Petition for Writ of Certiorari — Employers Insurance v. Celotex Corp.

Suprema Court, WS

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AUG 10 1993

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IN THE

Supreme Court of the United States

OcToBEerR TERM, 1993

EMPLOYERS INSURANCE-OF WAUSAU,

Petitioner,

v.

THE CELOTEX CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RONALD J. COHEN"

Dan J. SCHULMAN

EILEEN MURPHY

SEWARD & KISSEL

One Battery Park Plaza

New York, New York 10004

(212) 574-1200

Attorneys for Petitioner

Employers Insurance of Wausau

* Counsel of Record

QUESTION PRESENTED

Whether a writ of mandamus should be issued by this

Court to correct the errors of the court of appeals in

dismissing an appeal from the district court and refusing to

issue a writ of mandamus requiring the district court to

exercise its jurisdiction to review the merits of a bankruptcy

court’s order remanding an action to state court, where such

errors denied Wausau review by an Article III court of a

decision by an Article I tribunal denying Wausau access to

the federal courts and controlling the Article III court’s

jurisdiction, contrary to the United States Constitution, the

Judiciary Code and this Court’s decision in Northern

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50

(1982) ("Marathon")?

(i)

LIST OF PARTIES AND RULE 29.1 LISTING

The names of all parties appear in the caption of the

case. Petitioner Employers Insurance of Wausau, A Mutual

Company, named herein as Employers Insurance of Wausau,

has no parent corporation. Employers Insurance of Wausau

is affiliated with Nationwide Insurance Group and all of

Petitioner’s subsidiaries are wholly owned.

(ii)

TABLE OF CONTENTS

Page

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LIST OF PARTIES AND RULE 29.1 LISTING....... (ii)

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................cccccccseseeceeeee 2

STATEMENT OF THE CASE.................cccccccccsceseeeess 3

REASONS FOR GRANTING THE WRIT................ 6

THE COURT OF APPEALS’ DECISION

CONFLICTS WITH THE CONSTITUTION

AND DECISIONS OF THIS COURT.................. 7

By Refusing to Review the District Court Order,

the Eleventh Circuit Ignored the Constitution and

Decisions of This Court Establishing That a

Litigant’s Right to an Adjudication by an Article

Ii Court Is Not Satisfied by an Unreviewed

Decision of an Article I Tribunal Lacking Federal

ria sakcniaachninhgmntnsiibeanmseane 7

(uli)

Mandamus Should Issue to Prevent Nullification

of the Removal Statutes by an Unreviewed

Decision of a Non-Article III] Court Remanding

a Case Within the Federal Jurisdiction to

(iv)

APPENDICES

APPENDIX A

Court of Appeals Order: Jn re The Celotex

Corporation, et al. {Employers Insurance of

Wausau v. The Celotex Corporation), Nos. 92-

2125 and 92-2971 (11th Cir. 1993) (dismissing

APPENDIX B

Court of Appeals Order: Jn re Employers

Insurance of Wausau, No. 92-2658 (11th Cir.

1993) (denying mandamus petition).....................0- 2a

APPENDIX C

District Court Order: In re The Celotex

Corporation, et al. (The Celotex Corporation, et

al. vy. Employers Insurance of Wausau), Case

No. 91-1849-CIV-T-10(C) (M.D. Fla. Jan. 9,

1992) (treating notice of appeal as motion for

leave to appeal and denying leave to appeal)........... 3a

APPENDIX D

Bankruptcy Court Order: Jn re The Celotex

Corporation, et al. (The Celotex Corporation v.

The Aetna Casualty & Surety Co., et al.),

Adversary No. 91-0611 (Bankr. M.D. Fla. Nov.

27, 1991) (granting remand to state court)............... 6a

APPENDIX E

Court of Appeals Order: The Celotex Corporation,

et al. (Employers Insurance of Wausau v. The

(v)

Celotex Corporation), Nos. 92-2125 and 92-2971

(11th Cir. 1993) (denying rehearing of appeals)...... 9a

APPENDIX F

Court of Appeals Order: Jn re Employers

Insurance of Wausau, No. 92-2658 (11th Cir.

1993) (denying rehearing of mandamus petition)..... lla

APPENDIX G

District Court Order: In re The Celotex

Corporation, et al. (The Celotex Corporation,

et al. v. Employers Insurance of Wausau), No.

