In re YJNK XI CA, LLC

Filing 14

ORDER denying 1 Motion to Withdraw Reference. The Clerk is directed to CLOSE case numbers 8:15-cv-644-T-24; 8:15-cv-645-T-24; 8:15-cv-646-T-24; 8:15-cv-647-T-24; 8:15-cv-648-T-24; 8:15-cv-649-T-24; 8:15-cv-650-T-24; 8:15-cv-651-T-24; and 8:15-cv-652-T-24. Signed by Judge Susan C Bucklew on 5/29/2015. (KTW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
In re: ABLE BODY TEMPORARY
SERVICES, INC.,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Lead Case No: 8:15-cv-644-T-24

SYNOVUS BANK,
Defendant.

In re: YJNK XI CA, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Member Case No: 8:15-cv-645-T-24

SYNOVUS BANK,
Defendant.

In re: ROTRPICK, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Member Case No: 8:15-cv-646-T-24

SYNOVUS BANK,
Defendant.

In re: ABTS HOLDINGS, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Member Case No: 8:15-cv-647-T-24

SYNOVUS BANK,
Defendant.

In re: PREFERABLE HQ, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Member Case No: 8:15-cv-648-T-24

SYNOVUS BANK,
Defendant.

In re: CECIL B. DEBOONE, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,

2

v.

Member Case No: 8:15-cv-649-T-24

SYNOVUS BANK,
Defendant.

In re: TRAINING U, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Member Case No: 8:15-cv-650-T-24

SYNOVUS BANK,
Defendant.

In re: USL&H STAFFING, LLC,
Debtor.

CHRISTINE L. HERENDEEN,
Plaintiff,
v.

Member Case No: 8:15-cv-651-T-24

SYNOVUS BANK,
Defendant.

In re: YJNK VIII, Inc.,
Debtor.

CHRISTINE L. HERENDEEN,

3

Plaintiff,
v.

Member Case No: 8:15-cv-652-T-24

SYNOVUS BANK,
Defendant.

ORDER
This cause comes before the Court on Plaintiff’s motions to withdraw the reference and
Defendant’s responses in opposition.1 The Court, having reviewed the motions, responses, and
being otherwise advised, concludes that the motions to withdraw the reference should be denied.
I.

BACKGROUND
These are nine of eighteen related adversary proceedings currently pending before Judge

Caryl E. Delano in the United States Bankruptcy Court for the Middle District of Florida.2 Seven
of the adversary proceedings were commenced by Christine L. Herendeen, the Chapter 7 Trustee
of several bankrupt entities, against Synovus Bank on October 31, 2014 (the “October 2014
Adversary Proceedings”). Herendeen moved to withdraw the bankruptcy reference in each of the

1

See In Re: Able Body Temporary Services, Inc., Case No. 8:15-cv-644-T-24 (Dkts. 1 and 2); In re: YJNK XI CA,
LLC, Case No. 8:15-cv-645-T-24 (Dkts. 1 and 2); In re: Rotrpick, LLC, Case No. 8:15-cv-646-T-24 (Dkts. 1 and 2);
In re: ABTS Holdings, LLC, Case No. 8:15-cv-647-T-24 (Dkts. 1 and 2); In re Preferable HQ, LLC, Case No. 8:15cv-648-T-24 (Dkts. 1 and 2); In re: Cecil B. Deboone, LLC, Case No. 8:15-cv-649-T-24 (Dkts. 1 and 2); In re: Training
U, LLC, Case No. 8:15-cv-650-T-24 (Dkts. 1 and 2); In re: USL&H Staffing LLC, Case No. 8:15-cv-651-T-24 (Dkts.
1 and 2); and In re: YJNK VIII, LLC, Case No. 8:15-cv-652-T-24 (Dkts. 1 and 2).

