Opinion
04 Civ. 708 (GEL), 04 Civ. 709 (GEL), 04 Civ. 710 (GEL)
May 6, 2004
Robert L. Weigel, Jennifer H. Rearden, Julie R. Buxbaum, Gibson, Dunn Crutcher LLP, New York, NY, for Plaintiff Kerusa Co. LLC.
Eric Seiler, Katherine L. Pringle, Daniel B. Rappaport, Amy C. Brown, Friedman, Kaplan, Seiler Adelman, LLP, New York, NY, for Plaintiff Board of Managers of 515 Park Avenue Condominium
Eric L. Siegel, Henrichsen Siegel, P.L.L.C., New York, NY, for Plaintiffs Richard L. Kramer, et al.
Thomas H. Shepherd, Landman Corsi Ballaine Ford, P.C., New York, NY, for Defendants W10Z/515 Real Estate Ltd. P'ship, 515/ZGP LLC, W10Z/515 Gen — Par LLC, Zeckendorf Realty LP, Arthur W. Zeckendorf, William L. Zeckendorf, Charles Irwin, Daniel Niedich, Stuart Rothenberg, Whitehall St. Real Estate, WH Advisors LLC, and Whitehall IX/X Inc.
Richard Fama, Cozen O'Connor, New York, NY, for Defendant J.A. Jones Construction
Christopher A. Albanese, Milber Makris Plousadas Seiden, LLP, White Plains, NY, for Defendant Frank Williams Assocs.
Jessica L. Jamron, Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York, NY, for Defendant Jaros, Baum Bolles Consulting Engineers
Franklin K. Chiu, Gogick, Byrne O'Neill, LLP, New York, NY, for Defendant The Cantor Seinuk Group, Inc.
OPINION AND ORDER
515 Park Avenue (the "Building") is a luxury condominium development in New York City financed, built, and sold by defendant W10Z/515 Real Estate Limited Partnership (the "Sponsor") and various other entities affiliated with the Zeckendorf family real estate business (e.g., defendants 515/ZGP LLC, W10Z/515 Gen — Par LLC, Zeckendorf Realty LP). The other defendants in these three related lawsuits include the general contractor and construction manager for the Building (J.A. Jones), the architect (Frank Williams Assocs.), the mechanical engineers (Jaros Baum Bolles), and the structural engineers (Cantor Seinuk Group), as well as individuals who are principals or employees or agents of the Zeckendorf entities. Plaintiffs are either purchasers of apartment units in the Building, family members of purchasers, or legal representatives of purchasers.
The three complaints, originally filed in New York Supreme Court, allege that, due to design and construction defects, the Building and plaintiffs' individual units have suffered severe water damage and toxic mold infestations, all of which have diminished the value of the Building and plaintiffs' units due to actual damage, costs of remediation, and damage to marketability as a result of public awareness of the alleged defects in the Building. Plaintiffs allege that various defendants were aware of the problems during the construction but neglected to take appropriate steps to address and correct them, and failed to inform prospective purchasers of the existence, nature, or extent of the problems. The complaints each state numerous causes of action under New York law, sounding in breach of contract, breach of implied covenant of good faith and fair dealing, breach of implied warranties, negligence, fraudulent inducement, breach of fiduciary duties, false advertising in violation of N.Y.G.B.L. §§ 349 and 350, common law fraud, and fraud in the purchase or sale of securities. The Kramer action also asserts a number of tort claims for personal injury.
Following the bankruptcy filing of defendant J.A. Jones ("Jones"), defendant Sponsor removed these three cases to this Court, invoking its bankruptcy jurisdiction under 28 U.S.C. § 1334(b) and 1452(a). Plaintiffs, joined by a number of defendants, move to remand the actions to the New York state courts, arguing that jurisdiction is lacking and, in the alternative, that the Court should exercise its discretion under 28 U.S.C. § 1334(c) or 1452(b) to abstain or remand. Defendants Sponsor and Jones (the "Removing Defendants") oppose the motions and cross-move to transfer the actions to the Western District of North Carolina, where the Jones bankruptcy is pending. For the reasons that follow, the motions to remand will be granted and the motions to transfer will be denied as moot.
