Davis v. The Merv Griffin Co., Civ. A. No. 90-496 (JFG).

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Citation128 BR 78
Docket NumberCiv. A. No. 90-496 (JFG).
PartiesI.G. DAVIS, Jr., Plaintiff, v. THE MERV GRIFFIN COMPANY and Merv Griffin, Defendants.
Decision Date29 January 1991

128 B.R. 78 (1991)

I.G. DAVIS, Jr., Plaintiff,
v.
THE MERV GRIFFIN COMPANY and Merv Griffin, Defendants.

Civ. A. No. 90-496 (JFG).

United States District Court, D. New Jersey.

January 29, 1991.


128 BR 79

Miller Marvin Dunham Doering & Schreiber by Peter F. Marvin, Valerie J. Munson, Philadelphia, Pa., Gendel, Raskoff, Shapiro & Quittner by Louis Kempinsky, Los Angeles, Cal., for The Griffin Co. and Merv Griffin.

Dilworth, Paxson, Kalish & Kauffman by Bruce W. Kauffman, Thomas J. Foley, III, Lawrence G. McMichael, West Atlantic City, N.J., for I.G. Davis, Jr.

MEMORANDUM OPINION AND ORDER

GERRY, Chief Judge.

On February 26, 1990, this court entered an order pursuant to 28 U.S.C. § 157 referring

128 BR 80
this case to the Bankruptcy Court. Thereafter plaintiff filed a motion in this court for reconsideration and for withdrawal of the reference of the case to the Bankruptcy Court. For the reasons stated in our letter opinion, dated June 21, 1990, this court denied that motion without prejudice so as to allow plaintiff to refile his motion to remand before the Bankruptcy Court, which was then to file a report and recommendation to this court in accordance with Bankruptcy Rule 9027(e)

Plaintiff did in fact file a motion to remand with the Bankruptcy Court, and that Court has now submitted its report and recommendation. See I.G. Davis, Jr. v. The Griffin Company, et al., Civil Action No. 90-496, Report and Recommendation To The United States District Court For The District Of New Jersey Pursuant To Bankruptcy Rule 9027(e), dated September 20, 1990. Our review of that report and recommendation is governed by Bankruptcy Rule 9033(d) which provides that:

The district judge shall make a de novo review upon the record . . . of any portion of the bankruptcy judge\'s findings of fact or conclusions of law to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the proposed findings of fact or conclusions of law, receive further evidence, or recommit the matter to the bankruptcy judge with instructions.

No objections were filed by the parties. In such a case, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Bankruptcy Rule 9033 advisory committee note (adopting de novo review provisions of Federal Rule of Civil Procedure 72(b), as elucidated by the advisory committee notes on that rule). Having reviewed the report and recommendation, this court is satisfied that there is no clear error on the face of the record. Therefore, we accept the Bankruptcy Court's findings of fact and conclusions of law, and adopt its recommendation that this action be remanded from that court to this court.

Accordingly, having considered the submissions and for good cause shown, it is on this 28th day of January, 1991, hereby ORDERED that this action be remanded from the Bankruptcy Court to this court.

UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW JERSEY

In re Resorts International, Inc., Resorts International Financing, Inc.; Griffin Resorts Holding, Inc., Griffin Resorts, Inc., Debtors

I.G. Davis, Jr., Plaintiff

vs.

The Griffin Company and Merv Griffin, Defendants

Chapter 11

Case No. 89-10119RG

Case No. 89-10120RG

Case No. 89-10461RG

Case No. 89-10462RG

Adversary No. 90-1033RG

September 21, 1990

REPORT AND RECOMMENDATION TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY PURSUANT TO BANKRUPTCY RULE 9027(e)

ROSEMARY GAMBARDELLA, Bankruptcy Judge.

Pursuant to Bankruptcy Rule 9027(e), this Court makes the following report and recommendation to the United States District Court for the District of New Jersey.

Before this court is a motion entitled "Notice Of Plaintiff's Motion For Reconsideration And Withdrawal Of The Reference Of This Action To the United States Bankruptcy Court." This motion was filed on June 29, 1990 on behalf of plaintiff, I.G. Davis, Jr. ("plaintiff" or "Davis") in connection with adversary proceeding No. 90-1033, entitled I.G. Davis, Jr. v. The Griffin Company and Merv Griffin. In a Letter

128 BR 81
Opinion by the Honorable John F. Gerry, Chief Judge of the United States District Court for the District of New Jersey, filed on June 21, 1990, plaintiff was advised to refile its motion to remand before the bankruptcy court and this court was directed to prepare a report and recommendation to the United States District Court for the District of New Jersey in accordance with Bankruptcy Rule 9027(e)

As a preliminary matter, this court briefly addresses an issue which was raised by the parties in their pleadings; specifically, whether this motion is correctly framed as a notice of motion pursuant to 28 U.S.C. § 157(d) for reconsideration and withdrawal of the reference or whether this motion despite its caption is a motion for remand under Bankruptcy Rule 9027(e). As noted earlier, Chief Judge Gerry in his letter opinion advised the plaintiff to refile its motion to "remand" and directed this court to prepare a report and recommendation pursuant to Bankruptcy Rule 9027(e).1

Initially, this court will address the procedural questions raised by the parties.

