WILLIAM H. ORRICK

ORDER GRANTING MOTION TO

REMAND, DENYING MOTION TO

TRANSFER AND DENYING MOTION

TO DISMISS COUNTERCLAIMS

Re: Dkt. Nos. 10, 16, 17

On August 7, 2013, the Court heard oral argument on plaintiff's motion to remand for lack of jurisdiction [Docket No. 10], plaintiff's motion to dismiss the counterclaims for lack of jurisdiction [Docket No. 17], and defendants' motion to transfer this matter to the Central District of California [Docket No. 16]. For the reasons discussed below, the Court GRANTS plaintiff's motion to remand, DENIES plaintiff's motion to dismiss as moot and DENIES defendants' motion to transfer. The Court also DENIES plaintiff's motion for attorney's fees and costs.

BACKGROUND

Plaintiff Kenneth E. Laird and defendants James C. Gianulias and Gus C. Gianulias are business partners. In January 2006, the Gianuliases, Laird and other entities secured a $15 million dollar loan from Bank of the West. See Declaration of James C. Gianulias, Ex. A [Docket No. 15-1]. In June 2008, defendant James Gianulias was forced into involuntary bankruptcy proceedings, along with a corporation in which James was the sole shareholder. Gianulias Decl., ¶ 5. In August 2008, CGH, LLC - a limited liability company whose sole members are Laird and the Gianuliases - obtained a $15 million dollar line of credit. Id., ¶ 7 & Ex. B. The joint and several guarantors of that loan were Laird and Gus C. Gianulias; James Gianulias was not a guarantor because of his pending bankruptcy proceedings. Gianulias Decl., ¶ 7 & Ex. B. On July 19, 2010, the bankruptcy plan for James Gianulias was confirmed. Gianulias Decl., ¶ 8. In November 2011, Laird and James and Gus Gianulias entered into a "Reimbursement and Security Agreement" ("Agreement"). Request for Judicial Notice [Docket No. 13], Ex. 1. The Agreement explicitly references the payments to the Bank of America required under the line of credit and acknowledges that CGH, LLC does not have any working capital from which to make those payments. Ex. 1 at 1-2. The Agreement also acknowledges that James did not sign the Bank of America loan as a guarantor because of the bankruptcy proceedings. Id. In order to preserve the short-term and long-term value of Laird and the Gianulias's interests in another limited liability company of which they were the sole members (Kona Plantation LLC), Laird agreed to make the current and future payments under the Bank of America loan in return for James and Gus Gianulias's commitment to reimburse Laird for those payments in proportion to their individual membership interest percentages in CGH, LLC. Id. On March 7, 2013, the bankruptcy court issued an order entering a final decree and closing the James Gianulias bankruptcy proceedings. Id., Ex. 2.

On March 8, 2013, plaintiff Laird filed a breach of contract action against the Gianuliases in Napa County Superior Court, contending that the defendants had failed to meet their obligations under the Agreement. On April 10, 2013, defendants removed the case to this Court, asserting that this Court has jurisdiction over the action because it arises from or is related to James Gianulias' bankruptcy proceedings. Docket No. 1. Plaintiff now moves to remand the action, arguing that this case did not arise from and is not related to the now-concluded bankruptcy proceedings and the Court, therefore, lacks jurisdiction. Plaintiff also moves to dismiss defendants' state law counterclaims on essentially the same grounds. Defendants move to transfer this case to the Central District of California, with a referral to the Central District's Bankruptcy Court which handled the James Gianulias bankruptcy proceedings, so that the Bankruptcy Court can determine whether or not the Agreement is an impermissible attempt to reaffirm a debt that was discharged.

LEGAL STANDARD

Removal jurisdiction is governed by 28 U.S.C. § 1441 et seq. A state court action can only be removed if it could have originally been brought in federal court. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). For an action to be removed on the basis of federal question jurisdiction, the complaint must establish either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on the resolution of substantial questions of federal law. See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10-11 (1983).

"The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." See Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 n. 3 (9th Cir. 1990). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Whether federal jurisdiction exists is governed by the well-pleaded complaint rule. See Caterpillar, 482 U.S. at 392. The well-pleaded complaint rule is a "powerful doctrine [that] severely limits the number of cases in which state law 'creates the cause of action' that may be initiated in or removed to federal district court...." See Franchise Tax Bd., 463 U.S. at 9-10. Under this rule, the federal question must be "presented on the face of the plaintiff's properly pleaded complaint." Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002).

