United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Austin
McCorkle's (“McCorkle”) motion to withdraw
reference and Respondent Peter Herold's
(“Herold”) subsequent motion to dismiss. (Dkts.
1, 3). Herold and his wife previously filed for Chapter 13
Bankruptcy in the United States Bankruptcy Court for the
Western District of Virginia. (Dkt. 2 at ECF 1); In re
Peter John Herold, Sr. and Amy Bond Herold, No.
17-62475, (Bankr. W.D. Va. Dec. 27, 2017). Before Herold
filed for bankruptcy, McCorkle sued him in Virginia state
court for injuries sustained in a car accident. The accident
was allegedly caused by Herold's intoxication. Upon
Herold's filing for bankruptcy, McCorkle's state
action was stayed. McCorkle now seeks to have his claim
against Herold excepted from the ongoing bankruptcy
proceedings, pursuant to 11 U.S.C. § 523(a)(9), and
litigated in this Court. See 28 U.S.C. §§
157(b)(5), (d). Herold has appeared and moved to dismiss the
instant action pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Although I will grant McCorkle's
motion to withdraw reference, I find permissive abstention is
appropriate and will dismiss the instant case.
Motion to Withdraw Reference
the Bankruptcy Code, a district court, and not the bankruptcy
judge, must try personal injury tort and wrongful death
claims.” In re Beard, 811 F.2d 818, 832
(4th Cir. 1987).
The district court shall order that personal injury tort and
wrongful death claims shall be tried in the district court in
which the bankruptcy case is pending, or in the district
court in the district in which the claim arose, as determined
by the district court in which the bankruptcy case is
28 U.S.C. § 157(b)(5). Thus, withdrawing the reference
of personal injury actions is mandatory under the language of
§ 157(b)(5). Desimone Hosp. Servs., LLC v. W.
Virginia-Am. Water Co., No. AP 2:14-2008, 2014 WL
1577051, at *3 n.3 (S.D. W.Va. Apr. 16, 2014) (noting
personal injury tort claims “are the subject of
mandatory withdrawal of reference pursuant to 28 U.S.C.
§ 157(b)(5).”); In re 610 W. 142 Owners
Corp., No. 94 B 44488 (JGH), 1999 WL 294995, at *2
(S.D.N.Y. May 11, 1999) (same).
neither party contests that McCorkle's claim is anything
other than a personal injury tort claim. Indeed, his claim is
for common law negligence, arising out of a car accident,
seeking damages for personal injuries. In re Cramer,
No. ADV. 10-1291 MBK, 2011 WL 2112518, at *2 (D.N.J. May 26,
2011) (granting plaintiff's motion to withdraw reference
under § 157(b)(5) for a claim involving a car accident).
Accordingly, the Court will grant McCorkle's motion to
withdraw reference under the mandate in § 157(b)(5).
granting McCorkle's motion to withdraw reference is
mandatory under § 157(b)(5), subsection (b)(5)
“has consistently been construed to recognize
discretion in district courts to leave personal injury cases
where they are pending. In other words, the Bankruptcy Code
‘ ‘allows abstention for personal injury
cases' and only ‘where abstention does not
occur' will the requirement for adjudication in a
district court take effect.'” In re Pan Am.
Corp., 950 F.2d 839, 844 (2d Cir. 1991) (quoting In
re White Motor Credit, 761 F.2d 270, 273 (6th Cir.
1985)). A district court is not precluded, “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). Such “abstaining” is called
Permissive Abstention Factors
Court considers a dozen factors when determining whether
permissive abstention is appropriate:
(1) the effect or lack thereof on the efficient
administration of the estate if a Court recommends
abstention, (2) the extent to which state law issues
predominate over bankruptcy issues, (3) the difficulty or
unsettled nature of the applicable law, (4) the presence of a
related proceeding commenced in state court or other
nonbankruptcy court, (5) the jurisdictional basis, if any,
other than 28 U.S.C. § 1334, (6) the degree of
relatedness or remoteness of the proceeding to the main
bankruptcy case, (7) the substance rather than 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
court's] docket, (10) the likelihood that the
commencement of the proceeding in [federal] court involves
forum shopping by one of the parties, (11) the existence of a
right to a jury trial, and (12) the presence in the
proceeding of nondebtor parties.
In re Eastport Assocs., 935 F.2d 1071, 1075 (9th
Cir. 1991); see also In re Lee, 461 Fed.Appx. 227,
238 (4th Cir. 2012) (discussing the second, fourth, and tenth
factors). “[O]ne or more (not
necessarily all)” of these factors need be considered.
In re Cody, Inc., 281 B.R. 182, 190 (S.D.N.Y. 2002)
(emphasis in original), aff'd in part, appeal
dismissed in part, 338 F.3d 89 (2d Cir. 2003).
“Courts should apply these factors flexibly, for their
relevance and importance will vary with the particular
circumstances of each case, and no one factor is necessarily
determinative.” Matter of Chicago, Milwaukee, St.
Paul & Pac. R. Co., 6 F.3d 1184, 1189 (7th Cir.
1993). On the whole, the factors weigh in favor of abstention
in this case.