2

See In re: Able Body Temporary Services, Inc., Case No. 8:15-ap-102-CED; In re: YJNK XI CA, LLC, Case No.
8:15-ap-00103-CED; In re: Rotrpick, LLC, Case No. 8:15-ap-00104-CED; In re: ABTS Holdings, LLC, Case No.
8:15-ap-00105-CED; In re Preferable HQ, LLC, Case No. 8:15-ap-00106-CED; In re: Cecil B. Deboone, LLC, Case
No. 8:15-ap-00107-CED; In re: Training U, LLC, Case No. 8:15-ap-00108-CED; In re: USL&H Staffing LLC, Case
No. 8:15-ap-00109-CED; In re: YJNK VIII, LLC, Case No. 8:15-ap-00110-CED; In re Organized Confusion, LLP,
Case No. 8:14-ap-00972-CED; In re Professional Staffing—A.B.T.S., Inc. v. Synovus Bank, Case No. 8:14-ap-00973CED; Westward Ho, LLC, Case No. 8:14-ap-00974-CED; In re Westward Ho II, LLC, Case No. 8:14-ap-00975-CED;
In re In re YJNK II, Inc., Case No. 8:14-ap-00976-CED; In re YJNK III, Inc., Case No. 8:14-ap-00977-CED; In re:
Able Body Gulf Coast, Inc., Case No. 8:14-ap-00978-CED; Welch v. Synovus Bank et al., Case No. 8:14-ap-00645CED; and Welch v. Regions Bank, Case No. 8:14-ap-00653-CED (collectively the “related adversary proceedings”).

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October 2014 Adversary Proceedings. On February 19, 2015, this Court denied the motions to
withdraw the reference. See In Re: Organized Confusion, LLP, Case No. 8:14-cv-3226-T-24 (Dkt.
11) (the “Related Order”).
On January 30, 2015, Herendeen filed nine additional adversary proceedings (the “January
2015 Adversary Proceedings”). The January 2015 Adversary Proceedings and the related
adversary proceedings all arise from allegedly fraudulent transfers made in connection with a
check kiting scheme carried out by bankrupt debtor, Frank Mongelluzzi (“Mongelluzzi”), and
several bankrupt entities he owned, including the Debtors in the instant cases (the “Bankrupt
Entities”). The factual allegations contained in the January 2015 Adversary Proceedings are highly
similar to those contained in the related adversary proceedings. 3
On May 24, 2013, the Bankrupt Entities filed voluntary petitions for relief under Chapter
7 of the United States Bankruptcy Code. Plaintiff Christine Herendeen was appointed as the
Chapter 7 Trustee of the Bankrupt Entities’ estates. On January 30, 2015, Plaintiff filed complaints
on behalf of the Bankrupt Entities against Synovus in the bankruptcy court. The complaints all
seek to determine the extent, validity, or priority of lien and avoidance of lien pursuant to 11 U.S.C.
§ 544(a) and assert claims against Synovus for aiding and abetting breach of fiduciary duty.4
The complaints allege Mongelluzzi and others engaged in an elaborate check kiting scheme
that hindered, delayed, and defrauded the Bankrupt Entities’ creditors in the period of 2007
through 2010. Plaintiff asserts Synovus benefitted from the alleged scheme by assessing

3

A discussion of relevant background is included in In Re: Organized Confusion, LLP, Case No. 8:14-cv-3226-T-24
(Dkt. 11, at 4).

4

In addition, the complaints in In re: Able Body Temporary Services, Inc., Case No. 8:15-ap-102-CED; In re: YJNK
XI CA, LLC, Case No. 8:15-ap-00103-CED; and In re: Rotrpick, LLC, Case No. 8:15-ap-00104-CED seek to avoid
allegedly fraudulent transfers made by the Bankrupt Entities to or for the benefit of Synovus under 11 U.S.C. § 544(b)
of the United States Bankruptcy Code and Florida Statutes §§ 726.105(1)(a), 726.105(1)(b), 726.106(1), 726.108 and
to recovery property pursuant to 11 U.S.C. § 550.