The plaintiff asserts that the defendants have improperly interpreted plaintiff's motion for reconsideration and withdrawal of the reference under 28 U.S.C. § 157(d)2 as a motion to remand pursuant to Bankruptcy Rule 9027(e). The defendants on the other hand take the position that Plaintiff's motion for reconsideration and withdrawal of the reference pursuant to 28 U.S.C. § 157 has been filed in disregard of Chief Judge Gerry's letter opinion in which the plaintiff was advised to refile a motion to "remand" in accordance with rule 9027(e) before this court.

Plaintiff's state court action was removed from the Superior Court of New Jersey to the United States District Court of New Jersey pursuant to title 28, § 1441, the general removal statute,3 by a Notice of Removal dated February 16, 1990 filed by defendants, The Griffin Company ("TGC") and Merv Griffin ("Griffin").

By motion also dated February 16, 1990, the defendants sought an order of the district court referring this action to the United States Bankruptcy Court for the District of New Jersey pursuant to 28 U.S.C. § 14524 and Bankruptcy Rule 9027.

By order of the district court dated February 20, 1990, the district court, referred this action to the bankruptcy court pursuant

128 BR 82
to 28 U.S.C. § 157.5

On or about March 6, 1990, plaintiff moved before the District Court for Reconsideration and/or Withdrawal of the Reference of this Action to the United States Bankruptcy Court. The district court, by the Honorable John H. Gerry, Chief Judge, construed the withdrawal motion as a motion seeking "a remand of plaintiff's claims against TGC and Griffin from the bankruptcy court to the District Court." (See June 21, 1990 Letter Opinion, p. 2). The district court denied plaintiff's motion without prejudice and directed plaintiff "to refile its motion to remand before the Bankruptcy Court, which shall prepare a report and recommendation in accordance with Bankruptcy Rule 9027(e)." (See June 21, 1990 Letter Opinion, p. 3).

In the case of In re Oneida Motor Freight, Inc. ("Oneida"), 86 B.R. 344 (Bankr.D.N.J.1987), Debtor, a motor common carrier and its approved agent brought three adversary complaints seeking to collect alleged freight undercharges for prepetition services. Defendants in each adversary matter moved before the bankruptcy court seeking alternative relief including the court's abstention from hearing the adversary complaint or the dismissal of the complaint or for the entry of a stay and referral of this dispute for further hearing before the Interstate Commerce Commission. As part of the court's holding, the Honorable William F. Tuohey, a bankruptcy judge in this district held that the bankruptcy court did not have jurisdiction to consider the motion to withdraw the general reference of the matter to the District Court pursuant to 28 U.S.C. § 157(d).6 Oneida, 86 B.R. at 346. Judge Tuohey observed that both 28 U.S.C. § 157(d) and the July 23, 1984 Order of Reference entered by the United States District Court for the District of New Jersey by their express terms authorize only the District Court to withdraw the reference of any matter pending before the bankruptcy court. Id. at 346-47 (citing Interconnect Telephone Services, Inc. v. Farren, 59 B.R. 397 (Bankr.S.D.N.Y.1986)). Accord In the Matter of Hawkeye Chemical Co., 73 B.R. 318, 320 (Bankr.S.D.Iowa 1987). In light of the express language of 28 U.S.C. § 157(d), and the District of New Jersey Order of Reference and Oneida, it is clear that a motion to withdraw the reference of a case to the bankruptcy court is the sole province of the district court.

The plaintiff relies upon the cases of Oneida and In re Blackman, 55 B.R. 437 (Bankr.D.C.1985) in seeking a withdrawal of the reference to the bankruptcy court under 28 U.S.C. § 157(d) rather than "remand" pursuant to Bankruptcy Rule 9027(e). In Blackman, the debtors filed an adversary proceeding in the Bankruptcy Court in connection with their related bankruptcy case and then sought to have the proceeding remanded to the district court. In re Blackman, 55 B.R. at 439. The Bankruptcy Court denied plaintiffs' motion to remand on grounds that ". . . they have requested the wrong relief from the wrong judge for the wrong reason." Blackman, 55 B.R. at 439.

The Blackman court observed that plaintiffs' "Motion To Remand Adversary Proceeding To District Court For Order Directing Jury Trial," could not be "remanded" to the District Court because it had originally been filed with the Bankruptcy Court and had never been pending before the District Court except by the "legislative legerdemain." Blackman, 55 B.R. at 439.

In this regard, the Blackman court stated:

All bankruptcy cases and proceedings have been
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1 practice notes
  • In re D'Atria, Bankruptcy No. 90 B 20672
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • June 10, 1991
    ...re Spong), 661 F.2d 6 (2d Cir.1983). CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 128 BR 78 U.S.C. § 1334 and 28 U.S.C. § 157(a). This is a core proceeding in accordance with 28 U.S.C. § 2. The plaintiff failed to sustain her burden ......
1 cases
  • In re D'Atria, Bankruptcy No. 90 B 20672
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • June 10, 1991
    ...re Spong), 661 F.2d 6 (2d Cir.1983). CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 128 BR 78 U.S.C. § 1334 and 28 U.S.C. § 157(a). This is a core proceeding in accordance with 28 U.S.C. § 2. The plaintiff failed to sustain her burden ......

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