91-1849 CIV-T-10(C) (M.D. Fla. Aug. 25, 1992)

(denying reconsideratiOn)..............seceseseersserseeenenes 12a

APPENDIX H

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(vi)

TABLE OF AUTHORITIES

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Cases

Crowell v. Benson, 285 U.S. 22 (1932)........

In re Goerg, 930 F.2d 1563 (11th Cir.

Granfinanciera, S.A. v. Nordberg, 492 U.S.

ee I iicabtiassnalkisnabiceecstctsincilacaniaseanasses

Hernandez v. Brakegate, Ltd., 942 F.2d

Rr AP BIE Pacebencicatascctivnnsesesseeses

Northern Pipeline Constr. Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982)..........

Pacor, Inc. v. Higgins, 743 F.2d 984 (3d

Ri Me aiedetariiasd epicclsesialannhbeatsincassotbeicgnaenas

In re Parklane/Atlanta Joint Venture, 927

Fle Dao CE AUG, DDL) ..ccccssenscessecsee

Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976)......

(vil)

N WON WOWND W

—

©

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

No.

EMPLOYERS INSURANCE OF WAUSAU,

Petitioner,

-against-

THE CELOTEX CORPORATION,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Employers Insurance of Wausau ("Wausau") petitions

for writ of certiorari to the United States Court of Appeals

for the Eleventh Circuit.

OPINIONS BELOW

The orders of the court of appeals dismissing Wausau's

appeal and denying its petition for a writ of mandamus are

reprinted in the appendix hereto at (la-2a). The Eleventh

Circuit’s orders denying petitioner’s petition for rehearing

and suggestion for rehearing en banc (9a-11a), and the

opinions of the district court that gave rise to the appeals and

the petition for a writ of mandamus (3a-5a, 12a-14a) and the

opinion of the bankruptcy court (6a-8a) are also reprinted in

the appendix.

JURISDICTION

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. §§ 1254(1) and 1651. The orders of the court of

appeals were entered on March 5, 1993. The Eleventh

Circuit denied Wausau’s timely petition for rehearing on

May 12, 1993.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The issues presented by this petition generally implicate

Articles I and II of the Constitution of the United States,

relating to the constitutional basis for, and the powers of, the

bankruptcy courts, including the following specific

provisions:

U.S. Const. art. TT, § 1

The judicial Power of the United States, shall be vested

in one Supreme Court, and in such inferior Courts as

the Congress may from time to time ordain and

establish. The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behaviour,

and shall, at stated Times, receive for their Services, a

Compensation, which shall not be diminished during

their Continuance in Office.

U.S. Const. art. I, § 8, cl. 4

The Congress shall have Power ...To establish...

uniform Laws on the subject of Bankruptcies

throughout the United States.

The question presented also implicates 28 U.S.C.

§§ 158 and 1452, relating to appeals from the bankruptcy

court to the district court and the removal from other courts

of pending claims related to bankruptcy cases, respectively,

which statutes are reproduced in the appendix at 15a-17a.

STATEMENT OF THE CASE

A. Proceedings in the Bankruptcy Court

On October 12, 1990, The Celotex Corporation and

Carey Canada, Inc. ("Debtors") filed voluntary petitions for

reorganization under Chapter 11 of the Bankruptcy Code, 11

U.S.C. §§ 101-1330. On Debtors’ motion, the bankruptcy

court entered an order, dated October 17, 1990 (the

“October 17th Order"), that all litigation of any kind

involving Debtors, including litigation initiated by Debtors,

be stayed. The purpose of the October 17th Order was to

centralize the various nationwide litigations affecting

Debtors in the bankruptcy court.

Consistent with the goal of centralizing all disputes,

Debtors filed an omnibus insurance coverage adversary

proceeding (the "Omnibus Proceeding") in the bankruptcy

court in January 1991, against Wausau and forty other

insurance companies seeking an adjudication of all the

disputes between Debtors and their insurance carriers,

including disputes with Wausau which were then pending in

two state court actions in the Circuit Court of Hillsborough

County, Florida (the "Hillsborough Actions") but had been

stayed under the October 17th Order.