DISCUSSION
I. Jurisdiction
The Removing Defendants argue that this Court has jurisdiction under 28 U.S.C. § 1334, contending that these actions are "core proceedings" as defined in 28 U.S.C. § 157(b)(2), or that at a minimum they are "related to" the Jones bankruptcy proceedings, which, under 28 U.S.C. § 157(c)(1) and 1334(b), also gives rise to federal jurisdiction. They are correct that federal jurisdiction exists over these actions, although incorrect in their arguments as to the consequences of that jurisdiction.
To address the constitutional constraints on the bankruptcy court's judicial power articulated by the Supreme Court in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), Congress distinguished between "core" bankruptcy matters, which do not exist independently of the Bankruptcy Code, and "non-core" matters, which do have independent existence under state law. See 28 U.S.C. § 157(b)(2) (non-exclusive list of matters that are "core"); Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333. "A proceeding is encompassed within the bankruptcy court's core . . . jurisdiction `if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.'" In re Leco Enters., Inc., 144 B.R. 244, 249 (S.D.N.Y. 1992) (quoting Wood v. Wood, 825 F.2d 90, 96-97 (5th Cir. 1987)); accord In re Green, 200 B.R. 296, 298 (S.D.N.Y. 1996). By contrast, a proceeding is non-core if it exists independently under state law and is merely "related to" the bankruptcy case because of a conceivable effect upon the debtor's estate. See Green, 200 B.R. at 299. Only a district court, and not a bankruptcy court, may enter final judgment in a non-core, "related to" proceeding. Compare 28 U.S.C. § 157(b)(1) ("bankruptcy judges may hear and determine" all core proceedings, subject only to ordinary appellate review), with 28 U.S.C. § 157(c)(1) (in "a proceeding that is not a core proceeding but that is otherwise related to a case under title 11," final judgment "shall be entered by the district judge" upon de novo review of any findings as to which any party objects).
These actions hardly fit the description of a "core" proceeding. They are perfectly ordinary state-law actions that invoke no aspect of bankruptcy law, that proceed against numerous defendants who are not in bankruptcy and who are jointly and severally liable for all claims, and that, even as to the bankrupt defendant, concern actions taken long before the bankruptcy filing. Even if the proofs of claim filed by the Kerusa and Board of Managers plaintiffs in the Jones bankruptcy render their claims against Jones "core" (a conclusion which the Court need not reach here), they have no effect on the claims against the other defendants, the many cross-claims among defendants other than Jones, or the entirety of the Kramer action (for which no proof of claim has been filed by the plaintiffs), all of which are clearly non-core.
This conclusion, however, does not exhaust the jurisdictional inquiry. Federal courts also have jurisdiction over matters "related to" a pending bankruptcy proceeding. 28 U.S.C. § 1334(b). This jurisdiction is considerably broader, applying to civil proceedings whose "outcome might have any conceivable effect on the bankrupt estate." In re Cuyahoga Equip. Co., 980 F.2d 110, 114 (2d Cir. 1992). Although "related to" jurisdiction is not unlimited, federal courts have found jurisdiction under this heading in cases where the debtor is not even a party, such as a proceeding to execute on a bond issued by the debtor's surety, Celotex Corp. v. Edwards, 514 U.S. 300 (1995), or proceedings against officers or employees of the debtor that could exhaust the debtor's insurance limits or give rise to claims against the debtor for contribution or indemnity, see, e.g., In re Worldcom Inc. Sec. Litig., 293 B.R. 308, 317 (S.D.N.Y. 2003) ("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."). These cases are clearly "related to" the Jones bankruptcy because they contain claims directly against Jones for potentially millions of dollars in liability, and any finding of liability on the part of any defendant will likely give rise to contribution or indemnity claims against Jones.
