Free Order on Report and Recommendations - District Court of California - California

Case 4:07-cv-04826-CW

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California No. C 07-4826 CW 11 (Bk. No. 06-42423 LT-11) 12 13 14 15 16 17 18 The United States, on behalf of its agency, the Internal 19 Revenue Service (IRS), moves for withdrawal of this Court's 20 reference, to the United States Bankruptcy Court for the Northern 21 District of California, of Adversary Proceeding No. 07-4066 AT (AP) 22 and Debtor's Objection to the IRS claim (Debtor's Objection to 23 Claim), two matters in the bankruptcy case entitled In re Dean 24 Gordon Potter, No. 06-42423 LT-11. 25 Bankruptcy Judge Leslie Tchaikovsky's Report and Recommendation Re: 26 Motion to Withdraw the Reference of Jurisdiction, as well as 27 Debtor's objection to the report. 28 The Report describes the facts The Court has reviewed In re: DEAN GORDON POTTER, Debtor. / ORDER WITHDRAWING REFERENCE AND DENYING WITHOUT PREJUDICE MOTION TO TRANSFER VENUE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and proceedings regarding the matters at issue.

The Court agrees

with the Bankruptcy Judge's view that the United States' motion to withdraw the reference is timely. The Court finds that permissive

withdrawal of the reference is appropriate, so that the AP and Debtor's Objection to Claim can be decided in the same court that decides Unico Services Inc. v. United States, case no. 2:07-CV01009-MCE-KJM (E.D. Cal.) which is currently pending in the Eastern District of California. GRANTED. The motion to withdraw the reference is

The United States' motion to transfer the AP and the

Objection to Claim to the district court for the Eastern District of California is DENIED WITHOUT PREJUDICE. This Court does not wish to burden the Eastern District Court with a case which was first filed in this district, unless that court wishes to retain the case. In his objection, Debtor argues

that, if the AP and Debtor's Objection to Claim are to be consolidated with the UNICO suit pending in the Eastern District of California, the Eastern District case should be transferred here. However, this Court lacks jurisdiction over the case that is pending in the Eastern District; therefore it has no authority to transfer it here. The United States indicates that if this Court

withdraws the reference but does not transfer the case to the Eastern District, it will move the Eastern District Court to transfer its case here. The United States shall do so promptly. If the case is

Apparently, UNICO would not oppose such a motion.

transferred to this district, a notice of related cases should be filed and this Court will relate the cases. If the Eastern

District Court declines to transfer its case to this district, the 2

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United States shall renew its motion to transfer the AP and Debtor's Objection to Claim, and the Court will grant the transfer to the Eastern District.

IT IS SO ORDERED. 12/18/07 Dated: ______________________ ______________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DEAN GORDON POTTER et al,

4 Plaintiff, 5 v. 6 DEAN GORDON POTTER et al, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 U.S. Bankruptcy Manager U.S. Bankruptcy Court 1300 Clay Street Suite 300 Oakland, CA 94612 Leslie Tchaikovsky U.S. Bankruptcy Court Judge U.S. Bankrupty Court Northern District of California 1300 Clay St. #300 P.O. Box 2070 Oakland, CA 94604 Minnie Loo US Dept of Justice, Office of US Trustee 1301 Clay Street Suite 690N Oakland, CA 94612-5217 Dated: December 18, 2007 /

Case Number: CV07-04826 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 18, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk