MEMORANDUM
This adversary proceeding involves state law tort claims of malicious prosecution and defamation asserted by the plaintiff, Joseph B. Kirk, and removed to this court by the defendant, William T. Hendon, who was the chapter 7 trustee in the underlying bankruptcy ease of debtor Douglas L. Heinsohn. Before the court are the plaintiffs motion to remand or for abstention and motion to strike, and the defendant’s motion to dismiss. For the following reasons, the plaintiffs motions will be denied and the defendant’s motion to dismiss will be granted.
I.
The complaint filed on September 24,1997, in the Circuit Court for Knox County, Tennessee alleges that the plaintiff was indicted for bankruptcy fraud and conspiracy to commit bankruptcy fraud by the Federal Grand Jury for the U.S. District Court for the Eastern District of Tennessee on March 6, 1996, and upon trial was acquitted of all charges on November 25, 1996, at the close of the prosecution’s proof. It is further averred that “[a]t all times material to the criminal charges against Joseph B. Kirk, the defendant, William T. Hendon was the bankruptcy trustee for the relevant estate, and the principal witness against the plaintiff.” For his malicious prosecution cause of action, the plaintiff alleges that the defendant “initiated or procured the criminal proceedings” against him “for an improper purpose, without probable cause,” and “the proceedings were terminated favorably for the person thus prosecuted.” As for the defamation of character count, the plaintiff “relies upon the factual and legal allegations contained in the first count for malicious prosecution” and additionally alleges that “defendant communicated to persons other than the plaintiff defamatory statements concerning the plaintiff that were defamatory, as that term is defined in law.” Specifically, the plaintiff avers that “[t]he defamatory statements alleged in this complaint were the allegations of criminal misconduct against the plaintiff made by the defendant.” The plaintiff seeks $5 million in compensatory and punitive damages from the defendant.
On October 15, 1997, the defendant filed a notice of removal of the plaintiffs state court action, thereby commencing this adversary proceeding. In the notice, the defendant states that in accordance with his responsibilities as trustee under 18 U.S.C. § 3057, he referred the debtor “to the U.S. Trustee for
In response to the removal, the plaintiff filed on November 13, 1997, a motion to remand and in the alternative for abstention contending that the court “does not have subject matter jurisdiction of the removed action” and the removal notice is defective because “[rjemoval of this action should be to the District Court as set out in Section 1452(a)” and “the notice does not include a statement indicating whether the removed matter is core or non-core, and if non-core, whether the parties consent to entry of final orders or judgments by the Bankruptcy Judge, as required by Bankruptcy Rule 9027 and 28 U.S.C. § 1452.” Alternatively, the plaintiff asserts that “this case is appropriate for mandatory or discretionary abstention.” On November 24, 1997, the defendant filed an amended notice of removal containing the allegation that “this proceeding is a core proceeding.”
On November 28, 1997, the defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), as incorporated by Fed.R.Bankr.P. 7012(b), contending that both the malicious prosecution and defamation counts of the complaint must be dismissed on the ground of absolute immunity since the defendant acted in his capacity as trustee and as an officer of the court. The motion also asserts that the alleged defamatory statements were made in the course of judicial proceedings and therefore the defendant enjoys qualified immunity under state law.
On December 15, 1997, the plaintiff filed a motion to strike the defendant’s amended notice of removal on the ground that neither leave of court nor consent of the adverse party was granted prior to its filing. The plaintiff stated that he does not consent to the amendment and that leave by the court to amend “cannot be granted because the amendment attempts to add an essential allegation to the notice of removal which cannot be added after the expiration of the statutory period of time for filing such notice.”
