Malikyar v. Moser

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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Memorandum
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 07-41274 EDJ
Chapter 11
REJ PROPERTIES, INC., Debtor./
ALISE MALIKYAR, 	Adv. Pro. No. 10-04114 AJ
Plaintiff,
vs.
CHRISTOPHER MOSER,
Defendant./
MEMORANDUM: MOTION TO REMAND TO STATE COURT
The above-captioned adversary proceeding was commenced May 7,
2010 when the defendant herein, Christopher Moser (“Moser”), filed a
Notice of Removal of State Court Action. 	Moser is the trustee in
bankruptcy of the estate of Robert Jacobson (“Jacobson”), pending in
the United States Bankruptcy Court for the Eastern District of
Signed: July 08, 2010

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
July 09, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-04114 Doc# 16 Filed: 07/08/10 Entered: 07/09/10 13:01:31 Page 1 of 4

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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26 	1Case no. 07-41092.
2	Memorandum
Texas. 1 	The removed action was filed by Alise Malikyar
(“Malikyar”), Jacobson’s spouse, in the Alameda County Superior
Court, State of California. 	Malikyar’s action against Moser alleges
that Moser improperly treated her separate property as property of
the Jacobsen bankruptcy estate. 	Her complaint includes causes of
action for negligence, intentional tort, and fraud.
On May 17, 2010 Malikyar filed a motion to remand this action
to the Alameda Superior Court. 	A hearing was held on Malikyar’s
motion on June 21, 2010. 	William McLaughlin appeared on behalf of
Moser. 	Malikyar did not appear. 	For the reasons hereinafter
discussed, the court will deny Malikyar’s motion, and instead, will
transfer venue to the United States Bankruptcy Court for the Eastern
District of Texas.
In her motion to remand, Malikyar argues that this court lacks
jurisdiction to hear her complaint against Moser because her claims
arise under state law. 	The court agrees that it lacks subject
matter jurisdiction, but not for the reason urged by Malikyar.
This is so because a trustee appointed by a bankruptcy court
may not be sued in a foreign jurisdiction without permission of the
court that appointed the trustee. 	See In re Crown Vantage, 421 F.3d
963, 970 (9th Cir. 2005) (holding that “a party must first obtain
leave of the bankruptcy court before it initiates an action in
another forum against a bankruptcy trustee or other officer
appointed by the bankruptcy court for acts done in the officer’s
Case: 10-04114 Doc# 16 Filed: 07/08/10 Entered: 07/09/10 13:01:31 Page 2 of 4

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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3	Memorandum
official capacity.”); see also Barton v. Barbour, 104 U.S. 126, 136-
37 (1881) (holding that the common law bars suits against receivers
in a state court other than the court charged with administration of
the estate, absent leave of that court.).
Moser was appointed trustee of the Jacobsen bankruptcy estate
in the bankruptcy court for the Eastern District of Texas. 	Moser’s
“home court” has not granted Malikyar leave to bring an action
against Moser in another forum.
Therefore, the court directs Moser to submit an order denying
Malikyar’s motion to remand this adversary proceeding to state
court, and transferring it to the United State Bankruptcy Court for
the Eastern District of Texas.
END OF ORDER
Case: 10-04114 Doc# 16 Filed: 07/08/10 Entered: 07/09/10 13:01:31 Page 3 of 4

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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4	Memorandum
COURT SERVICE LIST
Alise Malikyar
P.O. Box 1386
559 Mangels Avenue
Lafayette, CA 94549
William F. McLaughlin
Law Offices of William F. McLaughlin
1305 Franklin St. #301
Oakland, CA 94612
Case: 10-04114 Doc# 16 Filed: 07/08/10 Entered: 07/09/10 13:01:31 Page 4 of 4