Notwithstanding their longstanding pesition that the

Omnibus Proceeding in the bankruptcy court is the only

appropriate forum for resolution of all Debtors’ insurance

disputes, on August 27, 1991, Debtors sought to modify the

October 17th Order to allow further proceedings against

Wausau alone before the state judge in the Hillsborough

Actions. On September 19, 1991, Wausau removed the two

Hillsborough Actions to the federal district court as claims

related to Debtors’ bankruptcy cases pursuant to 28 U.S.C.

§ 1452(a). On October 4, 1991, Debtors moved the

bankruptcy court for an order remanding the Hillsborough

Actions to state court. Wausau opposed this motion on the

ground, inter alia, that the bankruptcy court, as an Article I

legislative court, lacked jurisdiction to enter a final order

denying Wausau its access to federal jurisdiction and, at best,

could make recommendations to the district court.

On November 27, 1991, the bankruptcy court signed

final orders remanding the Hillsborough Actions to the

Florida state court (the "Remand Orders") and modifying the

October 17th Order to allow the Hillsborough Actions to

proceed to the entry of an order against Wausau of partial

summary judgment (the "Lift Stay Order").

B. The District Court Appeal

On December 4, 1991, Wausau filed its notices of

appeal of the Remand Orders and of the Lift Stay Order. On

December 19, 1991, the clerk of the bankruptcy court

transmitted the record for the three appeals to the district

court. Wausau’s motions for consolidatior. of the appeals

and for stay pending appeal were filed in the district court on

December 27, 1991.

On January 9, 1992, the district court sua sponte,and \

without any notice to or briefing from the parties, entered an

order which erroneously viewed one of the Remand Orders

appealed from as interlocutory, treated the notice of appeal as

a motion for leave to appeal and dismissed the appeal (the

"District Court Order ").!

C. The Eleventh Circuit Appeal and Mandamus

Petition

By notice of appeal dated February 10, 1992, Wausau

appealed the District Court Order to the Eleventh Circuit

(Case No. 92-2125). This appeal subsequently was

consolidated with Wausau’s appeal from the August 27,

1992 Order denying reconsideration of the District Court

Order (Case No. 92-2971) and Wausau’s Petition for Writ of

Mandamus, dated July 2, 1992 (Case No. 92-2658) (the

1. On January 15, 1992, Wausau filed a motion for relief from the

District Court Order, asked the district court to exercise its

jurisdiction to correct the error of the clerk below denominating the

appeal as interlocutory and sought a determination that the

bankruptcy court order appealed from is final, or in the alternative, for

leave to appeal.

By Order entered August 27, 1992 (the "August 27, 1992 Order"),

District Judge Hodges (i) denied Wausau’s motion for relief or

reconsideration of the January 9, 1992 District Court Order and

(ii) denied Wausau’s motion for determination that the bankruptcy

court order appealed from is a final order and for leave to appeal. In

the interim, on February 19, 1992, the state court judge entered

certain rulings in the remanded litigation.

“Mandamus Petition"). Oral argument of the consolidated

appeals took place on January 28, 1993.

Wausau did not seek to have the Eleventh Circuit

reverse the bankruptcy court’s decision on the merits.

Rather, Wausau only sought that the court of appeals direct

the district court, as an Article III court, to review on a

complete record the bankruptcy court’s decision remanding

the Hillsborough Actions to state court.

D. Disposition of the Appeals and the Mandamus

Petition

The Eleventh Circuit dismissed the consolidated appeals

of Wausau in a two sentence order, dated March 5, 1993,

stating without any analysis that the District Court Order was

not reviewable.” By separate order on the same day,

Wausau’s Mandamus Petition was denied. Wausau timely

filed its petition for rehearing and suggestion of rehearing en

banc, which was denied on May 12, 1993. Wausau hereby

makes this petition for writ of certiorari in light of the

important constitutional issues implicated by these decisions.

REASONS FOR GRANTING THE WRIT

The court of appeals’ summary dismissal of the

consolidated appeals and Mandamus Petition denied Wausau

its right to review by an Article III court of the bankruptcy

court’s decision denying access to the federal courts. In so

2. The order of the Eleventh Circuit dismissing Wausau’s consolidated

appeals provides in its entirety:

The district court’s January 9, 1992, order dismissing the

appeal from the bankruptcy court’s order is not reviewable by this

Court. Therefore, this appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

doing, the Eleventh Circuit disregarded the Constitution and

the express holdings of this Court in Marathon and

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976).

