Rodgers v. Preferred Carolinas Realty, Inc. et al

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
ROBERT V. RODGERS,
DEBTOR.
ROBERT V. RODGERS,
Plaintiff,
vs.
PREFERRED CAROLINA REALTY, INC.,
JAMES E. ALLEN, JR., JIM ALLEN GROUP,
INC., HARRY JAMES THORPE, RANDALL
EICHORN, LISA EICHORN, W. SIDNEY
ALDRIDGE, and NICHOLLS & CRAMPTON,
P.A.,
Defendants.
CASE NO. 09-09124-8-JRL
CHAPTER 13
ADVERSARY PROCEEDING
NO. 10-00171-8-JRL
ORDER
This matter is before the court on remand from the United States District Court for the
Eastern District of North Carolina. The bankruptcy court’s order was entered on July 7, 2011,
and the plaintiff appealed on August 24, 2011. A preliminary pre-trial conference was held
telephonically on July 30, 2012, at which the parties requested that the court take action on the
remanded issues without further hearing.
The parties agree that the claims in this case should be treated as non-core. The court
SO ORDERED.
SIGNED this 01 day of August, 2012.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
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finds that there is a colorable argument that the plaintiff impliedly consented to this court’s
jurisdiction over the claims—especially, considering the length of time that lapsed before the
jurisdictional issue was raised. However, because the plaintiff and some of the defendants have
demanded a jury trial and declined to consent to the bankruptcy court’s exercise of jury trial
jurisdiction, the matter will ultimately be heard in the district court. Therefore, the court finds
that it is prudentially sound to treat the issues in this case as non-core proceedings heard
pursuant to 28 U.S.C. § 157(c)(1). Having established that the claims will be treated as non-core
proceedings, the court re-adopts its order dated July 7, 2011, to the extent that it decided the
plaintiff’s claims on the merits. However, the court vacates the order with respect to its
alternative reliance on res judicata grounds, given the district court’s earlier ruling on that issue.
Furthermore, the court approves the preliminary scheduling order agreed to by the parties.
Because the scheduling order is triggered by the district court’s ruling on the merits of the case, a
supplemental scheduling order containing specific dates will be entered following the district
court’s ruling.
Normally, the bankruptcy court would submit its opinion as proposed findings of fact and
conclusions of law, pursuant to Federal Rule of Bankruptcy Procedure 9033. However, in the
present case, the issues were before the court on the defendants’ motion for judgment on the
pleadings, and therefore, the bankruptcy court made no findings of fact. Therefore, the
bankruptcy court submits its opinion to the district court only as proposed conclusions of law.
Pursuant to Rule 9033(a), the clerk is directed to serve copies of this order and the July 7, 2011
order on all parties, and the parties are required to file specific objections within fourteen (14)
days of service.
END OF DOCUMENT
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