Phoenix Enviornmental, LLC v. Johnson et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
PHOENIX ENVIRONMENTAL, LLC,
Debtor. 	No. 11-11-15031 SA
PHOENIX ENVIRONMENTAL, LLC,
Plaintiff,
v. 	Adv. No. 12-1007 S
XERIC OIL AND GAS, INC.,
BAKER MO SERVICES, INC.,
and DAN JOHNSON and COLLEEN JOHNSON,
dba DC Energy,
Defendants.
REPLACEMENT 1 MEMORANDUM OPINION IN SUPPORT OF ORDER
ABSTAINING FROM HEARING ADVERSARY PROCEEDING
AND REMANDING ADVERSARY PROCEEDING TO STATE COURT
Debtor in possession Phoenix Environmental, LLC (“Debtor”)
moved this Court to abstain from adjudicating this adversary
1 This memorandum opinion replaces the memorandum opinions
entered on August 22, 2012 (doc 29)(2012 WL 3637915) and
September 27, 2012 (doc 34)(2012 WL 4482140). 	Following the
issuance of the memorandum opinions and the related mandatory
abstention order (doc 30), Defendants filed Defendants Dan and
Collen [sic] Johnson d/b/a DC Energy’s [sic] Motion for
Reconsideration of Order Abstaining from Hearing Adversary
Proceeding and Remanding Adversary Proceeding to State Court (doc
33) (“Reconsideration Motion”), citing Rule 9023 F.R.B.P
(incorporating Rule 59 F.R.Civ.P.). 	Id. at 3. 	Rule 59 relief
should be granted to correct clear error. 	Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10 th Cir. 2000) citing
Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th
Cir. 1995). 	The Court clearly erred in ruling that DC Energy,
LLC was a New Mexico citizen for purposes of federal diversity
jurisdiction, 28 U.S.C. §1332(a)(1) (see below). 	Therefore,
granting the Reconsideration Motion, the Court has withdrawn and
set aside the memorandum opinions and abstention order
respectively. 	Docs 37 and 38.
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proceeding (“Abstention Motion”). 	Doc 13. 	For the reasons set
out below, the Court grants the Abstention Motion. 2
Background
On or about September 14, 2009, Phoenix Environmental, LLC
filed a Verified Complaint for Debt and Money Due and to
Foreclose Oil and Gas Liens in the Fifth Judicial District, Lea
County, New Mexico (“State Court Action”). 	The named defendants
were Xeric Oil and Gas, Inc. (which incurred the debts and was
the owner of the oil and gas leases at the time the purported
liens attached), Baker Mo Services, Inc., also a lien claimant on
some of the properties 3, and Dan and Colleen Johnson dba DC
Energy, who had purchased the leases from Xeric prior to the
2 	The Court has subject matter and personal jurisdiction
pursuant to 28 U.S.C. §§1334 and 157(b); this is a core
proceeding pursuant to 28 U.S.C. §157(b)(2)(A); and these are
findings of fact and conclusions of law as may be required by
Rule 7052 F.R.B.P.
3 Baker Mo (perhaps a/k/a Baker/Mo Services, Inc. – see doc
15-1, at 22 of 24) has withdrawn any claims in this action, doc
8, and therefore will not be considered further. 	According to
Debtor, doc 13 at 2, and not disputed by Defendants Dan and
Colleen Johnson, after the State Court Action was filed, Xeric
Oil and Gas, Inc. filed a chapter 11 petition in Texas which was
converted to a chapter 7 petition. 	According to PACER, the
voluntary chapter 11 petition was filed February 9, 2010, in the
United States Bankruptcy Court of the Western District of Texas
(Midland Division), No. 10-70051-rbk. 	The case was converted to
a chapter 7 case on November 4, 2010. 	It remains open. 	(Whether
the removal of the State Court Action to this Court constituted a
violation of the stay or not, the remand of this action to the
State District Court restores the status quo prior to the
removal.) 	Thus, although the styles of the State Court Action
and of the adversary proceeding have not been altered, Xeric also
is no longer a party and no relief is sought against it.
