Harvey v. Dambowsky (In re Dambowsky)

526 B.R. 590
CourtUnited States Bankruptcy Court, M.D. North Carolina
DecidedJanuary 7, 2015
DocketBankruptcy No. 13-81410; Adversary No. 14-9010
StatusPublished
Cited by22 cases

This text of 526 B.R. 590 (Harvey v. Dambowsky (In re Dambowsky)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey v. Dambowsky (In re Dambowsky), 526 B.R. 590 (N.C. 2015).

Opinion

ORDER DENYING MOTION TO DISMISS COUNTERCLAIM

BENJAMIN A. KAHN, Bankruptcy Judge.

This case came before the Court for hearing on August 28, 2014, upon the Answer to Counterclaim filed by John J. Harvey, Jr. (“Harvey”) and Impact Point Consulting, Incorporated (“Impact Point”) (together, “Plaintiffs”) on May 5, 2014 [Doc. # 16] (“Answer to Counterclaim”), the Court’s Scheduling Order entered May 19, 2014 [Doc. # 18] (the “Scheduling Order”), the Plaintiffs’ Brief in Support of Dispositive Threshold Defenses Pursuant to Scheduling Order [Doc. #21] (“Plaintiffs” Brief), and Defendant’s Response Brief Regarding Plaintiffs’ Demand for Dismissal of Counterclaim [Doc. # 23] (“Defendant’s Brief’).

[594]*594 Procedural Background

This adversary proceeding was commenced on February 9, 2014, by the filing of the Plaintiffs’ Complaint (the “Complaint”) seeking a judgment excepting certain obligations from the Debtor’s discharge, or, in the alternative, barring the Debtor’s discharge pursuant to 11 U.S.C. § 727. On February 10, 2014, the Plaintiffs filed their first Amended Complaint [Doc. #4] (the “First Amended Complaint”). On March 12, 2014, the Defendant filed his Motion to Dismiss the First Amended Complaint [Doc. # 7] (the “Motion to Dismiss”), alleging improper service. On March 25, 2014, the Defendant withdrew his Motion to Dismiss, and, on April 11, 2014, the Defendant filed his Answer to the Complaint [Doc. # 14] (the “Answer”). In the Answer, the Defendant asserted a counterclaim requesting that the Court liquidate the amount of any damages determined to be non-dischargeable (the “Counterclaim”).1 On May 5, 2014, the Plaintiffs filed their Reply to the Counterclaim (“Plaintiffs’ Reply”).2

In their Reply, the Plaintiffs demand that the Court dismiss the Counterclaim, asserting that the Court lacks subject matter jurisdiction over the underlying state court claims. In the alternative, Plaintiffs argued that dismissal of the Counterclaim is appropriate under the principles of permissive abstention. At the hearing, J. Daniel Bishop appeared for the Plaintiffs and Daniel C. Bruton appeared for the Defendant, Jan Marshall Dambowsky (the “Debtor” or “Dambowsky”). Pursuant to the terms of the Scheduling Order, the Court construed the Plaintiffs’ brief as a motion to dismiss the Counterclaim, or, in the alternative, a motion for permissive abstention. At the conclusion of the hearing, the Court denied the motion to dismiss and the motion for permissive abstention.3 This opinion explains the bases for the Court’s ruling.

Factual Allegations4

The claims in this adversary proceeding arise from the business relationship between Harvey and Dambowsky. At the time Plaintiff John J. Harvey (“Harvey”) met Dambowsky, both were independently engaged in businesses dealing with military procurement contracts. [Second Amended Complaint ¶ 7-8]. Dambowsky, identifying himself as “Jon Marshall,” worked as a consultant to military contractors and had a business called Defense Logistics Solutions, Inc. (“DLS”). [Second Amended Complaint ¶ 8-11].

[595]*595The Complaint alleges that DLS was a sham corporation, and that Dambowsky intentionally misled Plaintiffs about DLS in order to defraud Plaintiffs and to misappropriate commission and other funds owed to Harvey as a result of their business ventures. [Second Amended Complaint ¶ 59]. Dambowsky allegedly also made false statements concerning these funds in order to prevent Plaintiffs from recovering funds owed to them. [Second Amended Complaint ¶ 42], Plaintiffs further contend that Dambowsky’s bankruptcy petition was strategically filed to conceal future profits. [Second Amended Complaint ¶ 56].

In Plaintiffs’ Reply, the Plaintiffs assert three legal defenses to the Counterclaim. Plaintiffs contend that: (1) the Court does not have subject matter jurisdiction to liquidate a non-dischargeable claim; (2) if the Court were to liquidate any debt found to be non-dischargeable, Plaintiffs would be denied their Seventh Amendment right to a jury trial; and (3) to the extent that the Court finds it has subject matter jurisdiction to liquidate any claims found to be non-dischargeable, the Court should decline to exercise that jurisdiction in the interest of judicial economy. [Plaintiffs’ Reply, at 2], For the reasons set forth herein, the Court denied the Plaintiffs’ request for this Court to dismiss or to abstain from hearing the Counterclaim.

Discussion

There are four issues to be resolved in the matter before the Court: (1) whether the Court has subject matter jurisdiction to liquidate Plaintiffs’ claims in the context of a non-dischargeábility action; (2) whether this Court, as a non-Article III court, has statutory and constitutional authority to liquidate and enter final judgment with respect to any amounts determined to be non-dischargeable without the Plaintiffs’ consent; (3) if the Court does have jurisdiction and authority, whether the Court nevertheless should abstain from liquidating the claims; and (4) whether the Plaintiffs have a right to trial by jury under the Seventh Amendment to the United States Constitution in connection with this dischargeability actipn.

Although they are related concepts as explained below, the scope of the bankruptcy courts’ subject matter jurisdiction, their statutory authority to hear and/or determine any particular matter, and their constitutional authority to do so, each are delineated by different statutory, constitutional, and/or judicial authorities. Section 1334 of title 28 sets forth the extent of bankruptcy subject matter jurisdiction. The bankruptcy courts’ statutory authority to hear and/or determine matters is set forth in 28 U.S.C. § 157. Section 157 is not jurisdictional, but simply allocates the statutory authority to enter final judgments between the bankruptcy court and the district court. Stern v. Marshall, — U.S. -, -, 131 S.Ct. 2594, 2606-07, 180 L.Ed.2d 475 (2011). The bankruptcy courts’ constitutional powers, in turn, are governed by the scope of power conferred upon Congress under the Bankruptcy Clause of the United States Constitution, Article I, Section 8, Clause 4 (“The Congress shall have Power To ... establish ... uniform Laws on the subject of. Bankruptcies throughout the United States .... ”), and the scope of authority allocated by and between tribunals created under Articles I and III of the United States Constitution, each as applied and interpreted by the opinions of the United States Supreme Court. Therefore, in order for a bankruptcy court to hear and determine any matter, it must have subject matter jurisdiction under 28 U.S.C. § 1334, statutory authority under 28 U.S.C. § 157, and constitutional authority.

[596]*596 Subject Matter Jurisdiction

Primarily relying upon Stem,

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Bluebook (online)
526 B.R. 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-dambowsky-in-re-dambowsky-ncmb-2015.