Even if plaintiffs prevail in their efforts to persuade the bankruptcy court to allow them to proceed directly against Jones's insurers (Kerusa Mem. at 5), these actions would still fall within "related to" jurisdiction in light of the continued debtor and intercreditor disputes that could arise concerning distribution of the policy proceeds in light of the plethora of actions currently proceeding against Jones around the country, and which will have to be resolved as part of Jones's bankruptcy.
Accordingly, this Court does have jurisdiction over these matters and the removal was proper. Unlike most instances of removal jurisdiction, however, this conclusion does not resolve the matter. In contrast to most headings of jurisdiction in which the jurisdiction of the federal courts must be exercised once properly invoked, Congress has recognized that the bankruptcy jurisdiction, particularly in its "related to" aspect, is potentially so broad that federal courts require equally broad discretion to remand cases to the state courts where fairness and judicial efficiency will be better served by litigating the matters in state court than by sucking into the federal courts large and complex actions lacking any specifically federal component merely because they tangentially affect a bankrupt estate.
II. Discretionary Abstention and Remand
The Court's power to abstain or remand in circumstances such as that presented here is broad. See 28 U.S.C. § 1334(c)(1) (`'Nothing in this section prevents a district court in the interests 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. § 1452(b) ("The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground."). Courts in this district have treated the analysis under these two statutory provisions as essentially identical, see, e.g., Worldcom, 293 B.R. at 334, and have identified a wide variety of factors that bear on this analysis: (1) the effect on the efficient administration of the bankruptcy estate; (2) the extent to which issues of state law predominate; (3) the difficulty or unsettled nature of the applicable state law; (4) comity with state courts; (5) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (6) the existence of a right to trial by jury; (7) prejudice to the involuntarily removed parties; and (8) the potential for duplicative and uneconomical use of judicial resources and the lessened possibility of inconsistent results. NEMSA Establishment, S.A. v. Viral Testing Systems Corp., 1995 WL 489711, at *7 (S.D.N.Y. Aug. 15, 1995); Drexel Burnham Lambert Group, Inc. v. Vigilant Ins. Co., 130 B.R. 405, 407 (S.D.N.Y. 1991); In re River Center Holdings, LLC, 288 B.R. 59, 59 (Bankr. S.D.N.Y. 2003).
As discussed more fully below, the majority of these factors point decisively towards remand in these three cases. Of course, the list of factors is non-exclusive and was developed simply as a guide to the required inquiry; the wise exercise of discretion is rarely a matter of score-keeping or bean-counting. Ultimately, the pursuit of "equit[y]," "justice" and "comity" involves a thoughtful, complex assessment of what makes good sense in the totality of the circumstances. An overall assessment of what is at stake in this litigation points toward remand even more decisively than the already lopsided calculation of conventionally-listed factors.
A. The Effect on the Efficient Administration of the Bankruptcy
The principal federal interest in any invocation of bankruptcy jurisdiction is in the efficient administration of the underlying bankruptcy estate. Hence, this interest is typically listed first among the factors to be considered in deciding whether to exercise or refrain from exercising that jurisdiction. See, e.g., In re Adelphia Comm. Corp. Sec. Litig., 2003 WL 23018802, at *2 (S.D.N.Y. Dec. 23, 2003); Stahl v. Stahl, 2003 WL 22595288, at *2 (S.D.N.Y. Nov. 7, 2003); see also Kerusa Mem. at 14, Kramer Mem. at 10, Joint Mem. at 4, Sponsor Mem. at 17. If the Removing Defendants cannot carry the burden on this factor, it is unlikely that the other factors will be of much help to them.