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filing of the State Court Action. 	Debtor filed its voluntary
chapter 11 petition on November 20, 2011 (main case, doc 1).
Defendants Dan Johnson and Colleen Johnson (“Defendants”) removed
the State Court Action to this Court by filing their Notice of
Removal on January 19, 2012. 	Doc 1. 	Debtor moved to remand on
the basis of both mandatory and discretionary abstention. 	Doc
13. 	Defendants responded in opposition, doc 15, Debtor replied,
doc 17, to which Defendants sur-replied. 	Doc 21. 	The parties
have not asked for an evidentiary hearing, and so the Court has
decided this matter on the papers submitted. 4
Analysis
Debtor argues for both permissive abstention under 28
U.S.C. §1334(c)(1) and mandatory abstention under 28 U.S.C.
§1334(c)(2). 	That latter section provides as follows:
Upon timely motion of a party in a proceeding based
upon a State law claim or State law cause of action,
related to a case under title 11 but not arising under
title 11 or arising in a case under title 11, with
respect to which an action could not have been
commenced in a court of the United States absent
jurisdiction under this section, the district court
shall abstain from hearing such proceeding if an action
is commenced, and can be timely adjudicated, in a State
forum of appropriate jurisdiction.
4 See, for example, Hurley v. Kujawa (In re Kujawa), 224
B.R. 104, 107-08 (E.D. Mo. 1998), citing In re Mozzocone, 200
B.R. 568, 575-75 (E.D. Penn. 1996) (extent of evidentiary hearing
within discretion of trial court). 	In this instance, the Court
has had the benefit of the state court filings and extensive
factual presentations and argument from the parties on paper.
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The adversary proceeding initiating this removal action was
timely filed, F.R.B.P. 9027(a)(2), and following an initial
pretrial conference held on February 6, 2012 (minutes – doc 6)
and the entry of the order arising out the initial pretrial
conference on March 7 (doc 12), Debtor promptly filed the
Abstention Motion on March 12. 	The causes of action in the
complaint and in the proposed counterclaim and cross-claim –
collection of a debt, foreclosure of purported liens, deceptive
trade practices, slander of title and quiet title (doc 1-5, at 7-
9) – are all eminently state law causes of action that are
related matters and not core. 	While they are related to the
chapter 11 case, in that the resolution of the dispute might
provide substantial funds to (or generate additional obligations
for) the estate, they are not core proceedings because the causes
of action do not arise under or in the chapter 11 case. 	28
U.S.C. §157(b); Stern v. Marshall, ___ U.S. ___, 131 S. Ct. 2594,
2603-05 (2011); see generally Personette v. Kennedy (In re
Midgard Corp.), 204 B.R. 764 (10th Cir. BAP 1997). 5
5 In their Reconsideration Motion, Defendants argue that the
Court’s jurisdictional statement in footnote 2 above seems to
constitute a conclusion that this adversary proceeding is core.
Id. at 9. 	That characterization is incorrect. 	What the Court
considers as “core” in this proceeding is only the process of
deciding whether the causes of action in the removed proceeding
are core. 	That is, deciding whether to abstain is part of the
Court’s obligation to administer the estate, and thus the
citation to 28 U.S.C. §157(b)(2)(A). 	This function is similar to
the Court’s obligation (and jurisdiction) to say what its
(continued...)