5

considerable overdraft fees, charges, and interest in connection with a revolving line of credit (the
“Credit Line”) and various other loans the Bankrupt Entities had with Synovus. The complaints
also allege that Synovus received substantial purchase price consideration when the several of the
Bankrupt Entities were eventually sold in 2010. 5 As a result of Synovus’ monitoring of the
Bankrupt Entities’ accounts and its financial oversight in connection with the administration of the
Credit Line and loans issued to the Bankrupt Entities, Plaintiff alleges Synovus acquired intimate
and thorough knowledge of the Bankrupt Entities’ insolvency and the check kiting scheme.
Plaintiff asserts that after Synovus’ purported discovery of the Bankrupt Entities’ scheme, Synovus
continued its banking relationship with the Bankrupt Entities and continued to collect substantial
fees, charges, interest, and other forms of revenue to the detriment of the Bankrupt Entities’
creditors. Plaintiff also alleges Synovus “forced” the sale of several of the Bankrupt Entities to
Michael D. Traina and MDT Personnel, LLC, by choking off their access to loan proceeds from
the Credit Line.6 Plaintiff asserts the transfers Synovus received from the purportedly forced sale
of the Bankrupt Entities, along with the substantial fees, charges, interest, and other forms of
revenue Synovus received in continuing its banking relationship with the Bankrupt Entities are
partially or entirely subject to avoidance and recovery by Plaintiff for the benefit of the Bankrupt
Entities’ legitimate creditors.
Plaintiff now moves for the entry of an order withdrawing the reference pursuant to 28
U.S.C. § 157(d), Rule 5011(a) of the Federal Rules of Bankruptcy Procedure, and Local Rule
5011-1(b)(2) of the United States Bankruptcy Court for the Middle District of Florida.

5
6

See id. at 5.
See id. at 6.

6

II.

JURISDICTIONAL ANALYSIS
Bankruptcy Court Jurisdiction
The United States Code grants bankruptcy jurisdiction to Article III district courts.

Specifically, 28 U.S.C. § 1334(b) states that “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.” Congress provided in 28 U.S.C. § 157(a) that each district court may refer all cases
“arising under,” “arising in,” or “related to” Title 11 proceedings to the bankruptcy judges for the
district. This Court has a standing order referring all bankruptcy matters to the bankruptcy courts.
A finding that a matter is “related to” a bankruptcy case confers subject matter jurisdiction to the
bankruptcy court and empowers it to hear the non-core matter. In re Happy Hocker Pawn Shop,
Inc., 212 Fed. App’x 811, 817 (11th Cir. 2006). However, under § 157(c), the bankruptcy court’s
power to determine a non-core matter is limited, as compared to its power to hear and determine
core matters under § 157(b)(l). Specifically, the bankruptcy court has the power to determine
matters properly before it under Title 11, but with respect to “related to” or non-core matters, an
Article III court must render final judgment unless the parties consent to allow the bankruptcy
court to handle the matter. 28 U.S.C. § 157(b) and (c).
III.

STANDARD GOVERNING PERMISSIVE WITHDRAWAL OF REFERENCE
The standard for permissive withdrawal is stated in 28 U.S.C. § 157(d): “[t]he district court

may withdraw, in whole or in part, any case or proceeding referred under [§ 157], on its own
motion or on timely motion of any party, for cause shown.” Congress has not given a definition or
explanation of the “cause” required for permissive withdrawal, but the Eleventh Circuit has stated
that cause “is not an empty requirement.” In re Parklane/Atlanta Joint Venture, 927 F.2d 532, 536
(11th Cir. 1991). In determining whether the movant has established sufficient cause to withdraw

