Opinion
Case No. 2:04-CV-535-F.
February 16, 2005
MEMORANDUM OPINION AND ORDER
This cause is now before the Court on Plaintiff's Motion to Remand (Doc. # 25). During the course of its de novo review of this motion, the Court has thoroughly considered the numerous submissions of the parties in support of and in opposition to the motion, including the supplemental materials filed in January of 2005. The Court has also received and considered the Report and Recommendation of United States Bankruptcy Judge William R. Sawyer to the United States District Judge (Doc. # 58) and the objection filed in response to the Recommendation (Doc. # 60). For the reasons set forth in this Memorandum Opinion and Order, the Court finds that the Motion to Remand (Doc. # 25) is due to be GRANTED.
PROCEDURAL HISTORY
On January 3, 2003, Plaintiff May's Distributing Company, Inc. (hereinafter "May's Distributing") filed suit in the Circuit Court for Bullock County, Alabama. May's Distributing named Total Containment, Inc. (hereinafter "Total Containment") and Oil Equipment, Inc. (hereinafter "Oil Equipment") as Defendants. Pursuant to the Alabama Rules of Civil Procedure, May's Distributing also identified a number of fictitious defendants. Later, May's Distributing filed Plaintiff's First Amended Complaint which added the following defendants in addition to Total Containment and Oil Equipment: Dayco Products, Inc. (hereinafter "Dayco"); Mark IV Industries, Ltd. (hereinafter "Mark IV"); Parker Hannifin Corporation (hereinafter "Parker"); Ticona Polymers, Inc. (hereinafter "Ticona"); Shell Chemical L.P. (hereinafter "Shell"); and Cleveland Tubing, Inc. (hereinafter "Cleveland Tubing"). Subsequently, May's Distributing filed Plaintiff's Second Amended Class Action Complaint which added the following defendants: Atofina Chemicals, Inc. (hereinafter "Atofina"); Elf Atochem North America, Inc. (hereinafter "Elf"); and Underwriters Laboratories (hereinafter "UL").
While the case was pending in the Circuit Court for Bullock County, a number of the defendants filed answers to one or more versions of the Complaint. It also appears that a number of motions were filed, including: (1) May Distributing's Motion to Approve Voluntary Dismissal of Defendant Shell Chemical LP; (2) Ticona's September 19, 2003 Motion to Dismiss; and (3) Atofina's May 10, 2004 Motion to Dismiss or in the Alternative to Abate. These motions were filed with this Court as exhibits to the Notice of Removal (Doc. # 1) when this case was removed to this Court. From the record before this Court, it would appear that none of these motions were addressed by the Circuit Court for Bullock County prior to the removal of the case.
Although the Order by the Circuit Court for Bullock County granting this motion was not filed as part of the record with the Notice of Removal, the Court has subsequently received a copy of the Order. Consequently, Shell was terminated as a party to this action.
On March 4, 2004, Total Containment filed for bankruptcy protection in the United States Bankruptcy Court for the Eastern District of Pennsylvania. On June 1, 2004, Cleveland Tubing removed this case to this Court pursuant to 28 U.S.C. §§ 1334, 1446, and 1452 and Rule 9027 of the Federal Rules of Bankruptcy Procedure. As grounds for the removal, Cleveland Tubing specifically argued that the outcome of this action will have an effect on the administration of Total Containment's bankruptcy and on the rights and obligations of Total Containment. Cleveland Tubing further argued that Total Containment had agreed to indemnify Cleveland Tubing. Finally, Cleveland Tubing cites the need for the parties in this action to conduct discovery against Total Containment. In sum, Cleveland Tubing contends that this Court has jurisdiction over this matter because it is "related to" Total Containment's bankruptcy.
