New Mexico Highlands University et al v. Makwa Builders, LLC

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: MAKWA BUILDERS, LLC
Debtor. Case No. 12-13664
NEW MEXICO HIGHLANDS UNIVERSITY
Plaintiff,
v. Adv. No. 12-01305
MAKWA BUILDERS, LLC,
Defendant.
MEMORANDUM OPINION
THIS MATTER is before the Court on the Motion for Abstention and Remand
(“Motion”) filed by New Mexico Highlands University (“NMHU”). See Docket No. 8. NMHU
asks the Court to abstain from adjudicating the arbitrability of a construction dispute between
itself and Makwa Builders, LLC (“Makwa”) pursuant to 28 U.S.C. § 1334(c)(2). Makwa
opposes the Motion, and the issues have been briefed at length. The Court held an evidentiary
hearing on the issue of mandatory abstention on May 2 and 3, 2013 and took the matter under
advisement.1 After considering the Motion and responses thereto, the arguments of counsel, the
evidence, and applicable law, the Court concludes that the Motion should be granted insofar as it
seeks abstention under 28 U.S.C. § 1334(c)(2).
FINDINGS OF FACT
In 2005 Dan Lowrie formed Makwa Builders, LLC, a construction company organized
under the laws of New Mexico. Makwa specializes in the construction and renovation of
1 Shortly after the parties gave closing arguments, they asked the Court to defer its decision while they
engaged in settlement negotiations. In late November of 2013, the parties reported that such negotiations
were unsuccessful and asked the Court to rule on the issue of mandatory abstention.
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schools, and primarily bids on public works projects. In order to perform such projects, Makwa
must be bonded. Dan Lowrie is the owner and principal member of Makwa. Prior to that, he
worked for his mother‟s company, Pace Pacific Corp. (“Pace”). Pace performed concrete work
on approximately 50-60% of Makwa‟s jobs. The companies also shared several employees.
Makwa currently has no active construction projects and no employees.
In April 2010, NMHU issued an invitation to bid on a contract to construct a new student
center on its campus (the “Construction Contract”). Shortly thereafter, NMHU‟s Board of
Regents (the “Board”) met with Dan Lowrie and awarded the Construction Contract - which had
a contract price of approximately $60 million - to Makwa. On June 15, 2010, NMHU‟s
President, Dr. James Fries, signed the Construction Contract on behalf of NMHU. The
Construction Contract contains a provision requiring arbitration of disputes between NMHU and
Makwa. It provides, in relevant part:
For any Claim subject to, but not resolved by mediation …, the method of binding
dispute resolution shall be as follows:
[X] Arbitration pursuant to Section 15.4 of AIA Document A201-2007.
See Construction Contract, § 6.2.
NMHU‟s Board did not specifically approve the arbitration provision itself, nor did the Board -
in delegating its authority to Dr. Fries - specifically refer to arbitration in such delegation.
Between 2010 and 2012, Makwa served as the general contractor on the NMHU project
and hired various subcontractors. Contracts between Makwa and its subcontractors contain a
“pay when paid” clause, meaning that Makwa is generally not required to pay the subcontractors
unless and until NMHU pays Makwa. Great American Insurance Co. (“Great American”) issued
payment and performance bonds to Makwa in connection with the NMHU project. Makwa
obtained bonding from Great American using the combined financial statements of both Makwa
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and Pace. Dan Lowrie‟s father, Terry Lowrie, agreed to indemnify Great American to the extent
of its losses.
Makwa asserts that in May 2011 it began to encounter problems on the NMHU project.
Makwa also contends that NMHU breached the Construction Contract when NMHU terminated
it for convenience on February 27, 2012. On September 11, 2012, NMHU filed a complaint in
the Fourth Judicial District Court of New Mexico (the “State Court”), styled New Mexico
Highlands University v. Makwa Builders, LLC, Case No. D-412-CV-2012-00437, seeking a
declaratory judgment that the arbitration provision in the Construction Contract is void and
unenforceable (the “Declaratory Judgment Action”). NMHU contends that pursuant to New
Mexico law (N.M.S.A. 1978 § 21-3-4), its Board has the exclusive authority to select the forum
in which it can sue and be sued and that the Board could not delegate such authority to NMHU‟s
President. NMHU argues that the arbitration provision is invalid because the Board did not
specifically approve it. Makwa disagrees and intends to seek to compel arbitration of its
construction dispute with NMHU. Only the question of arbitrability - not the underlying
construction dispute - is currently at issue in the Declaratory Judgment Action.
