Centaur Holdings Substituted as Party for Indianapolis Downs and Ordered to Address Existence of Settlement and Whether Appeal to Third Circuit is Moot

On March 1, 2013, the Third Circuit Court of Appeals Certified a Question to the Indiana Supreme Court:

NOW, THEREFORE, the following question of law is certified to the Indiana Supreme Court for disposition according to the rules of that Court:

Are the funds that racinos must distribute pursuant to Ind. Code § 4-35-7-12 included in “adjusted gross receipts received” for purposes of the Graduated Wagering Tax, Ind. Code § 4-35-8-1?

This court shall retain jurisdiction of the appeal pending the resolution of this certification.

On April 2, 2013, the Indiana Supreme Court issued an order holding the certified question in abeyance:

“Included with the materials submitted along with the Petition for Certification is the case docket for appeal No. 12-1582, which shows that on February 28, 2013 – just one day before the Third Circuit issued its Petition for Certification – Indianapolis Downs filed its “Uncontested Motion to Substitute Appellee and Counsel to Appellee Pursuant to Rule 43(b) of the Federal Rules of Appellate Procedure” (“Motion to Substitute”).  In the Motion to Substitute, Indianapolis Downs asks the Third Circuit to substitute “Centaur Acquisition LLC” as Appellee in place of Indianapolis Downs and alleges as follows:  That on October 21, 2012, the bankruptcy court allowed Indianapolis Downs to sell substantially all of its assets to Centaur; the sale closed on February 20, 2013; in that sale, Centaur acquired the rights related to this litigation; Centaur, not Indianapolis Downs, is now the real party in interest and joins in the motion to substitute; and “the Indiana DOR, Centaur and Hoosier Park have reached a settlement the “Settlement”) that, subject to certain conditions, moots this Appeal.”  (See Mot. To Substitute at ¶6 (emphasis added).)”

Docket Inquiry

DATE	TEXT
3/01/13	PETITION FOR CERTIFICATION OF QUESTION OF LAW FROM U.S.
	COURT OF APPEALS FOR THE THIRD CIRCUIT (6)
	ENTERED ON 03/05/13 MS
3/01/13	DISK FROM U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
	ENTERED ON 03/05/13 MS
4/02/13	THE COURT HAS ISSUED THE ATTACHED ORDER:
4/02/13	THE INDIANA SUPREME COURT'S DIVISION OF ADMINISTRATION
	HAS CHECKED THE ELECTRONIC DOCKET FOR APPEAL NO. 12-1582 AND,
	AS OF THE DATE OF THIS ORDER, OBSERVES NO RULING BY THE THIRD
	CIRCUIT ON THE MOTION TO SUBSTITUTE. NOR HAVE THE PARTIES
	PROVIDED THE INDIANA SUPREME COURT ANY ADDITIONAL INFORMATION
	REGARDING THE STATUS OF THE SETTLEMENT AND WHETHER PARTIES
	HAVE MOVED TO DISMISS THE APPEAL AS MOOT AND, IF SO, WHETHER
	THE THIRD CIRCUIT HAS RULED ON SUCH A MOTION.
	UNDER THESE CIRCUMSTANCES, RATHER THAN ACCEPTING OR
	REFUSING THE CERTIFIED QUESTION AT THIS TIME, THE COURT
	RESPECTFULLY HOLDS IN ABEYANCE THE PETITION FOR CERTIFICATION,
	PENDING A RESOLUTION BY THE THIRD CIRCUIT WHETHER APPEAL
	NO. 12-1582 IS MOOT.
	BRENT E. DICKSON, CHIEF JUSTICE OF INDIANA
	(ORDER REC'D 04/02/13 AT 2:10 P.M.) ENTERED ON 04/03/13 KJ
4/03/13	****** ABOVE ENTRY MAILED ******

http://hats2.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=8

On April 10, 2013, the Third Circuit issued the following order:

On April 8, 2013, the Clerk received an order from the Indiana Supreme Court holding in abeyance this Court’s petition for certification of a question of law pending a determination of mootness.

The day prior to this Court’s certification to the Indiana Supreme Court, appellee Indianapolis Downs LLC filed a motion substituting Centaur Acquisition, LLC

(“Centaur”) for Indianapolis Downs pursuant to Fed. R. App. P. 43(b). Within the body of the motion appellee indicates that the parties have reached a settlement. To date a formal notification of settlement has not been filed with this Court nor a motion to withdraw the appeal pursuant to Fed. R. App. P. 42(b).

Accordingly, it is hereby O R D E R E D that the motion for substitution is granted. Counsel for appellee Centaur is directed to enter an appearance within 5 days from the date of this order. It is further O R D E R E D that the parties are directed to file letter responses within 10 days from the date of this order addressing the existence of a settlement between the parties and whether the appeal is now moot.

 

For background on this litigation see the following entry: 
http://indianapropertytaxreporter.blogspot.com/2012/06/delaware-deciding-significant-issues-of.html