United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Plaintiff's Motion to
Remand. (ECF No. 10). The matter is fully briefed and ready
February 13, 2018, Plaintiff brought a suit against
Defendants Energy One Solar and Greensky, LLC for fraudulent
misrepresentations arising out of an installment contract in
the Circuit Court of Washington County Missouri.
(18WA-CC00065). On May 30, 2019, Defendant Energy One Solar
filed Suggestions of Bankruptcy under Chapter 7, Title 11 of
the United States Bankruptcy Code in the United States
Bankruptcy Court for the Southern District of Texas.
Id. On June 11, 2019, Plaintiffs filed a motion to
Dismiss Defendant Energy One Solar from the State Court
Proceeding. Id. Defendant Greensky argues that this
Motion to Dismiss was improper because an automatic stay
should have been put in place when Defendant Energy One Solar
filed its Suggestions of Bankruptcy. (ECF No. 12 at 2). The
state court has not ruled on the Motion to Dismiss.
August 16, 2019, Defendant Greensky removed this case
asserting that this Court has jurisdiction of the case
pursuant to 28 U.S.C. §§ 1452(a) and 1334(b) and
the Federal Rule of Bankruptcy Procedure 9027(a). (ECF No.
1). On September 3, 2019, Plaintiffs filed a Motion to Remand
disputing the Court's jurisdiction. (ECF Nos. 10, 11).
is well settled that on a Motion to Remand, the burden of
establishing federal subject matter jurisdiction lies with
the removing party.'” Riffert v. Walgreen
Co., 4:07CV1912 JCH 2008 WL 495643, at *1 (E.D. Mo. Feb.
20, 2008) (quoting Rolwing v. NRM Corp., 1:05CV81
FRB 2005 WL 1828813, at *2 (E.D. Mo. Aug. 2, 2005)). Under 28
U.S.C. § 1452 “[a] party may remove any claim or
cause of action in a civil action … to the district
court for the district where such civil action is pending, if
such district court has jurisdiction of such claim or cause
of action under section 1334 of this title.” 28 U.S.C.
§1452(a). Section 1334 confers “original but not
exclusive jurisdiction to all civil proceedings arising under
title 11 or arising in or related to cases under title
Eighth Circuit has formulated a test to determine whether a
claim is related to a bankruptcy estate:
The test for determining whether a civil proceeding is
related to bankruptcy is whether the outcome of that
proceeding could conceivably have any effect on the estate
being administered in bankruptcy … An action is
related to bankruptcy if the outcome could alter the
debtor's rights, liabilities, opinions or freedom of
action … and which in any way impacts upon handling
and administration of the bankrupt estate.
Law v. Mallinckrodt, Inc., No. 4:05CV876
CDP 2005 WL 1926564 at *2 (E.D. Mo. Aug. 11,
2005)(quoting In re Dogpatch Properties U.S.A., 810
F.2d 782, 786 (8th Cir. 1985)).
their Motion for Remand, Plaintiffs argue that Defendant
Greensky failed timely to file its Notice of Removal because
it filed 81 days after the Suggestions of Bankruptcy was
filed. (ECF No. 11). Plaintiffs also contend that upon the
filing of their Motion to Dismiss Defendant Energy One Solar,
Defendant Energy One Solar was dismissed and therefore the
cases cannot be related. Id. Defendant Greensky
argues that due to the automatic stay that ought to have been
in effect based on the Bankruptcy case, Defendants were
unable to dismiss Defendant Energy One Solar. Before
addressing Plaintiffs' Motion for Remand, the Court will
first address whether the basis for removal by Defendant
Greensky was proper.
Title 11 of the United States Code, an automatic stay
commences when the bankruptcy petition is filed and remains
in effect until property is no longer property of the estate,
the stay is lifted, or until the bankruptcy case is either
closed or dismissed. 11 U.S.C. § 362. The automatic stay
applies to “the commencement or continuation …
of a judicial … proceeding against the debtor that was
or could have been commenced before the commencement of the
case under this title, or to recover a claim against the
debtor that arose before the commencement of the case under
this title.” 11 U.S.C. §362(a)(1). Plaintiffs'
case against Defendant Energy One Solar ought to have been
stayed, and no further action taken. The bankruptcy case
remains open and no party in this case has requested a lift
of the stay. Further, the State Court had not made any
determination on the pending Motion to Dismiss against
Defendant Energy Solar prior to removal and this Court
declines to do so at this juncture. Therefore, the Court will
determine whether Plaintiffs' cause of action, as a
whole, bears any relation to Defendant Energy One Solar's
case under Title 11.