Davis v. Tyson Prepared Foods, Inc.

Filing 6

MEMORANDUM AND ORDER granting 2 plaintiff appellant's Motion for Certification. Signed by District Judge J. Thomas Marten on 10/10/2017. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT PHILLIP GARCIA and
ELIZABETH PAULINE GARCIA,
Debtors,

Case No. 17-1207-JTM
Bankr. Case No. 13-10458
Chapter 13

CARL B. DAVIS, Chapter 13 Trustee,
Plaintiff, Appellant,
vs.

Adv. No. 17-05006

TYSON PREPARED FOODS, INC.
DefendantAppellees.

MEMORANDUM AND ORDER

This bankruptcy appeal is before the court on the motion of the Trustee for
certification of the decisive issue to the Tenth Circuit Court of Appeals pursuant to
Fed.R.Bankr.P. 8006(f) and 28 U.S.C. § 158(d)(2)(A)(i)-(iii), specifically the definition of the
word “act” within 11 U.S.C. § 362(a)(3). The appellee, Tyson Foods, has explicitly
acknowledged (Dkt. 3) that under the circumstances of the case it does not oppose
certification.
The underlying dispute between the parties is whether a statutory lien which arises

automatically under state law as to a workers compensation settlement is an “act” within
the meaning of the stay provisions of Section 362. The bankruptcy court determined that
in light of recent Tenth Circuit precedent, WD Equipment, LLC v. Cowen (In re Cowen), 849
F.3d 943 (10th Cir. 2017), it was compelled to conclude that such a post-petition lien was
not barred by Section 362.
Certification is appropriate under either of two alternative provisions in §
158(d)(2)(A). First, the automatic stay is a vital provision of bankruptcy law, and a
resolution of the issue as to the effect of a post-petition automatic statutory lien is of
sufficient “public import that [it] ‘transcend[s] the litigants and involves a legal question
the resolution of which will advance the cause of jurisprudence to a degree that is usually
not the case.’” In re Johns-Manville Corp., 449 B.R. 31, 34 (S.D.N.Y. 2011), quoting 1 Collier
on Bankruptcy ¶5.06[5][b] (Alan N. Resnick & Henry J. Sommer, 16th ed. 2010). Second,
and alternatively, the effective resolution of the issue requires a balancing of conflicting
circuit interpretations of Section 362. In both cases, determining whether Cowen in fact
controls the resolution of the action, and whether Cowen was correctly decided, is a matter
more efficiently resolved by the Tenth Circuit.
IT IS ACCORDINGLY ORDERED this 10th day of October, that the plaintiffappellant’s Motion for Certification (Dkt. 2) is hereby granted.
___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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