Kingsley, In re CV-98-347-SD 06/09/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
In re: Douglas R. Kingsley
Civil No. 98-347-SD
O R D E R
This matter comes before the court on a Report &
Recommendation (R&R) of the bankruptcy judge. The R&R was
triggered by a motion of the Chapter 7 Trustee to withdraw a
reference of a motion to compromise claims of certain creditors.1
No objection was filed in the bankruptcy court to the motion
to withdraw the reference. Additionally, no objection has been
filed in this court to the R&R of the bankruptcy judge.
1. Background
The relevant creditors, Brenda Y. Connor, Patrick S. Connor,
Melanie F. Connor, James A. Connor, and Doreen F. Connor
(hereinafter "Creditors Connor"), have filed proofs of claim for
breach of contract and unliquidated personal injuries of alleged
^Although bankruptcy courts lack jurisdiction to hear a motion for withdrawal of reference, see 28 U.S.C. § 157(d), it is not uncommon for them to make recommendations to the district court as to whether this should be done. Matter of Vicars Ins. Agency, Inc., 96 F.3d 949, 954 (7th Cir. 1996). intentional and negligent infliction of emotional distress and
outrage for alleged pre-petition acts by the debtor. The
bankruptcy judge granted the trustee's motion to intervene as
party-plaintiff in place of the debtor, and also approved the
trustee's stipulation to settle Brenda Y. Connor's claim for
breach of contract.
Subsequently, the trustee and the remaining Creditors Connor
filed a joint stipulation to approve the pending claims of such
creditors.2 The debtor objected and filed a motion to intervene,
to which the trustee and Doreen F. Connor objected. Thereafter,
the Creditors Connor moved for a protective order and an order of
disclosure pursuant to 5 U.S.C. § 552a(b) (ll),3 and the debtor
objected.
2It appears that Brenda Y. Connor and debtor had entered into a purchase & sale agreement for the sale of certain property in Henniker, New Hampshire. When debtor failed to perform under the terms thereof, Brenda Y. Connor obtained a judgment for specific performance from the Merrimack County Superior Court. Thereafter, that court issued orders for payment of consequential damages, and attachments of debtor's property were also issued. Following the state court proceedings, certain letters containing death threats were sent to the Creditors Connor, and Doreen Connor was the victim of libelous sexual letters which were given a wide distribution. Believing that these documents were the work of debtor, the Creditors Connor filed proofs of claim in this bankruptcy proceeding, and eventually sought compromise of their claims with the trustee.
35 U.S.C. § 552a(b)(11) governs disclosure of records kept by governmental agencies and provides for disclosure thereof "pursuant to the order of a court of competent jurisdiction." 2 The bankruptcy judge ordered the trustee to file a motion to
withdraw the reference by this court concerning the motion to
approve compromise and all related motions. As above indicated,
that was done, and the bankruptcy court then issued its R&R in
which the recommendation was made that the court approve
withdrawal of such reference.
2. Discussion
The relevant provisions of the Bankruptcy Code except from
the definition of "core proceedings" "the liquidation or
estimation of contingent or unliquidated personal injury tort or
wrongful death claims against the estate." 28 U.S.C. §
157(b) (2) (B) . See also 28 U.S.C. § 157(b) (2) (0) .4 Accordingly,
the statute further provides that "the district court shall order
that personal injury tort and wrongful death claims shall be
tried in the district court in which the bankruptcy case is
pending, or in the district court in the district in which the
claim arose, as determined by the district court in which the
bankruptcy case is pending." 28 U.S.C. § 157(b)(5).
Under 28 U.S.C. § 157(d), a "district court may withdraw
. . . any case or proceeding referred [to the bankruptcy court]
428 U.S.C. § 157(b)(2)(0) also excepts from the catch-all provisions of "core proceedings" "personal injury tort or wrongful death claims." 3 on its own motion or on a timely motion of any party, for cause
shown." In evaluating whether cause exists for withdrawal, the
court must first determine whether the matter before it is core
or non-core. Following this determination, the court examines
numerous factors, including whether withdrawal will (1) promote
uniformity of bankruptcy administration; (2) reduce forum
shopping and confusion; (3) foster the economical use of debtors'
and creditors' resources; and (4) expedite the bankruptcy
process; and (5) whether a right to jury trial, triable only in
the district court, exists. 9 C o l l i e r 's o n B a n k r u p t c y §
5011.01[1][b] at 5011-6, 7 (15th ed. rev. Matthew Bender 1997);
In re Burger Boys, Inc., 94 F.3d 755, 762 (2d Cir. 1996); In re
Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir. 1993), cert,
dismissed, 511 U.S. 1026 (1994). Generally, however, if there is
a right to jury trial, but the parties do not consent to jury
trial before the bankruptcy court, cause exists. C o l l i e r 's , supra
at 5011-7.