On July 2, 2004, May's Distributing filed Plaintiff's Motion to Remand (Doc. # 25). On July 20, 2004, Cleveland Tubing's Motion to Transfer Venue (Doc. # 33) was filed. By the motion to transfer, Cleveland Tubing sought to move this case from this Court to the United States District Court for the Eastern District of Pennsylvania. On that same date, Cleveland Tubing's Motion to Stay Decision on Remand (Doc. # 35) pending a ruling on Cleveland Tubing's Motion to Transfer Venue was also filed. Cleveland Tubing also timely submitted a brief (Doc. # 36) in opposition to the Motion to Remand. After May's Distributing filed its reply brief on the Motion to Remand, Cleveland Tubing filed another motion. Cleveland Tubing's Motion to Strike Plaintiff's Reply Brief or in the Alternative Motion for Leave to File a Sur-reply (Doc. # 42) was filed on August 2, 2004. Cleveland Tubing argued that May's Distributing had raised new substantive legal arguments in its reply brief. Consequently, Cleveland Tubing asked that the new arguments be stricken or that it be given leave to respond in a sur-reply. Rather than striking the new arguments, this Court allowed Cleveland Tubing to submit its sur-reply. May's Distributing filed its opposition (Doc. # 45) to Cleveland Tubing's request that this Court delay its decision on the motion to remand until after decision the motion to transfer venue, and Cleveland Tubing was permitted to file a reply brief on the issue of transfer (Doc. # 48).
After considering the arguments of the parties, this Court declined to entertain the question of the appropriateness of transfer until after it determined that it has subject matter jurisdiction. Accordingly, this Court decided in this case that it would be appropriate to first address the issues raised by the motion to remand. Accordingly, Cleveland Tubing's Motion to Stay Decision on Remand (Doc. # 35) was denied. Pursuant to 28 U.S.C. § 157(c)(1), the Court referred Plaintiff's Motion to Remand (Doc. # 25) to a Judge of the United States Bankruptcy Court for the Middle District of Alabama for proposed findings of fact and conclusions of law. On January 21, 2005, Chief United States Bankruptcy Judge William R. Sawyer provided the requested proposed findings of fact and conclusions of law on Plaintiff's Motion to Remand. Specifically, Judge Sawyer recommended that the motion to remand be granted and that the civil action be remanded to the Circuit Court for Bullock County, Alabama. Cleveland Tubing objects to this recommendation.
RELEVANT FACTS AND FACTUAL ALLEGATIONS
A. Factual Predicate for May's Distributing's Claims Against Defendants
May's Distributing operates a business that distributes oil and gasoline products and operates convenience stores and retail gasoline stations. May's Distributing alleges that it contracted with Oil Equipment for the installation of flexible underground pipes and sump pump systems distributed by Total Containment and manufactured by Total Containment or one or more fo the other defendants. May's Distributing alleges that the Total Containment pipe was designed, manufactured, marketed, sold, and distributed as a product that safely retains fuel using a pipe within a pipe system for added protection. May's Distributing further alleges that in September of 2002, it learned that the Total Containment pipe was defective and that as a result of either that product defect or alleged defective installation, it was damaged. May's Distributing seeks damages on its own behalf and as a class representative of all those gasoline station owners who are similarly situated.
B. Relationship Between Total Containment and Cleveland Tubing
Total Containment markets underground piping systems, a portion of which is composed of flexible corrugated pipe. Total Containment's underground piping systems are primarily used in the construction and retrofitting of gasoline service stations and other facilities which move and contain the flow of liquid fuels. Cleveland Tubing had experience and expertise in the manufacture of flexible corrugated pipe like that used in Total Containment's underground piping systems.
Total Containment was looking for a source for corrugated secondary containment pipe and Cleveland Tubing was willing to manufacture this pipe for Total Containment. Total Containment and Cleveland Tubing entered into a letter agreement dated November 12, 1990, by the terms of which Cleveland Tubing was to manufacture and supply pipe to Total Containment.
On December 2, 1992, Cleveland Tubing and Total Containment entered into a more formal supply agreement. By the terms of the December 2, 1992 Supply Agreement, Cleveland Tubing was to manufacture, sell and deliver exclusively to Total Containment and to no other customer and Total Containment was to exclusively purchase from Cleveland Tubing and from no other supplier the pipe Total Containment needed in North American in conjunction with its underground piping systems. As part of this Supply Agreement, Total Containment agreed to provide Cleveland Tubing with forecasts of its future requirements on a reasonably timely basis. Pursuant to this Supply Agreement, Cleveland Tubing agreed to utilize standard quality control procedures to assure Total Containment is provided with pipe of high quality particularly in light of its intended use. Cleveland Tubing also warranted and represented that the pipe it supplied to Total Containment would be manufactured in accordance with applicable federal, state, country and local laws, regulations and orders. The Supply Agreement also affirmed that the parties had agreed upon certain molds, extrusion dies, and specifications for the pipe to be supplied. The Supply Agreement contained provisions addressing confidentiality, the term and termination of the agreement, a non-competition agreement, a limited warranty from Cleveland Tubing that the pipe was free from defects in material and workmanship when used for it intended purposes without misuse or abuse. The Supply Agreement contained choice of law provision which made Pennsylvania law applicable to the agreement. The Supply Agreement addressed patent infringement issues, force majeure, trade names and trademarks, interpretation of the agreement and severability, and other issues.
