OPINION ORDER

HAROLD BAER, JR., District Judge

This matter first came before me in April 2003. In June 2003, I denied Vornado Realty Trust's ("Vornado") motion to withdraw the bankruptcy reference in In re Bradlees Stores, Inc., No. 03 Civ. 2549 and placedStop Shop Supermarket Co. v. Vornado Realty Trust, No. 03 Civ. 2466 (HB) ("the removed case") on suspense pending a ruling by the United States Bankruptcy Court for the Southern District of New York ("the Bankruptcy Court") on Vornado's motion to interpret. At that time, there were three pending motions in the removed case — the Stop Shop Supermarkets Co.'s ("Stop Shop") motion for abstention and remand and the parties' cross-motions for summary judgment. The Bankruptcy Court has now ruled on Vornado's motion to interpret and Vornado has appealed. Oral argument was held on all of the motions on January 14, 2005. The decision set forth herein addresses both the bankruptcy appeal, In re Bradlees, No. 04 Civ. 5500 (HB), and the pending motions in the removed case, Stop Shop Supermarket Co. v. Vornado Realty Trust, No. 03 Civ. 2466 (HB). For the reasons that follow, the decision by the Bankruptcy Court is affirmed and Stop Shop's motion for abstention and remand is granted in part and denied in part and this matter is remanded to the New York State Supreme Court. In light of these rulings, I need not reach the cross-motions for summary judgment.

I. BACKGROUND

A. Factual Background

The pertinent facts that underlie the present dispute are as follows: Briefly, in the 1980s, Stop Shop's predecessors entered into a number of leases (collectively, "the Vornado leases") for retail space in shopping centers owned by Vornado and/or its affiliates. In July 1992, Stop Shop assigned the Vornado leases to a division of Bradlees Stores, Inc. ("Bradlees"). Assignment of the leases required Vornado's consent, which it gave in return for compensation. Thus, on May 1, 1992, Vornado (landlord), Bradlees (tenant), and Stop Shop (guarantor) entered into what they styled the Master Agreement and Guaranty ("the Master Agreement"), wherein Bradlees agreed to pay (and Stop Shop agreed to guarantee) Vornado something called a "consent fee." This consent fee represented rental increases ("consent fee/rental increases") and were in addition to the rents due on the Vornado leases. Under the Master Agreement, the consent fee/rental increases were to be paid as follows:

On December 26, 2000, Bradlees and other entities filed for bankruptcy under Chapter 11 with the intention of liquidating. Judge Lifland authorized "going out of business sales" at Bradlees stores, which were concluded by February 5, 2001 and the stores were then closed. As part of the liquidation, Bradlees and Stop Shop sought to assign Bradlees' leases, including the Vornado leases and Bradlees moved to invalidate the Allocation Provision as an anti-assignment clause prohibited by 11 U.S.C. § 365. Bradlees and Stop Shop were concerned that the Vornado leases would not be as marketable with the then-existing Allocation Provision because of the uncertainty of the total rent due, given Vornado's ability to unilaterally change the rental increase from lease to lease and thus sought to have the allocation power transferred from Vornado to Bradlees and Shop Shop. By Order dated February 6, 2001 ("the February 6 Order"), Judge Lifland ruled, inter alia, that the Allocation Provision was an invalid de facto anti-assignment clause and granted Bradlees and Stop Shop the relief they sought. In so ruling, he noted that invalidation of the Allocation Provision would not detrimentally impact Vornado because it retained the right to assert claims against Stop Shop under the Master Agreement in which Stop Shop was the guarantor. February 6 Order ¶ EEE. Vornado appealed and on February 13, 2001, Judge McKenna affirmed the February 6 Order, with the caveat that "the present allocation of the rent increases will remain in place, will be frozen, as Vornado requested of Judge Lifland . . . and again of this court . . . [T]he rent increase allocations presently in place will remain in effect through the terms and any lessee's option terms of the leases. . . ." 2/9/2001 Tr. at 5:24-6:1, 7:1-3. This ruling was based on his view that there was "no cognizable basis . . . for the transfer of the allocation power." Id. at 6:6-7.

Four of the five leases upon which the rental increases had been applied (and frozen) expired in November 2002, at which time Vornado attempted to reallocate them to other leases. Vornado apparently believed that Judge McKenna's order freezing the allocation of the rental increases expired when the leases ended. Stop Shop disagreed and commenced litigation, which, as will be detailed below, ultimately brought the matter to me.