7

the reference, “a district court should consider such goals as advancing uniformity in bankruptcy
administration, decreasing forum shopping and confusion, promoting the economical use of the
parties’ resources, and facilitating the bankruptcy process.” In re Advanced Telecomm. Network,
Inc., 2014 WL 2528844, at *1 (M.D. Fla. June 4, 2014) (citing In re Simmons, 200 F.3d 738, 742
(11th Cir. 2000) (citations omitted)). Additional factors to consider include: (1) whether the claim
is core or non-core; (2) efficient use of judicial resources; (3) a jury demand; and (4) prevention
of delay. Control Ctr., L.L.C. v. Lauer, 288 B.R. 269, 274 (M.D. Fla. 2002) (citations omitted).
The Eleventh Circuit has noted that “the cause prerequisite should not be used to prevent
the district court from properly withdrawing reference either to ensure that the judicial power of
the United States is exercised by an Article III court or in order to fulfill its supervisory function
over the bankruptcy courts.” Parklane, 927 F.2d at 538. The determination of whether to grant a
motion for permissive withdrawal is within the court’s discretion. See In re Fundamental Long
Term Care, Inc., 2014 WL 4452711, at *1 (M.D. Fla. Sept. 9, 2014) (citing In re TPI lnt’l Airways,
222 B.R. 663, 668 (S.D.Ga.1998) (citations omitted)).
IV.

MOTION TO WITHDRAW THE REFERENCE
Plaintiff argues that the reference should be withdrawn for the following reasons: (1) the

complaints’ claims are non-core; (2) withdrawing the reference would promote the efficient use of
economic and judicial resources; and (3) withdrawing of the reference would facilitate consistent
rulings. Additionally, Plaintiff has demanded a jury trial, and as such, Plaintiff contends this is
another factor in support of withdrawal. As discussed below, the Court determines it is appropriate
for the reference to remain with the bankruptcy court, and for the bankruptcy court to address all
matters at this time.

8

Core or Non-Core Status of the Proceedings
First, the Court considers the parties’ arguments regarding the core/non-core nature of the
adversary proceedings at issue. Plaintiff argues the proceedings are non-core, and, therefore the
reference should be withdrawn.7 Defendants assert that the alleged non-core nature of Plaintiff’s
claims do not necessitate withdrawal of reference and argue that the Court may render a ruling
without considering the core or non-core status of the proceedings.
As the Court discussed in the Related Order, it is proper for the bankruptcy court to make
the initial determination of whether a matter is core or non-core. See In Re: Organized Confusion,
LLP, Case No. 8:14-cv-3226-T-24 (Dkt. 11) (citing In re Fundamental Long Term Care, Inc., 2014
WL 2882522, at *2 (M.D. Fla. June 25, 2014) (citations omitted)); 28 U.S.C. § 157(b)(3)). In the
instant proceedings, there is nothing in the record reflecting that the bankruptcy court has made a
determination regarding whether the proceedings are core or non-core. Further, the courts have
found that permitting withdrawal “on the sole ground that the proceeding is non-core would
disregard the provisions of § 157(b)(3) by removing the decision as to whether an action is a core
proceeding from the Bankruptcy Court.” In re Stone, No. 8:10-AP-1073-MGW, 2010 WL
5069698, at *2 (M.D. Fla. Dec. 7, 2010) (citing Fisher v. Ins. Co. of the State of Pa. (In re Pied
Piper Casuals, Inc.), 48 B.R. 294, 295 (S.D.N.Y.1985)). The Court may rule on a motion to
withdraw the reference without making a determination as to whether the proceedings are core or
non-core where the bankruptcy court has not yet resolved the issue, see id. (citing TPI Int’l, 222
B.R. at 668 n. 3); therefore, the Court will not consider this factor in its analysis of the instant
motions.

7
Alternatively, Plaintiff urges the Court to defer ruling on the instant motions until after the bankruptcy court has
been fully briefed on the relevant core or non-core issues.