Makwa filed a voluntary petition under Chapter 11 of the Bankruptcy Code on October 3,
2012. Makwa removed the Declaratory Judgment Action to the Bankruptcy Court on November
6, 2012, thereby commencing this adversary proceeding. Shortly thereafter, NMHU filed the
Motion seeking abstention and remand. In December 2012, Makwa filed a motion in the United
States Court for the District of New Mexico (the “Federal District Court”) to withdraw the
reference of this adversary proceeding. As grounds for withdrawal of the reference, Makwa
argued that the Federal District Court, instead of the Bankruptcy Court, should certify the
question of arbitrability to the New Mexico Supreme Court. Makwa wanted to avoid any
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question about the authority of the Bankruptcy Court to certify an issue to the New Mexico
Supreme Court. NMHU initially opposed the motion. However, in the summer of 2013, Makwa
sought to withdraw its request to withdraw the reference and asked this Court to certify the
question to the New Mexico Supreme Court. NMHU objected to Makwa withdrawing that
motion. Makwa‟s motion to withdraw the reference and its subsequent request to withdraw that
motion is pending before the Federal District Court.
By an order entered on January 8, 2014, the Court confirmed Makwa‟s First Amended
Plan of Reorganization (the “Plan”). See Docket No. 310.2 The Plan provides that various
subcontractors associated with the NMHU project are entitled to payment if and when Makwa is
paid. See Docket No. 246, ¶ 3.6.1. The confirmation order further provides that the Plan does
not alter the legal, equitable, or contractual rights of any of those subcontractors. See Docket No.
310, ¶ (L)(i). Thus, under both the Plan and their contracts, it appears that subcontractors will
not be paid until NMHU and Makwa resolve their construction dispute.
By obtaining confirmation of its Plan, Makwa hopes to: (1) restart its business; (2)
become a certified contractor with the Section 8(a) Business Development Program (a “Section
8(a) Contractor”); and (3) pay the subcontractors and suppliers associated with the NMHU
program. In order to perform the work it has traditionally done (i.e. federal works projects) and
to become a Section 8(a) Contractor, Makwa needs to obtain bonding.3 A number of
2 Though the Plan and the confirmation order were not offered in evidence at the final hearing, the Court
is entitled to consider entries on its own docket. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
Corp., 605 F.2d 1169, 1172 (10th Cir.1979) (holding that a court may, sua sponte, take judicial notice of
its docket); In re Mailman Steam Carpet Cleaning Corp., 196 F.3d 1, 8 (1st Cir.1999) (citing Fed.R.Evid.
201 and concluding that “[t]he bankruptcy court appropriately took judicial notice of its own docket”); In
re Quade, 496 B.R. 520, 524 (Bankr.N.D.Ill.2013), aff'd, 498 B.R. 852 (N.D.Ill.2013) (a “bankruptcy
court [is authorized] ... to take judicial notice of its own docket”).
3 To become a Section 8(a) Contractor, a business must also: (a) have operated for at least two years; and
(b) be owned by a member of a disadvantaged class. Dan Lowrie is Native American and Makwa has
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subcontractors who have not received payment for their work on the NMHU project made claims
against Makwa‟s surety, Great American. Makwa cannot obtain bonding from Great American
or other bonding companies while such claims remain outstanding. Makwa‟s objective is to
satisfy the bond claims from the funds it recovers under the Construction Contract and obtain
bonding for new federal construction projects.
The bonds claims made by subcontractors and suppliers who worked on the NMHU
project exceed $900,000. Great American has only paid one subcontractor or supplier in
connection with that project. The bond claims made in connection with Makwa‟s other jobs
have been substantially resolved. Dan Lowrie believes that once the dispute with NMHU is
resolved, he will be able to pay all subcontractors and suppliers, except for Pace.