B. Procedural History

The road here has been a long one, full of a myriad of procedural permutations. This case first began back in December 2002 when Stop Shop filed suit in the District of New Jersey and sought a declaratory judgment regarding the parties' respective rights and obligations under the Master Agreement as impacted by the rulings of Judges Lifland and McKenna. Vornado moved to dismiss the complaint for lack of jurisdiction, given that the citizenship of an affiliated defendant rendered the parties non-diverse. Stop Shop voluntarily withdrew the action and re-filed a nearly identical complaint in New York State Supreme Court.

On April 9, 2003, Vornado removed the case here on the ground that it was a bankruptcy matter over which the federal court had jurisdiction under 28 U.S.C. § 1334(a). The removed case was first referred to Judge McKenna as related to an earlier filed action (the original bankruptcy appeal), but he declined to accept the case and it was assigned to me. The next day, April 10, 2003, Vornado filed a motion in bankruptcy court to interpret the February 6 Order as modified by Judge McKenna on the grounds that the February 6 Order was issued in a "core proceeding" and the Bankruptcy Court retained jurisdiction to interpret, implement, and enforce that Order. The very next day, April 11, 2003, Vornado initiated another case in this District, In re Bradlees, No. 03 Civ. 2549, by filing a motion to withdraw the bankruptcy reference on the grounds that it would be more efficient to have the district court rule on the motion in the first instance. I accepted this case as related to the removed action and denied the motion based on my view that it would be better for Judge Lifland, who was familiar with the proceedings, to rule in the first instance. I then closed No. 03 Civ. 2549 and placed the removed case on suspense pending a decision from Judge Lifland on Vornado's motion. By then, Stop Shop had moved for abstention and remand back to state court and the parties' had cross-moved for summary judgment in the removed case.

While in Bankruptcy Court, the parties initially agreed to mediate the dispute at Judge Lifland's suggestion. When it was unsuccessful after a year, Judge Lifland denied Vornado's motion to interpret and granted Stop Shop's motion to abstain pursuant to both mandatory abstention, 28 U.S.C. §§ 1334(c), and permissive abstention, 28 U.S.C. § 1334(c)(1). Vornado has appealed the Bankruptcy Court's June 2004 decision. It is that appeal, together with the outstanding motions in the removed case, that I address today.

II. DISCUSSION

As will be set out in greater detail below, Judge Lifland did not err and, accordingly, his ruling is affirmed and Stop Shop's motion for abstention and remand is granted for substantially the same reasons. Despite a lot of dressing up, this is, in essence, as Judge Lifland concluded, a contract dispute between non-diverse parties that is only tangentially related to the Bradlees bankruptcy case. The dispute regarding Vornado's ability to reallocate the rental increases under the Master Agreement must therefore be adjudicated in New York State Supreme Court. Vornado cannot seek guidance in either this Court or any other as to how the February 6 Order as modified on appeal will impact upon the parties' dispute, which arises out of the Master Agreement. That, as Stop Shop recognizes, must be adjudicated in a plenary action in a proper forum.

A. The Bankruptcy Appeal

1. Standard of Review

The Federal Rules of Bankruptcy Procedure provide that "[o]n an appeal the district court . . . may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree." Fed.R.Bankr.P. 8013. A bankruptcy court's conclusions of law are reviewed de novo. In re Ionosphere Clubs, Inc., 922 F.2d 984, 988 (2d Cir. 1990). "Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses." Fed.R.Bankr.P. 8013. Under this "clearly erroneous" standard of review of factual findings, the bankruptcy court decision may only be reversed when the district court is "left with the definite and firm conviction that a mistake has been committed." BP Energy Co. v. Bethlehem Steel Corp., No. 02 Civ. 6419, 2002 WL 31548723, at *2 (S.D.N.Y. Nov. 15, 2002) (quotation marks and citation omitted).

