il. CONCLUSION

For the foregoing reasons, this Court denies Ramco's motion’. It is so ordered.

BW asin =e a ae

United States District Judge

Dated __/ afa af Qa

Because we have now denied the motion to stay pending appeal, we also vacate our previous
stay pending ruling.

Ramco has also moved that in the event this Court denies its motion to stay that such ruling be
stayed pending appeal to the Circuit Court of the denial of its motion to stay. Federal Rule of. Appellate
Procedure 8(a). We deny this motion as well.



Ramco further asserts that without a stay, it will lose goodwill with its tenants because of its
inability to enforce all of its lease provisions. Ramco first raised this issue during oral argument on its
motion to stay before the bankruptcy court. As a result, the court found that Ramco's assertion was not
developed enough to constitute an irreparable harm. Ramco continues to fail to identify how its
goodwill with its tenants will be irreparably harmed in the absence ofa stay. In Gateway Easter Railway
Co. v. Terminal R.R. Assoc., 35 F.3d 1134, 1140 (7th Cir. 1994), the case to which Ramco cites in its
pleadings before this Court, the movant faced a loss of goodwill because in the absence of a preliminary
injunction, the movant would go out business, or transfer its losses to its customers. In this case, Ramco
does not allege that it is on the verge of going out of business or will have to pass its losses on to its
customers in order to avert such an outcome. Instead, Ramco states that if the Lease is assigned, Ramco
will be bound by the terms of the Lease, in particular the 1978 rental rates included therein. However,
economic loss will generally not sustain a stay. See Gateway Easter Railway Co., 35 F.3d at 1140
(referring to a preliminary injunction).

We hold that the bankruptcy court did not abuse its discretion in denying Ramco's motion for
a stay pending appeal. The bankruptcy court correctly concluded that Ramco failed to show that it
would suffer irreparable harm absent a stay. Accordingly, we concur with the bankruptcy court's
decision to deny Ramco's motion without further analysis of the remaining facts. See Forty-Eight
Insulations, 115 F.3d at 1301. Thus, we deny Ramco's motion presently before us without analyzing the

remaining factors.



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

N: f Assign jus 1 Sit
inde Magitate Judge Marvin Aspen than Assigned Judge
CASE NUMBER 02 C 9257 DATE : 12/23/2002
CASE In Re: Kmart Corporation, et al
TITLE :

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.] .

MOTION:

DOCKET ENTRY: 7 cot

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

6) O Answer brief to motion due___. Reply to answer brief due___

(4) o Ruling/Hearingon set for saat

(5) mt Status hearing[held/continued to] [set for/re-set for]on__set for ____at

(6) ao Pretrial conference[held/continued to] [set for/re-set for]on__setfor___——sat__.
(7) a Trial[set for/re-set for}on__at

(8) 0 (Bench/Jury trial] [Hearing] held/continued to_____—at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCP4(m) Cl Local Rule 41.1 CFRCP41(a\(1)_ CFRCP4I(@)(2). ;

ao [Other docket entry] Enter Memorandum Opinion and Order: We hold that the bankruptcy court
did not abuse its discretion in denying Ramco’s motion for a stay pending appeal. The bankruptcy court
correctly concluded that Ramco failed to show that it would suffer irreparable harm absent a stay.
Accordingly, we concur with the Bankruptcy Court’s decision to deny Ramco’s motion without further
analysis of the remaining facts. Thus, we deny Ramco’s motion presently before us (1-1) (1-2) without
analyzing the remaining factors.

al) @f [For further detail see order attached to the original minute order.]

Document
Number.

No notices required, advised in open court.

No notices required.
eq) number of notices

VY | Notices mailed by judge’s staft. HEC 3 ( 2002)

Notified counsel by telephone. ZY date dockered

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.
1228/2002

an
i date mailed notice
courtroom, ae

GL deputy’s
initials

Le o20 29
UT Waterthereesi
central Clerk's Office railing deputy ints



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Pte Tép

In re: KMART CORPORATION, et al., 39 002
Case No. 02 C 9257

Debtors.

werevew

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Presently before us is the Emergency Motion of Ramco-Gershenson, Inc. (“Ramco”) for Stay
Pending Appeal. We previously have granted a preliminary stay until our ruling on the motion presently
before us. For the reasons set forth below, we deny Ramco's motion.

L BACKGROUND

The matter before this Court concerns a dispute over the Debtors' decision, pursuant to Section
365 of the Bankruptcy Code, to assume and assign the Lease for the Conyers, Georgia Kmart store to
a subsidiary of Burlington Coat Factory (the “Assignee”). On December 11, 2002, the bankruptcy court
approved the assignment of the Lease (the “Assignment Order”) holding that the Debtors had satisfied
all the requirements necessary for such an assignment, including the heightened adequate assurance
requirements applicable to shopping center leases under Section 365(b)(3). Furthermore, at the
December 11 hearing, the bankruptcy court reaffirmed its November 6, 2002 Order granting summary
judgment (the “Summary Judgment Order”) in favor of the Debtors, prohibiting enforcement of a
provision in the Lease that allowed Ramco to terminate the Lease if Kmart ceased operations in the store
for any reason.

On December 13,2002, Ramco filed a motion for stay pending appeal of the above two decisions

of the bankruptcy court. The bankruptcy court denied Ramco's motion on December 19, 2002. Ramco



filed the instant emergency motion for stay pending appeal with this Court on December 20, 2002. This
Court held a hearing on the motion on December 23, 2002 at which time arguments of counsel, as well
as the bankruptcy court's rulings, were considered.
I. ANALYSIS

We review the bankruptcy court's denial of Ramco's motion for abuse of discretion. In re 203
North LaSalle St. P'ship, 190 B.R. 595, 596 (N.D, Ill. 1995). In considering whether to grant a motion
for stay pending appeal, a court must examine the following four factors: “1) whether the [movant] is
likely to succeed on the merits of the appeal; 2) whether the [movant] will suffer irreparable injury
absent a stay; 3) whether a stay would substantially harm other parties in the litigation; and 4) whether
a stay is in the public interest.” Jn re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir. 1997).
The movant has a “threshold burden[]} to demonstrate the first two factors.” Id. “(I]f the movant does
not make the requisite showings on either of these two factors, the court's inquiry into the balance of
harms is unnecessary, and the stay should be denied without further analysis.” Jd. at 1301.

The bankruptcy court considered the second factor first. 'The court concluded that Ramco failed
to show that it would suffer irreparable injury absent a stay. We agree. Ramco argues that without a
stay, the Lease will be assigned and Ramco's appeals will be rendered moot. However, as the
bankruptcy court explained, mootness by itself is not enough to constitute an irreparable harm. See 203
North LaSalle, 190 B.R. at 597-58 (“It is well-settled that an appeal being rendered moot does not itself
constitute irreparable harm.”); see also In re Shenandoah Realty Partners, 248 B.R. 505, 510 (W.D. Va.
2000) (same); Jn re Charter Co., 72 B.R. 70, 72 (Bankr. M.D. Fla. 1987) (denying stay because

mootness of appeal is insufficient to establish irreparable injury).

‘Ramco also argues that the Bankruptcy Court erred in not fully - or not properly - considering
the first factor. We disagree with Ramco and agree with the Bankruptcy Court that Ramco’s failure to
mect the requisites of the second factor is determinative.

2