United States District Court, W.D. Louisiana, Lafayette Division
PAUL N. DEBAILLON, Liquidating Trustee for the East Cameron Parnters, L.P. Liquidating Trust,
GOLDKING CAPITAL MANAGEMENT LLC, ET AL
REBECCA F. DOHERTY, District Judge.
Currently pending before the Court is a "Motion to Withdraw Reference" [Doc. 1], filed by defendants, Goldking Capital Management, LLC, Leonard C. Tallerine, Jr., and Goldking Energy Corporation. Pursuant to their motion, defendants seek an Order from this Court "that the reference of the above captioned adversary proceeding to the bankruptcy court be withdrawn." [Doc. 1, p. 2] For the following reasons, the motion is DENIED at this time as premature and for failure to carry the burden of proof, without prejudice to defendants' right to re-urge the motion when this matter is in proper posture for trial.
East Cameron Partners, L.P. ("Debtor"), an independent oil and gas exploration and production company, filed a Chapter 11 bankruptcy petition in 2008. In May 2009, the Bankruptcy Court, upon motion of the debtor, approved an application authorizing the employment of Leonard C. Tallerine, Jr., acting through Goldking Capital Management LLC, as Chief Restructuring Officer ("CRO") of the debtor. On December 9, 2010, the debtor's Chapter 11 plan was confirmed.
On July 11, 2014, plaintiff Paul N. DeBaillon ("the Trustee"), in his capacity as the Liquidating Trustee for the debtor, initiated an Adversary Proceeding against defendants in the Bankruptcy Court. The Trustee's complaint alleges that "rather than perform the fiduciary duties with which they had been entrusted, Tallerine, through Goldking, and with the aid of other Defendants, instead utilized their position as the Debtor's CRO to raid the Estate through outright fraud and embezzlement, as well as to employ the Debtor's accounts as a personal slush fund, borrowing' the Estate's cash whenever they needed it, in clear contravention of the terms of their employment agreement and numerous Orders of [the Bankruptcy] Court." [Doc. 1-5, p. 4, ¶ 17] The Trustee asserts the following causes of action in his complaint: (1) relief pursuant to Fed.R.Civ.P. 60, vacating and setting aside the interim and final orders allowing compensation and expenses be paid to Goldking and Tallerine, as their "conduct constitutes fraud upon the court" [Id. at pp. 84-86]; (2) "disgorgement of any compensation and expenses paid to Goldking and Tallerine pursuant to the equitable powers of this Court under 11 U.S.C. § 105" [Id. at 86]; (3) Conversion, Misappropriation, Civil Theft and Conspiracy to Commit Conversion, Misappropriation and Civil Theft [Id. at 87-88]; (4) Fraud and Conspiracy to Commit Fraud [Id. at 88-89]; (5) Breach of Fiduciary Duty [Id. at 89-90]; (6) Unjust Enrichment and Conspiracy to Commit Unjust Enrichment [Id. at 90-91]; (7) Breach of Contract [Id. at 91-92]; (8) Negligence [Id. at 92-93]; (9) "Alter Ego/Piercing the Corporate Veil, " seeking to hold Tallerine personally liable for any damages caused by Goldking [Id. at 93-94]; (10) Single Business Enterprise [Id. at 94-95]; (11) Negligent Misrepresentation [Id. at 95]; (12) Breach of Duty of Good Faith and Fair Dealing [Id. at 95-96]; (13) Gross Negligence [Id. at 96]; (14) Vicarious Liability [Id. at 96-98]; and (15) a Revendicatory Action [Id. at 98-99].
Pursuant to their motion to withdraw reference, defendants request this Court to withdraw the adversary proceeding from the bankruptcy court pursuant to 28 U.S.C. § 157(d), and allow the matter to proceed before this Court. [Doc. 1, p. 2] Plaintiff opposes the motion. [Doc. 4] In addition to their Motion to Withdraw, defendants have filed a "Jury Trial Demand" [Doc. 1-29], pursuant to Rule 38 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 38(b)("a party may demand a jury trial by... serving the other parties with a written demand"); see also Fed.R.Bankr.P. 9015.
