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finding that there was no concern of forum shopping when the bankruptcy court would not have had adjudicatory jurisdiction over the issue and would only submit recommended findings of fact and conclusions of law to the district court
Summary of this case from Kingdom Fresh Produce, Inc. v. Delta Produce, LPOpinion
Case No. 01-31527-H4-7, Adv. No. 06-3197.
June 14, 2006
I. INTRODUCTION
On February 14, 2006, Robbye R. Waldron, the Chapter 7 Trustee of the EbaseOne Corporation bankruptcy estate (the Trustee), commenced the above referenced Adversary Proceeding (the Adversary Proceeding) against National Union Fire Insurance Company of Pittsburgh (National). The Trustee filed this suit on behalf of the Chapter 7 estate and Charles W. Skamser (Skamser). On April 17, 2006, National filed its Motion to Withdraw Reference to District Court [Adv. No. 06-3197, Docket No. 4], which the Trustee opposes. Pursuant to Local Bankruptcy Rule 5011, this Court now makes its Report and Recommendation to the United States District Court.
II. SUMMARY OF RECOMMENDATION
This Bankruptcy Court recommends that the District Court grant National's Motion to Withdraw Reference to District Court.
III. RELEVANT PROCEDURAL BACKGROUND OF THIS BANKRUPTCY CASE AND THIS ADVERSARY PROCEEDING
1. EbaseOne Corporation (the Debtor) purchased a corporate liability insurance policy from National to cover losses suffered as a result of claims for wrongful acts committed by directors and officers of the Debtor in their respective capacities. [Adv. No. 06-3197, Docket No. 9, pp. 1-2.]
2. The policy covered the period from April 25, 2000 to April 25, 2001. [Adv. No. 06-3197, Docket No. 5, Ex. A.]
3. The Debtor alleges that the policy was triggered when its shareholders filed suit in 2000 against Skamser, the Debtor's President and CEO. [Adv. No. 06-3197, Docket No. 1, p. 3.] This suit was filed prior to the filing of the Debtor's bankruptcy petition. [ Id.]
4. On February 15, 2001, the Debtor filed a voluntary Chapter 7 petition. [Case No. 01-31527, Docket No. 1.]
5. On February 16, 2001, Robbye Waldron was appointed as the Chapter 7 Trustee. [Case No. 01-31527, Docket No. 3.]
6. On February 14, 2006, the Trustee, on behalf of the estate and Skamser, initiated the Adversary Proceeding by filing a complaint against National, alleging that National wrongfully failed to indemnify and defend Skamser, as one of the Debtor's former officers, under the policy (the Complaint). [Adv. No. 06-3197, Docket No. 1.]
7. On April 17, 2006, National filed its Motion to Withdraw Reference to District Court (the Motion to Withdraw Reference). [Adv. No. 06-3197, Docket No. 4.]
8. Also, on April 17, 2006, National filed the Defendant's Motion to Dismiss Pursuant to Bankruptcy Rule 7012(b), Response Regarding Whether This Proceeding is Core or Non-Core and in the Alternative, Motion for More Definite Statement. [Adv. No. 06-3197, Docket Nos. 5, 6.]
9. On May 8, 2006, the Trustee filed the Plaintiff's Response to Defendant's Motion to Withdraw Reference (the Response). [Adv. No. 06-3197, Docket No. 9.]
10. On May 23, 2006, National filed its Reply to Plaintiff's Response to Defendant's Motion to Withdraw Reference. [Adv. No. 06-3197, Docket No. 11.]
IV. DISCUSSION OF THE MERITS OF NATIONAL'S MOTION TO WITHDRAW REFERENCE
General Order 2005-6 of the United States District Court for the Southern District of Texas provides, "Bankruptcy cases and proceedings arising under Title 11 or arising in or related to a case under Title 11 of the United states Code are automatically referred to the bankruptcy judges of this District. . . ." See also 28 U.S.C. § 157(a). When the Debtor filed its Chapter 7 petition in the Southern District of Texas, Houston Division, the case was immediately referred to this Bankruptcy Court pursuant to the General Order. National's Motion to Withdraw Reference arises from this Adversary Proceeding initiated by the Trustee in this Bankruptcy Court. As a party to this suit, National may move for withdrawal of reference, and the District Court may grant that motion for "cause shown." 28 U.S.C. § 157(d). Bankruptcy Local Rule 5011 requires National to present the Motion to Withdraw Reference to this Bankruptcy Court, which then makes a recommendation to the District Court as to whether to grant or deny the Motion.
