MEMORANDUM OPINION
An adversary proceeding initiated by Unified Data Systems, Inc. (UDS) has triggered a motion to dismiss from the debtor-defendant. In its complaint, UDS alleges that Almarc Corp. (Almarc) has breached a post-petition contract, thereby entitling UDS to a judgment in excess of $30,000.00. Almarc contends that this complaint should be dismissed for lack of subject matter jurisdiction.
I.
On May 28, 1982, Almarc filed a voluntary petition in bankruptcy under chapter 11. UDS had no prepetition relationship with Almarc. On August 11, 1982, though, the parties entered into a “service agreement” by which UDS agreed to provide monthly computer services to the debtor, and the debtor agreed to pay for such services within thirty days of invoicing. (Complaint, Exhibit B.) The parties agree that in September, 1982, this court ap
The parties also agree that on September 10, 1986 this court entered an order confirming Almarc’s chapter 11 plan of reorganization. (The plan itself has been attached to the complaint as Exhibit A.) Article XIII of the plan called for the retention of jurisdiction by this court. In relevant part, it stated that:
The court shall retain jurisdiction of this case until the Plan has been fully consummated, including, but not limited to, the following mátters:
[[Image here]]
B. To adjudicate all controversies concerning the classification or allowance of any claim;
[[Image here]]
F. To adjudicate all claims or controversies arising out of any purchases, sales or contracts made or undertaken by the debtor during the pendency of these proceedings ....
The Service Agreement itself contained the following provisions:
15. Exclusive Jurisdiction
Client [the debtor] consents to the jurisdiction of the Courts of Common Pleas of Philadelphia, Pennsylvania and/or the United States District Court for the Eastern District of Pennsylvania in any action or proceeding pursuant hereto....
18. Complete Agreement
This agreement sets forth the entire understanding of the parties.. It shall not be changed or terminated orally....
UDS alleges, and for the purposes of resolving this motion I accept as true,
see Satz v. ITT Financial Corp.,
II.
UDS contends that the retention of jurisdiction provision found in the confirmed plan provides subject matter jurisdiction for this court to resolve this proceeding. Almarc counters that the plan, by its terms, does not confer jurisdiction over this dispute; moreover, even if it so attempted, Almarc argues that such a provision is improper. Neither party has addressed the jurisdictional provision found in the contract itself.
A.
Almarc correctly notes that a federal court, in deciding a motion to dismiss for lack of subject matter jurisdiction, presumptively lacks jurisdiction over a proceeding unless the plaintiff affirmatively demonstrates that jurisdiction exists.
Commodity Futures Trading Comm’n v. Nahas,
In presenting those facts necessary to establish jurisdiction, plaintiff is free to go outside the pleadings,
see, e.g., Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc.,
B.
Just recently, in
In re Cinderella Clothing Industries, Inc.,
to protect its [confirmation] decree, to prevent interference with the execution of the plan, and to aid otherwise in its operation.
In re Dilbert’s Quality Supermarkets, Inc.,
Whether such jurisdiction would exist absent a provision in the confirmed plan or order of confirmation — that is, whether the failure of the plan proponent or the court to expressly note such retention of power would constitute a waiver of jurisdiction— is an issue not before me, as the instant confirmed plan expressly provided such jurisdiction. 3 See generally, 5 Collier on Bankruptcy 111142.01[1] (15th ed. 1988). The converse, though, is raised by the defendant. Can a confirmed plan or confirmation order confer subject matter jurisdiction beyond that provided by federal statute?
At least one court has held that a retention of jurisdiction clause found in a confirmed plan would justify bankruptcy court resolution of an adversary proceeding, pending at the time of confirmation, even though the outcome of the proceeding would have no effect upon the plan.
Matter of Hudson Feather & Down Products, Inc.,
[as] whether the outcome of that proceeding would have any effect on the estate being administered.... An action is related to bankruptcy, if the outcome would 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 bankruptcy estate.
Pacor, Inc. v. Higgins,
A reservation of jurisdiction beyond what is necessary to effectuate the plan of reorganization is beyond the power of the bankruptcy court.... The bankruptcy court cannot obtain that power merely by inserting a provision in the plan or order of confirmation reserving jurisdiction.
See also In re J.T. Gerken Trucking, Inc.,
This conclusion flows from the established principle that parties cannot confer subject matter jurisdiction by agreement.