But this factor can hardly be said to weigh in favor of exercising federal jurisdiction. Jones has ceased operation and its bankruptcy plan calls not for reorganization but rather for liquidation to pay the claims of its creditors, including the sale of substantially all the estate's assets and the creation of a liquidation trust to administer the claims process. (Jones Mem. at 6; Siegel Decl. at ¶ 9.) The administration of the Jones estate thus does not involve the complexities of overseeing a company in reorganization, nor the delay of a return to normal operations occasioned by a complicated claims resolution process. Whether in North Carolina or New York, the claims of these plaintiffs will have to be resolved and either denied or reduced to a liquidated amount before there can be any effect on the bankruptcy estate.
Moreover, the debtor defendant (Jones) has itself taken steps to ensure that prosecution of these claims will not affect the estate by moving the bankruptcy court to allow actions against Jones to proceed directly against Jones's insurers, disclaiming any estate interest in the proceeds of those insurance policies, and asserting that there is no deductible associated with those policies on at least some of the claims in these actions. (Kerusa Mem. at 5; Rearden Decl., Ex. E; Kramer Reply Mem. at 8; Shepherd Decl., Ex. I.) Likewise, in motion practice over Jones's request to allow certain claimants to proceed directly against its insurance proceeds, the Sponsor also argued that "prosecution of the plaintiffs' and defendants' claims in the Board of Managers, Kramer, and Kerusa actions will not impair the debtors' estates." (Rearden Decl., Ex. G at 1, 5; Ex. H at 1-2, 5.) The inconsistency of the Removing Defendants' positions in front of the bankruptcy court with those taken here strongly suggests that the arguments advanced in opposition to remand are essentially tactical.
The bankruptcy court itself has cautioned the parties against removal of too many state-court actions involving Jones to the federal jurisdiction, citing the overburdened docket of the federal courts in the Western District of North Carolina. The bankruptcy court had imposed a temporary extension of the automatic stay to non-debtor co-defendants, in order to allow Jones time to assess the effects of the many pending actions on its bankruptcy and to make appropriate motions. (Rearden Decl., Ex. F.) When the stay was lifted as to non-debtors on January 21, 2004, the bankruptcy court informed the Sponsor and other assembled parties: "I hope there aren't too many [removals] to come up. As I have told you before, there are some manpower concerns in this district, . . . since many of these the bankruptcy court couldn't even try, we have got one of the most overworked districts in the country. . . . So I would recommend that you be very judicious as to what you remove." (Rearden Decl., Ex. I, at 93.) In contrast, as plaintiffs point out, these cases were pending for nearly a year (four months for the Kerusa action) before the commercial division of the New York Supreme Court, and the judge who has presided over the cases is already familiar with the parties and issues. (Kerusa Mem. at 15, Joint Mem. at 8-9, Kerusa Reply Mem. at 7.) The efficient resolution of these complex cases can thus be expected to proceed more smoothly in the New York courts than if transferred to the bankruptcy court in North Carolina as the Removing Defendants request.
The Removing Defendants argue that administration of the bankruptcy will be impaired if these cases are remanded because the participation of Jones in the litigation in New York will cost the debtor significant time and money. (Sponsor Mem. at 17-18.) This argument is a red herring. The claims against Jones are stayed during the pendency of the bankruptcy. Furthermore, the Sponsor's claim that Jones "has very limited capabilities to participate in discovery outside North Carolina" (id.) is likewise unavailing, as the bulk of discovery will take place in New York whether these actions proceed in New York Supreme Court or in federal court in North Carolina, since nearly all of the potential witnesses and documents are located here. To the extent that this argument is essentially a claim that duplicative litigation will be necessary, because the same claim litigated in New York will "inevitably" also be litigated in the bankruptcy proceedings (id.), it is disposed of below in part H.
Accordingly, for all of these reasons, the Court does not find that this factor favors federal court jurisdiction.
B. The Predominance of State Law Issues
This factor also weighs in favor of remand. While remand is not required solely because an action involves application of state law, see Neuman v. Goldberg, 159 B.R. 681, 688 (S.D.N.Y. 1993), and the legal issues in these cases do not appear at first blush to be either unusual or unsettled, the fundamental fact here is that the issues in this litigation exclusively concern state law, and do not implicate any question of bankruptcy law or other matters of uniquely federal interest or expertise.
