Tomtreyco Uhrichsville, Inc. v. Dana Lewis McDonalds, LLC et al

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

|S] RUSS KENDIG

Russ Kendig
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
IN RE: ) CHAPTER 7
)
DANA LEWIS MCDONALDS, ) CASE NO. 10-60002
LLC, )
) ADV. NO. 10-6030
Debtor. )
) JUDGE RUSS KENDIG
TOMTREYCO UHRICHSVILLE, )
INC., )
)
Plaintiff, )
v. )
) MEMORANDUM OF OPINION
DANA LEWIS MCDONALDS, ) (NOT INTENDED FOR
LLC, et al., ) PUBLICATION)
)
Defendants. )

This adversary was commenced with Debtor’s filing of a Notice of Removal on April 2,
2010, resulting in removal of a case originating in the Stark County Court of Common Pleas to
the bankruptcy court. The state court action was on appeal to the Fifth District Court of Appeals
in the State of Ohio. After the removal, Debtor’s filed a motion for limited remand, seeking to
remand the case back to the appellate court. Plaintiffs filed a motion to dismiss, or alternatively,
for remand. A hearing was held on April 29, 2010. Gary A. Corroto, counsel for Plaintiff, and
Bridget Aileen Franklin, counsel for Debtor, participated in the hearing.

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The court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and the
general order of reference entered in this district on July 16, 1984. Venue in this district and
division is proper pursuant to 28 U.S.C. § 1409. This is a core proceeding under 28 U.S.C.
157(b). The following constitutes the court’s findings of fact and conclusions of law pursuant to
Federal Rule of Bankruptcy Procedure 7052.

This opinion is not intended for publication or citation. The availability of this opinion,
in electronic or printed form, is not the result of a direct submission by the Court.

At the hearing, the Court announced its proposed decision, which granted Plaintiff's
motion to remand and extended Debtor’s deadline to remove an action to the bankruptcy court,
thereby providing Debtor an opportunity to seek removal of the action at a later date. The Court
permitted parties to file comments and objections through Thursday, May 3, 2010. Plaintiff filed
a partial objection to the proposed decision, arguing that Debtor had failed to timely request an
extension of the deadline for filing a removal action, making the relief unavailable.

Plaintiff's objection is two-pronged. First, Plaintiff suggests that Debtor did not request
the relief, extension of the removal deadline, prior to the expiration of the deadline. This
argument is unpersuasive. Although the Court was not presented with a pleading titled “Motion
to Extend Time for Removal,” tantamount relief was sought by Debtor in the notice of removal
coupled with the motion for limited remand. Filing a motion to extend the removal deadline
after the removal was filed would create a recognizable incongruity. Functionally, there is no
difference between granting the motion for limited remand and taking the action proposed by the
Court. Procedurally, the Court’s proposal will eliminate split jurisdiction resulting from a
limited remand. It would also eliminate the need to come back to this Court if the appellate court
finds in Plaintiffs favor. Rule 9006(b)(1) provides discretion to the Court to enlarge a deadline,
for cause, with or without motion, when the original deadline did not expire. Since the removal
action was timely filed, the deadline did not expire.

Second, Plaintiff argues, to the extent a request for an extension of the Federal Rule of
Bankruptcy Procedure 9027 was made, it was untimely and therefore Debtor must prove
excusable neglect for its failure to timely file the motion. For the reasons stated above, the Court
finds the motion was not untimely. But Plaintiff does not argue Debtor was not entitled to an
extension when the removal action was filed. Rather, Plaintiff seeks to elevate form over
substance, which the Court is not willing to do, in spite of the lack of convention.

Both parties agree that the appellate court should determine the appeal. Consequently, it
will be remanded to the state court, but the deadline to remove the action to the bankruptcy court

shall be extended.

An order shall be issued in accordance with the above.

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Service List:

Gary A Corroto

220 Market Ave. South
Eighth Floor

Canton, OH 44702-1409

Bridget Aileen Franklin
Brouse & McDowell, LPA
388 S. Main St.

#500

Akron, OH 44311

Owen J. Rarric

Krugliak, Wilkins, Griffiths & Dougherty
4775 Munson St NW

PO Box 36963

Canton, OH 44735-6963

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