Prior to ruling on the parties’ various motions, the plaintiff filed a motion for withdrawal of reference on December 17, 1997. Pursuant to 28 U.S.C. § 157(d) and Fed. R.Bankr.P. 5011(a), this court entered an order on December 19, 1997, directing the bankruptcy clerk to transmit the plaintiffs motion for withdrawal of reference to the district court for disposition. Pending that decision, the court stayed all matters, including the plaintiffs motion to remand or for abstention, the defendant’s motion to dismiss, and the plaintiffs motion to strike. By order entered September 29, 1998, the district court denied the motion to withdraw reference and directed this court to rule upon the pending motions. Oral arguments on the motions having been made, the issues raised by the parties are now ready for resolution.
II.
The court will first consider the plaintiffs motion to strike. Fed.R.Bankr.P. 9027(a)(1)
1
provides in pertinent part that a
Characterizing the motion as “hypertechnical,” the defendant responds by observing that the notice of removal contains all the facts necessary to support a legal conclusion that this is a core proceeding. As such, he argues that any failure to specifically state whether the proceeding is core or non-core is only a technical defect which can be corrected by amendment even after expiration of the 30-day removal time period, citing
Northern Ill. Gas Co. v. Airco Indus. Gases,
The court has been unable to locate a reported decision which has considered the precise issue of whether the failure to designate a proceeding’s core or non-core status in a notice of removal as required by Fed. R.Bankr.P. 9027(a)(1) is a fatal defect which deprives the court of jurisdiction to hear the matter. However, a similar question arises when parties fail to comply with an identical mandate contained in Fed.R.Bankr.P. 7008(a) which requires complaints, counterclaims, cross-claims, and third-party complaints in adversary proceedings to “contain a statement that the proceeding is core or non-core. ...”
2
When presented with this issue, the vast majority of courts have held that dismissal for this reason alone is unjustified.
See Carlson v. Attorney Registration and Disciplinary Comm’n of the Supreme Court of III. (In re Carlson),
This court similarly concludes that the defendant’s failure to include in the original notice of removal a statement that the proceeding is core or non-core is not fatal. Notwithstanding plaintiffs argument to the contrary, the core/non-core statement is not an allegation of jurisdiction essential to removal. The statute which makes the core/ non-core distinction, 28 U.S.C. § 157, “is not a jurisdictional statute” as Judge Jordan noted in denying plaintiffs motion to withdraw. This case was removed pursuant to 28 U.S.C. § 1452(a), the bankruptcy removal statute, which authorizes removal from state court to federal district court “if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.”
3
Section 1334 of title 28 sets forth the scope of federal bankruptcy jurisdiction.
Sanders Confectionery Prod., Inc. v. Heller Financial, Inc.,
A statement designating a proceeding as core or non-core does not fall within this category of information because a proceeding’s core/non-core status only becomes pertinent after it has been established that the proceeding falls within the district court’s bankruptcy jurisdiction. “If a district court has bankruptcy jurisdiction over a case, 28 U.S.C. § 157(a) allows the court to refer the case to the bankruptcy court.”
Sanders,
Furthermore, to the extent it may be argued that core/non-core allegations are essential to the authority of the bankruptcy court to hear the matter, the court concurs with the defendant’s assertion that sufficient facts were set forth in the notice of removal and in the state court complaint, a copy of which was attached to the notice, from which the court can ascertain whether the proceeding is core or non-core.
See
14C Charles Alan Wright & Ajrthur R. Miller, Federal Practice and Procedure § 3733 (3rd ed. 1998) (“[I]t should be sufficient if the court is provided the facts from which removal jurisdiction can be determined.”). The Sixth Circuit Court of Appeals has held that the liberal amendment standard of Fed.R.Civ.P. 15 (“leave shall be freely given”) applies to allegations of jurisdiction in a removal notice.
See Tech Hills II Assoc. v. Phoenix Home Life Mut. Ins. Co.,
In both
Tech Hills and Gafford,
the Sixth Circuit quoted extensively from
Stanley Elec. Contractors, Inc. v. Darin & Armstrong Co.,
Better if the jurisdiction in fact exists, to permit the petition for removal to be amended to reflect it. It appears that the time has come to reexamine this entire matter and expressly adopt the approach ... that amendments to the jurisdictional allegations of removal petitions should be permitted in the same manner as amendments to any other pleading.