2. The Bankruptcy Court Decision

Implicit within Judge Lifland's opinion is that Vornado's motion to interpret seeks an improper advisory opinion and it is on this ground that his ruling is affirmed. E.g., Citrus Marketing Bd. of Israel v. J. Lauritzen A/S, 943 F.2d 220, 223 (2d Cir. 1991) ("we may affirm on any basis for which there is a record sufficient to permit conclusions of law, including grounds on which the district court did not rely"). In its motion to interpret, Vornado "asks the Court that issued and modified the February 6 Order to make clear . . . when [Bradlees and Stop Shop] obtained the Order, that it had no effect on Vornado's rights against Stop Shop." Vornado's Mem. in Support of Mot. to Interpret at 2. This is precisely the issue to be decided in the plenary action Stop Shop commenced in New York State Supreme Court and Vornado removed to this Court. As Judge Lifland noted, "a ruling on the Interpretation Motion . . . will not resolve the dispute between the parties," Mem. Dec. at 9, as it will not decide the declaratory judgment that Stop Shop sought when it filed suit some years ago.

Vornado, in essence, would like the Court that issued and/or modified the February 6 Order to explain what that Order meant. Vornado has attempted to cast this as the most logical and efficient way to proceed, but in so doing, it has overlooked critical factual and legal stumbling blocks. First, the parties' dispute with respect to payment (or non-payment) of the consent fee/rental increases arises under the Master Agreement, not the February 6 Order. The Order may have modified that contractual agreement insofar as it touched an aspect of the Master Agreement, but Stop Shop's duties as obligor on the consent fee/rental increases are derived from the Master Agreement itself. Construing the February 6 Order will not resolve the parties' dispute. Indeed, Vornado conceded as much at oral argument when it noted that by way of its summary judgment motion it does not seek a monetary award, but only a declaration that the February 6 Order in no way relieved Stop Shop of its obligations to pay the consent fee/rental increases. 1/14/2005 Tr. at 53:22-54:3 ("[A]ll we are asking for is a summary judgment dismissing Stop Shop's claim for declaratory judgment . . . We are not asking for a judgment for money. They started the proceeding seeking a declaratory judgment that Judge McKenna's order relieved them of their obligations. We are just saying dismiss that."). Even is such relief were granted, Vornado would then have to initiate another suit to collect its consent fee/rental increases because it could not possibly sue to collect the sums allegedly due under the February 6 Order. Vornado's presumption that Stop Shop is "honorable" and will therefore pay "once [it] find[s] out that Judge McKenna did not relieve [it] of [its] obligations," id. at 19:25-20:2, is insufficient in the ordinary course and more so here where the parties cannot even agree upon the court in which this dispute should be litigated.

Second, the February 6 Order is not ambiguous. By its terms, as relevant to this discussion, the February 6 Order provided that the Allocation Provision was invalid. Any ambiguity regarding this Order stems from its application to previously existing obligations. Thus, Vornado seeks to have this and/or the Bankruptcy Court declare the meaning of the February 6 Order as applied to another dispute — to state its preclusive effects. This, as Stop Shop has argued, is firmly prohibited. E.g., Law v. Ernst Young, 956 F.2d 364, 367 (1st Cir. 1992) ("It is not the function of an appellate court to issue advisory opinions in order to help parties . . . enforce their legal rights in some other tribunal.").

Third, even if such a declaration were possible, the courts that issued and modified the February 6 Order have declined to construe the Order. Moreover, jurisdictional bars simply cannot be swept aside for the sake of efficiency, as they are based on the power of a tribunal or lack thereof. Thus, Vornado's logic and efficiency arguments are misplaced.

Fourth, Judge Lifland denied Vornado's motion to interpret because he believed he did not have the ability to do so. When reduced to its essentials, Judge Lifland's ruling, as noted above, was that this is a contractual dispute under the Master Agreement between non-debtors that is only remotely related to the Bradlees bankruptcy case, one that is closed. Thus, Judge Lifland did not — indeed, could not — have retained jurisdiction over a dispute such as this. To bolster its position, Vornado relies on In re Petrie Retail, Inc., 304 F.3d 223, 229 (2d Cir. 2002), a case in which the Second Circuit held that a plan consummation motion that involved a post-petition contract dispute was a core matter over which the bankruptcy court had jurisdiction. However, the contract dispute there was "uniquely affected by and inextricably linked to the bankruptcy court's . . . [o]rder" and "involved an issue already before the bankruptcy court as part of its consideration of [one of the parties'] claim against the estate." Id. at 230. Those same factors are not present here. Moreover, the Second Circuit's holding was limited to the facts and it expressed "no view as to whether any one of these facts alone would render a proceeding core." Id. at 231.

