Ernst v. Moyer et al

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	) Bankruptcy Case
) No. 07-31444DM
PIER 38 MARITIME RECREATION CENTER,)
INC., 	) Chapter 7
)
Debtor. 	)
___________________________________)
CARL ERNST, JR., individually and 	) Adversary Proceeding
as successor in interest to debtor ) No. 10-3277DM
PIER 38 MARITIME RECREATION CENTER,)
INC., 	)
)
Plaintiff, 	)
)
v. 	)
)
MONIQUE MOYER; THE CITY AND COUNTY )
OF SAN FRANCISCO and DOES 1-20, 	)
INCLUSIVE, 	)
)
Defendants. )
___________________________________)
MEMORANDUM DECISION ON MOTION TO REMAND
I. 	INTRODUCTION
On July 23, 2010, plaintiff Carl Ernst, Jr. (“Ernst”) filed
an action in the San Francisco Superior Court against Monique
Moyer, the City and County of San Francisco by and through its
Port Commission (together “Port”) and fictitious defendants Does
1-20. 	Port removed the action to this court on December 20, 2010.
Thereafter, Ernst filed a Motion To Remand (the “Motion”) which
Port opposed. 	The Motion came on for hearing before the court on
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Signed and Filed: March 21, 2011
________________________________________
DENNIS MONTALI
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
March 22, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-03277 Doc# 25 Filed: 03/21/11 Entered: 03/22/11 13:42:56 Page 1 of 5

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March 11, 2011. 	Appearances are noted in the record.
For the reasons explained below, the court will grant the
Motion and remand this adversary proceeding to the San Francisco
Superior Court.
II. 	DISCUSSION
The court has jurisdiction over this removed adversary
proceeding. 	The adversary proceeding is a non-core proceeding,
and it is related to the underlying bankruptcy of Pier 38 Maritime
Recreation Center, Inc. in that the outcome of this action will
have an effect on the estate and is related to it. 	The court
notes, in passing, that if it does not have jurisdiction, remand
to Superior Court is not only appropriate but is required.
While Port contends that removal to this court was based upon
authority in addition to 28 U.S.C. § 1452(a), remand is considered
under 28 U.S.C. § 1452(b) on “any equitable ground.” 	Ernst and
Port agree that in determining those equitable grounds for remand,
the court may draw upon principles that are found in cases dealing
with abstention rather than removal, such as Christensen v. Tucson
Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162 (9th
Cir. 1990). 	After considering the Tucson Estates factors, the
court concludes that at least seven of them weigh in favor of
granting the Motion and remanding to Superior Court; only one
factor weighs strongly in Port’s favor; the remaining factors
appear to be neutral.
The court will turn first to the factors supporting remand:
1. 	Effect on the efficient administration of the estate.
The court has entered an order suspending all proceedings in the
underlying bankruptcy case pending the outcome of the within
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dispute between Ernst and Port. 	Thus if this matter were retained
here it would have little effect on the administration of the
estate; it has even less effect by remand in that the trustee in
bankruptcy, all parties in interest in the underlying bankruptcy
case, and the court simply will await the outcome of the dispute. 1
2. 	State law issues. 	There are virtually no issues in this
action that turn on other then state law.
3. 	Jurisdiction apart from 28 U.S.C. § 1334. 	Port’s
citation to other statutes is not convincing and the court
believes that this matter exists only in this court because of the
underlying bankruptcy of Pier 38 Maritime Recreation Center, Inc.
4. 	Degree of relatedness or remoteness to the main case.
See discussion in subparagraph 1, supra.
5. 	Burden on the court’s docket. 	The court understands the
trial of this matter will involve numerous witnesses and trial by
jury. 	Ernst has demanded a jury and has not consented to a jury
trial in this court. 	Thus, this court will necessarily be
required to handle all pre-trial matters. 	Thereafter, the
district court would have to open a case, convene a jury and
preside over a trial. 	These are burdens on two courts’ dockets
that will be avoided with remand.
6. 	Jury trial. 	See discussion in subparagraph 5.
7. 	Presence of non-debtor parties. 	No party to the present
adversary proceeding is a debtor before this court.
The neutral Tucson Estates factors are the difficulty or
1 The court accepts counsel for Ernst’s representation that
the remanded action is likely to go to trial sometime during 2011.
If that prediction is incorrect, the trustee and the estate will
have to wait longer.
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Case: 10-03277 Doc# 25 Filed: 03/21/11 Entered: 03/22/11 13:42:56 Page 3 of 5

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unsettled nature of applicable law; the presence of a related
proceeding commenced in state court; 2 the substance rather than
the form of the asserted core proceeding; and the feasibility of
severing state law claims.
The only factor that weighs heavily in Port’s favor is that
of forum shopping. 	To say that Ernst has engaged in forum
shopping is an understatement. 	His conduct in this case is more
like the shopper who browses for a car in the showroom, test
drives one and convinces the salesman that he is going to buy,
only to go home and purchase the exact same vehicle on-line.
Ernst commenced his first adversary proceeding against Port in
this court, thereafter unsuccessfully removed Port’s unlawful
detainer action and then amended his complaint, only to dismiss it
in response to Port’s motion to dismiss and threatened sanctions
motion. 	That course of conduct makes for a strong case of
estoppel to be invoked against Ernst, particularly when, as noted
above, the court believes it does have jurisdiction over this
action.
To deny the Motion would reward Port for Ernst’s conduct, but
would not mitigate the impact of the several factors summarized
above that justify remand.
In summary, the court concludes that the proper forum for
final resolution of Ernst’s and Port’s disputes is the San
Francisco Superior Court.
2 The court earlier thought that an unlawful detainer action
commenced by Port against Ernst was related to this matter but
counsel for Ernst explained otherwise. 	Upon remand the Superior
Court can decide whether or not to handle the remanded action with
the unlawful detainer action.
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III. 	CONCLUSION
Remand is appropriate. 	The court is issuing an order
remanding this matter to the San Francisco Superior Court
concurrently with the issuance of this Memorandum Decision.
**END OF MEMORANDUM DECISION**
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Case: 10-03277 Doc# 25 Filed: 03/21/11 Entered: 03/22/11 13:42:56 Page 5 of 5