Diversified Fabricators, Inc. v. Caldwell (In re Caldwell)

• Decision Date: 16 December 2021
• Docket Number: Adversary Proceeding 21-1010-PMB,21-10784-PMB
• Parties: In re: BRANDY HOUSTON CALDWELL, Debtor. v. BRANDY H. CALDWELL, THE AT THE OLDE HOUSE TRUST, and BRANDY H. CALDWELL AND ANTWAN CALDWELL, AS TRUSTEES OF THE AT THE OLDE HOUSE TRUST Defendants. DIVERSIFIED FABRICATORS, INC., Plaintiff,
• Court: U.S. Bankruptcy Court — Northern District of Georgia

In re: BRANDY HOUSTON CALDWELL, Debtor.

DIVERSIFIED FABRICATORS, INC., Plaintiff,
v.
BRANDY H. CALDWELL, THE AT THE OLDE HOUSE TRUST, and BRANDY H. CALDWELL AND ANTWAN CALDWELL, AS TRUSTEES OF THE AT THE OLDE HOUSE TRUST Defendants.

No. 21-10784-PMB

Adversary Proceeding No. 21-1010-PMB

United States Bankruptcy Court, N.D. Georgia, Newnan Division

December 16, 2021

SUPERIOR COURT OF SPALDING COUNTY, STATE OF GEORGIA, CASE NO. 20V-763.

ORDER GRANTING PLAINTIFF'S MOTION TO ABSTAIN AND REMANDING CASE TO THE SUPERIOR COURT OF SPALDING COUNTY

Paul Baisier, U.S. Bankruptcy Court Judge.

1

The above-captioned matter (the "Adversary Proceeding") comes before the Court on a Motion to Abstain From Hearing and Remand Above-Styled Case to the Superior Court of Spalding County (Docket No. 6)(the "Motion") filed by Diversified Fabricators, Inc. (the "Plaintiff") on September 15, 2021.

The Adversary Proceeding arises from case number 20V-763, originally commenced in the Superior Court of Spalding County (the "Superior Court") on August 24, 2020, in which the Plaintiff filed a Complaint For Relief (as amended, the "Complaint")^[1] against Brandy H. Caldwell (the "Debtor"), The At the Olde House Trust, and Brandy H. Caldwell and Antwan Caldwell, as the Trustees for The At the Olde House Trust (collectively, the "Defendants")(Docket No. 1, Exhibit A, C)(the "State Court Proceeding"). In the Complaint, the Plaintiff asserts that the Defendants conspired to convert money while the Debtor was working in the Plaintiff's accounting department. In connection with the conspiracy and conversion allegations, the Plaintiff contends that the Defendants used the allegedly converted funds to purchase or pay off real property as well as to acquire other assets.^[2]

On September 16, 2020, the Debtor and Antwan Caldwell filed an Answer, Defenses, and Counterclaim for Computer Theft and Computer Invasion of Privacy in the State Court Proceeding, alleging in the included counterclaim (the "Counterclaim") that the Plaintiff took the Debtor's computer and invaded her privacy by hacking into her personal social media accounts (Docket No. 1, Exhibit D). The pretrial conference for the State Court Proceeding was set for

2

August 26, 2021, at 9:00 a.m. (Docket No. 1, Exhibit J), two (2) days after the first anniversary of the commencement of the State Court Proceeding.

On August 25, 2021, the day before the scheduled pretrial conference, the Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code (Case No. 21-10784-PMB, Docket No. 1), and filed a Notice of Removal of the State Court Proceeding in this Court (Docket No. 1). The Plaintiff then filed the present Motion, arguing that the Court must abstain from hearing the removed case under 28 U.S.C. § 1334(c)(2) and that even if the Court is not required to abstain, it should remand the case back to the Superior Court based on equitable grounds pursuant to 28 U.S.C. § 1452(b). The Debtor filed a Response in Opposition to Diversified Fabricators, Inc.'s Motion to Abstain from Hearing and Remand Above-Styled Case to the Superior Court of Spalding County on September 29, 2021, arguing that the case is a core proceeding better heard in Bankruptcy Court (Docket No. 9)(the "Response").

Under the mandatory abstention provision of 28 U.S.C. § 1334(c)(2), the Court must abstain from hearing a state law claim if all of the following requirements are met:

(1) a motion has been timely filed requesting abstention; (2) the cause of action is essentially one that is premised on state law; (3) the claim is a non-core proceeding; (4) the proceeding could not otherwise have been commenced in federal court absent federal jurisdiction under § 1334(b); (5) an action has been commenced in state court; and (6) the action could be adjudicated timely in state court

In re Manton, 585 B.R. 630, 640 (Bankr. N.D.Ga. 2018). All of these requirements, with the exception of the third element, are clearly met. The first and last...