UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20623
Summary Calendar
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In The Matter of: STRUCTURAL SOFTWARE, INC.
Debtor
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PAMELA GALE JOHNSON, Trustee,
Appellant,
versus
ENGINEERING DYNAMICS, INC.,
Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(96-MC-99)
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June 6, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The trustee for Structural Software, Inc. has appealed
the district court’s entry of an order lifting the automatic stay
pursuant to an Agreed Order to lift stay, to which she was a party
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
when the order was filed in the bankruptcy court in April, 1995.
The trail which led the trustee to this appeal is tangled and
confused, but the outcome is simple. She cannot appeal an order to
which she agreed. Further, the bankruptcy court should not have
refused to enter the agreed order under the circumstances here
presented. Moreover, the district court was within its authority
in granting the relief it did. The district court judgment is
affirmed.
We have appellate jurisdiction over this appeal pursuant
to 28 U.S.C. § 1291. In re: Cajun Electric Power Co Op, Inc., 69
F.3d 746, 747 (5th Cir. 1995).
It is unnecessary to recite the entire procedural
background of this case. The Houston bankruptcy case apparently
originated with a lawsuit between EDI (appellee here) and the
debtor over alleged copyright infringement of EDI’s software. This
court held that EDI could claim copyright protection over portions
of the software and remanded to the Louisiana district court.
Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d
1335 (5th Cir. 1994), supplemental opinion on rehearing, 46 F.3d
408 (5th Cir. 1995). In the meantime, the bankruptcy case had
commenced, and EDI sought relief from the automatic stay to
complete the litigation. An agreed order was entered into in April
1995 by counsel for the Chapter 7 trustee, counsel for EDI and
counsel for another creditor that expressly permitted the
litigation to go forward, with only the following exception:
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Nothing in this order shall be deemed or
construed to authorize EDI to prosecute any
post-petition claims, including but not
limited to any request for injunctive relief
against the Structural Software, Inc.
bankruptcy estate or the Trustee . . . and EDI
shall not prosecute any such post-petition
claims against the Structural Software, Inc.
bankruptcy estate or the Trustee without first
presenting the matter to this Court.
The bankruptcy court, although presented with this order, did not
enter it and persisted for months in refusing to enter it.
The trustee attempted to sell assets of SSI including the
disputed software program to a third party, leading EDI to object
and make a counter-offer of sale. To make a long story short, EDI
eventually reached a tentative agreement withe the Trustee, but the
former owners of SSI objected, and the bankruptcy court was forced
to conduct a hearing on a number of issues. Throughout this
period, the court refused to enter the agreed order lifting the
stay.
EDI apparently became understandably vexed at the drawn-
out process and frustrated at its inability to complete the
litigation. In early 1996, EDI moved to withdraw the reference to
the bankruptcy case and then to lift the automatic stay so that the
Louisiana litigation could go forward. Over vigorous and lengthy
objections filed by the trustee, SSI and the bankruptcy judge
himself, the district court granted EDI’s requests. The trustee
has at this juncture appealed only the order lifting the stay.
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As we see it, the district court’s order lifting stay
does not contain the exception noted in the agreed bankruptcy court
order between the parties. To that extent, it arguably grants
broader relief to EDI and therefore should be reviewed on its own
terms. Nevertheless, the conclusion is inescapable that the
trustee did agree to allow the Louisiana litigation to continue
except for the award of some sort of post-petition injunctive
relief and the resolution of post-petition damage claims against
the debtor’s estate or the trustee. To the extent that the trustee
agreed to some relief, she ought to be bound to that deal. She
cannot escape the impact of the agreed order simply because the
bankruptcy judge refused to enter it and because she was attempting
-- unsuccessfully -- to settle the issues left open by the agreed
order. The trustee is not a “party aggrieved” for purposes of
appeal to the extent the Agreed Order provided for a consensual
lifting of the stay.
With respect to the arguably broader relief granted by
the district court, we find no error. The court lifted the
automatic stay pursuant to 11 U.S.C. § 362(d) and (g) to allow the
entire litigation to go forward in the Louisiana district court.
Without getting into the argument over who had the burden to prove
“cause” for this relief, we affirm the district court’s implicit
finding that cause was shown. It makes eminent sense to continue
the lawsuit in a forum which already had experience with it, where
the issues against SSI and the individual defendant Guntur could
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all be resolved, and where damage issues would not have to be
bifurcated. Judicial economy, if there remains any economy in this
proceeding, is furthered by that result. The bankruptcy case
cannot meaningfully be interfered with, because EDI has withdrawn
its offer to purchase the assets of SSI. Any claimed prejudice to
creditors is speculative at best, particularly considering that the
trustee’s expenses have been magnified considerably by the
procedural tangle resulting from her tactical decision not to agree
to simple completion of the litigation in Louisiana.
For these reasons, the judgment of the district court is
AFFIRMED.
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