Myers v. Malone et al

Filing 3

ORDER - The parties shall show cause, on or before December 16, 2013, why the Court should not hold this matter in abeyance pending the Supreme Court's decision in Arkison, 133 S. Ct. 2880. Absent a showing of cause, the Court will hold thi s matter in abeyance and set deadlines for objections and briefing after the Supreme Court's decision is filed. The deadline for objecting to the Bankruptcy Judge's findings and recommendations is suspended until further order of the Court. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD D. MYERS, Chapter 7
Trustee of the Daniel M. Malone
bankruptcy estate,

8:13-CV-353

Plaintiff,
ORDER
vs.
JEANNE MALONE,
Defendant.
This matter is before the Court on the Findings and Recommendations
(filing 1) of the United States Bankruptcy Judge, recommending that the
Court enter final judgment in favor of the plaintiff. The issue before the
Court, however, is jurisdictional.
Bankruptcy judges are statutorily authorized to "hear and determine
all cases under title 11 [of the United States Code] and all core proceedings
arising under title 11, or arising in a case under title 11," and may enter final
orders and judgments, subject to appellate review. 28 U.S.C. § 157(b)(1).
Statutorily, core proceedings include proceedings to determine, avoid, or
recover fraudulent conveyances. 28 U.S.C. § 157(b)(2)(H). In a proceeding
that is not a core proceeding but that is otherwise related to a case under title
11, on the other hand, the bankruptcy court may only issue proposed findings
of fact and conclusions of law to the district court, and a final order or
judgment is entered by the district court after a de novo review of any
matters to which a party has properly objected. 28 U.S.C. § 157(c)(1).
This adversary proceeding is a core proceeding. See 28 U.S.C. §
157(b)(2)(H); see also, filing 1-1 at 1; filing 1-2 at 1. Nonetheless, the
Bankruptcy Judge has issued findings and recommendations, rather than a
final judgment. According to the Bankruptcy Judge's order, this was done at
the request of the parties; they are apparently concerned about the
Bankruptcy Court's authority to enter final judgment, given the Ninth
Circuit's decision and Supreme Court's grant of certiorari in In re Bellingham
Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012); cert. granted sub nom., Exec.
Benefits Ins. Agency v. Arkison, 133 S. Ct. 2880 (2013). One of the questions
presented to the Supreme Court in that case is whether a party may consent,
or waive an objection, to final disposition of an Article III proceeding by a

bankruptcy court. Petition for Writ of Certiorari at I, Arkison, 133 S. Ct. 2880
(No. 12-1200). But the other question presented is "[w]hether a bankruptcy
judge may submit proposed findings of fact and conclusions of law for de novo
review by a district court in a 'core' proceeding under 28 U.S.C. [§] 157(b)."
Petition for Writ of Certiorari at I, Arkison, 133 S. Ct. 2880 (No. 12-1200).
In other words, one of the questions that the Supreme Court has
agreed to decide is whether the bankruptcy court, in this case, would have
had the authority to enter a final judgment with the consent of the parties.
But the other question is whether the bankruptcy court had the authority to
issue the findings and recommendations that are presently before the Court.
Given that, the prudent course of action would be to wait for the Supreme
Court to resolve some of these jurisdictional questions before proceeding.1 But
the Court will afford the parties a chance to weigh in, by showing cause (if
any) why the Court should not wait for the Supreme Court's decision.
IT IS ORDERED:
1.

The parties shall show cause, on or before December 16,
2013, why the Court should not hold this matter in
abeyance pending the Supreme Court's decision in Arkison,
133 S. Ct. 2880.

2.

Absent a showing of cause, the Court will hold this matter
in abeyance and set deadlines for objections and briefing
after the Supreme Court's decision is filed.

3.

The deadline for objecting to the Bankruptcy Judge's
findings and recommendations is suspended until further
order of the Court.

Dated this 6th day of December, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge
The Arkison argument is set for January 14, 2014, suggesting (if past practice is any
indication) that a decision by March or early April is not out of the question.
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