This Court should grant certiorari given the important

constitutional issues raised here as to the jurisdiction and

powers of the Article I bankruptcy courts and the

constitutional requirement that decisions eliminating access

to a federal forum granted by Congress in the Judiciary Code

be subject to review by an Article III court.

THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THE CONSTITUTION AND DECISIONS OF

THIS COURT

By Refusing to Review the District Court Order, the

Eleventh Circuit Ignored the Constitution and

Decisions of This Court Establishing That a

Litigant’s Right to an Adjudication by an Article III

Court Is Not Satisfied by an Unreviewed Decision of

an Article I Tribunal Lacking Federal Judicial

Power

Constitutional considerations require that a writ of

mandamus be issued to the court of appeals to instruct the

district court to vacate its dismissal of Wausau’s appeal and

review the Remand Order of the bankruptcy court on the

merits. As the Eleventh Circuit itself held in Jn re Goerg and

In re Parklane/Atlanta Joint Venture, constitutional dictates

enumerated by this Court in Marathon, as reinforced in

3. The Eleventh Circuit ignored its own precedent in dismissing

Wausau’s appeal. The Eleventh Circuit had held that permitting a

bankruptcy court to dictate the jurisdiction of an Article III court

“would be an impermissible exercise of the judicial power of the

United States by a non-Article III court." Jn re Parklane, 927 F.2d

(Footmote continued)

7

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989),4

preclude the jurisdiction of Article III courts from being

placed within the unfettered and unreviewable discretion of

Article I bankruptcy tribunals.

In Marathon, this Court held that it was an

unconstitutional exercise of the judicial power of the United

States for judgments and orders of the Article I bankruptcy

courts adjudicating private rights to be subject to district

court review on appeal only under the deferential "clearly

erroneous" standard of review. The holdings below in this

case are even more constitutionally suspect than those at

issue in Marathon, since neither the district court nor the

court of appeals ever undertook any substantive review of the

order of an Article I court which remanded the Hillsborough

Actions to the state court.

(Footnote continued)

532, 538 (11th Cir. 1991) (affirming district court order withdrawing

the reference to hear motion to dismiss or abstain, as permitting

bankruptcy court to enter nonreviewable order dismissing the case

would "terminate the district court’s jurisdiction over the instant case

without review by an Article II] court” and "would place the

jurisdiction of an Article III court within the discretion of an Article I

court"); see also In re Goerg, 930 F.2d 1563, 1566 (11th Cir. 1991)

(district court required under the Constitution to undertake de novo

review of bankruptcy court order to dismiss or to abstain in favor of

state court jurisdiction).

4. in Granfinanciera, this Court reaffirmed its holding in Marathon that

an Article III analysis is appropriate in examining whether a party's

rights to adjudication by a jury in an Article III court are affected by

relegating the proceeding to an Article I tribunal. This Court held

that the power of Congress to prescribe bankruptcy laws and set up

specialized courts thereunder can not take away a party’s

constitutional right to such an adjudication by an Article III court in a

matter involving private rights.

In response to Marathon, Congress designated

bankruptcy judges and bankruptcy courts in each district as

"a unit of the district court." 28 U.S.C. § 151. As such,

bankruptcy courts have limited powers, and de novo review

by the district court is required in many instances to prevent

the bankruptcy courts from unlawfully and unconstitutionally

exercising Article III judicial powers. As this Court held in

Marathon, "the requirement of de novo review by an

Article I court was not simply the question of due process

in relation to notice and hearing, but was rather a question of

the appropriate maintenance of the Federal judicial power."

458 U.S. at 82 n.33 (quoting Crowell v. Benson, 285 U.S. 22,

56 (1932)). Wausau was denied de novo review. Indeed,

no review occurred here to validate the bankruptcy court’s

issuance of an order remanding the Hillsborough Actions to

State court.

