Mullen v. Glimcher Company

Filing 9

ORDER DENYING the motion to withdraw bankruptcy reference (doc. 1 ). Signed by Judge Frederick J Martone on 10/10/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian J. Mullen, Trustee,
Plaintiff,

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vs.

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The Glimcher Company,
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Defendant.
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No. CV 12-01782-PHX-FJM
BK 11-15333-RJH
ORDER

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We have before us the motion of defendant to withdraw bankruptcy reference (doc.
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1), plaintiff's response (doc. 6), and defendant's reply (doc. 8). Defendant seeks to withdraw
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the reference of this adversary proceeding, asserting a right to a jury trial.
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Debtor David Glimcher transferred over $949,000 in securities to his father's
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company, defendant The Glimcher Company, on May 19, 2011. On May 26, 2011, David
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Glimcher filed for bankruptcy. The trustee filed a complaint to recover this money as either
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a preferential transfer or a fraudulent conveyance, or pursuant to his avoidance rights under
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11 U.S.C. § 544. Defendant demanded a jury trial in its answer and filed this motion 20 days
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later.
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We "may withdraw, in whole or in part, any case or proceeding referred under this
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section, on [our] own motion or on timely motion of any party, for cause shown." 28 U.S.C.
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§ 157(d). Factors to consider in determining cause include "the efficient use of judicial
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resources, delay and costs to the parties, uniformity of bankruptcy administration, the

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prevention of forum shopping, and other related factors." Sec. Farms v. Int'l Bhd. of

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Teamsters, Chauffeurs, Warehousemen & Helpers, 124 F.3d 999, 1008 (9th Cir. 1997).

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The bankruptcy court may "retain jurisdiction over the action until trial is actually

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ready." In re Healthcentral.com, 504 F.3d 775, 788 (9th Cir. 2007) (emphasis in original).

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Discovery matters, pre-trial conferences, and routine motions may be handled by a

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bankruptcy court without abridging a party's Seventh Amendment right to a jury trial. Id. at

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787. In addition, the bankruptcy system promotes judicial economy and efficiency, goals

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that would be subverted if an action were required to be immediately transferred to district

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court because of a jury trial right. See id. at 787-88. Even after Stern v. Marshall, 131 S. Ct.

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2594 (2011), a bankruptcy court may adjudicate dispositive motions and issue a report and

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recommendation before withdrawal. See Loomis v. Hunter, Humphrey & Yavitz, PLC, No.

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CV-12-0586-PHX-FJM, 2012 WL 3064496 (D. Ariz. July 27, 2012).

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IT IS ORDERED DENYING the motion to withdraw bankruptcy reference (doc. 1).

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DATED this 10th day of October, 2012.

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