Laddusire v. Auto-Owners Insurance

494 B.R. 373
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJune 6, 2013
DocketBankruptcy No. 12-16616-11; Adversary No. 13-43
StatusPublished
Cited by2 cases

This text of 494 B.R. 373 (Laddusire v. Auto-Owners Insurance) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laddusire v. Auto-Owners Insurance, 494 B.R. 373 (Wis. 2013).

Opinion

DECISION ON AUTO-OWNERS’ MOTION TO ABSTAIN AND REMAND

CATHERINE J. FURAY, Bankruptcy Judge.

' This proceeding was removed to this Court from the Circuit Court for Portage County, Wisconsin, by the Debtor, Paula D. Laddusire. It is now before the Court on the motion of the Defendant, Auto-Owners Insurance Company, for abstention and remand (“Auto-Owners”) (“Motion”). Auto-Owners submitted a brief in support of its Motion, and the Debtor filed a response. A hearing was held on April 25, 2013, and following additional argument on the record, both parties stated that no further written argument would be submitted.

For the reasons set forth below, the Court grants the Motion and remands the proceeding to the Circuit Court for Portage County, Wisconsin.

BACKGROUND

The Debtor is the owner of a residence located in Rhinelander, Wisconsin. The residence was damaged in a storm. Auto-Owners was an insurer of the residence. It paid insurance proceeds to the Debtor and/or third parties on account of the storm damage. The Debtor demanded payment of additional sums and Auto-Owners declined, alleging, among other defenses, that she had failed to meet necessary conditions under the policy. The unwillingness of Auto-Owners to make payment of these additional sums prompted the Debtor to commence an action in the Circuit Court for Portage County in June 2011 seeking damages (“State Court Action”).1 Auto-Owners answered the state court complaint and filed a jury demand. Discovery requests were propounded by Auto-Owners. On December 7, 2012, the Debtor filed for bankruptcy protection.

The Debtor removed the State Court Action to this Court on March 5, 2013. The Notice of Removal invokes 28 U.S.C. §§ 157, 1334(b), 1334(e)(1), and 1452, as well as 11 U.S.C. § 105 and Bankruptcy Rule 9027 (“Notice”). She asserts it is necessary to remove the State Court Action because it “involves property of the [Debtor’s] bankruptcy estate” in the form of an insurance claim for losses to her homestead, personal property, medical expenses, personal injury, and other damages. She states that the matter is a core proceeding because it involves recovery of money for the bankruptcy estate. On April 11, 2013, Auto-Owners filed its Mo[377]*377tion seeking abstention and remand under 28 U.S.C. §§ 1384(c) and 1452(b).

ANALYSIS

Once a proceeding is removed pursuant to 28 U.S.C. § 1452(a), the court may remand the case or claim, on any equitable ground, to the original court. 28 U.S.C. § 1452(b) and Fed. R. Bankr.P. 9027(d). To determine whether the matter should be remanded, the court must first decide whether it has jurisdiction and, if so, whether to exercise it.

Section 1452(a) of Title 28 permits a party to remove a “claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” A district court has jurisdiction under section 1334(b) “of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” It may, however, refer cases arising under title 11, arising in a case under title 11, or related to a case under title 11 to the bankruptcy judges for their district. 28 U.S.C. § 157(a). The District Court for the Western District of Wisconsin has made such a reference. Western District of Wisconsin Administrative Order 161 (July 12,1984).

Abstention

There are circumstances in which a federal court must abstain from hearing a case removed from state court. Section 1334(c)(2) of Title 28 gives the rule for mandatory abstention, which has been distilled by courts into five elements: 1) the motion is timely; 2) the removed proceeding is based upon a state-law claim or state-law cause of action; 3) the proceeding is a non-core but “related to” proceeding; 4) the action could not have been commenced in federal court absent jurisdiction under 28 U.S.C. § 1334; and 5) an action has been commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. See, e.g., Stoe v. Flaherty, 436 F.3d 209, 213 (3d Cir.2006); Taub v. Taub (In re Taub), 413 B.R. 69, 75 (Bankr.E.D.N.Y.2009).

If these requirements are not all met, the court is not required to abstain. It may nevertheless choose to do so. Section 1334(c)(1) provides that the court may abstain “in the interest of justice, or in the interest of comity with State courts or respect for State law ... from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.”

Thus, the first question is whether this Court must abstain under 28 U.S.C. § 1334(c)(2). There is no argument that the State Court Action is not based solely upon a state-law claim — clearly, it is. The Debtor does, however, challenge every other element under 28 U.S.C. § 1334(c)(2). First, she attacks the timeliness of Auto-Owners’ Motion under 28 U.S.C. § 1447(c). That provision requires that motions to remand on grounds other than lack of subject matter jurisdiction be made within thirty days of the filing of a notice of removal under 28 U.S.C. § 1446(a). The Debtor’s Notice was filed on March 5, 2013, and the Defendant’s Motion was filed on April 11, 2013 — thirty-seven days later. Consequently, if the removal was filed under 28 U.S.C. § 1446, mandatory abstention under 28 U.S.C. § 1334(c)(2) may not apply because there is an issue of whether the Motion to abstain was timely.

There are two problems with the Debtor’s argument concerning the timeliness of the Motion. The first is that 28 U.S.C.

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Bluebook (online)
494 B.R. 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laddusire-v-auto-owners-insurance-wiwb-2013.