Clearly, the unliquidated claims of the Creditors Connor
here are claims for personal injury tort, which are claims that
should be tried before a jury.5 Accordingly, the R&R must be and
5Emotional distress, whether intentionally or negligently caused, falls within the definition of "personal injury tort" of 28 U.S.C. § 157(b)(5). In re Thomas, 211 B.R. 838, 840-41 (Bankr. D.S.C. 1997). 4 is herewith accepted, and the referral is withdrawn from the
bankruptcy proceedings concerning the unliquidated claims of
Creditors Connor.
The court judicially notes that the Creditors Connor have
now filed a separate complaint as against the trustee and debtor,
which complaint seeks recovery of the damages initially sought in
these bankruptcy proceedings. See 98-285-JD, Connor, et al v.
Schreiber, et a l . The filing of this latter proceeding renders
moot any further action by this court on the pending motions and
objections in these bankruptcy proceedings, which include the
debtor's objection to proof of claim (file no.
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Kingsley, In re CV-98-347-SD 06/09/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
In re: Douglas R. Kingsley
Civil No. 98-347-SD
O R D E R
This matter comes before the court on a Report &
Recommendation (R&R) of the bankruptcy judge. The R&R was
triggered by a motion of the Chapter 7 Trustee to withdraw a
reference of a motion to compromise claims of certain creditors.1
No objection was filed in the bankruptcy court to the motion
to withdraw the reference. Additionally, no objection has been
filed in this court to the R&R of the bankruptcy judge.
1. Background
The relevant creditors, Brenda Y. Connor, Patrick S. Connor,
Melanie F. Connor, James A. Connor, and Doreen F. Connor
(hereinafter "Creditors Connor"), have filed proofs of claim for
breach of contract and unliquidated personal injuries of alleged
^Although bankruptcy courts lack jurisdiction to hear a motion for withdrawal of reference, see 28 U.S.C. § 157(d), it is not uncommon for them to make recommendations to the district court as to whether this should be done. Matter of Vicars Ins. Agency, Inc., 96 F.3d 949, 954 (7th Cir. 1996). intentional and negligent infliction of emotional distress and
outrage for alleged pre-petition acts by the debtor. The
bankruptcy judge granted the trustee's motion to intervene as
party-plaintiff in place of the debtor, and also approved the
trustee's stipulation to settle Brenda Y. Connor's claim for
breach of contract.
Subsequently, the trustee and the remaining Creditors Connor
filed a joint stipulation to approve the pending claims of such
creditors.2 The debtor objected and filed a motion to intervene,
to which the trustee and Doreen F. Connor objected. Thereafter,
the Creditors Connor moved for a protective order and an order of
disclosure pursuant to 5 U.S.C. § 552a(b) (ll),3 and the debtor
objected.
2It appears that Brenda Y. Connor and debtor had entered into a purchase & sale agreement for the sale of certain property in Henniker, New Hampshire. When debtor failed to perform under the terms thereof, Brenda Y. Connor obtained a judgment for specific performance from the Merrimack County Superior Court. Thereafter, that court issued orders for payment of consequential damages, and attachments of debtor's property were also issued. Following the state court proceedings, certain letters containing death threats were sent to the Creditors Connor, and Doreen Connor was the victim of libelous sexual letters which were given a wide distribution. Believing that these documents were the work of debtor, the Creditors Connor filed proofs of claim in this bankruptcy proceeding, and eventually sought compromise of their claims with the trustee.
