Robert Kubicek Architects & Associates Incorporated v. Bashas' Incorporated

Filing 10

ORDER granting Plaintiff's 2 Motion to Withdraw the Reference as to the remaining claims asserted against Bashas. Because the remaining claims were originally presented in the action before Judge Campbell, Robert Kubicek Architects & Assoc . Inc. v. Bosley, No. 11-CV-2112-DGC (Oct. 27, 2011 D. Ariz.), we encourage the parties to file a motion asking Judge Campbell to transfer this action to him and consolidate these remaining claims with 11-CV-2112-DCG. See LRCiv 42.1. Signed by Judge Frederick J Martone on 10/23/2012.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bashas’ Inc., et al.,
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Debtors,
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Robert Kubicek Architects & Associates,)
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Inc.
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Plaintiff,
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vs.
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Bashas Inc.,
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Defendant.
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In re:

No. CV12-1497-PHX-FJM
No. BK 09-16050-JMM
Adv. No. 12-AP-0226-JMM
ORDER

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Plaintiff Robert Kubicek Architects & Associates, Inc. moves for withdrawal of the
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reference in Adversary No. 12-AP-0226 (“Adversary Proceeding”) (doc. 2).
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This action originated when Plaintiff filed a complaint against Bruce Bosley, The
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Bosley Group, Inc., and Bashas’ Inc., asserting claims for copyright infringement. See
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Robert Kubicek Architects & Assoc. Inc. v. Bosley, No. 11-CV-2112-DGC (Oct. 27, 2011
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D. Ariz.) (doc. 1). In addition to monetary damages for infringement occurring from March
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2007 through August 2009, id. ¶¶ 37, 39, 53, 85, plaintiff sought declaratory and injunctive
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relief against all defendants, declaring Plaintiff’s rights and interests in the Copyrighted
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Works, requiring destruction of all copies of the Copyrighted Works in defendants’

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possession, and enjoining further infringement, id. ¶¶ 134-36. Because Bashas had filed a

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petition for bankruptcy protection on July 12, 2009, Bashas filed a motion to refer the claims

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against it to the bankruptcy court. Id. doc. 9. Judge Campbell granted the motion and

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ordered that “Plaintiff’s Claim against Bashas’ shall be severed in its entirety and the

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Plaintiff’s Claim against Bashas’ only is referred to the Bankruptcy Court.” Id. doc. 26 at

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2.

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The Bankruptcy Court subsequently granted Bashas’ motion to dismiss, concluding

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that Plaintiff had not “filed claims for money damages either for pre-petition conduct, nor for

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an administrative expense incurred during the chapter 11,” and therefore “Plaintiff cannot

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participate in any distribution of any kind, under Bashas’ confirmed plan of reorganization.”

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In re Bashas’ Inc., No. 09-BK-16050-JMM, Adv. No. 12-AP-00226-JMM (doc. 28). The

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Bankruptcy Court further held that it “is unable to grant Plaintiff any other or ongoing relief.”

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Id.

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Plaintiff then filed a motion for clarification asking the Bankruptcy Court to clarify

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whether its order also purported to dismiss and discharge Plaintiff’s claim for damages for

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post-petition conduct and request for injunctive and declaratory relief. The Bankruptcy

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Court denied the motion for clarification explaining only that, in light of Stern v. Marshall,

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131 S. Ct. 2594 (2011), it would not “stray into deciding matters that are outside of its

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limited jurisdictional power.” We construe this statement as the Bankruptcy Court’s

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recognition that it was without jurisdiction to consider Plaintiff’s post-petition claims. We

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reject Bashas’ argument that the Bankruptcy Court’s order granting Bashas’ motion to

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dismiss rendered this motion to withdraw the reference moot. The Bankruptcy Court could

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not have dismissed claims that were beyond its jurisdiction. Therefore, those claims remain

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pending.

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IT IS ORDERED GRANTING Plaintiff’s motion to withdraw the reference as to
the remaining claims asserted against Bashas (doc. 2).
Because the remaining claims were originally presented in the action before Judge
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Campbell, Robert Kubicek Architects & Assoc. Inc. v. Bosley, No. 11-CV-2112-DGC (Oct.

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27, 2011 D. Ariz.), we encourage the parties to file a motion asking Judge Campbell to

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transfer this action to him and consolidate these remaining claims with 11-CV-2112-DCG.

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See LRCiv 42.1.

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DATED this 23rd day of October, 2012.

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