It must be made clear that this opinion is not to be construed as departing in any way from the precept that the facts giving rise to federal jurisdiction must be strictly construed and alleged with particularity. The decision holds only that the time has come to apply the principles of modern pleading relating to amendments to removal petitions, and that amendments should be permitted, to implement the spirit of the statute and rules cited herein, where the jurisdictional facts do indeed exist, and the parties are in law entitled to invoke the jurisdiction of the federal court.
Virtually all of the commentators and the great weight of judicial authority favor the rule adopted by this decision. Indeed,the strict view reflected by the earlier cases hereinabove cited has been expressly criticized.
For the above reasons, the court holds that a petition for removal may be amended under the same considerations governing the amendment of any other pleading containing jurisdictional allegations.
Tech Hills,
Finally, with respect to the question of whether it was necessary for the defendant to file a formal motion for leave to amend prior to filing its amended removal notice, the court notes that the Sixth Circuit Court of Appeals in
Gajford
observed that it saw no point in requiring the defendant to file a formal amended removal petition since any deficiency in the original removal petition had been cured by subsequent affidavits supplied by the defendant at a jurisdiction hearing.
See Gafford,
III.
The court will next consider the plaintiffs motion to remand in which he asserts that the court does not have subject matter jurisdiction of the removed action.
6
In the motion, plaintiff challenges the jurisdiction of both the district court and the bankruptcy court to hear this action and as noted by Judge Jordan, at times blurs the distinction between the two. Stated previously, the scope of district court jurisdiction over bankruptcy matters is governed by 28 U.S.C. § 1334(a) and (b). As set forth in these statutes, federal district courts have original jurisdiction over all cases under title 11 of the United States Code and all civil proceedings arising under title 11, or arising in or related to cases under title 11.
See
28 U.S.C. § 1334(a) and (b);
Sanders,
Notwithstanding the district court’s original jurisdiction over these matters, 28 U.S.C. § 157(a) authorizes a district court to refer its grant of jurisdiction under § 1334 to bankruptcy judges, who are “judicial officer[s] of the district court.”
See
28 U.S.C. § 151;
Seale v. Home Cable Concepts, Inc, (In re Best Reception Systems, Inc.),
Even though the referral encompasses the entire scope of the district court’s jurisdiction under § 1334
(compare
28 U.S.C. § 1334(a) and (b) with 28 U.S.C. § 157(a)), bankruptcy judges are not empowered to exercise the full extent of judicial power that district courts possess under § 1334.
In re Best Reception Systems, Inc.,
To state it another way, the district court’s and bankruptcy court’s subject matter jurisdiction is coextensive with respect to core proceedings. However, absent consent of the parties, a bankruptcy court does not have subject matter jurisdiction over non-core,
i.e.,
“related,” proceedings although such proceedings are still within a district court’s jurisdiction.
Sanders,
“While the above explains the different treatment core and noncore proceedings receive at the hands of the courts, ‘no exact definition of the terms exist in the bankruptcy code.’ ”
In re Harris Pine Mills,
The test for determining whether a proceeding is only “related” to the bankruptcy case and is thus non-core:
[I]s whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.
In re Best Reception Systems, Inc.,
In the case sub judice, the defendant asserts that the action against him is a core proceeding because it arose out of a trustee’s administration of a bankruptcy estate. He argues that in making the criminal referral which subsequently led to the federal grand jury indictments of both the debtor and the plaintiff, he was merely carrying out his responsibilities under 18 U.S.C. § 3057, which states as follows:
(a) Any judge, receiver, or trustee having reasonable grounds for believing that any violation under chapter 9 of this title or other laws of the United States relating to insolvent debtors, receiverships or reorganization plans has been committed, or that an investigation should be had in connection therewith, shall report to the appropriate United States attorney all the facts and circumstances of the case, the names of the witnesses and the offense or offenses believed to have been committed. Where one of such officers has made such report, the others need not do so.
