Culley's Septic Service, Inc v. Culley Excavation and Septic Service

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Case 06-04075 Doc46 Filed 03/31/06 Entered 03/31/06 12:26:49 Desc Main
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United States Bankruptey Court
District of Massachusetts

In re: )
DAVID C. CULLEY, )
) Chapter 11
DEBTOR. ) Case No.06-40081-JBR
)
CULLEY SEPTIC SERVICE, INC., )
PLAINTIFF )
Vv. ) Adversary Proceeding
CULLEY EXCAVATION AND SEPTIC _ ) No. 06-4075
SERVICE, )
DEFENDANT )

DEC) SION AND ORDER REGARDING EMERGENCY MOTION FOR REMAND
AFTER RECONSIDERATION

The Court, having granted the Emergency Motion for Reconsideration of Order [#20] on
Emergenzy Motion to Remand [#7] filed by the Debtor,' and after due consideration of the
Emergency Motion For Remand, and all pleading related thereto, the Court hereby makes the
following; findings of fact and conclusions of law:

1. With the exception of one cause of action based on the Lanham Act, specifically 15
U.S.C. § 1125(a), all of the counts in the complaint seek relief pursuant to Massachusetts law.
Phe coraplaint avers that the Debtor does business in central Massachusetts. it dues not state
whether the Plaintiff conducts business outside of Massachusetts in addition to that conducted
intrastate. At the March 31, 2006 hearing on the Emergency Motion to Remand, Plaintiff's
counsel represented that this dispute involves only intrastate commerce.

2. Neither party has sought withdrawal of the adversary proceeding.

3. The state court judge presiding over the lawsuit in state court had recently entered

"According to the complaint, Culley Excavation and Septic Service is a d/b/a of the
Debtor.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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several orders and scheduled hearings when the case was removed. A trial on the issue of
whether the debtor should be held in contempt for his alleged violation of state court orders is
scheduled to begin on Monday, April 3, 2006.

‘, Assuming that the dispute at issue in this adversary proceeding involves only matters
affecting intrastate commerce, then federal jurisdiction is not conferred simply by the addition of
a Lanham Act claim. Societa Anonima Lucchese Olii E. Vini v. Catania Spagna Corp., 440
F.Supp. 461, 463 (D. Mass. 1977). If there is no independent basis for federal jurisdiction, then
28 U.S.C. § 1334(c)(2) requires that this Court abstain as it appears that the state court can timely
adjudicate this matter.

=. Because the allegations of the complaint determine whether there is a basis for federal
jurisdiction, id., and lest the Debtor believe that the absence of any allegation that the dispute
involves matters that arise from conduct that is wholly intrastate and has no affect on interstate
commerve leaves the door open for an argument that mandatory abstention is inapplicable, the
Court also abstains pursuant to 28 U.S.C. § 1334(c)(1).

6. Most of the counts raise issues of state law. The state court judge is very familiar with
this case and has held several hearings. Moreover, one of the orders that the Debtor seeks this
Court to vacate is the state court’s injunction entered against him after the matter was briefed and
heard by the state court. Although the injunction is not a final order which this Court would be
prohibited from reviewing, nonetheless, the interests of justice and comity and respect for state
law are best served by the Bankruptcy Court’s abstention in this matter.

For the foregoing reasons, the Emergency Motion to Remand is GRANTED and the
matter REMANDED to state court.

Te Plaintiff is also granting limited relief from the automatic stay to prosecute the

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remanded action. No collection activity of any kind on any money judgment shall proceed

b Lowatl

Jéel B. Rosenthal
nited States Bankruptcy Court

without further order of this Court.

Dated: March 31, 2006