MEMORANDUM AND ORDER OF COURT
AND NOW, this 21st day of May, 1999, upon consideration of
(A) the motions, raised in the alternative, by Penn Mutual Insurance Company (Penn Mutual) for remand of, or mandatory abstention with respect to, the instant plaintiffs’ causes of action against the instant debtor, said debtor’s wife, and Penn Mutual, which actions (i) comprised plaintiffs’ civil proceeding originally commenced in the Pennsylvania Court of Common Pleas for Allegheny County on April 7, 1997,
1
(ii) were subsequently removed by
(B) Penn Mutual’s response to plaintiffs’ notice of removal pursuant to Fed. R.Bankr.P. 9027(e)(8), wherein Penn Mutual (i) contends that this Court lacks subject matter jurisdiction over plaintiffs’ removed causes of action, or, alternatively, that said removed actions constitute non-core matters if this Court can exercise subject matter jurisdiction over them, and (ii) withholds its consent to entry of final orders or judgments by this Court regarding the removed actions in the event that said actions are determined to constitute noncore matters;
(C) plaintiffs’ notice of removal of the civil proceeding commenced in the Common Pleas Court, wherein plaintiffs contend that the removed actions will constitute (i) core matters if they are ultimately consolidated with Penn Mutual’s pending adversary proceeding in this Court, which pending adversary proceeding seeks a determination of nondischargeability by this Court with respect to Penn Mutual’s claims for indemnification/contribution against the instant debtors, and (ii) non-core matters absent said consolidation, in which event, according to plaintiffs, all of the parties have consented to this Court’s entering of a final judgment and/or order with respect to said actions, such consent allegedly having been given by Penn Mutual by virtue of its having commenced its aforementioned nondischargeability adversary proceeding in this Court and its having filed a proof of claim against the debt- or’s bankruptcy estate;
(D) plaintiffs’ six-count state court complaint, wherein plaintiffs plead the removed causes of action for (i) fraud, conversion, and violation of state unfair trade practices law against the debtor, his wife, and Penn Mutual (Counts 1, 2, and 5), (ii) negligence and breach of contract against Penn Mutual only (Counts 3 and 4), and (iii) conspiracy against the debtor and his wife only (Count 6); 2
(E) plaintiffs’ response to Penn Mutual’s motions for remand and mandatory abstention, as well as the case authorities submitted by plaintiffs as supposedly supporting plaintiffs’ respective positions;
(F) Penn Mutual’s reply to plaintiffs’ aforementioned response, as well as Penn Mutual’s letter dated May 11,1999;
(G) Penn Mutual’s complaint which commenced its aforementioned pending adversary proceeding in this Court;
(I) plaintiffs’ proofs of claim in the instant bankruptcy case, which proofs of claim (i) were each filed on January 30, 1998, in violation of the December 15,1997 claims bar date established for the instant case, and (ii) indicated that said claims each arose merely as a result of the lending of money by plaintiffs;
and subsequent to notice and a hearing on Penn Mutual’s motions held on May 6, 1999, it is hereby ORDERED, ADJUDGED, AND DECREED that Penn Mutual’s motion for remand or, alternatively, mandatory abstention, is GRANTED and plaintiffs’ removed state court causes of action shall all be REMANDED forthwith to the Pennsylvania Common Pleas Court from which they were removed. The Court identifies the following four separate grounds upon which it bases its decision to remand plaintiffs’ removed causes of action:
(a) plaintiffs did not file their notice of removal with respect to- their state court causes of action in this Court within the time constraints imposed by Fed.R.Bankr.P. 9027(a)(2), and plaintiffs have not demonstrated excusable neglect such that this Court can now permit the untimely removal of said actions;
(b) the Court lacks subject matter jurisdiction over the causes of action set forth in plaintiffs’ removed counts 3, 4 and 6, which means that those particular counts were not properly removed to this Court under 28 U.S.C. § 1452 in any event;
(c) the Court would have to grant Penn Mutual’s motion for mandatory abstention under 28 U.S.C. § 1334(c)(2) with respect to each of plaintiffs’ state court causes of action;
(d)plaintiffs requested a jury trial with respect to all of their state court causes of action and Penn Mutual has neither consented to (i) a withdrawal of said jury trial demand, which means that each count of plaintiffs’ state court complaint in which Penn Mutual is named as a party defendant must be tried by a jury, nor (ii) a jury trial in this Court.
The Court shall, in the ensuing sections of this memorandum, set forth in greater detail the rationale behind its decision.
