Sontchi, J.
Before the Court is a sua sponte Order wherein the parties were asked to brief three issues, i.e., whether the Proceeding should be dismissed for lack of subject matter jurisdiction, if the Court should abstain from hearing the Proceeding, or if the Court should remand the Proceeding to state court.
The law of the case doctrine and a review of the jurisdictional issues under Third Circuit law both lead the Court to establish a finding of "related to" jurisdiction in this Proceeding. Neither abstention, nor remand to state court are appropriate. Given such findings, the Court will maintain jurisdiction over the Proceeding.
Courts generally maintain "an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party."
The Court may also review certain questions of abstention and remand. A
To the extent the Court maintains jurisdiction over this Proceeding, venue is proper before the United States Bankruptcy Court for the District of Delaware under 28 U.S.C. §§ 1408 and 1409. The Court has the judicial authority to enter a final order.
Superior Contracting Group, Inc. ("Plaintiff" or "Superior") filed the current action against Avinash N. Rachmale ("Defendant" or "Rachmale") in the United States District Court for the Western District of Tennessee (the "Proceeding").
The Eastern District of Michigan subsequently issued another opinion granting Rachmale's second Rule 12(b)(3) motion to dismiss for improper venue and ordered the Proceeding transferred to the United States District Court for the District of Delaware.
The Court later issued a sua sponte order (the "Order") requesting the parties' written positions on three questions: (1) the Proceeding's proper subject matter jurisdiction, (2) the Court's option to permissively abstention from hearing the Proceeding, and (3) the possible removal of the Proceeding to state court.
Lakeshore Engineering Services, Inc. ("Lakeshore") was founded by Rachmale
In 2011, LTC amended and restated its articles of incorporation.
The indemnification also covers "current and as-incurred basis expenses incurred... defending or otherwise participating in any action, ... in advance of the final disposition of such action," but only "upon presentation of (i) an unsecured written undertaking to repay such amounts if it is ultimately determined that the person is not entitled to indemnification ... and (ii) adequate documentation reflecting such expenses."
Rachmale was removed from his officer positions in LTC by October 2012, and resigned from LTC's board of directors on April 2, 2014.
In May 2009, Superior and Lakeshore entered into a Mentor/Protégé Agreement for the purpose of pursuing certain U.S. government contracts.
On August 23, 2013, Superior filed an action against Lakeshore in the Chancery Court of Tennessee for the Thirteenth Judicial District at Memphis, Shelby County (the "Tennessee Chancery") asserting claims for contractual breach of the joint venture agreements and seeking accounting for the joint ventures under a special master.
In May 2014, Lakeshore, LTC, and other entities (collectively, the "Debtors") filed voluntary petitions for Chapter 7 relief in this Court.
In August 2014, Superior filed the present federal court Proceeding against Rachmale in the Western District of Tennessee.
The Western District of Tennessee found that the Proceeding satisfied the requirements for federal diversity jurisdiction, but venue was more appropriate in the Eastern District of Michigan.
The Proceeding was again transferred, this time to the District Court for the District of Delaware, which later referred the Proceeding to this Court.
The first question raised by the Order concerns whether this Court has subject matter jurisdiction over the Proceeding.
Pursuant to 28 U.S.C. § 1334, "district courts shall have original and exclusive jurisdiction of all cases under title 11 ... [and] original but not exclusive jurisdiction of all civil proceedings arising under title
Defendant argues that the Court should not review the issue of subject matter jurisdiction given the prior decision of the District Court for the Eastern District of Michigan. However, if the Court does review the jurisdictional issue, Defendant claims "related to" jurisdiction exists over this Proceeding because of both contractual indemnity obligations and Plaintiff's attempt to pierce the corporate veil. Plaintiff counters that none of the claims in the Proceeding suffice for either core jurisdiction or non-core, "related to" jurisdiction. Plaintiff argues in the alternative that its right to a jury trial prevents this Court from exercising jurisdiction.
As a threshold matter, the Defendant submits that this Court should respect the prior ruling of the Eastern District of Michigan regarding this Court's proper subject matter jurisdiction.
