47 Spy Glass Hill Corp. v. United States Trustee

• Court: District Court, S.D. New York
• Decided: September 11, 2023
• Docket: 7:23-cv-06807
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

In re:

47 SPY GLASS HILL CORP., No. 23-CV-6807 (KMK) Debtor. ORDER OF DISMISSAL -----------------------------------------------------X

47 SPY GLASS HILL CORP.,

Plaintiff,

v.

UNITED STATES TRUSTEE,

Defendant.

KENNETH M. KARAS, United States District Judge: On August 3, 2023, Debtor/Plaintiff 47 Spy Glass Hill Corp. (“Debtor”), proceeding pro se, filed a Motion for Withdrawal of Reference pursuant to 28 U.S.C. § 157(d) requesting that this Court hear its Chapter 11 case pending in the Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”). (See generally Not. of Mot. (Dkt. No. 1).) Debtor instituted the underlying bankruptcy proceeding, No. 23-35284, on April 12, 2023. (Id. at 1.) On May 5, 2023, the United States Trustee filed a Motion To Dismiss or Convert the case, arguing that “Debtor is a fictitious person that may not appear in federal court pro se.” (Trustee’s Mem. of Law in Supp. of Mot. To Dismiss or Convert (Dkt. No. 7-1, 23-35284 Dkt.).) Debtor did not object to that motion, and the Bankruptcy Court dismissed the case on August 9, 2023. (Order Granting Mot. To Dismiss (Dkt. No. 20, 23-35284 Dkt.).) The next day, on August 10, 2023, the Bankruptcy Court terminated Debtor’s Motion for Withdrawal of Reference as moot. (Dkt. No. 21, 23-35284 Dkt.).) Under § 157(d), a “district court may withdraw, in whole or in part, any case or proceeding referred under this section . . . for cause shown.” “[A] bankruptcy court order

dismissing an adversary proceeding[, however,] moots a motion to withdraw reference pursuant to § 157(d).” In re Lear Corp., 418 B.R. 47, 48 (S.D.N.Y. 2009); see also Revere Copper and Brass, Inc. v. Acushnet Co., 172 B.R. 192, 195 (S.D.N.Y. 1994) (“[P]laintiffs are obviously correct that an affirmative decision on the dismissal motion pending in the Bankruptcy Court would moot the § 157(d) motion presently here.”); In re Garden Fresh Restaurants, LLC, No. 21-CV-1440, 2022 WL 410942, at *1 (S.D. Cal. Feb. 10, 2022) (dismissing motion for withdrawal as moot where the bankruptcy court dismissed the underlying adversary proceeding while the motion was pending); In re Eze, No. 17-CV-11054, 2017 WL 4212338, at *2 (D. Mass. July 6, 2017) (same). Put differently, once the underlying proceeding is dismissed, “there remains no matter” for Debtor to withdraw. See In re Eze, 2017 WL 4212338, at *2.

Accordingly, Debtor’s Motion for Withdrawal of Reference is dismissed as moot. The Clerk of Court is directed to mail a copy of this Order to Debtor.

SO ORDERED. Dated: September 11, 2023 White Plains, New York

KENNETH M. KARAS United States District Judge