I.
Plaintiffs and Penn Mutual agree that Fed.R.Bankr.P. 9027(a)(2) controls with respect to the issue of whether plaintiffs timely filed in this Court their notice of removal. The Court concurs with the parties in this regard because plaintiffs commenced the state court proceeding the subject of which was plaintiffs’ removed state court actions on April 7, 1997, which date precedes July 3, 1997, which is when the instant bankruptcy case was commenced. Plaintiffs and Penn Mutual also agree, and this Court concurs, that the time limits contained in Fed.R.Bankr.P. 9027(a)(2)(A) and (C) have indisputably passed with respect to plaintiffs’ notice of removal since said notice was filed on March 16, 1999, which is more than (a) ninety days subsequent to the July 3, 1997 order for relief in the instant case in violation of Fed.R.Bankr.P. 9027(a)(2)(A), and (b) 180 days after said order for relief in violation of Fed.R.Bankr.P. 9027(a)(2)(C). However, the parties disagree as to whether the time limit contained in Fed. R.Bankr.P. 9027(a)(2)(B) is applicable to plaintiffs’ notice of removal and, if it is applicable, whether plaintiffs have satisfied said time limit.
Fed.R.Bankr.P. 9027(a)(2)(B) effectively provides that, even if the time limits contained in Fed.R.Bankr.P. 9027(a)(2)(A) and (C) have not been met, a notice of
While the Court agrees with plaintiffs that the time limit contained in Fed. R.Bankr.P. 9027(a)(2)(B) applies to plaintiffs’ notice of removal, the Court nevertheless must also conclude that plaintiffs have not satisfied said time limit given that (a) this Court entered an order on November 25, 1997, terminating the stay in the instant case to the extent that plaintiffs sought to pursue to judgment the removed causes of action in the Common Pleas Court, and (b) thirty days from November 25, 1997, has long since passed. Plaintiffs are quick to point out, and the Court agrees, that the November 25, 1997 order of this Court only approved, and thus granted, the stay relief to which plaintiffs and the instant debtor stipulated, and that said parties agreed that the stay would not be impacted “with regard to execution and/or other collection activity against the Debtor and/or Property of this Estate.”
See
October 27, 1997 Stipulation, para. 1. However, the impact of the November 25, 1997 order, as well as plaintiffs’ intent in seeking said order, was to partially terminate the automatic stay “for the purpose of establishing liability against,
inter alia,
the Debtor.”
See Id.
Moreover, and unfortunately for plaintiffs, the Court concludes that the portion of the stay which was so terminated is that portion which is relevant for the purpose of Fed.R.Bankr.P. 9027(a)(2)(B) given that plaintiffs presently seek, and can only seek, removal of their state court claims to this Court for the same limited purpose for which they initially sought and obtained stay relief on November 25, 1997 (i.e., to liquidate said claims to judgment).
See In re Thomson McKinnon, Inc.,
Plaintiffs contend that, even if their removal notice was not timely filed under Fed.R.Bankr.P. 9027(a)(2), such tardiness is not necessarily critical to their cause because the time constraints imposed by Fed.R.Bankr.P. 9027(a)(2) may be enlarged, even after the expiration of said time limits, where excusable neglect is shown. The Court agrees with plaintiffs that, if excusable neglect is demonstrated, the time constraints in Fed.R.Bankr.P. 9027(a)(2) may be relaxed pursuant to Fed. R.Bankr.P. 9006(b)(1).
See Pacor, Inc. v. Higgins,
Because plaintiffs did not comply with any of the time constraints set forth in Fed.R.Bankr.P. 9027(a)(2), and since the Court cannot extend said time limits under Fed.R.Bankr.P. 9006(b)(1), plaintiffs did not properly remove their state court causes of action to this Court. Thus, the Court must remand plaintiffs’ state court actions back to the Pennsylvania Common Pleas Court ■ from which they were removed.
II.
In order for plaintiffs to properly remove their state court causes of action to this Court, this Court must also be able to exercise subject matter jurisdiction over said actions. See 28 U.S.C.A. § 1452(a) (West 1994) (“A party may remove any 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”). Plaintiffs clearly presume, both in their removal notice and in their response to Penn Mutual’s motions, that this Court has subject matter jurisdiction over each of plaintiffs’ removed causes of action. However, plaintiffs offer little if any support for said presumption, instead choosing to focus on the related issue of whether the removed actions constitute core or noncore matters in this Court (i.e., whether the Court’s jurisdiction is core or non-core).
