Cruickshank v. Catone Travel Agency Inc.

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Case 06-01219 Doc 22 Filed 12/11/06 Entered 12/12/06 09:46:36 Desc Main
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS

In re

THE LINDEN CORPORATION, INC., Chapter 7
Case No. 05-17551-RS
Debtor

GARY W. CRUICKSHANK,
CHAPTER 7 TRUSTEE,

Plaintiff Adversary Proceeding
No. 06-1219
v.

CATONE TRAVEL AGENCY, INC.,

Defendant

MEMORANDUM OF DECISION
REGARDING ABSTENTION AND DISMISSAL

The complaint herein is a simple demand by the Chapter 7 for recovery on a prepetition
account receivable of the Debtor. As such, it is a Marathon-type action, one that could have
been filed by the Debtor prepetition, that does not arise under the Bankruptcy Code, and that is

not unique to bankruptcy. For these reasons it is not a core proceeding within the meaning of 28

U.S.C. § 157,' and the Court may not enter a final judgment in the matter without the express
consent of both parties. 28 U.S.C. § 157(c). The Plaintiff has consented but the Defendant has
not. Therefore, the Court could, at best, hear the matter and enter only proposed findings and

conclusions, subject to review de novo in the United States District Court, as required by 28

'The Plaintiff suggests this is a core proceeding because it is (1) a turnover action and (2)
a proceeding affecting the liquidation of the assets of the estate. The Court disagrees. This is
not a true tumnover action: it seeks payment on an account, not a turnover of funds belonging to
the Debtor. Nor is it “a proceeding affecting the liquidation of the assets of the estate” within the
meaning of 28 U.S.C. § 157(b)(2)(O), which contemplates bankruptcy-specific proceedings such
as under I1 U.S.C. § 363(b), (f), and (h), not such liquidation actions as the debtor itself could
have brought prepetition.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO.

Case 06-01219 Doc22 Filed 12/11/06 Entered 12/12/06 09:46:36 Desc Main
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U.S.C. § 157(c)(1). This procedure would render the proceedings in the Bankruptcy Court.
nonbinding, leading to duplicative proceedings in the District Court. This process is inefficient
for both the court and the parties and therefore disfavored except in unusual circumstances not
present here. As the matter can be prosecuted in a state court of competent jurisdiction in which
it would be litigated only once, this Court will, in the interest of justice, abstain under 28 U.S.C.

§1334(c)(1). A separate order of abstention and dismissal will enter accordingly.

Date: December 11, 2006 “Loken FS cu mA

Robert Somma
United States Bankruptcy Judge

cc: Gary Cruickshank, Esq., Plaintiff
Dawn F. Oliveri, Esq., for Defendant