In re Boyer
| Citation | 93 BR 313 |
| Decision Date | 19 August 1988 |
| Docket Number | Bankruptcy No. 81-00662,Adv. No. 88-0023. |
| Parties | In re Laurence Donald BOYER Rosemary Jean Boyer, d/b/a Rosemary's Beauty Shop f/d/b/a Kay's Beauty Salon, Debtors. Lawrence D. BOYER, Debtor and Lawrence D. Boyer, Trustee, Special Appointment Fund on Behalf of Nebraska Annual Conference, Plaintiff, v. Michael J. BALANOFF, Individually and as Bankruptcy Trustee and Richard A. Benjes; Daniel W. Forker, Jr.; Stephen P. Childs; Janice P. Long; Porter K. Brown; Charles M. Chakour, Individually and as Treasurer; Jesse R. DeWitt, Individually and as Bishop and Northern Illinois Conference, all severally and jointly as tortfeasors, Defendants. |
| Court | United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Northern District of New York |
Lawrence D. Boyer, Oswego, N.Y., pro se.
Grass, Balanoff, Costa & Whitelaw, P.C., Syracuse, N.Y., for Trustee, Balanoff; Mary Lannon Fangio, of counsel.
Hancock & Estabrook, Syracuse, N.Y., for defendants, Richard A. Benjes, Daniel W. Forker, Jr., Charles M. Chakour, Jessee R. DeWitt and Northern Illinois Conference; Stephen A. Donato, of counsel.
Green & Seifter, P.C., Syracuse, N.Y., for Steven P. Childs; Robert K. Weiler, of counsel.
Robert T. Stephan, Atty. Gen., State of Kan., Topeka, Kan., Carl A. Gallagher, Asst. Atty. Gen., of counsel.
MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
On March 16, 1988, Laurence D. Boyer ("Boyer"), a joint debtor in a Chapter 7 case he had filed on May 5, 1981 with Rosemary Jean Boyer d/b/a Rosemary's Beauty Shop, commenced this adversary proceeding pro se. On the cover sheet, Official Form No. B104, filed with the Clerk of the Bankruptcy Court, he characterized the adversary proceeding as one to determine the validity, priority or extent of a lien or other interest in property and to obtain a declaratory judgment. In the same cover sheet and in the complaint, he also listed himself as coplaintiff in his capacity as "Trustee of Special Appointment Fund on behalf of Nebraska Annual Conference" and named as defendants "Michael J. Balanoff, Individually and as Bankruptcy Trustee; and Richard A. Benjes; Dan W. Forker, Jr.; Stephen P. Childs; Janice P. Long; Porter K. Brown; Charles M. Chakour, Individually and as Treasurer; Jesse R. DeWitt, Individually and as Bishop and Northern Illinois Conference all severally and jointly as tortfeasors." Complaint, at 1 (Mar. 10, 1988).
In said cover sheet, Boyer described his cause of action as follows: "By concert of actions defendants, by misstatement of facts, by misstatements of ecclesiastical civil law with common purpose to defraud a church trust under color of state law have acted in violation of USC 42:1983, 1985." His complaint alleges that over a ten year period that began with the probate of his mother's will in 1978, the defendants conspired to victimize him through a campaign of deceit and fraud upon the Kansas Courts by misrepresentation and deprive him "of a U.S. Constitutionally guaranteed right to hold and use property within the terms of the trust visited upon him be sic the actions of the Quarterly Conference of the Cortland Methodist Church in October 1947 and to further destroy his good name and peace of mind." Id. at 7. Boyer claims total damages of $4,253,781.08 and demands a jury trial. Id. at 17.
The instant adversary proceeding is the subject of five motions. To wit, the Kansas Attorney General, on behalf of the Hons. Brown and Long, both judges of the District Court of the 27th Judicial District of Reno County, Kansas, has moved for a change of venue or in the alternative to determine the adversary proceeding a non-core proceeding. Boyer has moved for the judicial determination of admittance (document request), for leave to amend his complaint and for partial summary judgment. The Chapter 7 Trustee has cross-moved to dismiss the claims regarding the removal or in the alternative that this Court abstain from taking jurisdiction and for sanctions.1 The Court previously denied Boyer's motions for judicial admonition of counsel and in limine and an oral motion for sanctions and costs by Benjes, Forker, Jr., Chakour, DeWitt and the Northern Illinois Conference.
During the course of oral argument relative to the various motions made, the issue of the Court's subject matter jurisdiction over this adversary proceeding was repeatedly raised. In addition, said lack of jurisdiction was pleaded as an affirmative defense in the two answers filed by Childs and Benjes, Forker, Jr., Chakour, DeWitt and the Northern Illinois Conference. Accordingly, the Court will now consider its subject matter jurisdiction sua sponte.
The Court has jurisdiction over this core proceeding to determine jurisdiction pursuant to 28 U.S.C.A. §§ 1334(b) and 157(a) and (b) (West Supp.1988). The following constitutes findings of fact and conclusions of law under Rules 7052 and 7012 of the Federal Rules of Bankruptcy Procedure ("Fed.R.Bankr.P.").