In addition to possessing obvious subject matter jurisdiction over the instant bankruptcy case,
see
28 U.S.C.A. § 1334(a) (West 1993), this Court has subject matter jurisdiction over “civil proceedings arising under title 11, or arising in or related to [the instant bankruptcy] case[ ].”
Id.
A court’s “arising under” or “arising in” jurisdiction is commonly equated with, and may therefore only be exercised over, those matters that are classified as core proceedings.
See, e.g., In re Wood,
After a painstaking analysis, this Court concludes that (a) it possesses subject matter jurisdiction over Counts 1, 2, and 5 of plaintiffs’ state court complaint, (b) the causes of action pled in said counts constitute noncore matters within this Court, and (c) it lacks subject matter jurisdiction altogether with respect to Counts 3, 4, and 6 of said complaint.
A. Analysis of the Court’s core jurisdiction.
For several reasons the Court concludes that plaintiffs’ six removed counts fail to constitute core proceedings. First, said counts, which plead causes of action for fraud, conversion, negligence, breach of contract, unfair trade practices, and conspiracy under Pennsylvania law, obviously could not have arisen only within the context of a bankruptcy case given that they comprise a civil proceeding that originated in the Pennsylvania Common Pleas Court.
Second, said counts, with respect to Penn Mutual and the debtor’s wife, cannot be deemed to have, in any way, invoked a substantive right provided by the Bankruptcy Code. With respect to the instant debtor, an argument might have been made, but ultimately was not advanced, by plaintiffs that said counts were transformed into a core proceeding by virtue of plaintiffs’ removal of said counts to this Court subsequent to plaintiffs’ filing of their proofs of claim against the instant debtor’s estate.
See In re Argus Group 1700, Inc.,
Third, the Court must reject outright plaintiffs’ contention that the removed actions will constitute core matters if the Court subsequently consolidates said actions with Penn Mutual’s pending nondischargeability adversary proceeding in this Court. As an initial matter, the Court notes that it is unaware of any mechanism by which it can consolidate adversary proceedings other than Fed.R.Civ.P. 42(a), which rule is made applicable to the instant adversary proceeding via Fed.R.Bankr.P. 7042. Unfortunately for plaintiffs, a consolidation under Fed.R.Civ.P. 42(a) of separate adversary proceedings, one of which is a noncore matter while the other is a core matter, cannot serve to merge the two proceedings for jurisdictional purposes so that the noncore proceeding is thereby rendered a core matter.
See In re Dak Manufacturing Corporation,
Finally, the Court also will not merge plaintiffs’ removed actions with Penn Mutual’s nondischargeability cause of action on the basis, as alleged by plaintiffs, that Penn Mutual, by virtue of the declaratory relief which it seeks in Counts 1 and 2 of its nondischargeability complaint, has somehow pled some or all of plaintiffs’ removed causes of action. While the Court can perhaps understand this particular contention by plaintiffs given the curi
Since plaintiffs’ removed claims cannot be merged, at least for jurisdictional purposes, with Penn Mutual’s nondischarge-ability action in this Court, plaintiffs’ removed claims will have to be analyzed separately to ascertain whether they fall within this Court’s subject matter jurisdiction and, if so, whether they are core or noncore matters. For the reasons previously explained, the Court concludes that none of said removed claims constitute matters that fall within the Court’s core jurisdiction.
B. Analysis of the Court’s noncore jurisdiction.
The Court will conclude that plaintiffs’ Counts 1, 2, and 5, to the extent that they pertain to Penn Mutual, fall within the Court’s noncore, “related to” jurisdiction given that the outcome of said counts against Penn Mutual could potentially form the basis for Penn Mutual’s indemnification/contribution claim against the instant debtor, thereby impacting the debtor’s bankruptcy estate. The Court can distinguish plaintiffs’ action against Penn Mutual under Counts 1, 2, and 5 from the situation in
Pacor,
wherein the Third Circuit held that a bankruptcy court lacked “related to” jurisdiction over an action between nondebtor parties,
see Pacor,
Unlike plaintiffs’ Counts 1, 2, and 5, however, plaintiffs’ Counts 3 and 4 fail to name the instant debtor as a defendant. As a result, the instant debtor is not a party to Counts 3 and 4 and will not have had the opportunity to actually litigate fully and fairly any issues that arise in said counts, which means that the outcome of said counts should not have collateral es-toppel effect in any subsequent indemnification/contribution action by Penn Mutual against said debtor. Consequently, plaintiffs’ Counts 3 and 4 are remarkably similar to the nondebtor litigation at issue in Pacor, which litigation, as alluded to earlier, was ultimately determined not to even constitute a proceeding over which noncore jurisdiction existed. For the same reasons as set forth in Pacor, plaintiffs’ Counts 3 and 4 are determined by this Court to fall entirely outside of this Court’s subject matter jurisdiction.