Under 28 U.S.C. section 1452, a party may remove a case from state court where the district court has jurisdiction under 28 U.S.C. section 1334. Under section 1334, a district court has original and exclusive jurisdiction over cases "arising under" the bankruptcy code and original but not exclusive jurisdiction over civil proceedings "arising in or related to" cases under the bankruptcy code. 28 U.S.C. § 1334(b). Proceedings "'arising under' bankruptcy cases are generally referred to as 'core' proceedings, and essentially are proceedings that would not exist outside of bankruptcy, such as 'matters concerning the administration of the estate,' 'orders to turn over property of the estate,' and 'proceedings to determine, avoid, or recover preferences.'" In re Pegasus Gold Corp., 394 F.3d 1189, 1193 (9th Cir. 2005). Proceedings "related to" bankruptcy proceedings under section 1334, are those "which could conceivably have any effect on the estate being administered in bankruptcy." Id. (internal quotation omitted). In the post-confirmation context, where jurisdiction is "necessarily more limited," the Ninth Circuit requires a "close nexus to the bankruptcy plan or proceeding" sufficient to uphold jurisdiction over the matter. Id. at 1194.

DISCUSSION

Defendants removed the case to this Court under 28 U.S.C. section 1334, on the grounds that the claims asserted in the state court complaint "arose under" or are "related to" the James Gianulias bankruptcy proceedings. Specifically, defendants argue that the subject of the Reimbursement Agreement - the Bank of America loan - was a pre-petition and pre-confirmation debt of James Gianulias and the Agreement is a disguised reaffirmation agreement of a debt discharged in bankruptcy that violates of Section 524 of the Bankruptcy Code. The question of whether the Agreement is an invalid attempt at reaffirmation of a discharged debt, defendants argue, arises under or is related to the now-concluded bankruptcy proceedings and is the focus of plaintiff's motion to remand. Defendants also contend, in their motion to transfer, that this question should be decided by the bankruptcy court in the first instance.

I. DEFENDANTS' MOTION TO TRANSFER

Defendants move to transfer this case to the Central District of California, with a referral to the Central District Bankruptcy Court that handled James Gianulias' proceedings. Defendants argue that the Court should determine the motion to transfer prior to considering whether the Court has jurisdiction over the Complaint in connection with the motion to remand. See Motion to Transfer at 1, 4. The cases defendants rely on, however, are inapposite. For example, defendants rely on Public Employees Retirement System v. Morgan Stanley, 605 F. Supp. 2d 1073, 1075 (C.D. Cal. 2009), where the court declined to determine the propriety of removal jurisdiction before considering a motion to transfer because "[a] decision to transfer for inconvenient forum is not a decision on the merits and therefore does not require a finding of jurisdiction." Here, however, the motion to transfer is not based on an inconvenient forum, but based on defendants' own assertion that the bankruptcy court has exclusive jurisdiction over the subject matter of the Complaint. See also Cornerstone Dental, PLLC v. Smart Dental Care, LLC 2008 WL 907374, * 2 (Bkrtcy. D.Idaho 2008) (after adopting the District Court's finding that the litigation was sufficiently "related to" bankruptcy issues, the bankruptcy court transferred venue to the "home" bankruptcy court so "home" court could determine the motion to remand).

Similarly, cases where a court was faced with a motion to transfer to the "home" bankruptcy court and a motion to remand or abstain under 28 U.S.C. section 1334(c) are inapposite because section 1334(c) motions assume that the underlying case either arises under or is related to a bankruptcy proceeding. In re Wedlo, Inc., 212 B.R. 678 (Bankr. M.D. Ala. 1996) (finding "home court" better positioned to determine "abstention"); In re Convent Guardian Corp., 75 B.R. 346, 347 (Bankr. E.D. Pa. 1987) (court transferred action to "home" bankruptcy court to determine whether or not to "remand or otherwise abstain" under 28 U.S.C. section 1334(c), because abstention did not raise a "jurisdictional" issue and nothing "contained in either 28 U.S.C. § 1412, any other Code provision, or logic [] would bar a transfer of venue of a 'related proceeding.'"); Consolidated Lewis Inv. Corp. v. First Nat'l Bank, 74 B.R. 648, 651 (E.D. La. 1987) (case regarding mortgage listed in a bankruptcy petition was properly removed, and transferred to bankruptcy court where bankruptcy pending so that "home" court could determine whether the action involved a "core" proceeding and whether remand or abstention under 28 U.S.C. § 1334(c)(2) was appropriate).