At the final hearing, the parties offered evidence as to how quickly cases are typically
resolved in the state and federal court systems in New Mexico. Because of their respective case
loads, civil cases are generally resolved more rapidly in the State Court than in the Federal
District Court. The Federal District Court has more filings than any other federal court in the
Tenth Circuit. The majority of those filings involve criminal cases, with attendant speedy trial
requirements. The median time from filing to trial for civil cases in the Federal District Court
ranges between approximately 17 and 29 months. The median time from filing to disposition
(other than a trial on the merits) for such cases ranges between approximately 7 and 9 months.4
operated since 2005; the bonding requirement is therefore the major impediment to Makwa becoming a
Section 8(a) Contractor.
4 In determining the median time from filing to trial or other disposition in the Federal District Court, the
Court relied on the Federal Judicial Caseload Statistics and the Federal Court Management Statistics for
the year 2012, which were admitted at trial as Exhibits 5 and 6. After the trial, Makwa asked the Court to
consider additional evidence and demonstrative exhibits which purport to correct and/or clarify allegedly
misleading information contained in NMHU‟s Exhibit 12. See Docket No. 69. Because the Court did not
rely on Exhibit 12 in making its ruling, it is unnecessary to consider any evidence which purports to
impeach it.
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In general, the State Court takes between approximately 4 and 7 months to dispose of a
case.5 Civil cases involving two-party contract disputes are typically disposed of in less than 6
months.6 It generally takes between 9 and 19 months for the New Mexico Supreme Court to
dispose of a case. If the New Mexico Supreme Court declines to grant certiorari, it generally
makes that decision in 30-45 days. Neither party offered evidence regarding the Bankruptcy
Court‟s caseload. However, based on the Court‟s knowledge of its own docket, the Court finds
that the State Court can adjudicate the issues currently raised in the Declaratory Judgment Action
in roughly the same time frame as this Court.
DISCUSSION
NMHU asserts that the Court must abstain from hearing this adversary proceeding under
28 U.S.C. § 1334(c)(2) and remand the Declaratory Judgment Action to the State Court. Section
1334(c)(2) provides:
Upon timely motion of a party in a proceeding 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.
28 U.S.C. § 1334(c)(2).
Mandatory abstention under Section 1334(c)(2) applies when all of the following
elements are met: “(1) the motion to abstain was timely; (2) the action is based on state law; (3)
an action has been commenced in state court; (4) the action can be timely adjudicated in state
court; (5) there is no independent basis for federal jurisdiction other than bankruptcy; and (6) the
5 The median time from filing disposition varies based on whether the case was resolved by summary
judgment, default judgment, or a trial on the merits.
6 The Court is not suggesting that the underlying construction dispute between Makwa and NMHU would
be adjudicated in 6 months. However, the only issue in the Declaratory Judgment Action is whether such
dispute is arbitrable, which is principally a legal issue.
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matter is non-core.” In re Telluride Income Growth, L.P., 364 B.R. 390, 398 (10th Cir. BAP
2007). Of those elements, only the fourth element - timely adjudication - is in dispute.
Whether an action can be timely adjudicated in state court requires more than an analysis
of the relative speed of each forum. Courts examine a number of factors including:
(1) the backlog of the state court and federal court‟s calendar; (2) the complexity of the
issues to be resolved and the respective expertise of each forum; (3) the status of the title
11 bankruptcy proceeding and the status of the proceeding in state court prior to being
removed; (4) whether the state court proceeding would prolong or delay the
administration or liquidation of the estate; (5) whether the parties consented to the
bankruptcy court entering a final judgment; (6) whether the parties have made a jury
demand; and (7) whether the bankruptcy case is a reorganization or liquidation.
See In re Midgard Corp., 204 B.R. 764, 778 (10th Cir. BAP 1997); In re Mattson, 448 B.R. 540,
546 (Bankr. D.Kan. 2011) (citing the above factors); Parmalat Capital Finance Ltd. v. Bank of
America Corp., 639 F.3d 572, 580 (2nd Cir. 2011) (listing similar factors).