(b) The United States attorney thereupon shall inquire into the facts and report thereon to the judge, and if it appears probable that any such offense has been committed, shall without delay, present the matter to the grand jury, unless upon inquiry and examination he decides that the ends of public justice do not require investigation or prosecution, in which case he shall report the facts to the Attorney General for his direction.
The plaintiff, on the other hand, asserts that his lawsuit against the defendant is neither core nor related and therefore both the bankruptcy court and the district court are without subject matter jurisdiction. He argues that a criminal referral by a bankruptcy trustee which results in a subsequent suit for malicious prosecution has no relationship to a closed bankruptcy estate: it involves no right created by bankruptcy law and is one that can exist outside of bankruptcy. The plaintiff also contends that the outcome of the removed case can not conceivably have any impact on the handling and administration of the bankruptcy estate, nor any effect on the debtor’s rights, liabilities, options, or freedom of action.
In support of the argument that his claims against the defendant are neither core nor related, the plaintiff cites the case of
Sullivan v. Pressman (In re Sullivan’s Jewelry, Inc.),
The plaintiff argues that the same reasoning applies in the present case: that he has not pled that the defendant was acting in his official capacity in initiating the prosecution against him, and thus this is simply a state court action between two individuals which is unrelated to the bankruptcy proceeding. The plaintiff maintains that this case is no different than if the defendant were at fault for causing an automobile accident which resulted in injuries to the plaintiff and the defendant happened to be a trustee at the time of the accident.
In Sullivan, however, the court emphasized that no party had suggested that the incidents that formed the basis for the lawsuit either arose out of or were related to the bankruptcy proceeding. Id. Nor had the plaintiff therein alleged or the record suggested that the purportedly slanderous statements were made while the defendant was acting on behalf of the trustee. Id. The complaint in the present case plainly accuses the defendant of initiating or procuring criminal charges of “bankruptcy fraud and conspiracy to commit bankruptcy fraud” and of making defamatory “allegations of criminal misconduct” against the plaintiff while the defendant was serving as “the bankruptcy trustee for the relevant estate.” In the notice of removal, the defendant cites his appointment as trustee and asserts that his actions were taken in accordance with his responsibilities as trustee. Thus, the Sullivan decision is readily distinguishable from the present ease.
Although this court has been unable to locate any reported decision directly on point with the facts of this case, there are eases which support the defendant’s argument that the causes of action against him are core proceedings because they arose out of his administration of the bankruptcy case. For example, in Sanders the Sixth Circuit Court of Appeals held that postpetition claims for common law fraud, securities fraud and RICO against a bankruptcy trustee by the parent corporation of the debtor and certain principals and shareholders of the parent were core proceedings since they would not have arisen but for the trustee’s administration of the bankruptcy case.
While the specific causes of action, such as RICO, exist independently of bankruptcy cases, an action against a bankruptcy trustee for the trustee’s administration of the estate could not. All claims against [the trustee] related to his conduct during the ... bankruptcy, and should be considered core proceedings.
Sanders,
A case closely analogous to that before the court is
Honigman, Miller, Schwartz & Cohn v. Weitzman (In re DeLorean Motor Co.),
This court concludes that the analysis in
DeLorean
is equally applicable to the present case. It was not happenstance that the complained of events took place while the defendant was a bankruptcy trustee. A trustee has a statutory duty under 18 U.S.C. § 3057 to notify the United States attorney and report all of the relevant facts and circumstances of the case if he believes that a crime has been committed or that further investigation is appropriate.
See In re Holder,
The fact that at the time of the filing of the state court lawsuit the bankruptcy estate had been fully administered and the case had to be reopened upon the filing of defendant’s removal notice does not preclude the determination that this is a core proceeding. There is no bright-line rule dictating that once an estate has been fully administered a trustee cannot avail himself of the federal court’s bankruptcy jurisdiction if he is subsequently sued for actions taken while administering the estate. The court having determined that this matter is a core proceeding, the plaintiffs motion to remand based on lack of subject matter jurisdiction will be denied.
