Byrnes v. Byrnes (In re Byrnes)

• Citation: 638 B.R. 821
• Decision Date: 11 March 2022
• Docket Number: 20-12086-t7,Adv. No. 20-1070-t
• Parties: IN RE: Sylvia Marie BYRNES, Debtor. Barry J. Byrnes, Plaintiff, v. Sylvia Marie Byrnes, Defendant.
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of New Mexico

638 B.R. 821

IN RE: Sylvia Marie BYRNES, Debtor.Barry J. Byrnes, Plaintiff,

v.Sylvia Marie Byrnes, Defendant.

No. 20-12086-t7

Adv. No. 20-1070-t

United States Bankruptcy Court, D. New Mexico.

Signed March 11, 2022

Mark Lee Pickett, The Pickett Law Firm, R. Trey Arvizu, III, R. Trey Arvizu III - Attorney, Las Cruces, NM, for Defendant.

OPINION

David T. Thuma, United States Bankruptcy Judge Before the Court are two tort claims that are ready for trial: defamation and intentional infliction of emotional distress ("IIED"). Both claims were removed from state court after Defendant filed this chapter 7 bankruptcy case. Plaintiff has not consented to the Court hearing either claim. The Court earlier ruled that Plaintiff is not entitled to a jury trial of the claims. In re Byrnes , 2022 WL 272646, at *3 (Bankr. D.N.M.).

Plaintiff has moved the United States District Court for the District of New Mexico to withdraw the reference for trial of the claims (the "Reference Withdrawal Motion"). The motion is pending. For the reasons set forth below, the Court makes the following rulings related to trial of the claims:

1. The Court adopts the "narrow" interpretation of "personal injury tort" found in 28 U.S.C. § 157(b)(5) ;

2. Under the narrow interpretation, Plaintiff's defamation claim is not a personal injury tort;

3. Plaintiff's IIED claim may be subject to dismissal or summary disposition because it is based entirely on Defendant's alleged defamatory statements;

4. In any event, the Court can try the IIED claim because the gravamen of Plaintiff's claims is defamation; and

5. The Court will not remand the claims, but will try them in Las Cruces.

If the District Court has a different view about the legal issues before the Court and/or how best to proceed, it can supersede the Court's decision(s) when it rules on the Reference Withdrawal Motion.

A. Facts.¹

Based on the docket in this proceeding and the State Court Action (defined below), the Court finds:

Barry Byrnes, the pro se² plaintiff, is Defendant/Debtor's estranged husband. On March 29, 2019, Plaintiff filed a state court action against Defendant and their son in the Third Judicial District Court, State of New Mexico, styled Barry Byrnes v. Sylvia and Matthew Byrnes , No. D-307-CV-2019-00916 (the "State Court Action"). The complaint alleged six causes of action. The state court judge dismissed four of the claims, leaving only the defamation and IIED claims. These claims relate to a heated argument between Plaintiff and Defendant in July 2018, which prompted Defendant to call the police and report that Plaintiff had assaulted her.

Defendant filed this chapter 7 bankruptcy case on October 30, 2020. Plaintiff removed the claims to this Court, simultaneously filing additional claims in a separate proceeding. The Court ordered the proceeding consolidated and ordered Plaintiff to file an amended complaint in the consolidated proceeding.

Plaintiff's amended complaint has two counts. In count one, Plaintiff asserts the defamation and IIED claims and asks that any judgment thereon be declared nondischargeable. Count two seeks an order requiring Debtor "to pay and continue to pay her share of contract and/or domestic support obligations" related to their marital residence, and alleging numerous theories under which such obligations are nondischargeable. Defendant answered count one and filed a motion to dismiss count two.

The main bankruptcy case was closed as a "no asset" case on March 11, 2021.

On March 18, 2021, Plaintiff filed the Reference Withdrawal Motion. The motion was assigned no. CV 21-00295 MV/JHR and is pending.

On July 2, 2021, the Court granted Defendant's motion to dismiss count two, leaving only the defamation and IIED claims to be adjudicated.

Slightly paraphrased, Plaintiff alleges the following conduct by Defendant in count one:

7. On July 13, 2018, Plaintiff and Defendant had a domestic argument at their residence.

8. Defendant called the police after the argument and alleged that she was assaulted during the argument and that she was a victim of domestic abuse.

9. Defendant's factual statement to police are malicious and willful and false.

14. On July 16, 2018, Defendant filed a petition in state court for an order of protection from domestic abuse.

16. Defendant again alleged that she was assaulted during the domestic argument of July 13 and was a victim of domestic violence.

17. Defendant's malicious and false factual statements are handwritten and contained in paragraphs 5 and 6 of the petition.

27. Defendant's malicious and willful and false statement about the nature of the alleged assault caused Plaintiff to be targeted for the grand jury investigation.

43. The malicious and false and injurious words Defendant spoke to police about Plaintiff are recorded by the arresting officer in the Magistrate Court misdemeanor complaint.

44. Defendant's malicious and false and injurious written words communicated to the state court and the Domestic Violence Special Commissioner are recorded in the petition she filed in the state court for protection from domestic abuse.