Vornado further contends that bankruptcy courts, and indeed, Judge Lifland himself, have previously granted similar motions to interpret their orders. By way of example, Vornado points to In re Ames Dep't Stores, Inc., 317 B.R. 260, 262 (Bankr. S.D.N.Y. 2004), a case in which Judge Gerber held that the court had subject matter jurisdiction to issue injunctive relief to enforce the court's prior order. In that case, the court had previously entered an order that permitted the assignment of a series of leaseholds and authorized the assignees to alter or remodel the leased premises notwithstanding any clause in the lease to the contrary.Id. at 263. The landlord later contended that the assignee's alterations were unauthorized and issued a notice of default. Id. at 264. The assignee initiated an adversary proceeding in which it sought enforcement of the court's prior order. The court ruled — relying principally on In re Petrie — that it had jurisdiction over this matter because the rights at issue were established by the court's prior order and the court retained the power to enforce its own orders. Id. at 271-72. Here, neither criteria applies, nor is this "an issue already before the bankruptcy court," the third criterion applied in In re Petrie. Id. at 271. Simply stated, Vornado does not seek to enforce rights created by the February 6 Order. The anti-assignment clause of the Master Agreement — the only issue under the Master Agreement that the February 6 Order purported to address — has been stricken. Rather, and with no support for its position, Vornado seeks to foist the duty of enforcing its contractual rights upon the Bankruptcy Court by bootstrapping on the February 6 Order.

In sum, while I find Judge Lifland's abstention analysis sound, I affirm based on a lack of subject matter jurisdiction. For substantially the same reasons, I must grant Stop Shop's motion for abstention and remand.

B. The Removed Case

Having concluded that the Bankruptcy Court properly refrained from opining on the merits of the parties' dispute, I must now decide whether it can be adjudicated in this forum. As noted, Stop Shop has moved for abstention and remand in the removed case based on its belief that,inter alia, the principles of mandatory abstention apply. The basis for mandatory abstention is set out in 28 U.S.C. § 1334(c)(2), which provides, in pertinent part, that "[u]pon timely motion of a party in a proceeding based upon a State law claim . . . related to a case under title 11 but not arising under title 11 . . . with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction." Thus, there are six factors for the Court to consider: (1) the motion for abstention is timely; (2) the action is based on a state law claim; (3) the action is related to a bankruptcy case, but does not itself arise under the bankruptcy code; (4) § 1334 is the sole basis for jurisdiction; (5) the action was commenced in state court; and (6) can timely be adjudicated in that forum. E.g., In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liability Litig., 341 F. Supp. 2d 386, 411-12 (S.D.N.Y. 2004). All of these criteria must be satisfied. Id. at 412 n. 146. Vornado contends that factors (2), (3), (5), and (6) are lacking. I address these factorsseriatim.

1. Factor (2) — State Law Claim

Vornado has attempted to frame the dispute as revolving around the meaning and significance of the February 6 Order, which is necessarily governed by federal law. With this, Vornado focuses on the trees without regard to the forest. The source of their dispute — whether Stop Shop is required to pay the consent fee/rental increases — is grounded in the Master Agreement, the interpretation of which is subject, in part, to the February 6 Order. As a consequence, the claims at issue necessarily arise under state law.

2. Factor (3) — Non-Core Bankruptcy Matter

Vornado contends that the action is a core bankruptcy matter because the February 6 Order was issued in a case that arose under the bankruptcy code (In re Bradlees). Nonsense. This is a contract dispute that involves issues related to a bankruptcy case (the February 6 Order) and thus is a non-core bankruptcy matter. As Stop Shop points out, Vornado itself argued when it moved to withdraw the bankruptcy reference, that this case presents no bankruptcy questions. As set out above, bankruptcy jurisdiction cannot be based on the February 6 Order because this dispute does not involve rights created by that order, nor is it related to a matter pending before the Bankruptcy Court. Mem. Dec. at 8. (explaining that following execution of the liquidation plans and resolution of all claims against the Debtors, "[o]n April 6, 2004, an application for a final decree was granted and the Debtors' cases were closed."). In re Petrie, 304 F.3d 223 is therefore inapposite.