As an alternative to his motion to remand, plaintiff argues that this case is appropriate for mandatory or discretionary abstention.
See In re Best Reception Systems, Inc.,
The law of abstention is set forth in 28 U.S.C. § 1334(c) which provides:
(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.
(2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, 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.
“Subsection (c)(1) addresses those situations when courts may abstain from hearing a proceeding while subsection (c)(2) defines those situations when courts must abstain from hearing a proceeding. The former is known as permissive abstention while the latter is referred to as mandatory abstention.”
In re Best Reception Systems, Inc.,
As quoted above, § 1334(c)(2) provides that in order for mandatory abstention to apply, the proceeding must be “related to a case under title 11 but not arising under title 11 or arising in a case under title 11.” In other words, the proceeding must be non-core.
Lindsey v. Dow Chemical Co. (In re Dow Coming Corp.),
Under subsection (c)(1) of § 1334, a court may abstain from hearing either core or non-core matters “in the interest of justice, or in the interest of comity with State courts or respect for State law.”
See Republic Reader’s Service, Inc. v. Magazine Service Bureau, Inc. (In re Republic Reader’s Service, Inc.),
IV.
Finally, the court will consider the defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), as incorporated by Fed.R.Bankr.P. 7012(b), which asserts that both the malicious prosecution and defamation claims contained in the complaint must be dismissed on the grounds of absolute or quasi-judicial immunity since the defendant acted in his capacity as trustee and as an
In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in the light most favorable to the plaintiff, accept as true the factual allegations in the complaint, and determine whether the plaintiff undoubtedly could prove no set of facts in support of his claims that would entitle him to relief.
See Allard v. Weitzman (In re DeLorean Motor Co.),
In the present case, the plaintiff asserts that the defendant’s claim of absolute immunity is “preposterous.” He maintains that at best a trustee has a “qualified” immunity which protects him when acting pursuant to court order and that absent a court directive, a trustee is held to the reasonable person standard.
See
plaintiffs memorandum citing,
inter alia, Boullion v. McClanahan,
A few years ago in
Bush v. Rauch,
It is well established that judges are entitled to absolute judicial immunity from suits for money damages for all actions taken in the judge’s judicial capacity, unless these actions are taken in the complete absence of any jurisdiction. [Citations omitted.] Moreover, absolute judicial immunity has been extended to non-judicial officers who perform “quasi-judicial” duties. [FN5] [Citations omitted.] Quasi-judicial immunity extends to those persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune. [Citations omitted.]FN5. The United States Supreme Court has recognized the need for government officials to be able to make impartial decisions without the threat of personal liability for actions taken pursuant to their official duties. See, e.g., Butz v. Economou, 438 U.S. 478 ,98 S.Ct. 2894 ,57 L.Ed.2d 895 (1978)(agency attorney); Stump v. Sparkman,435 U.S. 349 ,98 S.Ct. 1099 ,55 L.Ed.2d 331 (1978)(judge); Imbler v. Pachtman,424 U.S. 409 ,96 S.Ct. 984 ,47 L.Ed.2d 128 (1976) (prosecutors); Dombrowski v. Eastland,387 U.S. 82 ,87 S.Ct. 1425 ,18 L.Ed.2d 577 (1967)(legislators).
The Supreme Court has endorsed a “functional” approach in determining whether an official is entitled to absolute immunity. Forrester v. White,484 U.S. 219 , 224,108 S.Ct. 538 , 542-43,98 L.Ed.2d 555 (1988); Burns v. Reed,500 U.S. 478 , 486,111 S.Ct. 1934 , 1939,114 L.Ed.2d 547 (1991). Under this approach, a court “looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Buckley v. Fitzsimmons,509 U.S. 259 , 269,113 S.Ct. 2606 , 2613,125 L.Ed.2d 209 (1993) (quoting Forrester,484 U.S. at 229 ,108 S.Ct. at 545 ). For example, a prosecutor who undertakes acts in the preparation or initiation of judicial proceedings is entitled to absolute immunity. Id. On the other hand, when a prosecutor performs administrative acts unrelated to judicial proceedings, qualified immunity is all that is available. Id.