Finally, the Court must conclude that plaintiffs’ Count 6, which only names the instant debtor and his wife as defendants, also falls outside of the Court’s subject matter jurisdiction entirely because the Court cannot identify a conceivable effect that it could have upon the instant debtor’s bankruptcy estate. Unlike plaintiffs’ Counts 1, 2, and 5, Penn Mutual is not named as a defendant, thus eliminating any possibility that the outcome of said count could potentially result in a claim for indemnification/contribution against the
Because the Court concludes that it lacks subject matter jurisdiction altogether with respect to Counts 3, 4, and 6 of plaintiffs’ complaint, those particular counts were not properly removed to this Court under 28 U.S.C. § 1452 and, thus, said counts must be remanded in any event.
III.
“Where grounds for mandatory or discretionary abstention are present under 28 U.S.C. § 1334(c), ... remand is [also] proper.”
Argus Group,
(1) a timely motion is made; (2) the proceeding is based upon a state law claim or state law cause of action; (3) the proceeding is related to a case under Title 11; (4) the proceeding does not arise under Title 11; (5) the action could not have been commenced in a federal court absent jurisdiction under 28 U.S.C. § 1334; and (6) an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction.
Taylor,
The Court concludes that mandatory abstention is called for with respect to plaintiffs’ removed causes of action contained in Counts 1, 2, and 5 of plaintiffs’ state court complaint because '(a) Penn Mutual has timely moved for such mandatory abstention, (b) said removed causes of action unquestionably arise under Pennsylvania state law, (c) said removed causes of action constitute noncore matters, as explained in part II above, and, thus, are only related to the instant bankruptcy case, (d) said removed actions do not arise under title 11 given that they constitute noncore matters, (e) said removed actions could not have been commenced in a federal court absent jurisdiction ■ under 28 U.S.C. § 1334 since said actions do not raise a federal question and federal diversity jurisdiction could not be satisfied, and (f) said removed actions were already commenced in the Pennsylvania Common Pleas Court and could be more timely adjudicated there than in this Court. Mandatory abstention is technically not proper with respect to the actions contained in plaintiffs’ Counts 3, 4 and 6 because, as explained in part II above, the Court does not even have subject matter jurisdiction over said actions under § 1334. However, the Court has already determined that none of the actions contained in plaintiffs’ Counts 3, 4 and 6 constitute core matters, which means that if the Court possessed subject matter jurisdiction over said counts, then the Court would ultimately also be constrained to mandatorily abstain from hearing said actions.
IY.
Remand of removed claims or causes of action is also dictated..if (a) the Seventh Amendment right to a jury trial applies to said claims or causes of action, and (b) a party has timely and properly demanded a jury trial with respect to said claims or causes of action.
See Davis v. The Merv Griffin Company,
As an initial matter, the Court agrees with plaintiffs that, if Penn Mutual has somehow relinquished any right that it has to a jury trial with respect to plaintiffs’ removed causes of action, then Penn Mutual has also consented to plaintiffs’
While plaintiffs are correct in asserting that Penn Mutual has brought itself within the equitable jurisdiction of this Court by filing its proof of claim against the instant debtor’s bankruptcy estate,
see, e.g., Langenkamp,
Because Penn Mutual does not consent to plaintiffs’ implicit withdrawal of plaintiffs’ jury trial demand with respect to the removed actions, and since Penn Mutual also does not consent to a jury trial by this Court over said actions, a remand by this Court of said actions to the Common Pleas Court from which they were removed is appropriate.
y.
