Opinion
No. 07-41274 EDJ, Adv. Pro. No. 10-04114 AJ.
July 8, 2010
MEMORANDUM: MOTION TO REMAND TO STATE COURT
The above-captioned adversary proceeding was commenced May 7, 2010 when the defendant herein, Christopher Moser ("Moser"), filed a Notice of Removal of State Court Action. Moser is the trustee in bankruptcy of the estate of Robert Jacobson ("Jacobson"), pending in the United States Bankruptcy Court for the Eastern District of Texas. The removed action was filed by Alise Malikyar ("Malikyar"), Jacobson's spouse, in the Alameda County Superior Court, State of California. Malikyar's action against Moser alleges that Moser improperly treated her separate property as property of the Jacobsen bankruptcy estate. Her complaint includes causes of action for negligence, intentional tort, and fraud.
Case no. 07-41092.
On May 17, 2010 Malikyar filed a motion to remand this action to the Alameda Superior Court. A hearing was held on Malikyar's motion on June 21, 2010. William McLaughlin appeared on behalf of Moser. Malikyar did not appear. For the reasons hereinafter discussed, the court will deny Malikyar's motion, and instead, will transfer venue to the United States Bankruptcy Court for the Eastern District of Texas.
In her motion to remand, Malikyar argues that this court lacks jurisdiction to hear her complaint against Moser because her claims arise under state law. The court agrees that it lacks subject matter jurisdiction, but not for the reason urged by Malikyar.
This is so because a trustee appointed by a bankruptcy court may not be sued in a foreign jurisdiction without permission of the court that appointed the trustee. See In re Crown Vantage, 421 F.3d 963, 970 (9th Cir. 2005) (holding that "a party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer's official capacity."); see also Barton v. Barbour, 104 U.S. 126, 136-37 (1881) (holding that the common law bars suits against receivers in a state court other than the court charged with administration of the estate, absent leave of that court.).
Moser was appointed trustee of the Jacobsen bankruptcy estate in the bankruptcy court for the Eastern District of Texas. Moser's "home court" has not granted Malikyar leave to bring an action against Moser in another forum.
Therefore, the court directs Moser to submit an order denying Malikyar's motion to remand this adversary proceeding to state court, and transferring it to the United State Bankruptcy Court for the Eastern District of Texas.