Mandamus Should Issue to Prevent Nullification of

the Removal Statutes by an Unreviewed Decision of

a Non-Article II Court Remanding a Case Within

the Federal Jurisdiction to State Court

This Court held in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976), that the courts of

appeals have both the authority and the duty to use their

mandamus powers "to prevent nullification of the removal

Statutes by remand orders resting on grounds having no

warrant in the law." Thermtron, 423 U.S. at 353 (reversing

district court order remanding action to state court and

specifically holding that courts of appeals have jurisdiction

to entertain writ of mandamus notwithstanding limitation on

appellate jurisdiction set forth in 28 U.S.C. § 1447(d)).

The failure of the court of appeals to instruct the district

court to exercise its appellate jurisdiction conflicts with the

Constitution, Thermtron and the principles of Marathon.

The district court below simply dismissed the appeal, stating

as its only reason Wausau’s purported failure to satisfy the

standard applicable to interlocutory appeals, as set forth in

case law interpreting 28 U.S.C. § 158(a). ‘such a dismissal in

no way constituted the required substantive review of the

bankruptcy court’s Remand Order on the merits. The court

of appeals then dismissed Wausau’s appeal to it and denied

the Mandamus Petition. The result is that the bankruptcy

court deprived Wausau of its access to a federal forum

without any substantive review of its ruling by an Article II

court.

Wausau has been denied its constitutional right to have

an Article III court determine whether Wausau might litigate

in the federal courts. Wausau would be prejudiced

irreparably absent review of such rulings by this Court at this

time. Appellate review would be wholly ineffectual after

entry of final judgment as the state court’s partial summary

judgment would be wholly and inextricably intertwined in

the bankruptcy court’s final judgment in the Omnibus

Proceeding.

5. There currently exists a conflict among the circuits with regard to the

interpretation of the statute governing removal ind remand applicable

to a bankruptcy adversary proceeding as set forth in 28 U.S.C. §

1452. The Third Circuit reads Section 1452(b) literally, as barring

review by the courts of appeal only if remands were issued "on any

equitable ground," but permitting review of remands based on legal or

jurisdictional grounds. Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.

1984). In contrast, the Seventh Circuit reads the word "equitable" in

Section 1452(b) to mean equitable or legal, as appropriate, and bars

any review where the district court gives a reason authorized by

statute. Hernandez v. Brakegate, Ltd., 942 F.2d 1223 (7th Cir. 1991)

(dismissing appeal from remand order for want of jurisdiction).

Under either interpretation of the statute, Wausiu’s appeal to the

court of appeals should not have been dismisse<! since Wausau did

not seek appellate court review of the merits of the Remand Order but

sought only a direction to the district court to exercise its jurisdiction.

10

CONCLUSION

For the foregoing reasons, this Court should grant a writ

of certiorari to review the decision of the United States Court

of Appeals for the Eleventh Circuit and reverse and remand

this case with instructions to issue a writ of mandamus

requiring the district court to exercise its jurisdiction over the

bankruptcy court.

Respectfully submitted,

Ronald L. Cohen*

Dan J. Schulman

Eileen Murphy

SEWARD & KISSEL

One Battery Park Plaza

New York, New York 10004

(212) 574-1200

Paul L. Gingras

Rolf E. Gilbertson

ZELLE & LARSON

33 South Sixth Street

City Center - Suite 4400

Minneapolis, MN 55402

(612) 339-2020

Attorneys for Petitioner Employers

Insurance of Wausau

*Counsel of Record

; APPENDIX

* —

APPENDIX A

Filed March 5, 1993

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 92-2125 & 92-2971

D.C. Docket No. 91-1849-CIV-T-10C

IN RE: THE CELOTEX CORPORATION, ET AL.,

Debtors.

EMPLOYERS INSURANCE OF WAUSAU,

Plaintiff-Appellant,

versus,

THE CELOTEX CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

: Before: HATCHETT and BLACK, Circuit Judges, and

4 DYER, Senior Circuit Judge.

PER CURIAM:

The district court’s January 9, i992, order dismissing the

p. appeal from the bankruptcy court’s order is not reviewable

{ by this Court. Therefore, this appeal is dismissed for lack of

q jurisdiction.

APPEAL DISMISSED.

la

APPENDIX B

Filed March 5, 1993

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-2658

D.C. Docket No. 91-1849-CIV-T-10C

IN RE: EMPLOYERS INSURANCE OF WAUSAU,

Petitioner.