3. Factor (5) — "Commenced" in State Court

Courts are split on the question of whether a removed case satisfies the requirement that the case have been "commenced in state court." The Fifth, Sixth, and Eleventh Circuits held that a removed case satisfies this factor and the Ninth Circuit held that it does not. Compare Christo v. Padgett, 223 F.3d 1324, 1331-32 (11th Cir. 2000); In re Southmark Corp., 163 F.3d 925, 929 (5th Cir. 1999); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 584 n. 3 (6th Cir. 1990) with In re Lazar, 237 F.3d 967, 981-82 (9th Cir. 2001). There is authority on both sides of the issue in this District, although the more recent cases appear to have concluded that a removed case does not satisfy this factor because there are no comity concerns. E.g., Certain Underwriters at Lloyd's, London v. ABB Lummus Global, Inc., No. 03 Civ. 7248, 2004 WL 224505, at *7 (S.D.N.Y. Feb. 5, 2004). However, as the Fifth Circuit noted, "[t]here is no textual support in the statute" for the view that removed actions were not "commenced in state court." In re Southmark Corp., 163 F.3d at 929. I agree. Moreover, the Second Circuit has impliedly indicated that mandatory abstention applies to removed cases. See Covanta Onondaga Ltd. P'ship v. Onandaga County Resource Recovery Agency, 318 F.3d 392, 394 (2d Cir. 2003) (noting that the district court remanded a case following its determination that it was obligated to abstain under § 1332(c)(2)) (dictum).

4. Factor (6) — Timely Adjudication in State Court

Vornado contends that this case cannot be timely adjudicated in state court. "There is no clear consensus as to what constitutes `timely adjudication.'" In re Olympia York Maiden Lane Co. LLC, Nos. 98 B 46167, 98 B 46168, 98/9155A, 1999 WL 58581, at *7 (Bankr. S.D.N.Y. Jan. 25, 1999). Indeed, "it has been suggested that `timeliness be referenced against the needs of the title 11 case, rather than against an absolute time guideline.'" Id. (quoting 1 COLLIER ON BANKRUPTCY ¶ 3.05[2] (15th ed. rev. 1998)). Here, as in In re Olympia, the debtor's plan has been confirmed and consummated and thus the estate will not be affected by any timeliness concerns. Id. Moreover, notwithstanding Vornado's argument that Stop Shop is required to affirmative present evidence that the matter can, in fact, be timely adjudicated in state court, it is unclear that such an obligation exists. See, e.g., Acolyte Elec. Corp. v. City of New York, 69 B.R. 155, 180 (Bankr. E.D.N.Y. 1986), aff'd, No. 86-0329, 1987 WL 47763 (E.D.N.Y. March 27, 1987) (finding the requirement that "the movant affirmatively to show that the matter can be timely adjudicated in the state court . . . would seem to reverse the usual burden . . . that the party seeking to litigate in a federal forum must first establish that right"). Finally, as the Acolyte Elec. Corp. court noted, "[a]n examination of pertinent statistics indicate there is no great disparity between the median time it takes for a civil proceeding to work its way through the state or federal system." Id. There is, therefore, no indication that this matter — which has had no action taken on the substance of the dispute in any forum — cannot be timely adjudicated in state court.

Vornado's attempt to manufacture bankruptcy jurisdiction in a case that was once properly before the New York State Supreme Court is, at best, misguided. As Stop Shop argues persuasively, Vornado's forum shopping should not be rewarded. Accordingly, this case is remanded to New York State Supreme Court pursuant to 28 U.S.C. § 1452(b) and I need not rule on the pending motions for summary judgment.

C. Attorneys' Fees and Costs

Finally, Stop Shop seeks an award of attorneys' fees and costs for the expenses it incurred in litigating the removal of this case. The statue governing remand provides that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). The Second Circuit has ruled that the statute "affords a great deal of discretion and flexibility to the district courts in fashioning awards of costs and fees." Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992). An award of fees does not require a showing of bad faith; it must only be "fair and equitable under the circumstances." Id. (affirming the award of some $136,000). Stop Shop argues that it "should not be required to bear the costs associated with Vornado's calculated gamesmanship." Stop Shop Mem. in Support of Mot. for Abstention and Remand at 18. Admittedly, I, too, had concerns about Vornado's procedural maneuvers. Nonetheless, Vornado has succeeded in making some sense of the motion practice in this case, which — while certainly excessive — has a semblance of logic. E.g., 1/14/2005 Tr. at 30:5-31-31:15. I therefore decline to award fees and costs in this matter.

III. CONCLUSION

IT IS SO ORDERED.