C. Difficulty or Unsettled Nature of State Law Issues
Plaintiffs cite no particularly difficult or unsettled issues of state law that would best be resolved in state court, or that would pose particular difficulties for the bankruptcy or district court. Although toxic mold litigation may be relatively new to New York jurisprudence, plaintiffs have failed to put forth any arguments as to why toxic mold's status as the tort du jour will generate any novel or complex legal issues that distinguish mold cases from the generations of tort litigation that have preceded them in the New York courts. This fact, of course, does not argue for assertion of federal jurisdiction. Rather, its force is to weaken somewhat the strength of the preceding factor as an argument for remand.
D. Comity
This factor, understandably virtually ignored by the Removing Defendants, points strongly in the direction of remand. This litigation concerns uniquely local matters of real estate development and residents' health and safety. In any community, questions of land use are of dominant local interest, and, given its scarcity, Manhattan real estate is the subject of even more than usually intense community scrutiny. The Zeckendorf real estate interests are significant corporate citizens in New York City, and play a major role in the New York construction and development industry. The alleged difficulties of this prominent Park Avenue luxury development, and alleged effects on the health and safety of its residents, have been the subject of numerous articles in the New York press. See Sam Smith, "Fungus Among Us: Mold Growing into Epidemic on City Walls," N.Y. Post, Nov. 16, 2003, at 9; Blair Golson, "Toxic Mold Gold: Shoddy High — Rises Sold With Flaws," N.Y. Observer, June 23, 2003, at 1; Christina Merrill, "Spreading Mold Lawsuits Threaten N.Y. Infection," Crain's N.Y. Business, Feb. 17, 2003, at 22; Braden Keil, "Escape from Mold Manor," N.Y. Post, Jan. 30, 2003, at 32. Deference to the state courts' interest in resolving disputes regarding such matters is appropriate.
This argument takes on particular urgency in the specific procedural setting of these cases. In most cases, whether a matter of this kind is resolved in state or federal court might have little practical effect on the interest in resolving local disputes locally. In these cases, however, the removal from state to federal court does not simply move the matter to a courtroom across the street. As all parties agree, removal to this Court, if effected, is merely a stepping stone towards transfer of the cases to the federal court in North Carolina. The notion that a federal court in another region of the country, rather than a state court in New York County, should resolve disputes about a residential apartment building in New York City verges on the bizarre. The local significance of these cases argues strongly for returning the matter to the state courts.
E. The Relatedness of the Proceedings to the Bankruptcy
As already noted, the overwhelming majority of the claims in these proceedings are not core bankruptcy actions. They are ordinary state-law actions, which involve no questions of bankruptcy law whatsoever. They are implicated in the bankruptcy solely because one of the many defendants has sought the protection of the bankruptcy court, and some of the plaintiffs and non-debtor defendants have filed contingent, unliquidated proofs of claim premised on the future outcome of these actions. The actions involve the rights of three different sets of plaintiffs, and over fifteen defendants, only one of whom is in bankruptcy. Even that party was sued in these actions before it filed for bankruptcy protection, and for actions taken long before that event. While it cannot be denied that the bankrupt debtor, as the general contractor, is a significant party to these actions, the issues in the case are remote from the bankruptcy proceedings and the bulk of the matters in these complicated multi-party disputes have nothing to do with the bankruptcy at all. This factor points strongly toward remand.