On Petition for Writ of Mandamus to the

United States District Court for the

Middle District of Florida

Before: | HATCHETT and BLACK, Circuit Judges, and

DYER, Senior Circuit Judge.

PER CURIAM:

The petition for writ of mandamus is DENIED.

2a

!

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

In re:

THE CELOTEX CORPORATION, et al.,

Debtors.

THE CELOTEX CORPORATION, et al.,

Plaintiffs/Appellees,

-VS-

EMPLOYERS INSURANCE OF WAUSAU,

Defendant/Appellant.

CASE NO. 91-1849 Civ-T-10(C)

(Bankruptcy Nos. 90-10016-8B1

and 90-10017-8B1)

CASE NO. 91-1849 Civ-T-10(C)

ORDER

This case is before the Court on the Appellant’s motion

for leave to appeal. Appellant seeks leave to appeal the order

entered by the Bankruptcy Court granting the Debtors’

motion to remand this adversary action to state court.

District courts are authorized to hear interlocutory

appeals from bankruptcy courts. 28 U.S.C. § 158(a).

However, the appellant must obtain leave of court before the

3a

interlocutory appeal may proceed. Id. Although neither the

statute nor the Bankruptcy Code or Rules provide specific

standards for determining whether an inter ocutory appeal

should be allowed to proceed, several cour's have relied upon

the criteria set forth in 28 U.S.C. § 1292(b).! See Inre

Warner, 94 B.R. 734, 738 (M.D.Fla.1988); In re Charter

Co., 778 F.2d 617, 620 n.5 (1 1th Cir. 1985); In re Kelton

Motors, Inc., 127 B.R. 548, 550 (D.Vt. 1991). The motion

for leave to appeal should be granted only if the bankruptcy

court’s order "involves a controlling question of law as to

which there is substantial ground for difference of opinion

and . . . an immediate appeal from the order may materially

advance the ultimate termination of the litigation... ."_ 28

U.S.C. § 1292(b).

After reviewing the order entered by the bankruptcy

court, this Court concludes that the Appellant cannot satisfy

the foregoing test. It is clear that the first prong of the test is

not implicated here. The granting of a motion to remand

does not involve a controlling question of law as to which

there is substantial ground for difference of opinion.“ In

addition, allowing an immediate appeal from the bankruptcy

court’s order would not materially advance the ultimate

termination of this litigation. To the contrary, permitting an

appeal at this time would only serve to delay these

proceedings, to the detriment of creditors and other interested

1. Section 1292(b) governs discretionary interlocutory

appeals from the district courts to the courts of appeals.

2. Because the criteria listed in §1292(b) are conjunctive

and there is no controlling question of law, the motion

for interlocutory review could be denied on this basis

alone.

4a

parties. Therefore, the motion for leave to appeal the instant

order of the bankruptcy court must be denied.

Accordingly, upon due consideration, -he motion for

leave to appeal is DENIED and the appeal is DISMISSED.

The Clerk is directed to close the file.

IT IS SO ORDERED.

DONE and ORDERED at Tampa, Flo-ida, this 9th day

of January, 1992.

/s/ W. Terrell Hodges

UNITED STATES DISTRICT JUDGE

Sa

APPENDIX D

UNITED STATES BANKRUPTCY COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

IN RE:

THE CELOTEX CORPORATION, et al.,

Debtors.

THE CELOTEX CORPORATION,

Plaintiff,

v.

THE AETNA CASUALTY & SURETY CO., ET AL.

Defendants.

Chapter 11 Consolidated Case Nos.:

90-10016-8B1 and

90-10017-8B1

Adversary No. 91-0611

(Removed from Thirteenth Judicial Circuit Court in and

for Hillsborough County, Florida, Case No. 79-5885)

ORDER GRANTING DEBTORS’ MOTION

TO REMAND THE HILLSBOROUGH ACTION

PURPORTEDLY REMOVED BY EMPLOYERS

INSURANCE OF WAUSAU

6a —

THIS MATTER was presented to the Court on

October 25, 1991, to consider the Debtors’ Motion to

Remand the Hillsborough Action Purportedly Removed by

Employers Insurance of Wausau (the "Motion"). Present at

the hearing were Jeffrey W. Warren, Esq. ind Charles P.

