VITALIANO, District Judge.
Aero Safety Graphics ("ASG") moves, under 28 U.S.C. § 157(d) and Federal Rule of Bankruptcy Procedure 5011, to withdraw its administrative claim and objections made to it from reference to the United States Bankruptcy Court for the Eastern District of New York as part of case No. 1-12-40783-CEC, In re Global Aviation Holdings, et.al., now pending before the Honorable Carla E. Craig, Chief United States Bankruptcy Judge. For the following reasons, ASG's motion to withdraw the reference is denied.
ASG holds several copyrights related to the design of passenger safety information cards, such as the ones provided to passengers on commercial airliners. From 1999 to 2003, ASG contracted with and provided to North American Airlines, Inc. ("NAA"), a co-debtor and subsidiary of debtor Global Aviation Holdings, Inc. ("GAH"), products containing the copyrighted designs. Although ASG did not confront NAA until 2011, ASG asserts that, in 2009 or earlier, NAA began either reproducing the designs and creating derivative works or purchasing safety cards containing copyrighted material from CF Group, a third party vendor. ASG's initial outreach to NAA proved futile, and legal action ensued the following year.
On February 5, 2012, before ASG sought judicial intervention, GAH and its affiliates, including NAA, filed for bankruptcy under Chapter 11 of the Bankruptcy Code. On July 27, 2012, ASG filed a proof of loss against the estate of NAA, claiming damages resulting from prepetition infringement
On January 8, 2013, ASG responded to GAH's omnibus objection by filing the "Declaration of Peter Bonneau in Support of Reply of Aero Safety Graphics, Inc. to Debtors' First Omnibus Claims Objection," in which ASG asserted that NAA continued to infringe on ASG's copyrights post-confirmation. Additionally, ASG filed an "Answer and Counterclaim" seeking monetary damages and injunctive relief. Finally, ASG demanded discovery of the debtors in the bankruptcy court, which is ongoing.
District courts have original jurisdiction over all civil proceedings "arising under" or "related to" bankruptcy cases brought pursuant to Title 11 of the United States Code. 28 U.S.C. § 1334. The district court may, however, refer such matters to the bankruptcy judges of the district. 28 U.S.C. § 157(a). In this district, all bankruptcy cases are referred to our bankruptcy court under the Standing Order of Referral, dated August 28, 1986. However, the district court retains the authority to withdraw the reference in two circumstances. See 28 U.S.C. § 157(d).
First, § 157(d) provides for mandatory withdrawal "if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce." 28 U.S.C. § 157(d). "The Second Circuit ... construes this provision `narrowly,' requiring withdrawal of the reference only if `substantial and material consideration of non-Bankruptcy Code federal [law] is necessary for the resolution of the proceeding.'" In re Extended Stay, Inc., 466 B.R. 188, 196 (S.D.N.Y.2011) (quoting In re Ionosphere Clubs, Inc., 922 F.2d 984, 995 (2d Cir.1990)) (emphasis supplied).
In addition, § 157(d) provides for permissive withdrawal "for any cause shown." 28 U.S.C. § 157(d). "In determining whether a party has shown `cause,' courts consider factors including `whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law.'" In re Murphy, 482 Fed.Appx. 624, 628 (2d Cir. 2012) (quoting In re Orion Pictures, Corp., 4 F.3d 1095, 1101 (2d Cir.1993)). Commonly referred to as the Orion factors, each is considered by courts in the Second Circuit. In re Burger Boys, Inc., 94 F.3d 755, 762 (2d Cir.1996). Critically, while multiple factors are evaluated, the first and most important inquiry in the overall evaluation of a request for permissive
At the same time, the Supreme Court emphasized recently in Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), a finding that a matter is core does not ensure that the bankruptcy court has the constitutional authority to adjudicate it. Rather, in its capacity as a legislatively-created court falling outside of Article III of the Constitution, the bankruptcy courts may enter final judgment only "(1) if the claim involves a public right; (2) the process of adjudicating the creditor's proof of claim would resolve a counterclaim; or (3) if the parties consent to final adjudication by the bankruptcy court." Dynergy Danskammer, L.L.C. v. Peabody COALTRADE Int'l Ltd., 2012 WL 5464619, at *4 (S.D.N.Y.2012) (citing Stern, 131 S.Ct. at 2608). While Stern indeed limits the universe of cases properly finalized by the bankruptcy courts, the Supreme Court emphasized that its holding was a "narrow" one that did not "meaningfully change[ ] the division of labor" between bankruptcy courts and district courts. Stern, 131 S.Ct. at 2620.