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It is true that adjudicating the competing claims will
presumably liquidate the claims of the parties against each
other, thereby affecting the administration of the estate,
resulting in the allowance or disallowance of claims by and
against the estate, determining the validity, extent and priority
of liens, and otherwise adjusting the debtor-creditor
relationship. 	See 28 U.S.C. §157(b)(2). 	But it is not
sufficient to argue the removed action must stay in the
bankruptcy court because there might be core matters to be
decided. 	Schmidt v. Klein Bank (In re Schmidt), 453 B.R. 346
(8 th Cir. BAP 2011) (pending state court causes of action were
not core proceedings notwithstanding that it was possible to
place them within one or more types of “core” proceedings
identified in §157(b)(2)); see also Delphi Automotive Systems,
LLC v. Segway, Inc., 519 F.Supp.2d 662, 671 (E.D. Mich. 2007)
(“The state law claims asserted in Plaintiff’s complaint
predominate over any bankruptcy issue that may arise due to
Plaintiff’s chapter 11 proceeding.”) . 	In any event, nothing in
§1334(c)(2) allows for such an exception; that is, if the
5(...continued)
jurisdiction is. 	E.g., Chicot County Drainage Dist. v. Baxter
State Bank, 308 U.S. 371, 376-77 (1940). 	See also 1 Collier on
Bankruptcy ¶3.02[6][a] (Alan N. Resnick and Henry J. Sommer eds.,
16 th ed.):
It is universally accepted that federal courts have the
power to determine their own jurisdiction. 	That is
true, also, of bankruptcy courts. 	That is the gist of
section 157(b)(3).
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requirements of §1334(c)(2) are met, the Court must abstain, even
if what is at issue appears to include core matters.
However, what makes §1334(c)(2) inapplicable is that this
action could have been commenced in the United States District
Court absent the bankruptcy filing. 	That is, the requirements
for federal jurisdiction pursuant to a jurisdictional provision
other than 28 U.S.C. §1334 – specifically 28 U.S.C. §1332(a) 6 -
have been met. 	First, the amount in issue is approximately
$152,000 plus interest allegedly accruing at the rate of 15% per
annum from November 2008, easily exceeding the $75,000
jurisdictional minimum. 	Second, the requisite diversity of
citizenship exists. 	The Johnsons themselves are Georgia
citizens. 	DC Energy, LLC is a New Mexico limited liability
company. 7 	Compare Verified Complaint, ¶4 (Johnsons d/b/a DC
Energy of Dallas, Georgia) (doc 1-2) with 	Answer to Verified
Complaint, ¶2 (“This Defendant [sic] denies the allegations of
6 That statute provides in relevant part as follows:
Diversity of citizenship; amount in controversy; costs.
(a) The district courts shall have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between – (1)
citizens of different States....
7 As the Court noted in its withdrawn opinions, the parties,
particularly movant Defendants, failed to address the issue of
the diversity of the parties directly in this Court. 	That lacuna
has been addressed in the Reconsideration Motion, which clarifies
that the Johnsons are the members who make up the limited
liability company DC Energy, LLC, but who are also the owners of
the oil and gas leases at issue.
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Paragraph Four and affirmatively states that DC Energy, LLC is a
New Mexico Limited Liability Company.”) (doc 1-4). 	But as
Defendants have usefully pointed out to the Court, the
citizenship of a limited liability company is determined by the
citizenship of its members. 	E.g., THI of New Mexico at Las
Cruces, LLC v. Fox, 727 F.Supp.2d 1195, 1211 n. 6 (D.N.M. 2010):
THI of Las Cruces is a limited liability company whose
sole member, THI of Baltimore, Inc., is a citizen of
Delaware and Maryland, see Johnson v. Columbia Props.
Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006)(“We
therefore join our sister circuits and hold that, like
a partnership, an LLC is a citizen of every state of
which its owners/members are citizens.”); Pramco, LLC
ex rel. CFSC Consortium, LLC v. San Juan Bay Marina,
Inc., 435 F.3d 51 (1st Cir. 2006); Handelsman v.
Bedford Village Assocs. Ltd. P'ship, 213 F.3d 48 (2d
Cir. 2000); Gen. Tech. Applications, Inc. v. Exro
Ltda., 388 F.3d 114 (4th Cir. 2004); Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077 (5th Cir. 2008);
Homfeld II, L.L.C. v. Comair Holdings, Inc., 53
Fed.Appx. 731 (6th Cir. 2002); Wise v. Wachovia
Securities, LLC, 450 F.3d 265 (7th Cir. 2006); GMAC
Commercial Credit LLC v. Dillard Dept. Stores, Inc.,
357 F.3d 827 (8th Cir. 2004); Rolling Greens MHP, L.P.
v. Comcast SCH Holdings L.L.C., 374 F.3d 1020 (11th
Cir. 2004). S. Fox is a New Mexico citizen and Zis [sic
– should be Zia] Trust, Inc. is a New Mexico
corporation with its principal place of business in
Albuquerque, New Mexico. See Complaint to Compel
Arbitration ¶¶ 2-3, at 1; Defendants' Answer ¶¶ 2-3, at
1. The underlying matter which THI of Las Cruces seeks
to arbitrate involves an amount in controversy
exceeding $75,000.00, exclusive of interest and costs.
