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To: scion who wrote (11694)	11/14/2007 4:29:09 PM
From: scion	Respond to of 12518

11/14/2007 289 Objection Filed by U.S. Trustee (RE: related document(s)272 Motion to Convert Case from 11 to 7 filed by Creditor John P Murphy, Creditor Pro Plas LLC, Creditor John P. Murphy III Revocable Trust No 1, Creditor 10315 LLC). (Daugherty, John) (Entered: 11/14/2007) -------------------- Doc 289 In re: Pro Mold, Inc. Debtor. Case No. 07-50935 Chapter 11 UNITED STATES TRUSTEE’S OPPOSITION TO MOTION BY THE MURPHY ENTITIES TO CONVERT CASE Richard F. Clippard, United States Trustee, opposes the Motion of the Murphy Entities to Convert this case for the following reasons: 1. The United States Trustee has standing to object to the requested relief under 28 U.S.C. § 586 and 11 U.S.C. § 307.2. 2. Debtor Pro-Mold, Inc. (“Pro-Mold”) filed for chapter 11 relief with this Court on May 16, 2007. 3. On August 16, 2007, the Murphy entities filed a Motion for Appointment of a Chapter 11 Trustee. Docket # 182. The United States Trustee previously filed a Motion for Appointment of a Chapter 11 Trustee on August 9, 2007. Docket # 175. 4. On October 4, 2007, after an evidentiary hearing, the Court granted the Motions of the United States Trustee and the Murphy Entities. Docket # 249. 5. The instant Motion to Convert relies on facts identical to those asserted in the Murphy Entities’ Motion for Appointment of a Trustee. Therefore, the instant Motion is barred under the doctrine of claim preclusion. 6. The doctrine of claim preclusion will bar a claim if the following four elements are present: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in a subsequent action which should have been litigated in the prior action; and (4) an identity of the causes of action. Becherer v. Merrill Lynch, 193 F.3d 415, 422 (6th Cir.1999) (en banc). 7. All four elements are present here: (a) The Order Directing the Appointment of a Chapter 11 Trustee was a final decision by this Court on the merits. (b) The instant Motion involves the identical parties to the Motion for Appointment of a Chapter 11 Trustee. (c) The issue of whether to convert this case should have been litigated at the same time as the trustee appointment issue, and in fact was before the Court. See 11 U.S.C. §1104(a)(3) (Court shall order appointment of a trustee “if grounds exist to convert or dismiss the case under section 1112” but court determines that appointment of a trustee is in best interests of creditors and estate). (d) The two Motions are in effect identical, as evidenced by the identical facts alleged, see Browning v. Levy, 283 F.3d 761 (6th Cir.2002) (identity of claims satisfied if “claims arose out of the same transaction or series of transactions, or . . . claims arose out of the same core of operative facts”), and the fact that both conversion of a case and appointment of a trustee are both part of a continuum of remedies available to a Court. See 11 U.S.C. §§ 1104(a)(3) and 1112(b)(1). WHEREFORE, the United States Trustee respectfully requests that the Motion of the Murphy Entities be DENIED. Dated: November 14, 2007 Richard F. Clippard United States Trustee for Region 8 By Counsel /s/ John L. Daugherty John L. Daugherty Assistant U.S. Trustee 100 E. Vine St., Suite 500 Lexington, KY 40507 (859) 233-2822 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of November, 2007, I served a copy of the foregoing Motion (i) via ECF noticing to Robert Brown, Esq.; John Brice, Esq.; Ellen Vergos, Esq., Dean Langdon, Esq.; Gregory Schaaf, Esq.; E. Rebecca Case, Esq.; and (ii)via first-class mail, postage prepaid to the attached list. /s/ John L. Daugherty John L. Daugherty