In pertinent part, 28 § 157(d) reads as follows:
The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.
Neither National nor the Trustee cite any Fifth Circuit law in their pleadings; they base their arguments on case law from courts outside of the Fifth Circuit. However, this Court makes its recommendation by looking to the Fifth Circuit's opinion in Holland America Insurance Company v. Succession of Roy, 777 F.2d 992, 999 (5th Cir. 1985). In Holland America, the Fifth Circuit noted that a district court should consider the following issues in determining whether to order withdrawal of the reference: (1) whether the underlying lawsuit is a core or non-core proceeding; (2) whether a promotion of uniformity in bankruptcy administration will be achieved; (3) whether forum shopping and confusion will be reduced; (4) whether there will be economical use of debtors' and creditors' resources; (5) whether the withdrawal of reference will expedite the bankruptcy process; and (6) whether a party has demanded a jury trial. See also Mirant Corp. v. S. Co., 337 B.R. 107, 115 (N.D. Tex. 2006) (considering "Holland America Factors" in determination of motion to withdraw reference). A. Core or Non-core Proceeding
In Mirant Corporation v. Southern Company, 337 B.R. 107, 115 (N.D. Tex. 2006), the court noted that "[i]n Holland America, the Fifth Circuit provided the district courts the following guidance when deciding whether to order a withdrawal of reference:
[T]he district court must keep one eye cocked toward the decision of the Supreme Court in Northern Pipeline Constr. v. Marathon Oil Pipe Line, 458 U.S. 50, 102 S.Ct. 2858, 73 L. Ed. 2d 598 (1982), which is the progenitor of the new bankruptcy court jurisdictional scheme. Whatever the precise teaching of Marathon it holds, at a minimum, that Article I bankruptcy courts may not have original jurisdiction over adversary proceedings that do not intimately involve the debtor-creditor relationship and rest solely in issues of state law, 458 U.S. at 84, 102 S. Ct. at 2878, 73 L. Ed. 2d at 623. . . . The Bankruptcy Amendments Act has attempted a flexible response to Marathon, permitting bankruptcy courts to hear `core' proceedings by blanket reference from the district courts, while authorizing them to function much like magistrates as adjuncts to the district court on matters that are merely `related to' a bankruptcy. Marathon provides the outer boundary of original referred jurisdiction of bankruptcy courts, but considerations of judicial economy also bear on the decision to withdraw the reference or refer to bankruptcy court. The district court should consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtors' and creditors' resources, and expediting the bankruptcy process.
Finally, we note that there is a jury demand in the district court file. Its continued existence may influence the district court's decision, for while we do not reach the issue, there is some doubt whether bankruptcy courts can conduct jury trials in light of Marathon and the Bankruptcy Amendments Act. The district court should apply these factors in articulating whether to withdraw the reference on this litigation.
777 F.2d at 998-99 (footnotes omitted)."
In core proceedings, the bankruptcy court may enter a judgment; whereas, in non-core proceedings, the bankruptcy court has a restricted judicial role. Mirant, 337 B.R. at 115-16 (citing 28 U.S.C. § 157(b)(1) and 28 U.S.C. § 157(c)(1)). Whether an adversary proceeding is core or non-core is often debated, particularly when, as in this Adversary Proceeding, it involves issues of state law. The Fifth Circuit has noted that Congress intended to give federal courts subject matter jurisdiction pursuant to 28 U.S.C. § 1334 over issues of state law where such matters have an effect on the underlying bankruptcy case. Wood v. Wood (In re Wood), 825 F.2d 90, 92 (5th Cir. 1987). However, bankruptcy courts do not have the same powers as the district courts; the powers of the bankruptcy courts are more limited. Id. at 95. Only if an adversary proceeding is a core proceeding may a bankruptcy court enter final orders and judgments; if the proceeding is non-core, then a bankruptcy court may only submit proposed findings of fact and conclusions of law to the district court for that court's de novo review. Id. 28 U.S.C. § 157 governs core proceedings. While this section does not specifically define core proceedings, subsection (b)(2) provides a comprehensive, yet non-exclusive, list of core proceedings. In re Baudoin, 981 F.2d 736, 740-41 (5th Cir. 1993); Wood, 825 F.2d at 95; Mirant, 337 B.R. at 116. This list includes very specific proceedings and very broad proceedings. Some examples of specific core proceedings include preference actions, 28 U.S.C. § 157(b)(2)(F), and fraudulent conveyance suits, 28 U.S.C. § 157(b)(2)(H). Broad categories of core proceedings include "all matters concerning the administration of the estate," 28 U.S.C. § 157(b)(2)(A), and "other proceedings affecting the liquidation of assets of the estate," 28 U.S.C. § 157(b)(2)(O). The Fifth Circuit warns against a broad interpretation of § 157(b)(2)(O) and prefers to deem a proceeding as core under the more specific examples rather than fitting a particular proceeding into the catch-all language of subsections (b)(2)(A) and (b)(2)(O). See Wood, 825 F.2d at 95; Mirant, 337 B.R. at 116. Nevertheless, the Fifth Circuit has not defined core proceeding by limiting such proceedings solely to the specific examples set forth in the laundry list of § 157(b)(2). Rather, the Fifth Circuit has defined a core proceeding as one which "invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case." Wood, 825 F.2d at 97.