See Woodmen of World of Life Ins. Soc'y v. Manganaro,
342 F.3d 1213, 1217 (10th Cir. 2003)(“[T]he requisite
jurisdictional amount will be satisfied in a suit to
compel arbitration unless it is legally certain that
the stakes of the arbitration are $75,000 or less.”).
Thus, the alignment of the parties is a New Mexico limited
liability company whose members (Everett Allen Hodge and Jana
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Hodge) are New Mexico citizens as plaintiff and as defendants two
Georgia citizens and a New Mexico limited liability company
treated as a Georgia citizen. 	Whether the liened properties are
owned by the Johnsons individually, or perhaps by DC Energy, LLC,
the fact is that for purposes of federal diversity jurisdiction,
the requisite complete diversity of the parties exists. 	28
U.S.C. §1332(a); McPhail v. Deere & Co., 529 F.3d 947, 951 (10 th
Cir. 2008)(“[T]he citizenship of all defendants must be different
from the citizenship of all plaintiffs.”); Strawbridge v.
Curtiss, 7 U.S. (3 Cranch) 267 (1806)(Same.) 	See also 13E
Wright, Miller, Cooper, Freer, Steinman, Struve and Amar, Federal
Practice & Procedure § 3605 (3d ed.). 	In consequence, the Court
must deny the request for mandatory abstention.
The lists of the factors for discretionary abstention
pursuant to 28 U.S.C. §1334(c)(1) are set out in Tsinigi v.
Oakwood Acceptance Corp. (In re Oakwoood Acceptance Corp.), 308
B.R. 81 (Bankr. D.N.M. 2004):
Even assuming arguendo that this Court has core
jurisdiction to determine whether the mobile home is
property of the estate, the Court may remand the case
under the discretionary remand provision, which allows
a court to remand a proceeding on “any equitable
ground.” 	28 U.S.C. § 1452(b). 	The standards used to
determine whether equitable remand is warranted under §
1452(b) are virtually identical to those used to
determine whether discretionary abstention is merited
under § 1334(c)(1). 	See Frelin [v. Oakwood Homes
Corp.], 292 B.R. [369] at 383-84 [(Bankr. E.D. Ark.
2003)] (outlining factors for equitable remand and
discretionary abstention), citing Williams v. Motel 6
Multipurpose, Inc., 120 F.Supp.2d 776, 781 (E.D.Ark.
Page 8 of 	18
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1998) and Arkansas Dept. of Human Services Div'n of
Medical Services v. Black & White Cab Co., Inc. (In re
Black & White Cab Co., Inc.), 202 B.R. 977 (Bankr.
E.D.Ark. 1996). The factors to consider in
discretionary abstention are:
1. the effect of remand on the efficient administration
of the estate;
2. the extent to which state law issues predominate
over bankruptcy issues;
3. the difficult or unsettled nature of the applicable
law;
4. the presence of a related proceeding commenced in
state court or other non-bankruptcy court;
5. the jurisdictional basis, if any, other than 28
U.S.C. § 1334;
6. the degree of relatedness of the proceeding to the
bankruptcy case;
7. the substance rather than the form of an asserted
“core” proceeding;
8. the feasibility of severing state law claims from
core bankruptcy matters;
9. the burden on the bankruptcy court's docket;
10. the likelihood that the proceeding involves forum
shopping;
11. the existence of a right to jury trial; and
12. the presence of non-debtor parties.
Frelin, 292 B.R. at 383.
In addition to the factors outlined above, the
Court should consider these factors in considering a
motion to remand under § 1452(b):
1. whether remand serves principles of judicial
economy;
2. whether there is prejudice to parties not removed;
3. whether the remand lessens the possibilities of
inconsistent results; and
4. whether the court where the action originated has
greater expertise.