9

Efficient Use of Economic and Judicial Resources
Next, the Court considers the efficient use of economic and judicial resources. Plaintiff
asserts adjudication of these matters by the district court in the first instance would be more
efficient because proposed findings of fact and conclusions of law made by the bankruptcy court
on non-core claims would be subject to de novo review by this Court, which would cause delay.
Plaintiff also argues that this Court’s potential de novo review could hinder uniformity in
bankruptcy administration.
A district court can allow the bankruptcy court to retain jurisdiction to address all pretrial
matters, from discovery through dispositive motions on non-core claims. See In re Gunnallen
Financial, Inc., 2011 WL 398054, at *4 (citing In re Stone, 2010 WL 5069698, at *1 (finding that
the case did not need to be immediately withdrawn from the bankruptcy court and that the
bankruptcy court could handle all pretrial matters)). In addition, allowing the bankruptcy court to
dispose of all pretrial matters “promote[s] judicial economy and efficiency.” In re E. Coast Brokers
& Packers, Inc., No. 8:13-BK-2894-KRM, 2015 WL 2452304, at *1 (M.D. Fla. May 21, 2015)
(citing In re Stone, 2010 WL 5069698, at *4).
Plaintiff’s arguments regarding judicial economy are unpersuasive. Eventual de novo
review does not extinguish the role of the bankruptcy court. Id. “If accepted, this kind of
reductionist reasoning would result in the reference always being withdrawn from the Bankruptcy
Court in the name of efficiency because of the omnipresent possibility of appeal.” Id. (citing In re
Fundamental Long Term Care, Inc., 2014 WL 4452711, at *2). The bankruptcy court’s familiarity
with the similar facts in the related adversary proceedings places the bankruptcy court at an
informational advantage. Therefore, it is the Court’s conclusion that allowing these adversary

10

proceedings to continue in the bankruptcy court for all pretrial matters promotes the efficient use
of judicial resources and will not result in delay.
Jury Demand
Plaintiff has demanded a jury trial on all claims asserted in the adversary proceedings.
Plaintiff states she does not intend to consent to a jury trial before the bankruptcy court. In
response, Defendant argues that Plaintiff is not entitled to a jury trial because (1) Plaintiff is bound
by jury trial waivers contained in a security agreement8 and a modification agreement9 between
Synovus and four Bankrupt Entities; and (2) Plaintiff, as bankruptcy trustee may not be entitled to
a jury trial in an avoidance action.10
The Court will consider the issue of jury trial waivers first. The case of In re Pearlman,
493 B.R. 878, 885 (M.D. Fla. 2013) is instructive. In Pearlman, a chapter 11 trustee requested a
jury trial in an adversary proceeding to avoid alleged fraudulent transfers by the debtors and to
bring a fraudulent conveyance claim on behalf of prepetition creditors pursuant to § 544 of the
Bankruptcy Code. The bankruptcy court determined that the trustee was not entitled to a jury trial
on the fraudulent transfer or fraudulent conveyance claims because the debtors had waived the
right to a jury trial in a related loan agreement. The court explained:
A trustee represents the interests of a debtor…which includes bringing any action
that the debtor could have brought had it not filed for bankruptcy. The Trustee is
8

Able Body Temporary Services, Inc., YJNK VIII, LLC, YJNK XI CA, LLC, and ABTS Holdings, LLC were parties
to the security agreement. See In Re: Able Body Temporary Services, Inc., Case No. 8:15-cv-644-T-24 (Dkt. 4-1, Ex.
L).
9

Able Body Temporary Services, Inc., YJNK VIII, LLC, YJNK XI CA, LLC, and ABTS Holdings, LLC were parties
to the modification agreement. See id.
10