Bush,
The United States Supreme Court has stated that in applying the functional approach to immunity issues, a court must not only examine the nature of the functions with which the official has been entrusted but also “evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.”
Forrester,
In this court’s view, the trustee’s obligation to report perceived violations of federal law to the United States attorney and to cooperate with any ensuing investigation and prosecution is one of those “tasks so integral or intertwined with the judicial process” that the trustee should be “considered an arm of the judicial officer who is immune.” It must be noted that 18 U.S.C. § 3057 imposes criminal referral obligations not only on trustees but also on judges and receivers.
See Kittay v. Battle Fowler (In re Stockbridge Funding Corp.),
Furthermore, a trustee who makes a criminal referral is in many respects analogous to a prosecutor.
See In re Stockbridge Funding Corp.,
[T]he risk of injury to the judicial process from a rule permitting malicious prosecution suits against prosecutors is real. There is no one to sue the prosecutor for an erroneous decision Not to prosecute. If suits for malicious prosecution were permitted, the prosecutor’s incentive would always be not to bring charges.
Imbler v. Pachtman,
Similarly, if trustees are subject to suit and liability for their actions in reporting possible criminal violations to the prosecuting authorities, no trustee would ever make a referral. No trustee would run the risk of damages being assessed against him for making a referral based on often incomplete information which produces no monetary benefit to the trustee since a trustee’s primary obligation is to collect and liquidate assets of the estate, not report crimes. Yet a trustee is in a unique position to discover possible bankruptcy crimes since his duties require him to “investigate the financial affairs of the debtor.” See 11 U.S.C. § 704(4). To expose a trustee to the potential for liability for complying with his obligations under 18 U.S.C. § 3057 would emasculate an important public function which a trustee is in a distinct position to fulfill.
One of the justifications offered for according absolute immunity to prosecutors is that “built-in safeguards diminish the need for private redress against prosecutorial abuse.”
Gray v. Bell,
Inherent in the judicial process are checks that serve to restrain prosecutorial abuse, and any abuse that does occur is subject to various self-remedying mechanisms of the adversarial process_ [T]he prosecutor’s absolute protection, like that of the judge from which it is derived, is both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse_ [T]he circumstances typically provide alternative instruments of the judicial branch to check misconduct — the discretion of the grand jury, the procedures of a trial, and the potential sanction of discipline imposed by the court itself.
Id. These same safeguards, along with a significant additional one — an investigation and independent review by the United States attorney — greatly lessen the possibility that an innocent party will be harmed by a misguided or even malicious trustee.
Although no other reported decision has specifically addressed the issue of the scope of a trustee’s immunity in making a criminal referral, various courts have concluded that acts within the ambit of bankruptcy trustee’s official duties are protected by absolute immunity. For example, in
Walton v. Watts (Matter of Swift),
[T]he trustee’s conduct in bringing the present adversary proceeding is inexorably intertwined with this Court’s function of conserving the Debtor’s assets for distribution. [Citations omitted.] As such, the Trustee’s quasi-judicial conduct merits absolute immunity.
Id. at 970 n. 7.
Similarly, in
Howard v. Leonard,
In
Weissman v. Hassett,
The plaintiffs here seek more than $25 million in damages and contend that the Trustee can be personally liable for that amount. Even a remote prospect of personal liability of such a magnitude could not help but lessen the vigor with which future reorganization trustees will pursue their obligations to uncover wrongdoing and report on potential claims held by a bankrupt estate.
Id.
Based on the foregoing analysis that the function performed by a bankruptcy trustee in reporting possible criminal violations to the United States attorney is judicial in nature, that there are adequate safeguards to reduce the possibility of harm to an innocent party, and that subjecting a trustee to liability in this instance would deter the trustee from complying with his obligations under 18 U.S.C. § 3057, this court concludes that the defendant is protected by absolute immunity from the plaintiffs malicious prosecution action.