The Court finds that because there is a significant dispute as to whether this Court has jurisdiction over the state law claims asserted - and not just whether abstention under section 1334(c) is appropriate - the better course is to determine the motion to remand prior to the motion to transfer. Therefore, the Court will address its jurisdiction in the first instance.

II. PLAINTIFF'S MOTION TO REMAND

A. Arising Under Jurisdiction

Defendants first argue that this action implicates the interpretation and enforcement of orders of a bankruptcy court and, therefore, it "arises under" the bankruptcy code. See Defendants' Opposition to Remand ("Oppo. Remand") at 15; In re Franklin, 802 F.2d 324, 326 (9th Cir. 1986) (bankruptcy court "had jurisdiction over the declaratory judgment action if such an action requiring a bankruptcy judge to determine the effect of a prior order of the bankruptcy court arises under title 11."); in Re McGhan, 288 F.3d 1172, 1179 (9th Cir. 2002) ("a state court also lacks authority to modify or dissolve a discharge order").

Here, however, the parties agree that James Gianulias did not list Laird as a creditor in the bankruptcy proceeding and neither the Bank of the West nor the Bank of America loans were listed as debts. Therefore, no court is being asked to interpret, much less modify or dissolve, a discharge order or injunction issued by the Bankruptcy Court in the Gianulias proceedings. Instead, the question is whether James Gianulias has a defense to the Complaint because the Reimbursement Agreement is a disguised and impermissible reaffirmation agreement of a claim Laird had in the bankruptcy (which he failed to assert). That determination does not require the interpretation of an order of the bankruptcy court, but merely application of bankruptcy code provisions and related case law governing the definition of a claim, as well as discharge and reaffirmation of debts. Nor does that question implicate the enforcement of a bankruptcy court order, especially in light of the fact that the James Gianulias bankruptcy proceedings were closed in March 2013. RJN, Ex. 2 (3/7/2013 Order Closing Chapter 11 Case). Determining whether the Reimbursement Agreement is an impermissible reaffirmation of a discharged debt -- in the absence of any showing that Laird was listed as a potential creditor in the bankruptcy proceedings or that the bankruptcy court addressed the Bank of the West or Bank of America loans - does not implicate the interpretation or enforcement of an order of a bankruptcy court. This case, therefore, does not arise under the bankruptcy code for purposes of Section 1334 jurisdiction.

B. Related to Jurisdiction

Defendants argue that jurisdiction is also established because this case is "related to" the James Gianulias bankruptcy proceedings as the allegations that James Gianulias is contractually bound to reimburse Laird under the Agreement - which defendants contend is an impermissible attempt to reaffirm a discharged debt -- will necessarily affect the interpretation, implementation, consummation, execution or administration of the confirmed plan. Oppo. Remand at 17.

However, in order to satisfy "related to" jurisdiction, defendants must demonstrate "a close nexus connecting a proposed post-confirmation proceeding in the bankruptcy court with some demonstrable effect on the debtor or the plan of reorganization." In re Wilshire Courtyard, 459 B.R. 416, 430 (B.A.P. 9th Cir. 2011). Defendants have not shown how the state law complaint seeking to enforce the Reimbursement Agreement will have an effect on the now-concluded bankruptcy proceedings. See In re Pegasus Gold Corp., 394 F.3d at 1193 ("An action is related to bankruptcy if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate."). Here, if the debt is an impermissible reaffirmation - and it therefore cannot be collected -- there is no impact on the now-closed bankruptcy proceedings. Similarly, if the debt is not an impermissible reaffirmation, it could not have any impact on the now-concluded bankruptcy proceedings. Unlike In re Pegasus Gold Corp., where resolution of the state law proceedings could impact the liquidation trust set up by the Plan and, therefore, affect the implementation and execution of the Plan itself (id. at 1194), in this case there is no evidence that the determination of whether the Reimbursement Agreement is an impermissible reaffirmation of a discharged debt will have any effect on the "'interpretation, implementation, consummation, execution, or administration of the confirmed plan'" sufficient to satisfy the "close nexus" test. Id. (quoting In re Resorts Int'l, Inc., 372 F.3d 154, 167 (3d Cir. 2004)).