Defendant does not invoke any one doctrine in support of this point, rather they rely on the notion that a "jurisdictional decision is binding upon all sides ... [and] to rule[ ] otherwise now ... would subject the parties to inconsistent holdings."
It has been well established that res judicata applies to jurisdictional findings "when a party ... has had an opportunity to litigate the question of subject matter jurisdiction [and] attempts to reopen that question in a collateral attack after an adverse judgment."
The "law of the case" doctrine nevertheless applies to the Eastern District of Michigan's opinion. As stated by the Supreme Court, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case."
Law of the case proves particularly important in assessing transfer decisions. In the words of the Supreme Court, a transferee that chooses to disregard a prior transfer decision risks "send[ing] litigants into a vicious circle of litigation."
Law of the case generally "directs a court's discretion, [but] does not limit the tribunal's power."
The Eastern District of Michigan held that the claims in this Proceeding "clearly related to the debtor Lakeshore's bankruptcy proceedings before the District of Delaware."
The Eastern District of Michigan's opinion partially conflicts with law in the Third Circuit. The court's use of Dow Corning, where the Sixth Circuit approved a broad "related to" jurisdictional umbrella for third-party claims stemming from indemnifications, was rejected by the Third Circuit in Federal-Mogul.
But as the analysis infra describes, the Proceeding has non-core, "related to" jurisdiction under Pacor and its progeny because of both LTC's contractual indemnification of Rachmale and Superior's claim to pierce the corporate veil against Rachmale because of derivative conduct of Debtor Lakeshore. While the rule for jurisdiction of third-party claims differs between the Third and Sixth Circuits, any differences do not affect the result and do not rise to the level of clear error or unjust result here.
Before this Court, then, is a situation closely parallel to that of Semcrude. The issue of "related to" jurisdiction has already been properly briefed and decided upon by a federal court. In the process, the Proceeding has been twice transferred. Critically, "related to" jurisdiction more than plausibly exists for this Proceeding under Third Circuit law. As set out by the Supreme Court in Christianson, this plausible jurisdictional hook counsels the Court to honor the prior decision of the Eastern District of Michigan. The law of the case doctrine counsels this Court to not issue a different jurisdictional finding under the Order.
The parties further consider whether this Court has any jurisdiction over the Proceeding, primarily as a non-core proceeding "related to" the Debtors' bankruptcy. To the extent the Court finds appropriate jurisdiction here, such a result will support the law of the case determination infra and provide its own support for retaining or abstaining from the Proceeding.
A bankruptcy court's jurisdiction extends to four types of matters: (1) cases under title 11, (2) proceedings arising under title 11, (3) proceedings arising in a case under title 11, and (4) proceedings related to a case under title 11.
Plaintiff contends, and Defendant does not dispute, that the Proceeding does not fulfill the elements necessary for "core" jurisdiction. As the Third Circuit delineated in Halper, core proceeding are those matters listed under 28 U.S.C. § 157(b), as well as proceedings that either (1) invoke a substantive right under the Bankruptcy Code or (2) could only arise within a bankruptcy context.
This leaves the Court to review whether this Proceeding fulfills the requirements for "related to" jurisdiction. Both parties agree that the Proceeding is "non-core," but a dispute remains as to whether the Proceeding is "related to" the bankruptcy. Defendant contends that the Proceeding relates to the bankruptcy through (1) the contractual indemnity between Rachmale and Debtor LTC and (2) Superior's attempt to pierce the corporate veil for joint conduct associated with Debtor Lakeshore.
In response, Plaintiff asserts that the Proceeding is not "related to" the bankruptcy because none of the Debtors are party to the lawsuit, the Trustee has not sought to intervene, nor has Rachmale asserted a third-party complaint against any Debtors in his answer. Plaintiff further argues that its right to a jury trial on the Proceeding prevents this Court from asserting jurisdiction.
A civil proceeding that is "related to" a title 11 case may be subject to bankruptcy court jurisdiction. Under Third Circuit law, as agreed upon in principle by the Supreme Court, a case relates to a bankruptcy proceeding if "the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy."