For purposes of the motion before this Court, perhaps the most important provisions of the 1992 Supply Agreement are the provisions on indemnification. In Section 8.1, Cleveland Tubing agrees to indemnify Total Containment for certain claims suits and proceedings. In Section 8.2, Total Containment agreed to indemnify Cleveland Tubing for certain claims, suits, or proceedings. Those sections of the 1992 Supply Agreement provide as follows:
8.1 Except for claims for patent infringement, which are subject to Article IX, [Cleveland] Tubing shall, at its own expense, defend, indemnify, and hold [Total Containment] harmless from and against any and all claims, suits, or proceedings by third parties for losses and damages in any way arising out of or based upon the manufacture of the Pipe by [Cleveland Tubing] or any subcontractor of [Cleveland Tubing] under this Agreement, or the performance of [Cleveland Tubing's] obligations under this Agreement. Such losses and damages shall include any reasonable attorneys' fees and costs [Total Containment] incurs in such defense. [Total Containment] shall give [Cleveland Tubing] prompt notice, in writing, of any such claim, suit or proceeding. [Total Containment] shall also permit [Cleveland Tubing], through [Cleveland Tubing's] counsel, to defend the same under its full control and give [Cleveland Tubing] all information, assistance and authority to enable it to do so.
8.2 Except for claims of patent infringement, which are subject to Article IX, [Total Containment] shall, at its own expense, defend, indemnify and hold [Cleveland Tubing] harmless from and against any and all claims, suits, or proceedings by third parties for losses and damages based upon the performance of [Total Containment's] obligations under this Agreement. Such losses and damages shall include any reasonable attorneys' fees and costs [Cleveland Tubing] incurs in the defense of same.
[Cleveland Tubing] shall give [Total Containment] prompt notice, in writing, of any such claim, suit, or proceeding. Tubing shall also permit [Total Containment], through [Total Containment's counsel], to defend the same under its control and give [Total Containment] all information, assistance, and authority to enable it to do so.
Art. VIII, Indemnification December 2, 1992 Supply Agreement Ex to Notice of Removal (Doc. # 1).
On November 20, 1997, Cleveland Tubing and Total Containment entered into a new Supply Agreement. Once again, Cleveland Tubing agreed to manufacture, sell and deliver pipe exclusively to Total Containment and Total Containment agreed to purchase pipe from Cleveland Tubing. Cleveland Tubing agreed to utilize certain specified quality control procedures and to manufacture pipe to comply with Total Containment's written specifications. Total Containment agreed to provide forecasts of its future requirements. The 1997 Supply Agreement further provided that Total Containment could provide an on-site person to inspect all phases in the manufacture of the pipe. Like the 1992 Supply Agreement, the 1997 Supply Agreement addressed a wide variety of other topics and included indemnification provisions. Those indemnification provisions are set forth below:
8.1 Except for claims for patent infringement, which are subject to Article IX, [Cleveland Tubing] shall, at its own expense, defend, indemnify, and hold [Total Containment] harmless from and against any and all claims, suits, fines, penalties or proceedings by third parties for losses and damages in any way arising out of or based upon the performance of Cleveland's obligations under this Agreement; provided that this section 8.1 shall not be interpreted, and is not intended, to provide for indemnification for claims against [Total Containment] resulting from the design of the product or from materials provided or specified by [Total Containment]. Such losses and damages shall include any reasonable attorneys' fees and costs [Total Containment] incurs in such defense. [Total Containment] shall give [Cleveland Tubing] prompt notice, in writing, of any such claim, suit or proceeding. [Total Containment] shall also permit [Cleveland Tubing], through [Cleveland Tubing's] counsel, to defendant the same under its full control and give [Cleveland Tubing] all information, assistance and authority to enable it to do so.