Schropp, Esq. for the debtors‘and Ronald L. Cohen, Esq.,

Rolf E. Gilbertson and Paul L. Gingras, Esq. for Employers

Insurance of Wausau, and numerous other interested parties.

The Court, having considered the Motion, the record in (a)

the removed case, (b) the Debtors’ bankruptcy cases and (c)

the Debtors’ Omnibus Insurance Adversary, the memoranda

of the parties in support and opposition to the Motion, the

arguments of counsel, and being otherwise fully advised in

the premises, determines that the Motion should be granted.

Accordingly, it is

ORDERED as follows:

1. The Debtors’ Motion to Remand the Hillsborough

Action Purportedly Removed by Employers Insurance of

Wausau is granted and the state court case styled: The

Celotex Corporation, Plaintiff v. Aetna Casualty & Surety

Co., et al., Defendants,. Case No. 79-5885, pending in the

Thirteenth Judicial Circuit in and for Hillsborough County,

Florida is hereby remanded to the state court.

2. All pending motions filed with this Court relating

to the removed case are hereby denied as moot.

3. A separate order will be entered in the main

bankruptcy consolidated case regarding the status of

continuation of the stay as to this litigation upon its remand

to the state court.

7a

DONE AND ORDERED at Tampa, Florida this 27th

day of November, 1991.

/s/ THOMAS E BAYNES, JR.

UNITED STATES BANKRUPTCY JUDGE

cc: Debtors

Jeffrey W. Warren, Esq.

Charles P. Schropp, Esq.

Ronald L. Cohen, Esq.

Rolf E. Gilbertson, Esq.

Paul L. Gingras, Esq.

John Emmanuel, Esq.

W. Gray Dunlap, Jr., Esq.

Oscar Blasingame, Esq.

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APPENDIX E

Filed May 12, 1993

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRC ‘JIT

No. 92-2125

92-2971

THE CELOTEX CORPORATION S, ET AL.,

Debiors,

EMPLOYERS INSURANCE OF WAUSAU,

Plaintiff-Appellant,

versus,

THE CELOTEX CORPORATION,

Defendaiit-Appellee.

On Appeal from the United States Distric: Court for the

Middle District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

Opinion March 5, 1993

Before: HATCHETT and BLACK, Circuit J udges, and

DYER, Senior Circuit Judge.

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ee

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in rezular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Ruie 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Susan H. Black

UNITED STATES CIRCUIT JUDGE

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APPENDIX F

Filed May 12, 1993

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-2658

IN RE:

EMPLOYERS INSURANCE OF WAUSAU,

Petitioner.

On Petition for Writ of Mandamus to the

United States District Court for the

Middle District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

ORDER March 5, 1993

Before: | HATCHETT and BLACK, Circuit Judges and

DYER, Senior Circuit Judge

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Susan H. Black

UNITED STATES CIRCUIT JUDGE

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APPENDIX G

Filed August 27, 1992

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

In re:

THE CELOTEX CORPORATION, et al,

Debtors.

THE CELOTEX CORPORATION, et al,

Plaintiffs/Appellees,

-VS-

EMPLOYERS INSURANCE OF WAUSAU,

Defendant/Appellant.

CASE NO. 91-1849 Civ-T-10(C)

(Bankruptcy Nos. 90-10016-8B1

and 90-10017-8B 1)

CASE NO. 91-1849 Civ-T-10(C)

ORDER

This matter is before the Court on several motions that

all arise from Defendant/Appellant Wausau’s motion

(Doc. 8) for relief from, or in the alternative for

reconsideration of, an Order this Court entered on January 9,

1992 (Doc. 7).

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On November 27, 1991, the bankruptcy court entered

three orders concerning the actions styled The Celotex

Corporation v. Aetna Casualty and Surety C ompany, et al.,

and Carey Canada, Inc. v. Continental Casualty Company,

et al., winich had been brought in the Thirteenth Judicial

Circuit in and for Hillsborough County, Florida (Doc. 9,

exhibit A). Two of the orders remanded the Hillsborough

actions to state court. The third order modified a previous

stay order entered by the bankruptcy court in order that the

judge presiding over the state court case could make a ruling

regarding Plaintiffs/Appellees Celotex Corporation’s motion

for partial summary judgment.? Thereafter, Wausau filed a

notice of appeal (Doc. 1), and this Court entered an order on

January 9, 1992 dismissing the appeal (Doc. 7) on the

grounds that the bankruptcy court’s order was not a final,

appealable order.

