Opinion
Civil No. 4:03-cv-111, Case No. 01-43153, Adv. No. A-03-4002
April 7, 2003
Eric A. Liepins, Dallas, TX, Mark Weisbart of Kessler Collins, P.C., Dallas, TX, For Plaintiffs.
Paul B. Geilich, of Looper, Reed McGraw, Dallas, TX, William Riley Nix, of Nix Winegeart, Sherman, TX, For Defendants.
ORDER
Defendant Paul Ross and Third-Party Defendant Par III, Inc. have filed a Motion to Withdraw Reference of Adversary Proceeding (Docket No. 1). Because the Motion to Withdraw need only be granted when it is apparent that this case will proceed to a jury, the Motion is DENIED WITHOUT PREJUDICE. Defendants are free to re-file this motion once it is clear that a jury trial is inevitable.
Defendant's argument that withdrawal is appropriate is based solely on its alleged right to a jury trial which, under 28 U.S.C. § 157(e), can be conducted in bankruptcy court only upon consent of the parties. See In re Raymond Clay, 35 F.3d 190 (5th Cir. 1994). Plaintiff, on the other hand, argues that even assuming that Defendants are entitled to a jury trial, the motion to withdraw is premature and that the bankruptcy court should supervise the case through its pre-trial stages until such time as it is determined that a jury trial must be conducted.
Under 28 U.S.C. § 157(d), a court may withdraw its reference to the bankruptcy court "for cause shown." In Holland America Insurance Co. v. Succession of Shepherd J. Roy, 777 F.2d 992, 999 (5th Cir. 1985), the Fifth Circuit instructed that "[t]he district court should consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtor's and creditors' resources, and expediting the bankruptcy process." The Court specifically noted that the "continued existence" of a jury demand may "influence the district court's decision." Id.; see also In the Matter of Lieb, 915 F.2d 180, 184 (5th Cir. 1990).
Here, all of the Holland factors favor retention of this case by the bankruptcy court until such time as the necessity and entitlement of the right to a trial by jury has been determined. In so holding, this Court joins a number of other courts who have adopted this approach. See, e.g., Hayes v. Royala, Inc., 180 B.R. 476 (E.D.Tex. 1995); In re Financial Servs., Inc., 239 B.R. 586, 596-97 (Bankr.N.D.Okla. 1999); Berger v. Watrous Ehlers, P.C., 170 B.R. 169, 170 (D.Colo. 1994); Barlow Peek, Inc. v. Manke Truck Lines, Inc., 163 B.R. 177, 179 (D.Nev. 1993); Furniture Rentors of America, Inc. v. Nynex Information Resources Co., 162 F.2d 728 (D.Md. 1994); In re Wedtech Corp., 94 B.R. 293 (S.D.N.Y. 1988). In so ruling, the Court makes no determination relevant to Defendants' right to a jury trial.
Accordingly, IT IS ORDERED that the Defendants' Motion to Withdraw Reference of Adversary Proceeding is hereby DENIED WITHOUT PREJUDICE. Defendants are free to re-file this motion once it is clear that a jury trial is inevitable.