These same considerations also insulate the defendant from liability with respect to the second count of the complaint, defamation of character. In the second count, the plaintiff relies on the factual and legal allegations in the first count, which include,
inter alia,
that “[a]t all times material to the criminal charges against Joseph B. Kirk, the defendant, William T. Hendon was the bankruptcy trustee for the relevant estate, and the principal witness against the plaintiff’ and that the defendant “initiated or procured the criminal proceedings against the plaintiff.” The second count of the complaint adds the additional allegation that “[t]he defendant communicated to persons other than the plaintiff defamatory statements concerning the plaintiff’ which “were the allegations of criminal misconduct against the plaintiff.” No specific allegations regarding the place, context, or the precise content of the alleged defamatory statements are pled. As the second count of the complaint expressly incorporates the first count, the court can only assume that the defamatory statements which alleged criminal misconduct occurred while the defendant was “initiating] or procuring] the criminal proceedings against the plaintiff’ and acting as “the principal witness against the plaintiff.” Just as prosecutors and witnesses are immune from defamation liability for any statements which arise out of or are incidental to the initiation or presentation of judicial proceedings, see
Buckley,
Before leaving the subject of immunity, the court believes it is appropriate to distinguish the authorities cited by the plaintiff in support of his assertion that the defendant is not protected in this action by immunity. It is this court’s observation that the case law regarding trustee liability is extremely confusing and often contradictory, with the result that it is difficult from the caselaw alone to formulate guidelines specifying when a trustee is immune from personal liability and when he is not.
Compare, e.g., Mullís v.
All of the cases cited by the plaintiff in support of his argument that the defendant is not immune from suit and is personally liable if he is negligent in the performance of his duties involved beneficiaries of the bankruptcy estate and are not applicable to the facts of the present case which concerns a suit by a third party nonbeneficiary.
See Mosser v. Darrow,
The court having concluded that the defendant in this instance is protected by absolute immunity, 12 his motion to dismiss will be granted. An order will be entered in accordance with this memorandum opinion.
Notes
. Subsection (a)(1) of Fed.R.Bankr.P. 9027 states as follows:
A notice of removal shall be filed with the clerk for the district and division within which is located the state or federal court where the civil action is pending. The notice shall be signed pursuant to Rule 9011 and contain a short and plain statement of the facts which entitle the party filing the notice to remove, contain a statement that upon removal of the claim or cause of action the proceeding is core or non-core and, if non-core, that the partyfiling the notice does or does not consent to entry of final orders or judgment by the bankruptcy judge, and be accompanied by a copy of all process and pleadings.
. Fed.R.Bankr.P 7008(a) states as follows:
Rule 8 F.R.Civ.P. applies in adversary proceedings. The allegation of jurisdiction required by Rule 8(a) shall also contain a reference to the name, number, and chapter of the case under the Code to which the adversary proceeding relates and to the district and division where the case under the Code is pending. In an adversary proceeding before a bankruptcy judge, the complaint, counterclaim, cross-claim, or third-party complaint shall contain a statement that the proceeding is core or non-core and, if non-core, that the pleader does or does not consent to entry of final orders or judgment by the bankruptcy judge.
. 28 U.S.C. § 1452(a) states that:
A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, 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.
. 28 U.S.C. § 1334(a) and (b) state as follows:
(a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 1 1.
(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
. It is worth noting that section 157 of title 28 was enacted as a part of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353. However, the mandatory core/non-core statement was not added to Fed.R.Bankr.P. 9027(a)(1) until 1991, several years later, lending additional support for the conclusion that the failure to include such a statement would not create a jurisdictional defect per se.