Relatedly, defendants have no support for their position that the bankruptcy court must determine whether the Reimbursement Agreement is an impermissible attempt to reaffirm a discharged debt. As the cases defendants rely on acknowledge, when faced with a state law complaint that arguably attempts to collect on a discharged debt, a defendant has four options: (1) assert the discharge provided by the Confirmation Order as an affirmative defense in the State Court case; (2) remove the case to United States District Court under 28 U.S.C. § 1452(a); (3) move the bankruptcy court that handled the bankruptcy to reopen the Chapter 11 Case pursuant to 11 U.S.C. § 350(b); or (4) initiate a proceeding in the bankruptcy court which handled the bankruptcy for the enforcement of the statutory injunction provided by 11 U.S.C. § 524(a)(2), if appropriate under the Confirmation Order. Alderwoods Group, Inc. v. Garcia, 682 F.3d 958, 965 (11th Cir. 2012). State courts have jurisdiction to determine whether a particular debt was discharged in a bankruptcy court. See in Re McGhan, 288 F.3d 1172, 1180 (9th Cir. 2002) (recognizing that state courts have the power to construe the discharge and determine whether a particular debt is or is not within the discharge because "'discharge in bankruptcy is a recognized defense under state law'").

Here, there is no evidence that the determination of whether the Reimbursement Agreement is an impermissible reaffirmation of a discharged debt could have any effect on the interpretation, implementation, consummation, execution or administration of the plan confirmed by the bankruptcy court in the Central District of California. There is no "related to" jurisdiction over this case.

C. Federal Question Jurisdiction

In the alternative, defendants argue that this Court has jurisdiction under 28 U.S.C. section 1441, because the state law claims asserted in the complaint turn on "substantial questions of federal law." Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005). In Grable, the Supreme Court affirmed that federal question jurisdiction exists for federal issues "embedded" in state-law claims where the state-law claims necessarily raises a stated federal issue, that is actually disputed and substantial, and "which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Id. at 314. Here, there is no federal claim embedded in the complaint. While the Reimbursement Agreement does mention the James Gianulias bankruptcy - providing context as to why James Gianulias did not sign the Bank of America loan as a guarantor, RJN, Ex. 1 - that context does not embed a federal issue into the breach of contract action.

Moreover, Grable did not disturb the fact that under the "well-pleaded complaint" rule, generally a defense cannot be a basis for removal. See, e.g., Rivet v. Regions Bank, 522 U.S. 470, 475 (1998) (holding that claim preclusion - as the result of a prior federal judgment from the bankruptcy court -- is a defensive plea that provides no basis for removal under § 1441(b)); see also Equity Growth Asset Mgmt. v. Fernando, 2012 U.S. Dist. LEXIS 138509 (N.D. Cal. Sept. 26, 2012) ("bankruptcy removal jurisdiction is subject to the well-pleaded complaint rule, meaning that the basis for removal jurisdiction must be evident from the complaint.").

As there is no federal claim on the face of the complaint, and no "arising under" or "related to" jurisdiction under 28 U.S.C. section 1334(b), the Court does not have jurisdiction over the state court complaint and plaintiff's motion to remand must be GRANTED.

D. Attorney's Fees

Plaintiff moves for an award of attorney's fees and costs incurred in moving to remand under 28 U.S.C. section1447(c). The standard for awarding fees turns on the reasonableness of the removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). As the Supreme Court recognized, "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied." Id.

Here, while the Court has GRANTED the motion to remand, the Court does not find that defendants' removal petition was objectively unreasonable and DENIES the request for attorney's fees.

III. PLAINTIFF'S MOTION TO DISMISS COUNTER-CLAIMS

Plaintiff also moves to dismiss the defendants' counterclaims arguing that: (1) because the Court lacks subject matter jurisdiction over the removed Complaint, it also lacks subject matter jurisdiction over defendants' state-law counterclaims; and (2) because defendants' state law counterclaims are permissive (rather than compulsory) and defendants fail to demonstrate an independent basis for the Court's jurisdiction over them, they must be dismissed. Having found that this case should be remanded, plaintiff's motion to dismiss the counterclaims is DENIED as moot.

CONCLUSION

For the foregoing reasons, the Court GRANTS plaintiff's motion to remand, DENIES plaintiff's motion for attorney's fees and costs, and DENIES both defendants' motion to transfer as well as plaintiff's motion to dismiss the counterclaims at MOOT.

IT IS SO ORDERED.

____________

WILLIAM H. ORRICK

United States District Judge