Even though they agree on little else, the parties concur that ASG's claim hinges on whether GAH or its subsidiaries infringed on ASG's copyrights and, if so, the extent to which GAH or its subsidiaries benefitted from the unlawful use of ASG's design. Obviously the dispute cannot be resolved without analyzing copyright law. But the degree of interpretation required does not approach the "significant and material consideration" that triggers mandatory withdrawal under Second Circuit precedent. In re Ionosphere Clubs, Inc., 922 F.2d at 995; see also In re Amfesco Industries, Inc., 1988 WL 134153 (E.D.N.Y.1988) (denying motion to withdraw reference of an administrative claim that required a determination of whether a copyright had been violated). The laws at issue are not new, and both the statutory language and the extensive jurisprudence that has developed around it offer a roadmap that a bankruptcy judge and district court judge can follow with equal ease. See In re Amfesco Industries, Inc., 1988 WL 134153, at *2. To find that the straightforward application of such a well-developed body of federal law demands removal of the reference would, in essence, provide the very "escape hatch ... to the district court" that Congress expressly intended to avoid in crafting the mandatory withdrawal provision. Id. (quoting House Debate on § 157(d), 130 Cong. Rec. S6081 (daily ed. June 19, 1984)). Accordingly, mandatory withdrawal of ASG's claim is not warranted.
In analyzing permissive withdrawal, courts in this circuit consider first and foremost whether a proceeding is core or non-core. Codified at 28 U.S.C. § 157(b), core proceedings encompass "all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11," including but not limited to "matters concerning the administration of the estate" and "allowance or disallowance of claims against the estate." Conversely, non-core proceedings merely "relate[] to a case under title 11." 28 U.S.C. § 157(c)(1). While a bankruptcy court can hear both
ASG's claim falls squarely at the heart of the bankruptcy court's core jurisdiction. Indeed, even ASG does not seriously contest that it demands anything other than an "allowance ... of claims against the estate." 28 U.S.C. § 157(b)(2)(B).
Moreover, ASG cannot retreat to safety in Stern's articulation of the limits of the bankruptcy court's constitutional authority. There has never been any doubt that a bankruptcy judge has the constitutional authority and statutory jurisdiction to enter final judgment in a core proceeding concerning the allowance of claims against a bankruptcy estate. 1-3 Collier on Bankruptcy P 3.02. Analytically, it is clear that ASG's claim constitutes a core claim that falls comfortably within the constitutional authority of the bankruptcy court.
Furthermore, ASG does not create grounds for withdrawal by asserting in its reply that it has reserved its right to a jury trial. Even assuming arguendo that ASG properly preserved that right — a conclusion that is not necessarily warranted based on the record before the Court — withdrawal would not be appropriate at this time. "[P]ermissive withdrawal to take the case to a district court for trial by jury, on asserted Seventh Amendment grounds, will become a question ripe for determination if and when the case becomes trial ready." In re Extended Stay, Inc., 466 B.R. at 198 (internal quotations omitted); see also In re Murphy, 482 Fed. Appx. at 628 ("The mere presence of a jury demand in a case does not mandate withdrawal of the reference, as a district court ... might decide that a case is unlikely to reach trial, that it will require protracted discovery and court oversight before trial, or that the jury demand is
Finally, denial of ASG's motion does nothing more than permit ASG to continue litigating its claim in precisely the forum where it first chose to introduce it as an administrative claim. The policy of avoiding forum shopping weighs in favor of keeping the claim in bankruptcy court.
For the foregoing reasons, ASG's motion to withdraw the reference is denied, and its administrative expense claim shall be returned to the bankruptcy court further proceedings consistent with this Memorandum and Order.
The Clerk of Court is directed to close this docket.
SO ORDERED.