Title 28 § 157(b)(1) reads as follows:
Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.
Title 28 § 157(c)(1) reads as follows:
A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.
Citing S. Rep. No. 989, 95th Cong., 2d Sess., 153-54 (1978), reprinted in 1978 U.S. Code Cong. Admin. News, 5787, 5939-40.
It should be noted, however, that if the adversary proceeding is non-core and all parties consent, then a bankruptcy court may enter final orders and judgments. 28 U.S.C. § 157(c)(2). In its Response Regarding Whether This Proceeding is Core or Non-core, National has expressly stated that it doesnot consent to entry of final orders or judgment by this Bankruptcy Court. [Adv. No. 06-3197, Docket Nos. 5, 6, p. 7.]
When determining whether a proceeding is core, the court must consider both the form as well as the substance of the proceeding. Id. (citing In re World Fin. Servs. Ctr., Inc., 64 B.R. 980, 984-87 (Bankr. S.D. Cal. 1986)). In Wood, the debtors filed a Chapter 11 petition. 825 F.2d at 91. The claimants then filed a complaint in the bankruptcy court against the debtors for damages and declaratory relief based on the debtors' violations of a pre-petition agreement between the two parties. Id. The Fifth Circuit held that this suit was not a core proceeding because it was simply a contract action under state law, which could have proceeded alone in state court in the absence of the bankruptcy petition. Id. at 97-98.
In the Adversary Proceeding at bar, the dispute over the insurance policy is purely one of state law. Specifically, the Trustee's Complaint alleges that National failed and refused to perform in various ways under the policy. [Adversary No. 06-3197, Docket No. 1, pp. 4-5.] The Trustee further alleges that National's conduct constitutes a breach of contract, was negligent, was tortious and malicious, and was committed knowingly. Id. The Trustee therefore asserts that he, as representative of the Debtor's Chapter 7 estate, is entitled to relief under the Texas Insurance Code and other applicable law, including the Texas Deceptive Trade Practices Consumer Protection Act § 17.46. Id. at 5. The Complaint in no way invokes a substantive right provided by the Bankruptcy Code. Nor are the causes of action asserted by the Trustee ones that could arise only in the context of a bankruptcy case; none of these claims are based on any statute in the Bankruptcy Code, and the claims arose independently of the Debtor's bankruptcy prior to the filing of the Debtor's bankruptcy petition. For these reasons, the Adversary Proceeding, like the suit in Wood, is simply a contract action involving state law that could have proceeded in state court in the absence of the Debtor's bankruptcy petition. These circumstances strongly favor a withdrawal of reference of the Adversary Proceeding to the District Court. B. Uniformity of the Bankruptcy Administration
In support of its Motion, National relies heavily on a case from a district court in New York, Lawrence Group, Inc. v. Hartford Cas. Ins. Co. (In re Lawrence Group), 285 B.R. 784 (N.D.N.Y. 2002). This case certainly supports National's position. However, National fails to address the Second Circuit's decision in In re U.S. Lines, Inc., 197 F.3d 631 (2nd Cir. 1999). The Second Circuit, in analyzing whether a lawsuit brought by a trustee against an insurer on indemnity insurance contracts was core or non-core, held as follows:
Notwithstanding that the Trust's claims are upon pre-petition contracts, we conclude that the impact these contracts have on other core bankruptcy functions nevertheless render the proceedings core. Indemnity insurance contracts, particularly where the debtor is faced with substantial liability claims within the coverage of the policy, "may well be . . . `the most important asset of [i.e., the debtor's] estate.'" As such, resolving disputes relating to major insurance contracts are bound to have a significant impact on the administration of the estate.