F. Right to a Jury Trial
Because a bankruptcy court cannot conduct a jury trial absent special designation by the district court and the consent of all parties, 28 U.S.C. § 157(e), the presence of a Seventh Amendment jury trial right in a removed action weighs heavily in favor of remand. See Drexel, 130 B.R. at 409. All of the plaintiffs have demanded a jury trial in these actions and none have consented to the bankruptcy court presiding over them. (Kerusa Mem. at 18, Board Mem. at 12, Kramer Mem. at 14.) While the Kerusa and Board plaintiffs may have jeopardized their right to a jury trial on their claims against Jones by filing proofs of claim based on the causes of action in this litigation, see generally Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), their right to a jury trial on their claims against the many other defendants is unaffected. Germain v. Conn. Nat'l Bank, 988 F.2d 1323, 1327 (2d Cir. 1993) (filing proof of claim does not strip any party of jury rights over state law claims that do not fall within the equitable "claims — allowance process"). Moreover, the Kramer plaintiffs have not filed a proof of claim in the Jones bankruptcy, and a number of the causes of action in their complaint are personal injury tort claims. Under well-established constitutional and statutory authority, the Kramer action, if removed, must be tried before a jury in a district court and not the bankruptcy court. See 28 U.S.C. § 157(b)(5) and (e); Marathon, 458 U.S. at 73-76; Granfinanciera, 492 U.S. at 52-53. The imperative of these plaintiffs' right to a trial by jury, and the effect that protecting that right would have on the interests of efficiency and consistency, discussed above in part A and below in part H, argues in favor of returning these cases to the state courts.
G. Prejudice to Removed Parties
An examination of the prejudice to the involuntarily removed parties (all plaintiffs, as well as the non-Sponsor-affiliated, non-debtor defendants) also weighs heavily in favor of remand. With the exception of the debtor Jones, all of the parties in these actions are local to New York and unquestionably will be prejudiced by the greater expense and difficulty of litigating over 600 miles away from where the actions were filed and where all of the relevant events took place. Even as to Jones, the events and actors related to its potential liability in these actions are all connected to New York, and it is at least as likely that many of the potential Jones-related witnesses and documents are still located here as in North Carolina. Furthermore, removal and transfer not only will deny plaintiffs their choice of the state courts as their forum, as is the case in all removals, but also will deprive both plaintiffs and the non-removing defendants of the benefits of pressing their claims before a court (and a jury) in the jurisdiction where the plaintiffs and nearly all defendants reside, where the Building that is the subject of this action is located, and where all of the relevant events took place.
H. Duplicative Litigation: Wasted Resources and Inconsistent Results
The assessment of the likelihood of duplicative litigation, wasted judicial and party resources, and inconsistent results depends on a variety of uncertain predictions. The Removing Defendants base their arguments in opposition to remand on a simplistic scenario in which remand is denied and these actions are transferred directly to the bankruptcy court in the Western District of North Carolina, where all issues will be resolved by the bankruptcy judge as a seamless part of his total resolution of all claims in the Jones bankruptcy. This picture is largely illusory.
First, although the Court need not resolve these issues given the strong arguments in favor of remand, the question of transfer following removal is hotly contested by the plaintiffs and non-removing defendants, and at first glance there appear to be significant questions as to the amenability to transfer of at least the Kramer action. Second, upon transfer to the Western District of North Carolina, although these cases would initially be referred to the bankruptcy court there, a veritable explosion of motion practice before the district court would no doubt ensue. Given the complex questions concerning the effects of the proofs of claim on the "core" nature of some of the claims and on the plaintiffs' rights to a jury trial, the limited jurisdiction of the bankruptcy court to enter judgment on non-core claims, and the unquestioned rights of the Kramer plaintiffs to an Article III court, it is reasonable to expect that motions to withdraw the reference will be filed with the district court in North Carolina immediately upon transfer, and that they will be opposed vigorously by the debtor and Sponsor. See, e.g., In re Orion Pictures Corp., 4 F.3d 1095 (2d Cir. 19293); In re Florida Hotel Properties L.P., 163 B.R. 757 (W.D.N.C. 1994). This complicated and fact-intensive motion practice will certainly generate additional delay and expense in these actions, and, depending on the outcome, could result in these actions proceeding before the district court or even being divided between the bankruptcy court and district court — either of which would greatly diminish the Removing Defendants' arguments for the benefits of removal and transfer. This Court unfortunately lacks a crystal ball that can reveal the future, but even the hazy view available reveals the flaws in the picture presented by the Removing Defendants.