Defendants have moved to strike Plaintiff’s demand for jury trial in each of the underlying adversary proceedings
before the bankruptcy court. See In re: Able Body Temporary Services, Inc., Case No. 8:15-ap-102-CED (Dkt. 19); In
re: YJNK XI CA, LLC, Case No. 8:15-ap-00103-CED (Dkt. 21); In re: Rotrpick, LLC, Case No. 8:15-ap-00104-CED
(Dkt. 19); In re: ABTS Holdings, LLC, Case No. 8:15-ap-00105-CED (Dkt. 16); In re Preferable HQ, LLC, Case No.
8:15-ap-00106-CED (Dkt. 16); In re: Cecil B. Deboone, LLC, Case No. 8:15-ap-00107-CED (Dkt. 16); In re: Training
U, LLC, Case No. 8:15-ap-00108-CED (Dkt. 16); In re: USL&H Staffing LLC, Case No. 8:15-ap-00109-CED (Dkt.
16); and In re: YJNK VIII, LLC, Case No. 8:15-ap-00110-CED (Dkt. 16).

11

correct that pre-bankruptcy, only a creditor had the right to assert a state-law
fraudulent conveyance claim. However, once the Debtors’ petitions were filed, any
fraudulent conveyance claim became the exclusive right of the Trustee to pursue.
The Trustee, who has the same rights and defenses as the Debtors, is bound by the
Debtors’ waiver and is precluded from asserting a jury trial demand in this case.
Id. (emphasis in original).
The Eleventh Circuit has held “[a] party may validly waive its Seventh Amendment right
to a jury trial so long as waiver is knowing and voluntary.” Bakrac, Inc. v. Villager Franchise Sys.
Inc., 164 Fed. App’x 820, 823 (11th Cir.2006). Generally, “[i]n making this assessment, courts
consider the conspicuousness of the waiver provision, the parties’ relative bargaining power, the
sophistication of the party challenging the waiver, and whether the terms of the contract were
negotiable.” Id at 824. The court considers these factors and then determines “whether, in light of
all the circumstances, the [c]ourt finds the waiver to be unconscionable, contrary to public policy,
or simply unfair.” Allyn v. W. United Life Assur. Co., 347 F.Supp.2d 1246, 1252 (M.D. Fla. 2004).
It is apparent that four of the Bankrupt Entities11 waived their right to a jury trial in the
security agreement and the modification agreement. The security agreement, which was signed by
Mongelluzzi, as President of Able Body Temporary Services, Inc., YJNK VIII, LLC, and YJNK
XI CA, LLC, and as manager of ABTS Holdings, LLC, includes a paragraph entitled “WAIVER
OF JURY TRIAL”. The paragraph regarding the waiver of jury trial appears in uppercase and
bold-face font, and provides in part that the bankrupt entities and Synovus:
(a) COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY A JURY, AND (b) WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO WHICH CREDITOR AND DEBTOR
MAY BE PARTIES, ARISING OUT OF, IN CONNECTION WITH OR IN ANY
WAY PERTAINING TO THIS AGREEMENT, ANY OF THE LOAN
DOCUMENTS
AND/OR
ANY
TRANSACTIONS,
OCCURENCES,
COMMUNICATIONS, OR UNDERSTANDING (OR THE LACK OF ANY OF
THE FOREGOING) RELATING IN ANY WAY TO THE DEBTOR-CREDITOR
11

Able Body Temporary Services, Inc., YJNK VIII, LLC, YJNK XI CA, LLC, and ABTS Holdings, LLC.