Id. at 638 (citations omitted). The Second Circuit compared this ruling with its holding in Orion Pictures Corp. v. Showtime Networks (In re Orion Pictures Corp.), 4 F.3d 1095 (2nd Cir. 1993), by noting that "[i]n Orion, we concluded that where the insurance proceeds would only augment the assets of the estate for general distribution, the effect on the administration of the estate was insufficient to render the proceedings core." U.S. Lines, 197 F.3d at 638. In his Response to National's Motion to Withdraw Reference, the Trustee makes no allegation that the insurance proceeds from National, if recovered, would have a significant impact on the administration of the estate; moreover, the Complaint does not mention a specific amount which the Trustee seeks to recover. Accordingly, with respect the Adversary Proceeding at bar, this Court is disposed to believe that the Orion holding is more applicable than the U.S. Lines holding. However, even if this Court is incorrect, the Fifth Circuit's test for determining whether a proceeding is core is somewhat different than the Second Circuit's test. Whereas the Second Circuit seems to focus primarily on the significance of the impact that the adversary proceeding will have on the administration of the estate, the Fifth Circuit focuses more on whether the adversary proceeding either invokes a substantive right provided by the Bankruptcy Code or could arise only in the context of a bankruptcy case. As already discussed herein, application of the Fifth Circuit's test in the Adversary Proceeding at bar favors a withdrawal of reference.
If a bankruptcy court is already familiar with the facts of the underlying action, then allowing that court to adjudicate the proceeding will promote uniformity in the bankruptcy administration. See Palmer Palmer v. U.S. Trustee (In re Hargis), 146 B.R. 173, 176 (N.D. Tex. 1992); Kenai Corp. v. Nat'l Union Fire Ins. Co., 136 B.R. 59, 61 (S.D.N.Y. 1992) (finding that "[g]iven [the bankruptcy's judge's] familiarity with the bankruptcy case involving [the debtor], [the bankruptcy judge] is in the best position to monitor all the proceedings related to that bankruptcy, including this adversary proceeding"). In Hargis, the debtor filed his initial Chapter 11 petition within the bankruptcy court in 1983. Hargis, 146 B.R. at 174. Eventually, counsel for the debtor filed a fee application for services rendered. Id. The bankruptcy court ordered that the debtor's attorney disgorge fees received from the debtor over the course of the bankruptcy case. Id. The attorney appealed, and the Fifth Circuit eventually remanded the matter to the bankruptcy court requiring the court to establish the reasonableness of the bankruptcy related fees. Id. The attorney filed a motion to withdraw reference and requested the district court to make such a determination. Id. at 175. In denying the attorney's motion to withdraw reference, the district court noted that the bankruptcy judge had "reviewed the entire record of this case and [wa]s intimately familiar with the underlying facts, the parties, and the remaining issue." Id. at 176.