Plaintiffs' efforts to predict the future fare no better. Plaintiffs argue that because motions are pending in the bankruptcy court that would allow plaintiffs to proceed solely against Jones's insurance policies, the plaintiffs, at least, will not have to press any claims against the Jones estate itself, and their contingent proofs of claim will simply fall away, obviating the need for any involvement whatsoever by the Jones estate. (Kerusa Mem. at 5-6, Board Reply Mem. at 6, Kramer Reply Mem. at 8-9.) Plaintiffs also argue that principles of joint and several liability may suffice to keep the Jones estate at arms-length from these actions. (Kramer Mem. at 9, Kerusa Reply Mem. at 9.) Both of these arguments amount to a prediction that no duplication of effort or wasted resources will result from the continuation of these actions against the nondebtor defendants while proceedings against Jones are stayed. The Court is less sanguine.
A realistic view of litigation requires a recognition that the future maneuvers of the * parties cannot be so clearly foreseen as either side to this debate would like us to believe. The significance of plaintiffs' argument lies less in a confident expectation that events will follow the course that they predict, than in a reminder that it cannot be assumed either that the litigation will follow the path predicted by the Removing Defendants. The briefs of the parties argue, with varying degrees of plausibility, that duplicative litigation will result from either remand or the assertion of bankruptcy jurisdiction, and that such wasteful excess can be avoided only by following the course that each party finds preferable for its own reasons. Realistically, some duplication of effort is the inevitable result of Jones's bankruptcy filing and the accompanying automatic stay of proceedings against it. What is certain, however, is that, regardless of the outcome of the present motions, parties of good will should have little difficulty devising ways to avoid or minimize wasteful duplication of effort. Conversely, if any significant parties are inclined to use excessive litigation costs as a tactic, neither remand nor transfer will prevent them from finding a way to engineer duplicative and wasteful proceedings.
Finally, as noted above in part A, the vast majority of the witnesses and documents relevant to these actions are in or near New York, so discovery will proceed primarily in New York regardless of the location of the court presiding over the trial, and thus, to the extent Jones participates in these actions either now or following the conclusion of its bankruptcy proceedings, it cannot avoid the costs associated with New York discovery. Likewise, if the cases were transferred, a trial in North Carolina will either greatly multiply the expense for all other parties, or will lack live witnesses.
Accordingly, this factor certainly does not weigh in favor of retaining jurisdiction, and points at least somewhat in the direction of remand.
I. Overall Summary
Although analysis of the individual factors employed by other courts conducting this inquiry points strongly in the direction of remand here, as noted at the outset the exercise of discretion is rarely a mathematical exercise and instead requires a thoughtful assessment of the totality of the circumstances presented by each case. Here, even a brief weighing of those circumstances leads to the conclusion that remand to the state courts of New York is the only sensible outcome. These disputes are based entirely on state law claims, about a very local subject matter, with parties and witnesses and evidence (including the immovable Building that is the central subject of this dispute) that are predominantly located in New York. They involve a large number of parties, only one of which is in bankruptcy, and all claims against that party are pre-bankruptcy claims that had actually been pending in state court for between four and nine months before that party's bankruptcy filing. No bankruptcy law issues are implicated, and the special expertise of federal courts in dealing with such issues will not be called upon. The Removing Defendants nevertheless argue that justice, comity, and equity will be served by removing these cases not merely from the state courts of New York, but from the state entirely, and litigating them before an overburdened bankruptcy court, located hundreds of miles distant, which has already indicated its disinclination to have such matters removed or transferred to its district. There is no merit to their argument. Would that all exercises of discretion were this easy.
CONCLUSION
The motions to remand these actions to state court are granted. The cross-motions to transfer are denied as moot.SO ORDERED.