Official Committee of Unsecured Creditors v. Marini et al

Filing 20

ORDER granting 2 , 3 and 7 Motions to Withdraw Reference to the extent that all claims are withdrawn, and granting 18 Motion to Remove Attorney from Electronic Service List. Signed by Chief Judge Robert C. Jones on 4/1/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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IN RE: WINDSPIRE ENERGY, INC.

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Debtor,
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___________________________________ )
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OFFICIAL COMMITTEE OF UNSECURED )
CREDITORS,
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Plaintiff,
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v.
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GIACOMO MARINI, et al.,
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Defendants.
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___________________________________ )

3:13-cv-10-RCJ-WGC
ORDER

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Currently before the Court are a Motion of Defendants Big Sky Venture Capital III, LLC,

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Big Sky Venture Capital IV, LLC and Greenhouse Capital Partners, LP for Withdrawal of

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Reference Under 28 U.S.C. § 157(d) and FRBP 5011 (#2), Defendant Noventi Ventures II LP

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and Noventi LLC’s Motion for Withdrawal of Reference as to Adversary Claims Two, Three,

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and Four Only (#3), and Defendants Marini, Rogoff, Rodgers, Hess, Schwab, Henig, Horn, and

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Mosebar’s Motion for Withdrawal of Reference as to Adversary Complaint Claims One, Three,

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and Four Only (#7).
DISCUSSION

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On October 26, 2012, the complaint initiating this adversary proceeding was filed by

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Plaintiff Official Committee of Unsecured Creditors. (See Beesley Recommendation (#15) at

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2). The complaint alleged claims for breach of fiduciary duty, aiding and abetting breach of

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fiduciary

duty,

corporate

waste,

equitable

subordination/equitable

disallowance,

recharacterization, avoidance of fraudulent transfer, avoidance of insider preference, and

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objection to claim against the various individual and entity Defendants. (Id.). Several

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defendants filed motions for withdrawal of reference.

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In February 2013, Bankruptcy Judge Bruce T. Beesley submitted a recommendation

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to this Court that this Court withdraw the reference to all claims in the complaint. (Id. at 4).

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Judge Beesley found that the bankruptcy court did not have constitutional jurisdiction to enter

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a final judgment on the claims of breach of fiduciary duty, aiding and abetting breach of

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fiduciary

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recharacterization, and recovery of fraudulent transfer because those actions were within the

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traditional powers of an Article III court. (Id. at 3).

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duty,

corporate

waste,

equitable

subordination/equitable

disallowance,

The Court now withdraws the reference to all claims in the complaint. As such, the
motions to withdraw the reference are granted to the extent that all claims are withdrawn.
CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Motion of Defendants Big Sky Venture

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Capital III, LLC, Big Sky Venture Capital IV, LLC and Greenhouse Capital Partners, LP for

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Withdrawal of Reference Under 28 U.S.C. § 157(d) and FRBP 5011 (#2) is GRANTED to the

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extent that all claims are withdrawn.

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IT IS FURTHER ORDERED that Defendant Noventi Ventures II LP and Noventi LLC’s

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Motion for Withdrawal of Reference as to Adversary Claims Two, Three, and Four Only (#3)

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is GRANTED to the extent that all claims are withdrawn.

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IT IS FURTHER ORDERED that Defendants Marini, Rogoff, Rodgers, Hess, Schwab,

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Henig, Horn, and Mosebar’s Motion for Withdrawal of Reference as to Adversary Complaint

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Claims One, Three, and Four Only (#7) is GRANTED to the extent that all claims are

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withdrawn.

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IT IS FURTHER ORDERED that the Ex Parte Motion to Remove Counsel From

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CM/ECF Service List (#18) is GRANTED.

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DATED: This 1st day of April, 2013.

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_________________________________
United States District Judge

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