The facts in this Adversary Proceeding are easily distinguishable from the facts in Hargis. Here, the Trustee filed the Adversary Proceeding in February of this year. This Court has not focused on any procedural or substantive issues in this Adversary Proceeding other than National's Motion to Withdraw Reference. Accordingly, unlike the court in Hargis, this Bankruptcy Court has not "reviewed the entire record of [the] case and [is not] intimately familiar with the underlying facts, the parties, and the remaining issue." There will be no disruption in the uniformity of the bankruptcy administration of this Chapter 7 case if this Court does not adjudicate the Adversary Proceeding. The absence of disruption argues in favor of the District Court withdrawing the reference. C. Forum Shopping
The Trustee cites three district court cases in his Response opposing the Motion to Withdraw Reference. Eide v. Haas (H W Motor Express Co.), No. 05-CV-1029-LRR, 2006 WL 1192370 (N.D. Iowa May 1, 2006); TPI Int'l Airways v. Fed. Aviation Admin. (In re TPI Int'l Airways), 222 B.R. 663 (S.D. Ga. 1998); Carmel v. Galam (In re Larry's Apartment, L.L.C.), 210 B.R. 469 (D. Ariz. 1997). These cases are distinguishable and therefore offer little support for his position. In H W, the district court refused to withdraw reference because the bankruptcy judge had been dealing with the case for four years and was very familiar with the facts regarding the dispute. H W, 2006 WL 1192370 at *5. In TPI International, the district court refused to withdraw reference because the bankruptcy judge had held numerous hearings for seven years, and was therefore very familiar with the issues and the parties, and also because the party moving for withdrawal had filed the suit in bankruptcy court, thereby submitting himself to the jurisdiction of the bankruptcy court and waiving the opportunity to have his claims adjudicated in district court. TPI Int'l, 222 B.R. at 668-69. Finally, in In re Larry's Apartment, L.L.C., the district court refused to withdraw reference because the bankruptcy court had been handling the case for two years and the party/defendant moving for withdrawal was not entitled to a jury trial. In re Larry's Apartment, L.L.C., 210 B.R. at 474. None of these circumstances are present in the Adversary Proceeding at bar. Because there have been very few motions filed in the main case since the undersigned bankruptcy judge took the bench on December 30, 2004, and because the Adversary Proceeding was just filed in February of this year, this Court does not have as extensive a background as did those bankruptcy courts cited in the Trustee's Response. Moreover, and perhaps more importantly, National is entitled to a jury trial (as discussed in Section IV(F) of this Report and Recommendation).
Because this dispute is a non-core proceeding, if this Bankruptcy Court were to adjudicate the suit, this Court would simply submit recommended findings of fact and conclusions of law to the District Court, and the District Court would then enter its final judgment after a de novo review. See Mirant, 337 B.R. at 122 (citing 28 U.S.C. § 157(c)(1)). Under these circumstances, National's Motion to Withdraw Reference does not constitute forum shopping. Indeed, National's Motion to Withdraw Reference appears to be nothing more than a reasonable effort to have a non-core proceeding litigated with a minimum of time and expense. It would certainly be more efficient and less costly for the District Court to adjudicate the dispute once and for all rather than for this Bankruptcy Court to hold a trial and then for the District Court to review the findings and conclusions on a de novo basis. Mirant, 337 B.R. at 122. In sum, National is not forum shopping, and this conclusion favors withdrawing the reference.
D. Promotion of the Economical Use of the Debtor's and National's Resources
When dealing with a proceeding involving a bankruptcy estate and its creditors, a major goal is the efficient use of the debtor's and creditors' resources in efforts to administer the debtor's estate and to resolve any related litigation. Plan Admin'r v. Lone Star RV Sales, Inc. (In re Conseco Fin. Corp.), 324 B.R. 50, 55 (N.D. Ill. 2005) (citing Holland Am., 777 F.2d at 999). When a debtor, or a trustee administering the bankruptcy estate, needs to bring quick resolution to the matters at bar, and the bankruptcy court is familiar with the parties, the factual background, and the legal issues involved, the goals of judicial efficiency and economical use of the parties' resources are best met by allowing the suit to remain in the bankruptcy court. However, when the bankruptcy court does not have a substantial background and knowledge of the dispute — which is true in the Adversary Proceeding at bar — these twin goals are not necessarily met through the bankruptcy court adjudicating the suit. Just the contrary: the bankruptcy court in Mirant held that a withdrawal of reference fosters judicial economy and conservation of resources because if there is no withdrawal of reference, then the district court must review the bankruptcy court's findings of fact and conclusions of law for a non-core proceeding. Mirant, 337 B.R. at 122. Because the district court performs a de novo review of a non-core matter, unnecessary costs can be avoided if the district court simply tries the suit under its original jurisdiction rather than having the facts adduced first in the bankruptcy court, and then reviewed by the district court. Under these circumstances, withdrawal of reference of the Adversary Proceeding seems most appropriate.
E. Expediting the Bankruptcy Process
If a bankruptcy court adjudicates a non-core proceeding in the first instance, thereby invoking the two-step process discussed previously, the de novo review will delay the resolution of the contractual dispute and, consequently, the final administration of the bankruptcy estate. This situation is present here, and therefore weighs in favor of withdrawal of the reference.