Rachmale first contends that the possible indemnification claim he can assert under LTC's amended articles of incorporation creates "related to" jurisdiction. Plaintiff does not respond to this argument.
As the Third Circuit noted in Pacor, an indemnification claim may, but does not necessarily, create "related to"
Unlike common law indemnification claims, contractual indemnifications generally "may ... present[ ] a more direct threat to ... reorganization."
Pacor, Federal-Mogul, and associated cases ask the Court to consider two key questions: "(1) does the action against the party seeking indemnification automatically result in debtor's liability for indemnification; and (2) is a subsequent lawsuit against the debtor required prior to a determination of indemnification?"
The Eastern District of Pennsylvania recently applied the Pacor test to a broad contractual indemnification more restrictive than the one in this Proceeding. In that case, the indemnity covered all actions except those for "gross negligence or willful misconduct," as well as assuming "the defense and the expense of defending against claims, even though [the third party's] liability ha[d] not yet been established."
In the pre-Federal-Mogul era as well, the Third Circuit held that "related to" jurisdiction exists in cases where "key employees of the debtor were sued and where there was a right of indemnification.
Plaintiff attaches LTC's articles of incorporation, which "indemnify any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action ... by reason of the fact that such person is or was ... serving at the request of the Corporation as a director of another corporation, partnership, joint venture, trust or other enterprise..." This same indemnification extends to cover officers and employees of LTC and its direct subsidiaries. The indemnity covers "against expenses (including attorney's fees and expenses), judgments, fines, penalties and amounts paid in settlement incurred (and not otherwise recovered) in connection with the investigation, preparation to defend or defense of such action ..."
The indemnity further describes how LTC "shall pay on a current and as-incurred basis expenses incurred ... in defending or otherwise participating in any action ... upon presentation of (i) an unsecured written undertaking to repay such amounts if it is ultimately determined that the person is not entitled to indemnification hereunder and (ii) adequate documentation reflecting such expenses."
The language quoted above represents a broad, yet standard, indemnification by a parent corporation, LTC, of its subsidiaries, including Lakeshore. The indemnity covers directors and officers, including former President, CEO, and director Rachmale; and the terms clearly cover actions pre-judgment, regardless of fault by the individual director. The only written exception to the indemnification concerns actions "initiated by or on behalf of such [covered] person ...," which is not the case for this Proceeding brought by Superior against Rachmale.
To the extent Rachmale is entitled to the indemnification, there is no need for him to bring a new action because the indemnity is automatically triggered. The language stipulates that Rachmale need only sign a writing agreeing to repay costs to the extent it is later determined not to be covered by the indemnification and provide documentation of his expenses. If LTC wishes to challenge his indemnification claim, LTC must initiate such proceeding to undo the presumed applicability of the indemnity. Any possible defenses by the Debtors against Rachmale's claim are not enough to derail jurisdiction over the
Whether or not Rachmale has asked the Court for indemnification at this time is irrelevant,
Defendant next claims that "related to" jurisdiction exists due to Superior's claim to pierce the corporate veil from LTC to Rachmale, "where liability is alleged to result from the joint conduct of the debtor and non-debtor defendant[]."
It has been established in the Third Circuit that "actions by a creditor to pierce the corporate veil, or alter ego actions against the debtor corporation, are often considered non-core, `related to' proceedings."
While no cases within this circuit specifically extend bankruptcy court jurisdiction to veil piercing claims brought by and against non-debtor third parties, the Third Circuit has acknowledged that certain third-party cases may still "relate to" a debtor's bankruptcy if they create derivative liability.
Yet any attempt to pierce the corporate veil through a debtor's corporate structure must necessarily create liability on the part of the debtor. An "attempt to pierce the corporate veil [i]s not itself a cause of action but rather a means of imposing liability on an underlying cause of action, such as a tort of a breach of contract ..." against the underlying corporate entity.