II. Applicable Law and Arguments of the Parties
28 U.S.C. § 157(a) permits referral of "any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11" to the bankruptcy court. By local order, "all cases under Title 11 and all proceedings arising under Title 11 or arising in or related to a case under Title 11, " with the exception of personal injury tort and wrongful death claims, are automatically referred to the Bankruptcy Court. LR 83.4.1. 28 U.S.C. § 157(d) provides for permissive withdrawal: "The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown." Although the statute does not define "cause shown, " the Fifth Circuit instructs the decision "must be based on a sound, articulated foundation." Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 998 (5th Cir. 1985).
In determining whether cause for withdrawal has been shown, the Fifth Circuit has set forth several factors for consideration: (1) whether the matter is a core or non-core proceeding, (2) whether the proceedings involve a jury demand, (3) whether withdrawal would further the goals of (a) promoting uniformity in bankruptcy administration, (b) reducing forum shopping and confusion, (c) fostering the economical use of the debtors' and creditors' resources, and (d) expediting the bankruptcy process. Id.; see also In re Gulf States Long Term Acute Care of Covington, L.L.C., 455 B.R. 869, 874 (E.D.La. 2011). As the party seeking withdrawal, defendants bear the burden of proving that this Court should withdraw the reference to the bankruptcy court. see e.g. Panda Energy Intern., Inc. v. Factory Mut. Ins., 2011 WL 610016, *3 (N.D.Tex.); In re Morrison, 410 B.R. 488, 490 (S.D. Tex. 2009); Matter of Vicars Ins. Agency, Inc., 96 F.3d 949, 955 (7th Cir. 1996).
A. Core versus Non-Core Proceeding
If a matter is a core proceeding, the statute empowers the bankruptcy judge to enter a final judgment on the claim. Executive Benefits Ins. Agency v. Arkison, 134 S.Ct. 2165, 2172 (U.S. 2014). If a matter is non-core but is "otherwise related" to a case under Title 11, and the parties have not consented to final adjudication by the bankruptcy court, the bankruptcy judge may only "submit proposed findings of fact and conclusions of law to the district court, " which the district court must review do novo before entering a final judgment or order. 28 U.S.C. § 157(c)(1); see also Arkinson at 2172. Although § 157 does not explicitly define "core proceeding, " § 157(b) provides a non-exhaustive list of matters considered to be core proceedings. 28 U.S.C. § 157(b)(2). Extrapolating from this list, the Fifth Circuit "hold[s]... that a proceeding is core under section 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case." Matter of Wood, 825 F.2d 90, 97 (5th Cir.1987); see also In re OCA, Inc., 551 F.3d 359, 367 (5th Cir. 2008). "If the proceeding does not invoke a substantive right created by the federal bankruptcy laws and is one that could exist outside of bankruptcy it is not a core proceeding; it may be related to the bankruptcy because of its potential effect, but under section 157(c)(1) it is an otherwise related' or non-core proceeding." Wood at 97 (emphasis in original).
In this matter, defendants contend all claims, with the exception of Counts I and II (relief from an order pursuant to Fed.R.Civ.P. 60 and disgorgement), constitute non-core claims, as they "do not invoke substantive rights' under title 11 nor could they only arise in the context of a bankruptcy case.'" [Doc. 1-31, p. 9 (quoting In re Morrison, 555 F.3d 473, 479 (5th Cir. 2009)] While plaintiff states "the crux of the Trustee's claims involve [sic] core matters, " he only specifically argues his claim for disgorgement constitutes a core proceeding. [Doc. 4, pp. 9-11] The Court finds that although this adversary proceeding potentially involves both core and non-core matters, this Court need not determine at this stage of the litigation exactly which claims asserted are core or non-core for the reasons discussed in Section III, infra.
B. Right to a Jury Trial
Where a party validly invokes its Seventh Amendment right to a jury trial, the reference to the Bankruptcy Court must be withdrawn, unless the parties consent to trial before the Bankruptcy Court. In re Clay, 35 F.3d 190, 196-97 (5th Cir. 1994); Matter of Texas General Petroleum Corp., 52 F.3d 1330, 1336-37 (5th Cir. 1995). "The Seventh Amendment provides for the right to a jury trial in cases that are legal in nature, but not for those which are equitable in nature." City of El Paso, Tex. v. El Paso Entertainment, Inc., 464 Fed.Appx. 366, *3 (5th Cir. 2012)(citing Ross v. Bernhard, 396 U.S. 531, 533 (1970)). Nevertheless, if a "legal claim is joined with an ...