In re: Rfe Industries v. SPARFVEN & CO., INC.; MICHAEL SPARFVEN; CAMERON & MITTLEMAN, LLP, Third-Party

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-2451
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IN RE: RFE INDUSTRIES,
Debtor
JOHN J. GIBBONS, TRUSTEE FOR THE ESTATE OF
RFE INDUSTRIES, INC.
v.
ANTON NOLL, INC.; FRY’S METALS, INC.;
WESTBURY ALLOYS, INC.
FRY’S METALS, INC.,
Defendant/Third-Party Plaintiff
v.
SPARFVEN & CO., INC.; MICHAEL SPARFVEN;
CAMERON & MITTLEMAN, LLP,
Third-Party Defendants
FRY’S METALS, INC.,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 99-cv-334)
District Judge: The Honorable Dennis M. Cavanaugh
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Argued on December 10, 2002
Before: FUENTES and GARTH, Circuit Judges, and WALLACH,* Judge
(Opinion Filed: March 14, 2003)
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* The Honorable Evan J. Wallach, United States Court of International Trade, sitting by
designation.
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OPINION OF THE COURT
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FUENTES, Circuit Judge.
This appeal came to this Court from an order of the District Court which had refused
to reopen an earlier District Court ruling made by Judge Barry, who at that time had been on
the District Court before she became a member of this Court. See Gibbons v. Anton Noll, Inc.,
No. 99 Civ. 334, slip op. at 7 (D.N.J. Apr. 23, 2002).
We were satisfied that the settlement at issue between the Trustee and Fry’s Metals, Inc.
(“Fry’s”) should not be approved or disapproved until the Bankruptcy Court had applied the
factors set forth in In re Martin, 91 F.3d 389 (3d Cir. 1996), as ordered by this Court in In re
RFE Industries, 283 F.3d 159 (3d Cir. 2002) (“RFE I”).
In short, we were satisfied that the law of the case required the Martin factors, with the
modifications suggested in RFE I, to be applied by the Bankruptcy Court, and to that extent, we
were prepared to affirm Judge Cavanaugh’s ruling, even though we relied on a different ground.
See, e.g., PAAC v. Rizzo, 502 F.2d 306, 308 n.1 (3d Cir. 1974), cert. denied, 419 U.S. 1108
(1975).
Prior to informing the Bankruptcy Court and the parties of this disposition, the
Bankruptcy Court complied with the mandate of RFE I, and in an oral decision on February 7,
2003, the Bankruptcy Court applied the Martin factors as modified by RFE I; again disapproved
of the settlement; determined that the creditors were paid in full; that the bankruptcy
proceeding was over; discharged the Trustee; and stated that the case would not be heard in the

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Bankruptcy Court. That order was entered by Bankruptcy Judge Stern on February 19, 2003.
The bankruptcy proceeding that we would have ordered, having taken place before our
opinion was filed, has raised the question whether the appeal that has been pending from Judge
Cavanaugh’s order should be dismissed as moot.
Because we have had no input from the parties on this latter question, it is now hereby
ORDERED that counsel for Fry’s, the appellant, show cause as to why we should not dismiss
the appeal of Judge Cavanaugh’s order as moot, or advise as to a different disposition. The
order to show cause need not be responded to orally, unless after having heard from both
parties, the Court so orders. We will require that a written memorandum setting forth Fry’s
position be served and filed with the Clerk of Court in Philadelphia no later than noon, Friday,
March 21, 2003, and that the response thereto of appellee RFE Industries, Inc. (now known as
Metallix, Inc.) be served and filed no later than noon, Wednesday, March 26, 2003.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge

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