UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
IN RE:
MISSION
INVESTORS/COVINGTON, L.P.
DEBTOR
MISSION
INVESTORS/COVINGTON, L.P. PLAINTIFF
VS: ADV. NO. 99-2050
CSX
TRANSPORTATION, INC., ET AL DEFENDANTS
MEMORANDUM OPINION
This matter is before the court upon the Motion of
defendant, Duro Bag Manufacturing Company (ADuro@), pursuant to 28 U.S.C. '1334(c)(1) and (2) for permissive or mandatory
abstention and to remand the within adversary proceeding to the Kenton Circuit
Court, Kentucky, for further proceedings and the Motion of the plaintiff,
debtor in a bankruptcy proceeding, for a change of venue for this adversary
proceeding to the United States Bankruptcy Court for the Northern District of
Texas at Dallas, where the Chapter 11 proceeding of the plaintiff/debtor is
pending. For the reasons set forth
below, this court will abstain from hearing this adversary proceeding and
remand the matter to the Kenton Circuit Court for further proceedings.
The plaintiff is a limited partnership with principal
offices in Texas. It owns interests in
four tracts of real estate located in Kenton County, Kentucky, which tracts are
subject to perpetual leases in favor of defendant Duro. Duro operates a manufacturing facility on a
site which includes the tracts in which the plaintiff has an interest. The other defendants are other interest
holders and parties related to the transaction wherein plaintiff acquired these
interests in these tracts. Plaintiff
acquired its interest in these tracts for the sum of $60,000 on July 30, 1996. Some approximately seven months later, it
filed this action alleging that it was entitled to damages and other relief
because Duro had environmentally contaminated the property and removed or lost
certain personal property associated with the interest of plaintiff. The action, filed in the Kenton Circuit
Court, has been pending slightly less than three years and apparently has been
actively practiced. Because of
contentious discovery the matter has progressed slowly.
On November 22, 1999, plaintiff filed a voluntary
Chapter 11 proceeding in the United States Bankruptcy Court for the Northern
District of Texas and it was assigned Case No. 99-38116. Plaintiff then removed the present action to
this court. Apparently in conjunction
with that filing, plaintiff has filed an adversary proceeding in the Texas
bankruptcy court restating some or all of the causes of action it stated in
this action.
This action, filed in the state court prior to
bankruptcy, did not arise in or under Title 11 but is related to a proceeding
under Title 11 since the outcome could have an effect on the bankruptcy
proceeding. Robinson v. Michigan
Consolidated Gas Co., 918 F.2d 579 (6th Cir.1990); Pacor,
Inc. v. Higgins (In re Pacor, Inc.), 743 F.2d 984 (3d Cir. 1984). The determination of whether to abstain is a
core proceeding pursuant to 28 U.S.C. '157(b)(2)(A). Beneficial Nat=l Bank USA v. Best Reception Systems, Inc., (In re Best Reception Systems, Inc.), 220
B.R. 932 (Bankr.E.D.Tenn. 1998); In re Finkley, 203 B.R. 95
(Bankr.N.D.Ill. 1996). While the movant
has brought its motion under both paragraphs (1) and (2) of 28 U.S.C. '1334(c), because the court concludes that permissive
abstention is appropriate, it will not be necessary to address the question of
mandatory abstention.
Permissive abstention is provided for by 11 U.S.C. '1334(c)(1) which provides:
Nothing
in this section prevents a district court in the interest of justice, or in the
interest of comity with the State Courts or respect for State law, from
abstaining from hearing a particular proceeding arising under Title 11 or
arising in or related to a case under Title 11.
Movant cites several persuasive cases from bankruptcy
courts in the Sixth Circuit. Beneficial
Nat=l Bank USA v. Best Reception Systems, Inc., (In re Best Reception Systems, Inc.), supra; Nationwide
Roofing and Sheet Metal, Inc. v. Cincinnati Insurance Company (In re
Nationwide Roofing and Sheet Metal, Inc.), 130 B.R. 768 (Bankr.S.D.Ohio
1991); Brothers v. Tremaine (In re Tremaine), 188 B.R. 380
(Bankr.S.D.Ohio 1995). These cases
distill a list of factors to consider when determining whether permissive
abstention is appropriate. Those
factors include (Best Reception, at page 953): 1) the effect or lack
thereof on the efficient administration of the estate if a court recommends
abstention; 2) the extent to which state law issues predominate over bankruptcy
issues; 3) the difficulty or unsettled nature of the applicable law; 4) the
presence of a related proceeding commenced in a state court or other
nonbankruptcy court; 5) the jurisdictional basis, if any, other than 28
U.S.C.A. '1334; 6) the degree of relatedness or remoteness of
the proceeding to the main bankruptcy case; 7) the substance rather than form
of an asserted core proceeding; 8) the feasibility of severing state law claims
from core bankruptcy matters to allow judgments to be entered in state court
with enforcement left to the bankruptcy courts; 9) the burden of the bankruptcy
court=s docket; 10) the likelihood that the commencement of
the proceeding in bankruptcy court involves forum shopping by one of the
parties; 11) the existence of a right to a jury trial; and 12) the presence in
the proceeding of non-debtor parties.
In applying these factors to the present
circumstances, this court believes permissive abstention is appropriate for the
following reasons. The court cannot say
at this point that allowing the matter to be pursued in the state court will
affect the administration of the bankruptcy estate. The suit involves solely state law issues and no bankruptcy
issues. While the issues involved are
issues involving real property under leases which apparently are older than 100
years, this court cannot address the difficulty or unsettled nature of the
applicable law. This action began as a
state court action. The state court has
jurisdiction to render judgments regarding real property and injury thereto
within its boundaries. The court cannot
say that the outcome of this action is remote to the bankruptcy proceeding
because it involves an adjudication concerning the sole assets of the
bankruptcy proceeding. The court
believes that it is likely that the commencement of the Chapter 11 proceeding
in the Northern District of Texas involves some degree of forum shopping or delay
on the part of the debtor/plaintiff. The plaintiff has demanded a jury trial in
the proceeding and the state court can conduct such proceeding while this court
can only do so pursuant to agreement of the parties and designation by the
District Court to conduct the jury trial.
Nothing indicates to this court that the state court cannot try and
conclude this case as swiftly as this court could. Additionally, there are present in this case several non-debtor
parties.
This proceeding was begun by the debtor and, in
fairness, should be pursued and concluded in the original forum chosen by the
debtor, the Kenton Circuit Court. A
separate order will be entered herein.
Dated this day of January,
2000.
BY
THE COURT
JUDGE
WILLIAM S. HOWARD
COPIES TO:
W. Timothy Miller, Esq.
W. Gregory King, Esq.
Philip L. Hanrahan, Esq.
Robert B. Craig, Esq.
James F. Brockman, Esq.
Michelle E. Roberts, Esq.
Thomas R. Schuck, Esq.
Robert W. Carran, Esq.
James F. Ogden, Esq.
Mark A. Robinson, Esq.
Neil Sobol, Esq.
Michael J. Betz, Esq.
Jeanine A. Cadena, Esq.
U.S. Trustee
Mary Ann Woltenberg, Clerk