8.2 Except for claims of patent infringement, which are subject to Article IX, [Total Containment] shall, at its own expense, defend, indemnify and hold [Cleveland Tubing] harmless from and against any and all claims, suits, or proceedings by third parties for losses and damages based upon [Total Containment's] performance of its obligations under this Agreement, including any claim against [Cleveland Tubing] resulting from the design of the product or from materials supplied by [Total Containment]. Such losses and damages shall include any reasonable attorneys' fees and costs [Cleveland Tubing] incurs in the defense of the same. [Cleveland Tubing] shall give [Total Containment] prompt notice, in writing, of any such claim, suit, or proceeding. [Cleveland Tubing] shall also permit [Total Containment], through [Total Containment's] counsel, to defend the same under its control and give [Total Containment] all information, assistance and authority to enable it to do so.
Art. VIII, Indemnification November 20, 1997 Supply Agreement Ex to Notice of Removal (Doc. # 1).
DISCUSSION
In the Plaintiff's Motion to Remand (Doc. # 25), May's Distributing seeks remand of this action for three reasons: (1) a procedural defect in the notice of removal due to the failure of all defendants to unanimously join in the removal petition; (2) a lack of subject matter jurisdiction over this action because it is not "related to" the bankruptcy of Total Containment as alleged; and (3) its contention that this Court should abstain from hearing this matter and return it to its state court forum pursuant to 28 U.S.C. § 1334(c) or general equitable grounds. This Memorandum Opinion and Order will focus on the second and third arguments for remand. A. Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1334(b)
In its reply brief, May's Distributing raises new procedural arguments in support of removal not alluded to in its original motion, such as the timeliness of the removal, waiver of the right to remove by litigation in state court. Because this Court is persuaded by the more substantive grounds for remand, the Court need not and will not address these procedural grounds, which arguably were waived by May's Distributing's failure to timely raise them.
It appears to the Court that the first ground is not an appropriate ground for remand of this action. Plaintiff's "rule of unanimity" argument is plainly a procedural defect in the removal rather than a substantive argument that subject matter jurisdiction is lacking. Procedural defects must be raised in motions to remand filed within thirty days of the filing of the Notice of Removal. When they are not so raised, they are waived. In this case, the Notice of Removal was filed on June 1, 2004. Accordingly, the Plaintiff's Motion to Remand (Doc. #25), which was not filed until July 2, 2004, was filed too late to raise any procedural defects in the removal because it was filed more than thirty days after the Notice of Removal was filed. Nevertheless, the Court, like the Bankruptcy Judge in his Recommendation, need not reach this basis for remand, nor any of the arguments relating to procedural defects whether raised in the motion to remand or thereafter, because it is persuaded by Plaintiff's substantive arguments on subject matter jurisdiction and abstention.
1. Cleveland Tubing's Objection To The Recommendations Assessment of the Contractual Indemnification Provisions Between Total Containment and Cleveland Tubing.
The claimed statutory basis for subject matter jurisdiction over this action is 28 U.S.C. § 1334(b), which provides that
Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.28 U.S.C. § 1334(b). The sole contention in support of removal is that this case is "related to" a case under title 11, namely Total Containment's bankruptcy. The Recommendation of Judge Sawyer is that this Court find that in the circumstances of this case, there is no "related to" jurisdiction within the meaning of § 1334(b) and for that reason the case should be remanded. Specifically, the Recommendation finds that this civil action is a mere precursor to any potential liability owed by Total Containment to Cleveland Tubing under the indemnification agreements between them. This Court agrees.
As this Court has explained recently,
The test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy. The proceeding need not necessarily be against the debtor or the debtor's property. 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 estate.Transouth Fin. Corp. v. Murry, 311 B.R. 99, 105-06 (M.D. Ala. 2004) (citing In re Toledo, 170 F.3d 1340, 1345 (11th Cir. 1999) and Miller v. Kemira, Inc., 910 F.2d 784 (11th Cir. 1990)). "The key word . . . [in the] test is `conceivable,' which makes the jurisdictional grant extremely broad." In re Toledo, 170 F.3d at 1345. Nevertheless, this broad jurisdictional grant is not so broad as to bring a case within the scope of § 1334(b) merely because there may be common issue of fact between a civil proceeding and a controversy involving the bankruptcy estate and judicial economy alone does not justify federal jurisdiction. See, e.g., Pacor, Inc. v. Higgins, 743 F.2d 984, 994-95 (3rd Cir. 1984). Moreover, as noted by Judge Sawyer, there is ample authority for the proposition that a potential claim for contribution or indemnification between Cleveland Tubing and Total Containment is not sufficient to create "related to" jurisdiction.