35 U.S.C. § 552a(b)(11) governs disclosure of records kept by governmental agencies and provides for disclosure thereof "pursuant to the order of a court of competent jurisdiction." 2 The bankruptcy judge ordered the trustee to file a motion to
withdraw the reference by this court concerning the motion to
approve compromise and all related motions. As above indicated,
that was done, and the bankruptcy court then issued its R&R in
which the recommendation was made that the court approve
withdrawal of such reference.
2. Discussion
The relevant provisions of the Bankruptcy Code except from
the definition of "core proceedings" "the liquidation or
estimation of contingent or unliquidated personal injury tort or
wrongful death claims against the estate." 28 U.S.C. §
157(b) (2) (B) . See also 28 U.S.C. § 157(b) (2) (0) .4 Accordingly,
the statute further provides that "the district court shall order
that personal injury tort and wrongful death claims shall be
tried in the district court in which the bankruptcy case is
pending, or in the district court in the district in which the
claim arose, as determined by the district court in which the
bankruptcy case is pending." 28 U.S.C. § 157(b)(5).
Under 28 U.S.C. § 157(d), a "district court may withdraw
. . . any case or proceeding referred [to the bankruptcy court]
428 U.S.C. § 157(b)(2)(0) also excepts from the catch-all provisions of "core proceedings" "personal injury tort or wrongful death claims." 3 on its own motion or on a timely motion of any party, for cause
shown." In evaluating whether cause exists for withdrawal, the
court must first determine whether the matter before it is core
or non-core. Following this determination, the court examines
numerous factors, including whether withdrawal will (1) promote
uniformity of bankruptcy administration; (2) reduce forum
shopping and confusion; (3) foster the economical use of debtors'
and creditors' resources; and (4) expedite the bankruptcy
process; and (5) whether a right to jury trial, triable only in
the district court, exists. 9 C o l l i e r 's o n B a n k r u p t c y §
5011.01[1][b] at 5011-6, 7 (15th ed. rev. Matthew Bender 1997);
In re Burger Boys, Inc., 94 F.3d 755, 762 (2d Cir. 1996); In re
Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir. 1993), cert,
dismissed, 511 U.S. 1026 (1994). Generally, however, if there is
a right to jury trial, but the parties do not consent to jury
trial before the bankruptcy court, cause exists. C o l l i e r 's , supra
at 5011-7.
Clearly, the unliquidated claims of the Creditors Connor
here are claims for personal injury tort, which are claims that
should be tried before a jury.5 Accordingly, the R&R must be and
5Emotional distress, whether intentionally or negligently caused, falls within the definition of "personal injury tort" of 28 U.S.C. § 157(b)(5). In re Thomas, 211 B.R. 838, 840-41 (Bankr. D.S.C. 1997). 4 is herewith accepted, and the referral is withdrawn from the
bankruptcy proceedings concerning the unliquidated claims of
Creditors Connor.
The court judicially notes that the Creditors Connor have
now filed a separate complaint as against the trustee and debtor,
which complaint seeks recovery of the damages initially sought in
these bankruptcy proceedings. See 98-285-JD, Connor, et al v.
Schreiber, et a l . The filing of this latter proceeding renders
moot any further action by this court on the pending motions and
objections in these bankruptcy proceedings, which include the
debtor's objection to proof of claim (file no. 57);6 Creditors
Connor's Motion for Order of Disclosure to the United States
Pursuant to 5 U.S.C. § 552a(b)(11) (file no. 121); Joint Motion
of Trustee and Creditors Connor to Approve Stipulation [with
Exhibit A] (file no. 107); Motion of Creditors Connor for Filing
of a Protective Order (file no. 120); and Debtor's Motion to
Intervene Relative to the Claims of Creditors Connor (file no.
113) .
This ruling of mootness is without prejudice to the rights
of the respective parties in Civ. No. 98-285-JD to file such
relevant requests for relief as they deem necessary in support of
6The reference to the term "file no." is to the number given the relevant document in the bankruptcy court. 5 their respective positions in that litigation. The clerk of this
court shall enter judgment in the instant civil action in
accordance with the findings of this order.
SO ORDERED.
Shane Devine, Senior Judge United States District Court June 9, 1998 cc: Victor W. Dahar, Jr., Esq. Randall L. Pratt, Esq. George Vannah, Clerk, US Bankr. Ct.