. The plaintiff claims in his motion that ”[r]e-moval of this action should be to the District Court as set out in Section 1452(a)”. However, the plaintiff acknowledges in his memorandum in support that “there is authority for direct removal to Bankruptcy Court.” Indeed, ”[t]he position endorsed by the majority of courts which have published opinions on this issue is that the reference to ‘district courts’ in 28 U.S.C. § 1452(a) encompasses bankruptcy courts."
Plowman v. Bedford Fin. Corp. (In re Plowman),
Furthermore, because Fed.R.Bankr.P. 9027(a) provides that a notice of removal is to be filed with the clerk and Fed.R.Bankr.P. 9002(3) defines "clerk” for purposes of the rules as "the court officer responsible for the bankruptcy records in the district,” a notice of removal is properly filed with the bankruptcy clerk.
See Aztec Indus., Inc. v. Standard Oil Co., (In re Aztec Indus., Inc.),
The jist of the plaintiff’s position is that he desires the district court in the first instance to consider whether "there is a sufficient bankruptcy relationship to satisfy jurisdictional requirements.” This argument, however, was mooted by the district court’s memorandum of September 29, 1998, which directed this court to rule on the issue of whether subject matter jurisdiction exists.
. Subsection (b)(1) of 28 U.S.C. § 157 vests bankruptcy judges with full judicial power to:
[Hjear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.
. It must be noted that after Weitzman sued the trustee and his attorneys in California state court, the trustee filed an adversary proceeding in the Michigan bankruptcy court where the De-Lorean bankruptcy case was pending, seeking to enjoin further prosecution of the Weitzman action. Weitzman responded by voluntarily dismissing the trustee from the lawsuit. Whereupon, the Michigan bankruptcy court vacated its preliminary injunction, reasoning that because the action was no longer against the trustee, it did not affect the administration or assets of the estate.
In re DeLorean Motor Co.,
Upon appeal, the Sixth Circuit Court of Appeals reversed, finding that the bankruptcy court erred in dismissing the injunction action. The court concluded that because counsel for or representatives of the trustee are the functional equivalent of a trustee when they act at the direction of the trustee for the purpose of administering the estate or protecting its assets, they are entitled to the same protection.
Allard v. Weitzman (In re DeLorean Motor Co.),
It was in reliance on this Sixth Circuit Court of Appeals decision and its observation that the Weitzman lawsuit interfered with the administration of the estate
(id.
at 1243) that the Bankruptcy Appellate Panel concluded that Weitzman's state law malicious prosecution claim was a core proceeding.
In re DeLorean Motor Co.,
. The defendant also contends that the alleged defamatory statements were made in the course of judicial proceedings and therefore he enjoys immunity under state law.
See R.C. Jones v. Trice,
. The courts are divided over whether the trustee must negligently or willfully breach a fiduciary duty to interested parties in order for liability to attach.
See
McCullough, 103 Com. L.J. at 129-32. While the Sixth Circuit Court of Appeals along with the Fourth, Seventh and Tenth circuits hold that trustees can only be held personally liable for injuries arising from willful and deliberate conduct, three circuits, the Second, Ninth and Eleventh, subject trustees to personal liability for negligent breaches of fiduciary duties.
Id.
(citing
Ford Motor Credit Co. v. Weaver,
. Professor Bogart’s article explains that although a bankruptcy trustee incurs liability to third party nonbeneficiaries in precisely the same ways and under the same circumstances as any other individual incurs liability, a trustee is generally protected by derived judicial immunity as long as he was acting within the scope of his authority. Bogart, 68 Am. Bankr.L.J. 205-206.
See also,
McCullough, 103 Com. L.J. at 140 ("[I]t seems readily clear that trustees are immune for their actions so long as they pertain to their duties, in any form, as bankruptcy trustees.”). Although there is authority for the proposition that this derived immunity is absolute immunity, the better rule, in light of the fact that absolute immunity is a matter of function rather than identity, is that this is qualified judicial immunity.
See Leonard v. Vrooman,
. Absolute immunity defeats a suit at the outset so long as the official's actions were within the scope of the immunity, and thus frees the defendant from any obligation to justify his actions.
Gray,