The Eleventh Circuit Court of Appeals adopted the Pacor test in Miller, 910 F.2d at 787-88.
This Court finds that contrary to Cleveland Tubing's assertions any claims between Cleveland Tubing and Total Containment pursuant to either the 1992 or the 1997 Supply Agreements are merely potential indemnity claims and as such they are not sufficient to create "related to" jurisdiction over this action. Like the indemnification which existed in the Pacor case, the indemnification agreements at issue in this case are contingent. Just because Cleveland Tubing is claiming that its indemnification rights have been implicated and has filed a claim for attorneys' fees incurred to date in this litigation does not mean that there has been an adjudication that the indemnification provision of the Supply Agreements have been implicated or that the outcome of this litigation could conceivably have an effect on Total Containment's bankruptcy estate.
2. Cleveland Tubing's Objection Relating to the Import of the Lifting of the Automatic Stay
On or about November 7, 2004, May's Distributing filed a motion with the United States Bankruptcy Court for the Eastern District of Pennsylvania in Bankruptcy Case No.: 04-13144BIF. After making a variety of arguably misrepresentations to the Bankruptcy Court, May's Distributing sought relief from the automatic stay which existed by virtue of Total Containment's bankruptcy. The Bankruptcy Court in Pennsylvania entered the Order proposed by May's Distributing noting on it that it was entered by default. On January 12, 2005, May's Distributing filed a copy of the Bankruptcy Court Order with this Court and argued that as a result of that Order, this Court had no jurisdiction over this case. Cleveland Tubing promptly filed a response to May's Distributing's submission arguing that the Order was obtained improperly and that May's Distributing's arguments were void of merit and irrelevant. At the instruction of the undersigned, both filings (Doc. # 56 and Doc. # 57) were immediately delivered to Judge Sawyer. While it is true that he does not mention them in the Recommendation, it is not true, as Cleveland Tubing claims in its objection, that he had no opportunity to consider them.
Ironically, after vigorously arguing on January 17, 2005 (Doc. # 57) that the Order of the Pennsylvania Bankruptcy was not binding on this Court and irrelevant to this Court's jurisdiction, in its February 7, 2005, Cleveland Tubing now claims that the lifting of the stay is a crucial change in the circumstances of the case which supports a finding that "related to" jurisdiction exists. Specifically, Cleveland Tubing now contends that the lifting of the stay shows that May's Distributing intends to proceed with its claims against Total Containment in this action and that it is able to do so which necessarily means that this action is "related to" Total Containment's bankruptcy proceedings.
Cleveland Tubing also vigorously argues that the fact that different plaintiffs who have sued Total Containment in a separate lawsuit in Louisiana have conceded that there exists "related to" jurisdiction over that action because it has a potential to deplete the assets of Total Containment's bankruptcy estate supports its contention that there exists "related to" jurisdiction in this case. As a starting point, the Court notes that the attorneys or plaintiffs in the Louisiana case have for strategic reasons of their own conceded a legal point rather than contesting it. The plaintiff's attorneys in this case have elected a different strategy and are contesting the existence of "related to" jurisdiction. A case in which the adversary system is functioning such as this one arguably leaves a court in a better position to determine the merits of a given issue.
This Court does not agree with May's Distributing's bald assertion that the lifting of the stay in Pennsylvania strips this Court of any arguable basis for "related to" jurisdiction. On the other hand, the Court is also not persuaded by Cleveland Tubing's contention that the lifting of the stay, in the circumstances presented by this case, constitutes a more solid ground for a finding that "related to" jurisdiction exists over this action. If, as Cleveland Tubing contends, the Order was a product of some fraud on the Bankruptcy Court, it would seem that the Order could be rescinded or altered upon a proper motion.
B. Permissive Abstention Pursuant to 28 U.S.C. § 1334(c)(1)
Assuming arguendo that this Court "related to" jurisdiction over this action, May's Distributing asks this Court to abstain from entertaining this action and invokes 28 U.S.C. § 1334(c)(1). Section 1334(c)(1) provides as follows:
Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.28 U.S.C. § 1334(c)(1). Courts addressing a question of permissive abstention may consider the twelve non-exclusive factors.
