The ORIGINAL examiner motion is being appealed, among other reasons, that THJMW wants a ruling for future BK cases on the "shall" vs. "as is appropriate" part of the statute. That denined examiner motion is proceeding to the 3rd circuit.
This DOES NOT preclude a NEW Examiner motion, based on the most recent facts. In fact, THJMW hinted at this, and the EC attorney said he WOULD be filing a new Examiner motion.
For conceptual purposes, while both are motions for an Examiner, the facts behind the motions will be different. Therefore, they are NOT IDENTICAL motions, and can each proceed independently of each other.
And they will proceed independently. There is no need to withdraw the old one, in fact THJMW doesn't want the old one withdrawn.
She just wants to see a NEW one. And the EC will oblige her.
The open question is when. It is likely not to occur until after the "Meet and Confer" because it is the M&C and Rosen's opposition to turnover of docs that will be the basis of the NEW Examiner motion.