Matter of First Landmark Development Corp., Bankruptcy No. 84-1041-Bk-T

• Decision Date: 17 January 1985
• Docket Number: Adv. No. 84-338.,Bankruptcy No. 84-1041-Bk-T
• Citation: 51 BR 25
• Parties: In the Matter of FIRST LANDMARK DEVELOPMENT CORPORATION, Debtor. FIRST LANDMARK DEVELOPMENT CORPORATION, Plaintiff, v. CITY OF PINELLAS PARK, Defendant.
• Court: U.S. Bankruptcy Court — Middle District of Florida

51 B.R. 25 (1985)

In the Matter of FIRST LANDMARK DEVELOPMENT CORPORATION, Debtor FIRST LANDMARK DEVELOPMENT CORPORATION, Plaintiff, v. CITY OF PINELLAS PARK, Defendant.

Bankruptcy No. 84-1041-Bk-T, Adv. No. 84-338.

United States Bankruptcy Court, M.D. Florida, Tampa Division.

January 17, 1985.

Robert K. Eddy, Tampa, Fla., for plaintiff.

Eric P. Berezin, Tampa, Fla., for defendant.

PROPOSED FINDINGS AND RECOMMENDATIONS ON MOTION TO ABSTAIN

ALEXANDER L. PASKAY, Chief Judge.

THIS IS a Chapter 11 Reorganization case and the matter under consideration is a Motion for Mandatory Abstention or, in the Alternative, to Dismiss Plaintiff's Complaint filed by the City of Pinellas Park, the defendant in the above-styled adversary proceeding. The Defendant seeks the entry of an Order of Abstention pursuant to 28 U.S.C. § 1334(c)(2) or, in the alternative, an Order dismissing the Debtor's Complaint.

The Complaint consists of two Counts. In Count I, the Debtor seeks both declaratory and injunctive relief based upon conduct of Pinellas Park who allegedly refused to re-issue building permits and refused to recognize the validity of the Debtor's master site plan. Count II realleges the facts set forth in Count I and seeks an award of money damages.

It is the contention of Pinellas Park that none of the allegations require a resolution of any Bankruptcy issues, nor does the Debtor seek any relief under the Bankruptcy Code. Rather, it is contended that the issues raised in the Complaint involve only state law questions which require interpretation of local ordinances and state statutes. Therefore, so contends the Defendant, the proceeding is not a "core" proceeding as the term is defined by 28 U.S.C. § 157(b)(2), but rather, a "related" matter over which this Court has no jurisdiction to enter a final dispositive order without consent of the Defendant. The Defendant claims that this Court is merely empowered to make proposed findings of fact and conclusions of law for the District Court's consideration, as required by 28 U.S.C. § 157(c)(1), and cannot enter a final dispositive order.

The Motion under consideration was filed pursuant to 28 U.S.C. § 1334(c)(2) which provides in pertinent part:

§ 1334 Bankruptcy cases and proceedings

(2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action . . . the District Court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction . . . (emphasis supplied)

The initial inquiry must be addressed to the question of whether or not this Court, by virtue of the general reference issued by the District Court pursuant to 28 U.S.C. § 157, may consider the Motion at all, or, whether the Motion should be filed in and acted upon by the District Court, in the first instance. After the enactment of the Bankruptcy Amendment and Federal Judgeship Act of 1984 (BAFJA), the Rules adopted in this District set forth a procedure to handle motions seeking withdrawal of a reference and a procedure to deal with "related" proceedings. Unfortunately, due to conditions which required action without delay, the Rules, drafted in haste, failed to include a procedure for the treatment of motions seeking abstention pursuant to 28 U.S.C. § 1334(c)(2). The Rules adopted by the Bankruptcy Judges of this District provide that a motion to withdraw reference must be filed with the Clerk of the Bankruptcy Court and shall...