Id. at 384.
Id. at 86-88. 	The Court will address each factor.
1. 	The effect of remand on the efficient administration of the
estate:
The heart of this chapter 11 case has been the continuing
and intense dispute between Debtor and IBEX f/k/a Phoenix Energy
Page 9 of 	18
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Services, LLC. 	A cursory review of the docket in the main case
shows that most of the Court’s considerable time devoted to this
case has been consumed by what those two parties claim is a life-
or-death struggle for each of them. 	And that has been the case
even though this Court abstained from and remanded the state
court litigation between those two parties that had prompted the
chapter 11 filing in November 2011. 	See In re Phoenix
Environmental, LLC, 2012 WL 279446 (Bankr. D.N.M. 2012) (Adv.
Pro. 11-1199, docs 17 and 18) 8. 	Now, however, it appears that
Debtor and IBEX (and all other related parties) are seriously
threatening to settle their differences. 	See Motion to Approve
Settlement Agreement Between Phoenix Environmental and Other
Parties (main case doc 264) (“Settlement Motion”). 	Indeed, the
Settlement Motion is of such serious moment that Debtor and IBEX
have put off fighting over the fees of Debtor’s counsel.
Stipulated Order Continuing Hearing on IBEX’s Objection to
Compensation Applications. 	Doc 271. 	A hearing on the Settlement
Motion is scheduled for October 11, 2012. 	Id. 	Should the
settlement be approved (and it would be surprising were there any
objection to the settlement, much less one that would be
sustained), there will be far fewer matters in this case to
8 The remand order has been appealed to the United States
District Court and at this time, pursuant to the request of the
parties, remains undecided. 	See Motion to Approve Settlement
Agreement Between Phoenix Environmental and Other Parties (main
case doc 264), at 2-3.
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adjudicate in the Bankruptcy Court. 	In consequence, the
retention and adjudication of this adversary proceeding would
unduly prolong in the Bankruptcy Court the proceedings concerning
this Debtor.
Even if the main case is not settled, what this adversary
proceeding represents is essentially a collection action by
Debtor; that is, a related proceeding and thus not core. 	The
Bankruptcy Court need not hear it. 	It is true that a successful
outcome for Debtor will presumably result in more assets for
distribution to creditors; an unsuccessful outcome may result in
additional claims against the estate (if the counterclaims
against the estate are allowed). 	But that only affects the
distribution to creditors and has little to do with the
administration of the estate.
2. 	The extent to which state law issues predominate over
bankruptcy issues:
As already noted, the matters in dispute are all state law
causes of action.
3. 	The difficult or unsettled nature of the applicable law.
As framed by the parties, and particularly by Defendants who
claim that it is obvious from the statute that the estate can
have no cause of action based on the relevant state statutes, it
appears that there are no difficult or unsettled questions of
state law.
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4. 	The presence of a related proceeding commenced in state
court or other non-bankruptcy court:
This litigation originated in the state court and can easily
be returned there. 	But more to the point, there is no other
related proceeding in any other court that would be adversely
affected by this Court retaining this adversary proceeding.
5. 	The jurisdictional basis, if any, other than 28 U.S.C. §
1334:
As noted, the State Court Action could have been commenced
directly in the United States District Court pursuant to 28
U.S.C. §1332(a)(1).
6. 	The degree of relatedness of the proceeding to the
bankruptcy case:
Also as noted, this collection action is a related
proceeding, and not core.
7. 	The substance rather than the form of an asserted “core”
proceeding:
As noted, despite Defendants’ claims that this litigation is
comprised of a variety of core matters, it is not. 	In re
Schmidt.
8. 	The feasibility of severing state law claims from core
bankruptcy matters:
Given that the matters being litigated are all state law
claims and none are core, there is no issue of feasibility.
9. 	The burden on the bankruptcy court's docket:
The Honorable Robert H. Jacobvitz, the bankruptcy judge who
would administer and adjudicate this adversary proceeding should
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it remain in the Bankruptcy Court, continues to maintain a very
substantial workload, overseeing a number of complex and time-
consuming cases and writing many detailed and thorough opinions.