12

RELATIONSHIP BETWEEN THE PARTIES. IT IS UNDERSTOOD AND
AGREED THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY
JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR
PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS SECURITY AGREEMENT. THIS WAIVER OF JURY
TRIAL IS SEPARATELY GIVEN, KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY THE PARTIES HERETO…
(In Re: Able Body Temporary Services, Inc., Case No. 8:15-cv-644-T-24 (Dkt. 4-1, Ex. L)). The
modification agreement, which was also signed by Mongelluzzi on behalf of the same four
Bankrupt Entities, also contains a jury trial waiver, which again in uppercase and bold-face font
provides:
LENDER, BORROWER, AND GUARANTOR HEREBY KNOWINGLY,
VOLUNTARITY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE RENEWAL NOTE, LOAN AGREEMENT AND
SECURITY AGREEMENT REFERRED TO HEREIN, AND ANY
AGREEMENT EXECUTED THEREWITH OR REFERRED TO OR
DESCRIBED HEREIN OR CONTEMPLATED TO BE EXECUTED IN
CONJUNTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITEN) OR
ACTIONS OF EITHER PARTY, OR ANY OF THE THEM. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE LENDER ENTERING INTO THIS
AGREEMENT.
(In Re: Able Body Temporary Services, Inc., Case No. 8:15-cv-644-T-24 (Dkt. 4-1, Ex. L)). The
waiver provisions are conspicuous and there is no suggestion that the parties had unequal
bargaining power or that the terms of the agreements were not negotiable. In light of these
circumstances, the Court does not find the waivers to be unconscionable, contrary to public policy,
or simply unfair. Therefore, it is the Court’s conclusion that Plaintiff is bound by the jury trial
waivers found in the security agreement and the modification agreement, and thus, is precluded
from asserting a jury trial demand with regard to the bankrupt entities who were parties thereto.
See In re Pearlman, 493 B.R. at 885. Accordingly, Plaintiff’s request for a jury trial is not a

13

sufficient reason for the Court to withdraw the reference for the four bankrupt entities that waived
their right to a jury trial in the security and modification agreements.
Bankrupt entities Rotrpick, LLC, Preferable HQ, LLC, Cecil B. Deboone, LLC, Training
U, LLC, and USL&H Staffing, LLC did not agree to waive a jury trial in any relevant agreement.
Therefore, with respect to these entities, the Court must consider Defendant’s argument that
Plaintiff, as bankruptcy trustee, may not be entitled to a jury trial in an avoidance action with regard
to these bankrupt entities.
The Florida bankruptcy courts differ on whether a bankruptcy trustee may elect a jury trial
under these circumstances. Cf. In re Pearlman, 493 B.R. at 878 (holding a bankruptcy trustee is
never entitled to a jury trial in avoidance actions); Mukamal v. BMO Harris Bank, N.A., 501 B.R.
792 (S.D. Fla.2013) (holding a bankruptcy trustee had a right to jury trial in an avoidance action
where a defendant had not filed a proof of claim). Notwithstanding that Florida bankruptcy law is
uncertain on the issue of whether the bankruptcy trustee has a right to a jury trial in an avoidance
action, it remains appropriate for the bankruptcy court to address all pretrial matters. Should it
become necessary, the Court will revisit Plaintiff’s entitlement to a jury trial in the cases of In re:
Rotrpick, LLC, In re Preferable HQ, LLC, In re: Cecil B. Deboone, LLC, In re: Training U, LLC,
and In re: USL&H Staffing LLC.12
V.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motions to Withdraw

the Reference are DENIED. The Clerk is directed to CLOSE case numbers 8:15-cv-644-T-24;

12

Because the bankruptcy court cannot issue a final judgment as to non-core matters, should the bankruptcy court
determine that the adversary proceedings contain non-core claims and any of the parties refuse to consent to the
bankruptcy court’s conducting trial in the matter, the bankruptcy judge shall submit proposed findings of fact and
conclusions of law to this Court, and any final order or judgment shall be entered by this Court after considering the
bankruptcy judge’s proposed findings and conclusions pursuant to 28 U.S.C. § 157(c).

14

8:15-cv-645-T-24; 8:15-cv-646-T-24; 8:15-cv-647-T-24; 8:15-cv-648-T-24; 8:15-cv-649-T-24;
8:15-cv-650-T-24; 8:15-cv-651-T-24; and 8:15-cv-652-T-24.
DONE AND ORDERED at Tampa, Florida, this 29th day of May, 2015.

Copies To: Counsel of Record and Parties

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