    12-800-bk
    Grocery Haulers, Inc. v. The Great Atlantic & Pacific Tea Co., Inc.



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    25th day of January, two thousand thirteen.

    PRESENT:    ROBERT A. KATZMANN,
                RAYMOND J. LOHIER, JR.,
                       Circuit Judges,
                JED S. RAKOFF,*
                       District Judge.
    _________________________________________

    Grocery Haulers, Inc.,


                                 Appellant,

                       v.                                                          12-800-bk

    The Great Atlantic & Pacific Tea Co., Inc., et al.,

                      Debtor-Appellee.
    _________________________________________

    FOR APPELLANT:                                   STEPHEN B. SELBST (William R. Fried, Joshua J. Angel,
                                                     and Justin B. Singer on the brief), Herrick, Feinstein LLP,
                                                     New York, N.Y.

    FOR DEBTOR-APPELLEE:                             ANDREW GENSER (Paul M. Basta and Ray C. Schrock, on
                                                     the brief), Kirkland & Ellis LLP, New York, N.Y.


             *
           The Honorable Jed Rakoff, of the United States District Court for the Southern District
    of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Seibel, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

       Appellant Grocery Haulers, Inc., (“GHI”) appeals from a January 27, 2012, Opinion and

Order and a January 30, 2012, Judgment of the United States District Court for the Southern

District of New York (Seibel, J.) affirming a decision of the United States Bankruptcy Court for

the Southern District of New York (Drain, J.). The bankruptcy court denied GHI’s motion

(1) for a determination that the automatic stay did not bar GHI from filing a third-party

complaint against Debtor-Appellee The Great Atlantic & Pacific Tea Co., Inc., et al. (“A&P”);

or (2) in the alternative, for a grant of relief from the automatic stay. The bankruptcy court

concluded that the automatic stay of 11 U.S.C. § 362(a)(1) applied to GHI’s claims because the

claims arose from A&P’s rejection of a contract and are consequently treated as arising pre-

petition pursuant to 11 U.S.C. § 365(g). We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

       GHI raises principally two arguments on appeal. First, GHI contends that the automatic

stay did not apply because of “the interplay between the Bankruptcy Code and 28 U.S.C.

§ 959(b).” Brief for Appellant GHI at 19. Second, GHI contends that the bankruptcy court erred

in classifying its claim against A&P as a claim for contribution instead of as a claim based on

primary liability under the federal and New Jersey WARN Acts, 29 U.S.C. § 2101, et seq., and

N.J.S.A. § 34:21-1, et seq.

       GHI failed to raise the Section 959(b) argument before the bankruptcy court and waived

the argument relating to the contribution theory. With respect to its first argument, GHI

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contends that it cited “cases which directly cite section 959(b) in support of their holdings.”

Reply Brief at 10. This is insufficient because GHI did not marshal those cases in support of the

argument that it raises today and did not discuss Section 959(b) below. With respect to its

second argument, GHI itself characterized its claim as a claim for contribution when arguing its

motion before the bankruptcy court.

       “[I]t is a well-established general rule that an appellate court will not consider an issue

raised for the first time on appeal.” Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.

2006) (alteration in original) (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994)).

“Although we may exercise discretion to consider waived arguments where necessary to avoid a

manifest injustice, the circumstances normally do not militate in favor of an exercise of

discretion to address new arguments on appeal where those arguments were available to the

parties below and they proffer no reason for their failure to raise the arguments below.” In re

Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (per curiam) (internal

quotation marks, brackets, and ellipsis omitted). We decline to consider GHI’s waived

arguments here.

       We have considered GHI’s remaining arguments and find them to be without merit. For

the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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