The proceeding has progressed through the pretrial stages. Discovery is now complete and the defamation and IIED claims are ready for trial.

To date, Plaintiff has filed the following appeals and motions related to his claims:

Court	Filing	Date	Disposition
1. State court	Notice of appeal	1/27/20	Dismissed
2. State court	Notice of appeal	2/26/20	Dismissed
3. Bankruptcy court	Notice of appeal	2/16/21	Dismissed
4. Bankruptcy court	Notice of appeal	2/16/21	Dismissed
5. Bankruptcy court	Motion to disqualify judge	3/18/21	Denied
6. Bankruptcy court	Notice of appeal	7/12/21	Dismissed
7. Bankruptcy court	Notice of appeal	8/2/21	Dismissed
8. Bankruptcy court	Notice of appeal	2/7/22	Dismissed
9. District court	Notice of appeal	7/12/21	Pending
10. District court	Motion to vacate the order of reference to Magistrate Judge	11/12/21	Pending
11. Tenth Circuit	Petition for Writ of Mandamus	2/18/22	Pending

Based on the record in this case, Defendant is judgment proof. Thus, it appears Plaintiff is pursuing his claims for noneconomic reasons.

B. Trial of "Personal Injury Torts."

28 U.S.C. § 157(b)(5) provides in part:

The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending ....

Although this provision does not deprive the bankruptcy court of jurisdiction to hear personal injury claims, see, e.g., Stern v. Marshall , 564 U.S. 462, 479, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) ( § 157(b)(5) is not jurisdictional); and In re Smith , 389 B.R. 902, 913 (Bankr. D. Nev. 2008) (same), it allocates jurisdiction between the district court and the bankruptcy court. As a result, "the district court will almost always hear personal injury tort cases, especially if a timely request to do so it made." Smith , 389 B.R. at 913. The Court must determine whether the defamation and IIED claims are personal injury tort claims.

C. The Court Adopts the Narrow Interpretation of "Personal Injury Tort."

In In re Gawker Media LLC , 571 B.R. 612 (Bankr. S.D.N.Y. 2017), Judge Bernstein stated:

Lower courts in the Second Circuit and elsewhere have adopted different approaches to determine whether a particular claim constitutes a "personal injury tort" claim. [ In re Residential Capital, LLC , 536 B.R. 566, 571–75 (Bankr. S.D.N.Y. 2015) ] (collecting cases). The "narrow view" requires a trauma or bodily injury or psychiatric impairment beyond mere shame or humiliation to meet the definition of "personal injury tort." Id. at 571–72 (citations omitted); accord Perino v. Cohen (In re Cohen) , 107 B.R. 453, 455 (S.D.N.Y. 1989) .... The broad view interprets "personal injury tort" to "embrace[ ] a broad category of private or civil wrongs or injuries for which a court provides a remedy in the form of an action for damages, and include[ ] damage to an individual's person and any invasion of personal rights, such as libel, slander and mental suffering." Residential Capital, 536 B.R. at 572 (quoting Boyer v. Balanoff (In re Boyer) , 93 B.R. 313, 317–18 (Bankr. N.D.N.Y. 1988) and collecting cases). Finally, under the intermediate, "hybrid" approach, a bankruptcy court may adjudicate claims bearing the "earmarks of a financial, business or property tort claim, or a contract claim" even where those claims might appear to be "personal injury torts" under the broad view. Id. (quoting Stranz v. Ice Cream Liquidation, Inc. (In re Ice Cream Liquidation, Inc.) , 281 B.R. 154, 161 (Bankr. D. Conn. 2002) and citing, inter alia , Adelson v. Smith (In re Smith) , 389 B.R. 902, 908–13 (Bankr. D. Nev. 2008) ).

571 B.R. at 620. See also Smith , 389 B.R. at 907-08 (discussing the three interpretations); In re Ice Cream Liquidation, Inc. , 281 B.R. 154, 160-61 (Bankr. D. Conn. 2002) (same).

The United States Supreme Court acknowledged the disagreement on the proper interpretation of "personal injury tort" in Stern , 564 U.S. at 479 n.4, 131 S.Ct. 2594, but did not decide it. Neither the Tenth Circuit nor the Tenth Circuit Bankruptcy Appellate Panel has addressed the issue. A Utah district court judge adopted the narrow interpretation. See In re C.W. Mining Co. , 2012 WL 4882295, at *6 (D. Utah.).

Judge Bernstein concluded that the narrow interpretation is the proper one:

Turning first to the canons of statutory interpretation, and specifically the canon noscitur a sociis, the Court concludes that the narrow interpretation, which requires trauma or bodily injury, or a psychic injury beyond mere shame or humiliation, is the correct interpretation. Noscitur a sociis is, put simply, the principle that "a word is known by the company it keeps." Yates v. United States , 574 U.S. 528, 135 S. Ct. 1074, 1085, 191 L.Ed. 2d 64 (2015) ... The Supreme Court has relied on the noscitur a sociis canon "to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving ‘unintended breadth to the Acts of Congress.’ "

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