Although he is somewhat familiar with oil and gas law already,
see, e.g., In re Platinum Oil Properties, LLC, No. 09-10832-j11
(United States Bankruptcy Court, District of New Mexico),
adjudicating this adversary proceeding might well require him to
become familiar with substantially more New Mexico oil and gas
law. 	No doubt he is more than capable of doing so, and of
rendering eminently enlightening and reasoned decisions thereon.
But the issue is, at what cost? 	And given the current heavy
chapter 11 caseload in this district and on Judge Jacobvitz in
particular (contrary to what appears to be the case in most of
the rest of the country), adding to his caseload with this
adversary proceeding would be a hindrance to the completion of
his other work.
10. 	The likelihood that the proceeding involves forum shopping:
Of course there has been “forum shopping” by Defendants’
counsel. 9 	Any lawyer who is competent should consider whether
9 Like the term “fishing expedition” used in the context of
discovery disputes, the term “forum shopping” is more of a
conclusion than a description. 	By definition virtually every
discovery request is a “fishing expedition”, since the party
seeking the discovery is attempting to find something useful.
But when a court uses the term, what the court really means is
that it has decided that the search has exceeded reasonable
bounds. 	Similarly, when a court describes certain activity as
(continued...)
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litigating in another forum will benefit the client, and if the
benefit is assessed to be substantial enough, should move to
change the forum. 	Thus whether this matter started in another
forum and is now here is basically irrelevant.
11. 	The existence of a right to jury trial:
No party has demanded a jury trial, although if Defendants
are permitted to amend their pleadings, the parties will be
entitled to make such a demand, as provided in NMRA 1-038:
Jury trial in civil actions.
A. 	Jury demand. 	In civil actions any party may
demand a trial by jury of any issue triable of right by
serving upon the other parties a demand therefor in
writing after the commencement of the action and not
later than ten (10) days after service of the last
pleading directed to such issue, and filing the demand
as required by Paragraph D of Rule 1-005 NMRA.
State courts routinely conduct jury trials in matters where
they are permitted. 	A jury trial can be more easily accommodated
in a state court trial than in the Bankruptcy Court. 	For a jury
trial to take place in Bankruptcy Court (either by a bankruptcy
judge or by a United States district judge sitting as a
bankruptcy judge), at least one of the parties must so elect
timely, Rule 9015 F.R.B.P., and then either the parties must all
consent to the jury trial being conducted by the bankruptcy judge
or the bankruptcy judge acts as a magistrate judge to prepare the
9(...continued)
“forum shopping”, the court is in effect announcing a conclusion
that for whatever reason it disapproves of the “shopper’s”
attempt to change the forum.
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case for trial and then transfers the case, pursuant to a
withdrawal of the reference, to the district court for trial.
Id.; NMLBR 9015-1 (2010); 28 U.S.C. §157(b). 	Thus the procedure
for a jury trial in the bankruptcy court is more complicated.
But there is a more fundamental question: putting aside any
issues that might arise from Stern v. Marshall, why would the
parties want a jury trial conducted by a bankruptcy judge who
likely has never conducted such a trial before? 10 	While it is
true that there are sitting bankruptcy judges who previously
served as state court judges and in that former capacity
conducted jury trials, it is also the case that none of the
sitting bankruptcy judges in this district have conducted a jury
trial.
12. 	The presence of non-debtor parties.
There are no other parties left in this litigation.
13. 	Whether remand serves principles of judicial economy:
Should this adversary proceeding remain with this Court, it
will have to be tried virtually from the beginning. 	On the other
hand, as the record of the proceedings in the State Court Action
filed by Defendants makes clear, the action was commenced
September 14, 2009, more than two years before the filing of the
10 This is not to say that the bankruptcy judge previously
as an attorney has not tried a case to a jury, as indeed this
judge has done. 	But trying a case to a jury and presiding over a
jury trial appear to be two very different tasks.