The Court recognizes the overlap between, and shares plaintiffs’ concerns regarding judicial economy with respect to the resolution of, plaintiffs’ state court causes of action, the causes of action in another civil proceeding pending before the United States District Court for the Western District of Pennsylvania (i.e., Andrew Reh and Rita Reh, his wife, and Andrea Reh v. Penn Mutual Life Insurance Company, John M. Mouganis, Richard Snebold, The Mouganis/Snebold Agency, Christopher Passodelis and C.P. Financial Services, Inc., and C.P. Real Estate), and Penn Mutual’s nondischargeability adversary proceeding pending before this Court. Unfortunately for plaintiffs, said concerns regarding judicial economy simply do not constitute sufficient cause for this Court to retain plaintiffs’ removed actions, particularly in light of the overwhelming merit that must be attributed to Penn Mutual’s motions for remand and mandatory abstention. Consequently, the Court determines that it need not address in detail plaintiffs’ arguments regarding judicial economy or judicial estoppel as against Penn Mutual on the issue of judicial economy. However, because plaintiffs herein are also named as defendants in Penn Mutual’s nondischargeability adversary proceeding pending before this Court, plaintiffs possess standing to petition this Court for, after which the Court will attempt to fashion, appropriate procedural relief within Penn Mutual’s proceeding so that judicial economy may be furthered. The procedural relief that the Court has in mind is something in the nature of a deferral of the resolution of Penn Mutual’s nondischarge-ability complaint pending the outcome of the state court actions by both plaintiffs and the Rehs as against Penn Mutual. If plaintiffs and/or Penn Mutual are interested in formulating such relief within the context of Penn Mutual’s adversary proceeding, then either or both should contact the Court so that an appropriate status conference may be scheduled.
VI.
IN SUMMARY, Penn Mutual’s motion for remand or, alternatively, mandatory abstention, is GRANTED and plaintiffs’ removed state court causes of action shall all be REMANDED forthwith to the Pennsylvania Common Pleas Court from which they were removed.
Notes
. Plaintiffs filed their state court complaint setting forth the removed causes of action at issue herein on April 7, 1997. However, plaintiffs filed a praecipe for writ of summons with respect to the civil proceeding to which the subsequently-filed complaint pertains on October 3, 1996. The Court will henceforth refer to April 7, 1997, as the date upon which
. In each of plaintiffs' pleadings filed with this Court pertaining to the instant adversary proceeding, including, inter alia, the notice of removal and the adversary proceeding cover sheet, plaintiffs name as defendants to said adversary proceeding several individuals and entities who do not appear as named defendants in plaintiffs’ state court complaint, which complaint sets forth the causes of action which plaintiffs have removed to this Court. In particular, C.P. Financial Services, Inc., C.P. Real Estate, John M. Mouganis, Richard Snebold, The Mouganis/Snebold Agency, William C. Passodelis, and Christopher Passodelis, Jr., are named as defendants to this adversary proceeding although they were not named in plaintiffs' state court complaint. The Court notes, as an aside, that these individuals and entities may have been inserted as defendants to this adversary proceeding because they were named as defendants in plaintiffs’ praecipe for writ of summons, which pleading was filed in state court approximately six months prior to plaintiffs' complaint. Whatever the reason for the inclusion of said individuals and entities, the Court will disregard them in its analysis and resolution of Penn Mutual’s motions for remand and mandatory abstention because they are not named as parties to any of plaintiffs’ removed causes of action. Of course, plaintiffs, going forward, should take any necessary action to amend the pertinent pleadings so that only the proper parties are subsequently reflected as defendants.
. The Court questions whether the removed causes of action, to the extent that Penn Mutual is named as a party defendant, are stayed under § 362(a) because Penn Mutual is not, and cannot in any way be viewed as, the instant debtor. To the extent that said causes of action are not stayed with respect to Penn Mutual, Fed.R.Bankr.P. 9027(a)(2)(B) is indeed inapplicable. The Court need not resolve this question, however, because the time limit in Fed.R.Bankr.P. 9027(a)(2)(B) has nevertheless passed regardless of whether said time limit applies to the removed causes of action vis-a-vis Penn Mutual.
. For the same reasons given with respect to plaintiffs' Count 6, plaintiffs’ Counts 1, 2, and 5, to the extent that they pertain to the instant debtor and his wife, also technically fall entirely outside of the Court’s subject matter jurisdiction.
. 28 U.S.C. § 1334(c)(2) provides, in full, as follows:
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.
28 U.S.C.A. § 1334(c)(2) (West 1998).
. Although it presently does not apply to plaintiffs' removed actions since they are presently pending before this Court, Pennsylvania’s rules of civil procedure also preclude plaintiffs from withdrawing their jury trial demand "without the consent of all parties who have appeared in the action.” Pa.R.C.P. 1007.1(c)(1), 42 Pa.C.S.A. (Purdon's 1987).
. For the same reason that Penn Mutual has not relinquished its juiy trial right regarding the removed actions, it also has not consented to the entry of a final order or judgment by this Court regarding said actions, which actions this Court, as set forth in part II above, has determined to be noncore matters.