F. Jury Demand
Although National has not yet filed a jury demand, National is entitled to a jury trial based on the nature of the suit. This suit involves legal rights, as opposed to equitable rights, because the Trustee is seeking monetary relief. Mirant, 337 B.R. at 120 (discussing the right to a jury trial under the Seventh Amendment where the plaintiff seeks monetary relief); see Official Employment-Related Issues Comm. v. Lavorato (In re Enron Corp.), 319 B.R. 122, 125 (Bankr. S.D. Tex. 2004) (stating that "the court must look to the nature of the proceedings to determine if [the party] has a right to a jury trial to begin with.") Counsel for National has stated on the record that National, out of an abundance of caution, has not yet filed a jury demand because it filed a Motion to Dismiss the Complaint Pursuant to Bankruptcy Rule 7012(b) and does not want to waive its right to prosecute its Motion by filing a jury demand. [Statements of Counsel for National at Hearings on National's Motion to Withdraw Reference held May 11, 2006 and May 31, 2006.] Counsel for National has represented to this Court that if National's Motion to Dismiss is denied, then National will file a jury demand. Accordingly, for purposes of making a recommendation as to whether the District Court should withdraw the reference, this Court will assume that National has made a valid demand for a jury trial.
This Court would note that National's counsel appears to be overly cautious. Bankruptcy Rule 7012(b) incorporates Federal Rule of Civil Procedure 12(b)-(h). Federal Rule of Civil Procedure 12(h), which sets forth what defenses are waived in a Rule 12(b)(6) motion if not timely raised, makes no reference to a waiver of a jury trial. Indeed, in the Adversary Proceeding at bar, National has not yet filed its answer, and it does not need to do so until a ruling is issued on its Motion to Dismiss. If the Motion to Dismiss is denied, then National will have ten days after the Motion is denied to file its answer, Bankruptcy Rule 7012(a); and National will be entitled to make a jury demand in its answer, Bankruptcy Rule 9015(a).
The Fifth Circuit has held that a debtor does not waive its right to a jury trial by filing a bankruptcy case. Enron, 319 B.R. at 126 (citing In re Jensen, 946 F.2d 369 (5th Cir. 1991)). The Fifth Circuit has also "held that a trustee (debtor in possession) did not waive its right to a jury trial on pre-bankruptcy petition claims if the right existed prior to the filing of the bankruptcy case under applicable non-bankruptcy law." Id. (citing Jensen, 946 F.2d at 373-74). Application of Jensen to the instant Adversary Proceeding can only lead to the conclusion that National has not waived its right to a jury trial on its pre-bankruptcy defenses because this right existed prior to the filing of the Debtor's Chapter 7 petition under applicable non-bankruptcy law.
It is also worth noting that while National will be filing a jury trial demand, it has not filed any proof of claim. See Enron, 319 B.R. at 125 (finding that "[w]hen a creditor elects to participate in th[e] equitable process by filing a proof of claim, the creditor waives any right to a jury trial. The filing of the proof of claim denies both the creditor and the trustee any right to a jury trial either would have concerning the claims." (citations omitted)); contra, Mirant, 337 at 121. Because National has not filed a proof of claim, National has not submitted itself to the equitable jurisdiction of this Bankruptcy Court. See id. Accordingly, unlike some parties, who waive the right to a jury trial by filing a proof of claim against the bankruptcy estate, National has not waived its right to a jury trial. See Langencamp v. Culp, 498 U.S. 42, 45, 111 S. Ct. 330, 331-32, 112 L. Ed. 2d 343 (1990).
Nor does this Court believe that National will be filing a proof of claim, as National does not appear to have any claim against the Debtor's Chapter 7 estate.
V. CONCLUSION
A review of the six factors articulated by the Fifth Circuit in Holland America strongly supports granting National's Motion to Withdraw Reference. Holland Am., 777 F.2d at 999. Most compelling of all the points in favor of granting the Motion is that the Adversary Proceeding is a non-core proceeding. Moreover, the remaining Holland America factors favor granting the Motion. The undersigned bankruptcy judge does not have an extensive background of the parties and disputed issues; the lawsuit involves solely issues of state law; National has a right to a jury trial; there has been no forum shopping; and there will be no material delay in the administration of this Chapter 7 case if the District Court Adjudicates the Adversary Proceeding. Under these circumstances, this Bankruptcy Court recommends that, for cause shown under 28 U.S.C. § 157(d), the District Court should grant National's Motion to Withdraw Reference.