Opinion
MICHAEL J. STORTZ (SBN 139386) MATTHEW J. ADLER (SBN 273147) DRINKER BIDDLE & REATH LLP, San Francisco, CA, Attorneys for Plaintiff C&S WHOLESALE GROCERS, INC., on behalf of Estate of DeLano Retail Partners, LLC.
KORNFIELD, NYBERG, BENDES & KUHNER, P.C. Eric A. Nyberg, Attorneys for Defendants 2040 Fairfax Inc., Harley DeLano, and Dennis DeLano.
Joseph M. Neri, Defendant in Pro. Per.
STIPULATION AND ORDER TO REFER CASE
TROY L. NUNLEY, District Judge.
WHEREAS, on July 15, 2013, Plaintiff C&S Wholesale Grocers, Inc. ("CSWG") filed a Complaint in this action on behalf of the bankruptcy Estate of DeLano Retail Partners, LLC ("DRP") and against Defendants Harley DeLano, Dennis DeLano, Joseph Neri, and 2040 Fairfax, Inc. (collectively "Defendants");
WHEREAS, CSWG filed the Complaint in this action pursuant to a ruling made by the United States Bankruptcy Court, Eastern District of California ("Bankruptcy Court") at a June 18, 2013 hearing in DRP's pending Chapter 7 bankruptcy proceedings ( In re DeLano Retail Partners, LLC, Case No. 11-37711-B-7), wherein the Bankruptcy Court granted the Trustee's Motion for Approval of Compromise of Controversies, Including Approval of Stipulation and Sale of Estate Assets (D.E. 119, Case No. 11-37711-B-7);
WHEREAS, before CSWG filed the Complaint in this action, the parties met and conferred to stipulate that the Bankruptcy Court would have plenary jurisdiction over this action if filed in the first instance in the Bankruptcy Court;
WHEREAS, as the parties could not reach agreement on this point, CSWG filed the Complaint in this Court in the first instance;
WHEREAS, on July 17, 2013, CSWG filed a Notice of Related Cases in this action to direct this Court's attention to DRP's bankruptcy proceedings and CSWG's Adversary Proceeding against the Defendants herein ( C&S Wholesale Grocers, Inc. v. Harley DeLano et al., Adversary Proceeding No. 12-02686-B), both of which are currently pending before the Honorable Thomas C. Holman in the Bankruptcy Court;
WHEREAS, since the filing of the Notice of Related Cases, the parties herein have agreed that this action is indeed "related, " within the meaning of Local Rule 123, to the two above-referenced matters currently pending before Judge Holman in the Bankruptcy Court;
WHEREAS, the parties further agree that this action is properly referred to the Bankruptcy Court pursuant to Part 1.01 of this Court's General Order No. 182, which states "all proceedings arising under Title 11 [of the United States Code] or arising in or related to cases under Title 11" shall be referred to the Bankruptcy Judges of this District;
WHEREAS, on July 25, 2013, Judge Holman entered the Order attached hereto as Exhibit A, which formally grants the Trustee's above-referenced Motion and requires CSWG to actually prosecute and reasonably pursue the claims of the Estate of DRP (D.E. 125, Case No. 11-37711-B-7);
WHEREAS, in the interest of compliance with the July 25, 2013 Order of the Bankruptcy Court, the parties herein have agreed to submit this Stipulation to effect a prompt reassignment of this action to the Bankruptcy Court in accordance with General Order No. 182, but without waiver of any other positions, rights, claims, or defenses, including any jurisdictional defenses;
WHEREAS, by Order filed July 30, 2013 (D.E. 9), this Court declined to relate this case, without prejudice to the parties to file a stipulation or motion to refer this action to the Bankruptcy Court;
THEREFORE, IT IS HEREBY STIPULATED by and between the parties and their respective counsel as follows:
1. Pursuant to General Order No. 182 and the agreement of the parties, this action should be referred to the Bankruptcy Court, for assignment to Judge Holman;
2. Pursuant to the Court's inquiry (see July 30, 2013 Order at 2:7-8), the Bankruptcy Court has not yet made a determination as to whether the claims in this action are "core" or "non-core, " within the meaning of 28 U.S.C. Section 157(b)(3); and
3. Pursuant to the Court's further inquiry (see July 30, 2013 Order at 2:18-19), the parties note that issues related to jurisdiction may be addressed by the Supreme Court of the United States in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance Agency, Inc.), 702 F.3d 553 (9th Cir. 2012), cert. granted, 81 U.S.L.W. 3582 (U.S. June 24, 2013) (No. 12-1200). The parties reserve their respective positions, including their positions regarding jurisdiction. In the interim, this action is appropriately referred to the Bankruptcy Court.
IT IS SO STIPULATED.
ORDER
Pursuant to Stipulation, IT IS SO ORDERED.