The District of Michigan noted in its opinion that "debtor Lakeshore and non-debtor Rachmale are one and the same, as alleged by Superior ..."
Although Superior has not joined any Debtor entities in the Proceeding and Dow Corning is not applicable precedent in this jurisdiction, the veil piercing claims likely maintain "related to" jurisdiction as derivative claims. It is clear Superior alleges Lakeshore to be the alter ego of Rachmale, and the Proceeding hinges on the same conduct as the original cause of action filed against Debtor Lakeshore in the Tennessee Chancery. This clearly falls within the boundaries of "related to" jurisdiction for derivative claims. Any dispositive finding that results in piercing the corporate veil for the Proceeding will require a finding of liability against Debtor Lakeshore, satisfying the Pacor test.
In sum, the Court's "related to" jurisdiction over this Proceeding is then satisfied under both the indemnification provision's coverage and Superior's attempt to pierce the corporate veil.
Defendant lastly contends the Court should find that jurisdiction is improper because Superior never waived its right to a jury trial.
The Seventh Amendment to the U.S. Constitution preserves the right to a jury as follows: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ..."
Superior clearly reserved its right to a jury trial in the complaint filed in the Western District of Tennessee. But whether or not a jury trial is proper in the Proceeding, the reservation of a right to a
A right to jury trial may provide a reason for a withdrawal of reference, as Superior suggests it could, but the argument is not ripe for review. First, "Congress has mandated that a party seeking to withdraw a proceeding from a bankruptcy court to a district court can do so only upon the filing of a `timely' motion."
In sum, although Superior has not waived its alleged right to a jury trial, this does not change the jurisdiction of the Court to hear the Proceeding. It is established practice to keep jury trials in the bankruptcy court for pre-trial proceedings, and then let the district court proceed with the final trial. Nor is a withdrawal of reference appropriate without a motion.
Given the above, this Court finds "related to" jurisdiction for the Proceeding because of (1) the law of the case doctrine, (2) the broad indemnification applied to Rachmale through Debtor LTC, and (3) the claim to pierce the corporate veil against Rachmale due to his alleged control of Debtor Lakeshore. The Court will also refrain from removing the reference at this stage in the Proceeding.
The Order next asks whether this Court should abstain from hearing this Proceeding. As discussed above, because this Court may only consider mandatory abstention under § 1334(c)(2) upon motion of a party, the Court's Order may only review for the applicability of permissive abstention.
Federal courts maintain broad discretion to abstain from actions involving state law claims "in the interest of justice, or in the interest of comity with State courts or respect for State law."
Logically then, a bankruptcy cannot abstain from a proceeding that commenced in federal court and which maintains diversity jurisdiction separate from the bankruptcy court's jurisdiction under title 11. The Proceeding was commenced in the Western District of Tennessee, which found diversity jurisdiction exists in its own written opinion transferring venue. No state proceeding against Rachmale exists; if a parallel state proceeding exists at all, it is against Lakeshore in the Tennessee Chancery Court. This proceeding has been stayed since the Debtors bankruptcy.
To the extent that the Tennessee state action could proceed, it could only do so as a pre-petition claim in this Court, which Superior has not sought.
For the reasons stated supra, the Court does not permissively abstain from hearing the Proceeding.
The last question advanced by this Court in its Order was whether the Proceeding should be remanded to state court. The considerations governing equitable remand pursuant to § 1452(b) are identical to those factors governing abstention under § 1334(c)(1).
Remand to state court would be inappropriate in this case. Although the Proceeding only addresses state causes of action, it was commenced in federal court. The only state court action related to this dispute was filed in the Tennessee Chancery Court against Lakeshore, which was stayed upon the filing of the Debtors' bankruptcy. This Proceeding was subsequently filed as a separate suit against Rachmale in the Western District of Tennessee.
Remand to a state court is consequently unavailable for the Proceeding.
The Court finds that "related to" jurisdiction exists over the Proceeding as supported by this opinion and the prior ruling of the Eastern District of Michigan, permissive abstention is inappropriate, and remand to state court is unavailable.
An order will be issued.