"The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties." Insurance Corp. of Ir. v. Compagnie Des Bauxites, 456 U.S. 694, 701, 102 S.Ct. 2099, 2103, 72 L.Ed.2d 492 (1982) (citations omitted). The jurisdiction of the federal courts is limited by the provisions of Article III of the Constitution and Acts of Congress. See Owens Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372, 98 S.Ct. 2396, 2401, 57 L.Ed.2d 274 (1978) (citations omitted). Unlike personal jurisdiction, which is an individual liberty right and can be waived, subject matter jurisdiction, in restricting federal power and shaping federal sovereignty, may be raised at any point in a proceeding. See Insurance Corp. of Ir., supra, 456 U.S. at 702-703, 102 S.Ct. at 2104. "Graven in stone is the maxim that parties cannot confer subject matter jurisdiction on a federal court by consent or stipulation." Reale Int'l., Inc. v. Federal Republic of Nigeria, 647 F.2d 330, 331 (2d Cir.1981). Subject matter jurisdiction of civil actions in federal courts is based on a federal question or diversity of citizenship, as governed by 28 U.S.C.A. §§ 1331 and 1332 (West 1966 & Supp 1988).
As the bankruptcy court is a federal court of limited jurisdiction, it has an obligation to consider the issue of its federal question subject matter jurisdiction, whether raised by the parties or sua sponte. See Marr Broadcasting Co., Inc. v. Shamrock Broadcasting of Texas, Inc. (In re Marr Broadcasting Co., Inc.), 79 B.R. 673, 675 (Bankr.S.D.Tex.1987). See also Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876, 881 (2d Cir.1988); 1 J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, MOORE'S FEDERAL PRACTICE, § 0.604 (2d ed. 1988); 13 C. Wright, A. Miller & E. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3522 (2d ed. 1984). Moreover, the party alleging the bankruptcy court's jurisdictions has the burden of proving that court's Title 11 jurisdiction over the disputed matter. See Levovitz v. Verrazano Holding Corp. (In re Verrazano Holding Corp.), 86 B.R. 755, 17 B.C.D. 1162, 1166 (Bankr.E.D.N.Y.1988) (citing cases); World Travel Vacation Brokers, Inc. v. Bowery Savings Bank (In re Chargit Inc.), 81 B.R. 243, 247-248 (Bankr.S.D. N.Y.1987) (citing cases). In the event such jurisdiction is lacking, the court must dismiss the action under Rule 12(h)(3) of the Federal Rules of Civil Procedure ("Fed.R. Civ.P."), as incorporated in Fed.R.Bankr.P. 7012(b). See Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir.1985); John B. Hull, Inc. v. Waterbury Petroleum Prod., Inc., 588 F.2d 24, 27 (2d Cir. 1978).
Sections 1334, 151 and 157 of Title 28 set out the Title 11 subject matter jurisdiction of the district courts and the bankruptcy courts. See Mullis v. U.S. Bankruptcy Court Dist. of Nevada, 828 F.2d 1385, 1389 (9th Cir.1987); 1 COLLIER ON BANKRUPTCY §§ 2.01, 3.01 (L. King 15th ed. 1988). 28 U.S.C.A. § 1334 vests original, non-exclusive jurisdiction "of all civil proceedings arising under title 11, or arising in or related to cases under title 11" in the district courts, in addition to granting the district courts original and exclusive jurisdiction over all cases under Title 11. See Wood v. Wood (In re Wood), 825 F.2d 90, 92-93 (5th Cir.1987). 28 U.S.C.A. § 157 authorizes the district courts to refer to bankruptcy judges in their districts any or all cases or proceedings arising in, arising under or related to cases under Title 11.
The bankruptcy judge may render final dispositions of core proceedings arising in or arising under Title 11 from which appeal is made to the district court pursuant to 28 U.S.C.A. § 158(a) (West Supp.1988). Unless the parties consent, 28 U.S.C.A. § 157(c)(2), a bankruptcy judge may only submit proposed findings of fact and conclusions of law on non-core proceedings related to cases under Title 11, which are then subject to de novo review by the district court. See Teitelbaum v. Choquette & Co., Inc. (In re Outlet Dept. Stores, Inc.), 82 B.R. 694, 695 (Bankr.S.D. N.Y.1988). Section 157 provides a non-exclusive list of core proceedings and carves out an exception to the general referral to bankruptcy judges with regard to personal injury tort and wrongful death claims as well as grounds for the district court's permissive and mandatory withdrawal of the reference in specific cases or proceedings. See 28 U.S.C.A. § 157(b)(2), (5), (d).
The Court recognizes its heightened duty to broadly construe the pleadings of a pro se plaintiff and to give them the benefit of the doubt. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Mullis v. U.S. Bankruptcy Court Dist. of Nevada, supra, 828 F.2d at 1388; Munz. v. Parr, 758 F.2d 1254, 1259 (8th Cir.1985). A close and generous reading of Boyer's complaint simply reveals allegations of the deprivation of his civil rights in pre and post-petition state court proceedings unconnected to the...
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