“The abstention provisions of 28 U.S.C. § 1334(c)(2) apply even though a case has been removed pursuant to 28 U.S.C. § 1452.”
How later courts described this case
- “The abstention provisions of 28 U.S.C. § 1334(c)(2) apply even though a case has been removed pursuant to 28 U.S.C. § 1452.”
- decision as to whether proposed claim is without merit, thereby making motion to amend futile, is "a decision that the district court alone is in a position to make"
- “[Complete preemption ... is extremely limited, existing only where a claim is preempted by [the LMRA]; where a state law complaint alleges a present right to possession of Indian tribal lands; and where state tort or contract claims are preempted by [the enforcement power of ERISA].”
- "complete preemption ... is extremely limited, existing only where a claim is preempted by [the LMRA]; where a state law claim alleges a present right to possession of Indian tribal lands; and where state .tort or contract claims are preempted by [ERISA]” (internal citations omitted)
Written by the judges who cited it.
The opinion
BAILEY BROWN, Senior Judge,
concurring.
I concur in all respects except that I would, under section III, reach the result by a different route.
It is true that the district judge granted summary judgment to MichCon on the basis that 11 U.S.C. § 366 (b) authorized the bankruptcy court’s order with respect to the procedure for cutting off service and that the federal law, under the Supremacy Clause, “preempts” the state law. However, the panel opinion holds, I think correctly, that § 366(b) simply does not control the procedure for cutting off service. The opinion states: “Although 11 U.S.C. § 366 (b) does not stand in the way of utility termination in this case, it does not control the procedure by which such termination may occur.” (Emphasis added.) (Maj. at 588) Since federal bankruptcy law does not control such procedure, the opinion holds that appellants are entitled to rely on procedures prescribed by state law. Therefore, it seems to me, the error of the district court was not, as stated by the panel opinion, in holding that federal law “preempted” state law; the error was in not applying the only applicable law, which is state law. This is not to say, as the panel opinion recognizes, that, MichCon would not be entitled to rely on a defense based on its compliance with bankruptcy court order or any other defense. It is only to say that, with respect to the procedure to be followed by MichCon in terminating service, state law applies.