“[T]imeliness must [also] be referenced against the needs of the title 11 case.” Power
Plant Entertainment Casino Resort Indiana, LLC v. Mangano, 484 B.R. 290, 297 (Bankr.D.Md.
2012) (quoting 1 Collier on Bankruptcy § 3.05).7 “[E]ven a relatively brief delay might make
state court adjudication untimely where the state action substantially affects the bankruptcy
estate, or where the estate‟s resolution is contingent upon the state action.” Parmalat Capital
Finance Ltd. v. Bank of America Corp., 671 F.3d 261, 270 (2nd Cir. 2012).
Here, most of the relevant factors suggest that the matter can be timely adjudicated in the
State Court. The evidence offered by NMHU established that the State Court generally
7 See also Stoe v. Flaherty, 436 F.3d 209, 219 (3rd Cir. 2006) (“[T]imeliness … must be determined with
respect to needs of the title 11 case and not solely by reference to the relative alacrity with which the state
and federal court can be expected to proceed.”); In re Province Grande Olde Liberty, LLC, 2013 WL
2153214, *3 (Bankr.E.D.N.C. 2013) (“In general, courts focus on whether allowing the state court to hear
the matter will have any unfavorable effect on the administration of the bankruptcy case.”); In re
Drauschak, 481 B.R. 330, 343 (Bankr.E.D.Pa. 2012) (noting that “the issue is whether an adjudication in
state court would be consistent with the needs of the title 11 case”); In re New 118th LLC, 396 B.R. 885,
894 (Bankr.S.D.N.Y. 2008) (finding that mandatory abstention applied where the dispute did not affect
the administration of the bankruptcy case).
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adjudicates civil cases more quickly than the Federal District Court and in roughly the same
timeframe as this Court. The issue presented (i.e. the enforceability of an arbitration clause) is
fairly straightforward and routine. The State Court has expertise in construing New Mexico
statutes and other issues governed by New Mexico law. NMHU contests the Bankruptcy Court‟s
jurisdiction over this adversary proceeding and the underlying construction dispute and has not
consented to this Court entering a final judgment. A Chapter 11 Plan has been confirmed.
Makwa did not present evidence at trial that the State Court itself would be unable to
render a timely decision on the issue of arbitrability. Instead, Makwa contends that remanding
the Declaratory Judgment Action will impair its ability to consummate the Plan. According to
Makwa, commencing the litigation in the State Court, rather than a federal court, could force it to
spend a large amount of time and money pursuing multiple appeals. In an attempt to avoid
delays associated with the appellate process, Makwa wants this Court or the Federal District
Court to certify the question of arbitrability directly to the New Mexico Supreme Court. That
way, according to Makwa, it will not run the risk of having to adjudicate the underlying
construction dispute in a court of law and then relitigate the issues in arbitration years later after
all appeals are exhausted.
The Court is sympathetic to the fact that Makwa and NMHU have been embroiled in a
prolonged, contentious dispute and that any further delay will impact Makwa‟s ability to pay
creditors and to conduct its business. In order to accept Makwa‟s arguments, however, the Court
would have to assume that: (1) the State Court will render a decision adverse to Makwa; (2) the
State Court‟s decision would be reversed on appeal; (3) either this Court or the Federal District
Court will certify the question of arbitrability to the New Mexico Supreme Court; and (4) the
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New Mexico Supreme Court will accept certification. The Court is not convinced that any of
those events will occur.
First, this Court has no reason to assume that the State Court will render a decision
adverse to Makwa. Even if Makwa disagrees with the State Court‟s decision, the prospect of
appeal exists in every case. An analysis of whether the parties will appeal, whether the New
Mexico Court of Appeals will issue a stay pending appeal, and how many appeals Makwa would
have to lodge to get to arbitration would require pure speculation.