Although [§ 1334(c)(1)] does not provide specific factors to be considered, courts have developed a set of considerations to aid in the determination of whether abstention in this context is warranted: (1) the effect, or lack thereof, on the efficient administration of the bankruptcy estate if the discretionary abstention is exercised, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable state law, (4) the presence of related proceedings commenced in state court or other non-bankruptcy courts, (5) the jurisdictional basis, if any, other than § 1334, (6) the degree of relatedness or remoteness of the proceedings to the main bankruptcy case, (7) the substance rather than the form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden on the bankruptcy court's docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to jury trial, and (12) the presence in the proceeding of non-debtor parties. See Cassidy v. Wyeth-Ayerst Laboratories, 42 F. Supp. 2d 1260, 1263 (M.D. Ala. 1999) (citing Matter of Chicago, Milwaukee, St. Paul Pacific R.R. Co., 6 F.3d 1184, 1189 (7th Cir. 1993)).Retirement Sys. of Ala. v. Merrill Lynch Co., 209 F. Supp. 2d 1257, 1267-68 (M.D. Ala. 2002).
The Recommendation clearly and accurately sets forth the twelve factors to be analyzed and then concludes that this case is a proper case for permissive abstention. Cleveland Tubing does not dispute that the twelve factors noted are the ones to be analyzed. Instead, Cleveland Tubing objects to the discussion in the Recommendation of certain of the factors and to the conclusion that the balancing of the factors supports abstention in this case.
The Recommendation finds, and Cleveland Tubing does not dispute, that the third, seventh, eighth, and eleventh factors either are inapplicable or do not favor either party. Moreover, there is no dispute that of the remaining eight factors, the second, tenth and twelfth factors favor remand. Cleveland Tubing objects to the analysis in the Recommendation of the first, fourth, fifth, sixth, and ninth factors.
With respect to the first factor, the Court is not persuaded that the exercise of permissive abstention in this case would have an effect on the efficient administration of the bankruptcy estate. Moreover, this Court is not persuaded that this action is more than remotely related to Total Containment's bankruptcy, if it is at all related. Consequently, the Court finds that the first and sixth factors favor abstention and remand. The Court agrees with Cleveland Tubing that the existence of the Louisiana litigation arguably favors the continued exercise of jurisdiction by this Court; thus, the Court finds that the fourth factor does not favor remand and abstention in this case. The Court finds no merit whatsoever in Cleveland Tubing's objection to the Recommendation on the fifth factor. The issue before this Court is the existence of subject matter jurisdiction as of the time of the Notice of Removal. It is beyond dispute that the sole predicate for subject matter jurisdiction articulated in the Notice of Removal is § 1334. Cleveland Tubing argues that in the last several months a voluntary act of May's Distributing, namely the dismissal of its claims against a non-diverse defendant, has created another basis for subject matter jurisdiction, namely diversity. Nonetheless, Cleveland Tubing has never amended its Notice of Removal to assert this additional basis for jurisdiction and consequently, it is not properly before this Court. This is especially true, where as here, the time for removal pursuant to the diversity statute has now expired. Thus, the Recommendation correctly notes that there is no basis other than § 1334 properly before this Court and the fifth factor favors remand and abstention. The Court overrules Cleveland Tubing's objection to the Recommendation with respect to the ninth factor and finds that it too favors remand and abstention.
This Court also agrees that when all the relevant factors for permissive abstention are balanced and considered as a whole, permissive abstention is appropriate in this case. Accordingly, the Court finds that even if there is some arguable basis for subject matter jurisdiction pursuant to § 1334, permissive abstention and remand are appropriate.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
(1) To the extent that the Report and Recommendation of United States Bankruptcy Judge William R. Sawyer to the United States District Court (Doc. # 58) is consistent with this Memorandum Opinion and Order, it ADOPTED.
(2) To the extent that Cleveland Tubing has objected, in Cleveland Tubing, Inc.'s Objections to the Report and Recommendations of United States Bankruptcy Judge William R. Sawyer to the United States District Court (Doc. # 60), to some portion of the Report and Recommendation of United States Bankruptcy Judge William R. Sawyer to the United States District Court (Doc. # 58), the objections are OVERRULED.
(3) Plaintiff's Motion to Remand (Doc. # 25) is GRANTED.
(4) It is hereby ORDERED that this case is REMANDED to the Circuit Court for Bullock County, Alabama.
(5) The Clerk is DIRECTED to take appropriate steps to promptly effect the remand.
(6) Any pending motions are left for resolution by the Circuit Court for Bullock County, Alabama.