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chapter 11 petition. 	The State Court Judge, the Honorable
William G. W. Shoobridge, has presided over the case during the
entire time, including presiding over some discovery and even
apparently having set a bench trial on the merits for May 2,
2011. 	See State Court Action docket (doc 1-9, at 3 of 14) (April
27, 2011 docket entry showing vacation of trial setting). 	It is
apparent that the State Court can try this matter in a timely
fashion, and almost certainly more timely than can the Bankruptcy
Court. 11
14. 	Whether there is prejudice to parties not removed:
11 In the Reconsideration Motion, Defendants have
supplemented their argument, contained in their Sur-Reply (doc
21) at 3, that relatively little happened in the State Court such
that little progress had been made and so little would be lost by
this Court taking over the adjudication of the controversy. 	Id.
at 9-10. 	Supplementing an argument already made is not the
function of a Rule 9023 motion.
Thus, a motion for reconsideration is appropriate where
the court has misapprehended the facts, a party's
position, or the controlling law. 	Cf. Fed.R.App.P.
40(a)(2) (grounds for rehearing). 	It is not
appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior
briefing. 	See Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991).
Servants of the Paraclete v. Does, 204 F.3d at 1012. 	In
consequence the Court declines to change its initial analysis on
this aspect of the decision. 	But even taking into consideration
Defendants’ proffered additional argument or facts, the Court
still finds that the State Court Judge’s actions of considering a
motion for summary judgment (albeit denying it) and having set
this matter for trial at one point in the course of the case, are
strong indicators that the State Court Judge can address the
merits more quickly than can this Court. 	And the Court comes to
this conclusion even with discovery remaining to be done.
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There are likely no other parties to this litigation. 	On
November 29, 2010, Baker Mo executed a “Partial [sic] Release of
Lien and Claim of Lien by Baker/Mo Services, Inc.” which
Defendants’ counsel appears to have filed in the State Court
Action. 	Doc 15-1 at 21-24. 	Xeric Oil and Gas filed a bankruptcy
petition and has not participated in the State Court Action or in
this bankruptcy case, although as noted, the remand of this case
restores the status quo that existed prior to the removal.
15. 	Whether the remand lessens the possibilities of inconsistent
results:
This proceeding is essentially a collection action with
potential counterclaims. 	It has little to do with the remainder
of the proceedings either in the chapter 11 case or with the
remanded state court action against IBEX now pending before the
Honorable Jane Shuler-Gray in Lea County.
16. 	Whether the court where the action originated has greater
expertise.
Much of the oil and gas litigation in the State of New
Mexico is and historically has been brought in the “oil patch” of
southeastern New Mexico, and specifically in the Fifth Judicial
District Court consisting of Chaves, Lea and Eddy Counties. 	The
Fifth Judicial District Court judges routinely handle oil and gas
cases; the judges of the Bankruptcy Court do not.
Conclusion
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Reviewing the foregoing sixteen factors, factors 1, 2, 6, 7,
9, 11, 13, and 16 favor abstention and remand, factors 2, 7, 9,
13 and 16 strongly so. 	Factors 3, 4, 5, 8, 12, 14 and 15 favor
this Court retaining the adversary proceeding, none of them
strongly. 	Factor 10 is neutral. 	On balance, the factors incline
decisively toward abstention and remand. 	Thus, it is clear that
this Court, while not required to do so pursuant to 28 U.S.C.
§1334(c)(2), should abstain, pursuant to 28 U.S.C. §1334(c)(1),
from adjudicating this State Court Action. 	In consequence, the
State Court Action must be remanded to the State Court for
further proceedings. 12 	An order will enter.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	October 3, 2012
Copies to:
Louis Puccini, Jr
Puccini Law, P.A.
PO Box 50700
Albuquerque, NM 87181-0700
Casey S Stevenson
Scotthulse, PC
201 E. Main Drive
El Paso, TX 79901
Robert R Feuille
PO Box 99123
El Paso, TX 79999-9123
12 Given the foregoing analysis, the Court need not address
the parties’ arguments in connection with Stern v. Marshall,
since the Bankruptcy Court will not be adjudicating the matter.
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