purported lack of appellate standing?

Did the District Court err in dismissing the Chapter 15 appeal to it

from the Bankruptcy Court without reaching the merits of the appeal, on the

basis of alleged equitable mootness?

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Additionally, the Appellant incorporates by reference the issues on

appeal presented to the District Court on appeal from the Bankruptcy Court.

Designation of Record on Appeal

Pursuant to Federal Rule of Appellate Procedure 6(b )(2)(B), the

Appellant redesignates the record on appeal to the District Court from the

Bankruptcy Court, and designates the proceedings in the District Court,

including the documents filed by the parties and entered by the District

Court reflected in the certified indexed record of appeal transmitted to the

United States Court of Appeals by the District Court.

Respectfully submitted
by the Appellant this 16th day of May, 2018

Isl Tally M. Wiener

Law Offices of Tally M. Wiener, Esq.
Tally M. Wiener
119 West 72nd Street, PMB 350
New York, NY 10023
(212) 574-7975
tally. wiener@thecomi.com