In their motion, Wausau argues that the bankruptcy

court’s orders appealed from were erroneously denominated

by the Clerk as "interlocutory." This Court and not the

Clerk, however, made the determination that the bankruptcy

court’s orders are interlocutory, and therefore, not

appealable. The Court has reviewed Wausau’s motion and

finds no reason to alter or amend the January 9 Order.

Accordingly, upon due consideration, Wausau’s motion

(Doc. 8) for relief or reconsideration of the Court’s

January 9, 1992 Order, and Wausau’s motion for

3. The stay order, entered pursuant to § 105 of the

Bankruptcy Code, specifically provided that the stay

should otherwise remain in effect as to all matters

conceming Plaintiffs/Appellees, including the

Hillsborough actions, until further order of the

bankruptcy court.

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determination that orders appealed from are final, and for

leave to appeal (Doc. 9) are DENIED. Celotex

Corporation’s motion to dismiss appeal for lack of

jurisdiction (Doc. 12) and to amend opposition response

(Doc. 13), and Wausau’s motion to strike cpposition

response (Doc. 15) are rendered MOOT and require no

further judicial action.

IT IS SO ORDERED.

DONE AND ORDERED at Jacksonville, Florida, this

25th day of August, 1992.

/s/ W. Terrell Hodges

UNITED STATES DISTRICT JUDGE

Copy to counsel of record

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APPENDIX H

28 U.S.C. § 158

§ 158. Appeals

(a) The district courts of the United States shall have

jurisdiction to hear appeals from final judgments, orders, and

decrees, and, with leave of the court, from interlocutory

orders and decrees, of bankruptcy judges entered in cases and

proceedings referred to the bankruptcy judges under

section 157 of this title. An appeal under this subsection

shall be taken only to the district court for the judicial district

in which the bankruptcy judge is serving.

(b)(1) The judicial council of a circuit may establish a

bankruptcy appellate panel, comprised of bankruptcy judges

from districts within the circuit, to hear and determine, upon

the consent of all the parties, appeals under subsection (a) of

this section.

(2) If authorized by the Judicial Conference of the United

States, the judicial councils of 2 or more circuits may

establish a joint bankruptcy appellate panel comprised of

bankruptcy judges from the districts within the circuits for

which such panel is established, to hear and determine, upon

the consent of all the parties, appeals under subsection (a) of

this section.

(3) No appeal may be referred to a panel under this

subsection unless the district judges for the district, by

majority vote, authorize such referral of appeals originating

within the district.

(4) A panel established under this section shall consist of

three bankruptcy judges, provided a bankruptcy judge may

not hear an appeal originating within a district for which the

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judge is appointed or designated under section 152 of this

title.

(c) An appeal under subsections (a) and (b) of this section

shall be taken in the same manner as appeals in civil

proceedings generall, are taken to the courts of appeals from

the district courts anu in the time provided by Rule 8002 of

the Bankruptcy Rules.

(d) The courts of appeals shall have jurisdiction of appeals

from all final decisions, judgments, orders, and decrees

entered under subsections (a) and (b) of this section.

(July 10, 1984, P.L. 98-353, Title I, § 104(a), 98 Stat. 341.)

(As amended Dec. 1, 1990, P.L. 101-650, Title II § 305, 104

Stat. 5105.).

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28 U.S.C. § 1452

§ 1452. Removal of claims related to bankruptcy cases

(a) A party may remove any claim or cause of action in a

civil action other than a proceeding before the United States

Tax Court or a civil action by a governmental unit to enforce

such governmental unit’s police or regulatory power, 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.

(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. An order entered under this subsection

remanding a claim or cause of action, or a decision to not

remand, is not reviewable by appeal or otherwise by the

court of appeals under section 158(d), 1291, or 1292 of this

title or by the Supreme Court of the United States under

section 1254 of this title.

(As amended December 1, 1990, P.L. 101-650, Title I,

§ 309(c), 104 Stat. 5113.)

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