See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guiñee,
A leading commentator suggests that “so long as a chapter 11 case is ‘open’, there does not appear to be any limit on the court’s jurisdiction under 28 U.S.C. § 1334(b) ...” 5
Collier on Bankruptcy,
¶ 1142.01, at 1142-3 (15th ed. 1988). Section 1334(b), though, always requires that the outcome of the dispute conceivably effect the administration of the bankruptcy case. The effect that a proceeding may have upon the administration of an estate may be dependent upon factors such as the bankruptcy chapter under which the case has been filed, the size of the estate, the nature of the claims against the estate and whether confirmation has occurred.
See In re Joliet-Will County Community Action Agency,
III.
In the proceeding
sub judice,
the record does not disclose any effect this dispute may have upon the debtor’s ability to consummate its confirmed plan. The debtor, through its counsel, argues that virtually all plan distributions save those to the Interna] Revenue Service have been made, and that the outcome of this proceeding will have no impact upon the plan. Plaintiff does not dispute this factual assertion of counsel. (Plaintiff's memorandum of law at 3.)
Cf. Autera v. Robinson,
The service agreement itself, upon which UDS bring suit, and which was prepared by UDS, contains a forum selection clause which refers only to the district court and state court. There is no mention of bankruptcy court as a potential forum for dispute resolution. The Third Circuit Court of Appeals has instructed that forum selection claims are generally binding upon bankruptcy courts, just as they are binding upon other federal courts.
In re Diaz Contracting, Inc.,
There has been no suggestion of fraud or overreaching in connection with the jurisdictional provision of the service agreement; nor does UDS suggest that suit in a non-bankruptcy forum meets the very high standard of inconvenience mandated by
Bremen. See In re Diaz Contracting, Inc.
Moreover, not only is there no
per se
strong public policy emanating from the Bankruptcy Code which would overrule a forum selection provision, but any bankruptcy concern must be lessened by the event of confirmation—an event which greatly lessens the “tutelage” status of the debtor.
See North American Car Corp. v. Peerless Weighing & Vending Mach. Corp.,
IY.
UDS asks that this court assume jurisdiction over a dispute in which it has failed to show that the proceeding has any connection to the post-confirmation administration of this ease, and which is based upon an agreement that expressly refers any dispute to other forums. While it is true that this court approved the agreement, that alone would not confer jurisdiction to resolve all subsequent disputes regardless of their connection to the bankruptcy case.
In re J.T. Gerken Trucking, Inc.
(post-confirmation dispute over court approved collective bargaining agreement would not be heard in bankruptcy court).
See also In re Paradise Valley Country Club,
For all of these reasons, Almarc’s motion to dismiss shall be granted.
See In re Chargit, Inc.; Matter of Pan American School of Travel, Inc.,
An appropriate order shall be en
Notes
. I have accepted the parties express agreement that this application was approved, although the docket entries reflect no disposition of the application.
. The fact that the debtor is a party to the proceeding does not,
per se,
confer subject matter jurisdiction.
See In re M. Paolella & Sons, Inc.,
. Almarc argues that, with punctuation changes, Article XIII subsection F may be read so as to exclude post-petition contracts from the retention of jurisdiction section. As UDS notes, though, this plan provision was drafted by Al-marc and should be interpreted as written. The instant agreement falls within the express language of this retention provision.
. I am mindful that in
In re Stardust Inn, Inc.,
In the instant matter, for reasons noted below, this court never had jurisdiction over this proceeding; moreover, in light of the contractual forum selection clause also discussed below, it would be an inappropriate exercise of discretion to retain jurisdiction over this claim. In contrast, my disagreement with the court in
Hudson Feather
is not in its retention of jurisdiction — since the proceeding was pending prior to confirmation — but in its suggestion that the terms of the plan operate as a source of jurisdictional authority. I do agree, though, that the terms of the plan are relevant in deciding
. I need not resolve the interesting question of whether the confirmation of a plan containing retention of jurisdiction terms such as those provided in the instant matter may override a contrary contractual forum selection provision. Confirmation could only have such an effect if the non-debtor party to the contract had the ability to participate in the confirmation process. Here, UDS was not a creditor of the estate; it had no prepetition claim, it filed no proof of claim, it did not vote upon the plan. In
. There are three types of adversary proceedings: core; non-core but related to the bankruptcy case; and non-core unrelated proceedings over which the bankruptcy court lacks jurisdiction.
See In re M. Paolella & Sons, Inc.,
Moreover, the Supreme Court in
Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,