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UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA


Case No. F91-00419-HAR
In Chapter 7

In re KEMP-PAULUCCI SEAFOODS, INC.,

Debtor(s)    

ADV PROC NO A91-00419-002-HAR

(BANCAP No. 92-3139)

 

 

ADDENDUM TO REPORT AND RECOMMENDATION REGARDING MOTION TO WITHDRAW THE REFERENCE

KENNETH W. BATTLEY, TRUSTEE,

Plaintiff(s)    

v.

LOUIS KEMP,

Defendants(s)    

TO: THE UNITED STATES DISTRICT COURT

This is an addendum to a Report and Recommendation Regarding Motion to Withdraw the Reference dated March 3, 1993. The March 3, 1993 report neglected to point out that Louis Kemp has not filed a proof of claim in this case.

Had he filed a proof of claim, my recommendation would have been not to withdraw the reference. In that case, Kemp would have submitted himself to the jurisdiction of the bankruptcy court and waived the right to a jury trial.

The recent Supreme Court case of Langenkamp v. Culp, 498 U.S. 42, ____, 111 S.Ct. 330, 331, 112 L.Ed.2d 343, 347-48 (1990) controls. Langenkamp relies upon the teachings of Granfinanciera S.A., v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), which "recognized that by filing a claim against a bankruptcy estate the creditor triggers the process of 'allowance and disallowance of claims,' thereby subjecting himself to the bankruptcy court's equitable power." Langenkamp v. Culp, 498 U.S. 42, ____, 111 S.Ct. 330, 331, 112 L.Ed.2d 343, 347-48 (1990).

Travellers International AG. v Robinson, 982 F2d 96, 98 (3rd Cir 1992).

Louis Kemp has not submitted himself to the bankruptcy court's equitable powers by filing a proof of claim. He is entitled to a jury trial on the trustee's claim based upon an alleged debt of Mr. Kemp to the debtor when the case was filed.

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    DATED: March 5, 1993

                HERBERT A. ROSS
                U.S. Bankruptcy Judge