Further, Makwa has provided no authority, nor has the Court‟s research revealed any
authority, indicating that the speed of the entire appellate process should be considered when
evaluating whether an action can be timely adjudicated in state court. On the contrary, courts
focus on the potential backlog of the state trial calendar. See, e.g., WRT Creditors Liquidation
Trust v. C.I.B.C. Oppenheimer Corp., 75 F.Supp.2d 596, 606 (S.D.Tex. 1999) (remanding case
where state court “trial calendar [wa]s not congested”); Lemmings v. Second Chance Body
Armor, Inc., 328 B.R. 228, 233 (N.D.Okla. 2005) (remanding the case upon finding that “there
would be little impact on the bankruptcy estate by the trial of [the] matter in state court”).8 In
many cases, the “timely adjudication” prong is satisfied by the mere existence of a trial setting in
state court. See, e.g., Gassman v. Gassman, Griper, & Golodny, 1997 WL 306439, *1 (S.D.N.Y.
1997) (finding that the “matters can be timely adjudicated in state court” because “they were set
to go to trial when the bankruptcy petition was filed”).9 NMHU has therefore carried its burden
by demonstrating that the State Court itself can timely adjudicate the matter.
8 See also In re Yobe, 75 B.R. 873, 876 (Bankr.W.D.Pa. 1987) (abstaining upon finding that “the state
trial courts in the appropriate county ha[d] cleared their backlog and would be able to proceed … on a
timely basis”); In re Marathon Home Loans, 96 B.R. 296, 301 (E.D.Cal.1989) (finding that the matter
could be timely adjudicated where the litigant received a statutory preference in selecting a trial setting).
9 See also Luevano v. Dow Corning Corp., 183 B.R. 751, 752 (W.D.Tex. 1995) (“[T]he matter can be
„timely adjudicated‟ in a state court …, as evidenced by the trial date set in state court.”); In re Leco
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Even if the Court were to consider the entire appellate process, however, the Court is not
convinced that allowing Makwa to attempt to certify the question would substantially expedite
the matter. The Declaratory Judgment Action does not appear to warrant certification to the New
Mexico Supreme Court. Certification is governed by N.M.S.A. 1978 § 39-7-4, which provides
that the New Mexico Supreme Court “may answer a question of law certified to it by a court of
the United States ... if the answer may be determinative of an issue in pending litigation in the
certifying court and there is no controlling appellate decision, constitutional provision or statute
of this state.”10 Although a federal court has the discretion to certify a question where “the legal
… issue is novel and the applicable state law unsettled,” certification “is not to be routinely
invoked whenever a federal court is presented with” such issue. Allstate Ins. Co. v. Brown, 920
F.2d 664, 667 (10th Cir.1990); Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988).11
Similarly, the New Mexico Supreme Court typically only accepts certification of questions that
“present a significant question of law under the New Mexico Constitution” or questions of
“substantial public interest.” Schlieter v. Carlos, 108 N.M. 507, 511, 775 P.2d 709, 713 (1989).
The issue presented here is not unusually novel, nor does it involve a significant matter of
law or public interest. While no New Mexico court has addressed the issue of whether the board
Enterprises, Inc., 144 B.R. 244, 252 (S.D.N.Y. 1992) (finding that the state court action can be
adjudicated for purposes of Section 1334(c)(2) where “the state court action [wa]s advancing towards a
trial”); Lennar Corp. v. Briarwood Capital LLC, 430 B.R. 253, 265-266 (Bankr.S.D.Fla. 2010)
(determining that the case could be “timely adjudicated” in state court where the action had been pending
for months and had already been set for trial).
10 NMRA 12-607 also provides:
(1) The Supreme Court may answer by formal written opinion questions of law certified to it by a
court of the United States, an appellate court of another state, a tribe, Canada, a Canadian
province or territory, Mexico or a Mexican state if the answer may be determinative of an issue in
pending litigation in the certifying court and the question is one for which answer is not provided
by a controlling:
(a) appellate opinion of the New Mexico Supreme Court or the New Mexico Court of
Appeals; or
(b) constitutional provision or statute of this state.
11 See also Society of Lloyd’s v. Reinhart, 402 F.3d 982, 1001 (10th Cir. 2005) (noting that in most cases,
“federal courts have the duty to decide … difficult or uncertain” questions of state law).
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of regents at a public university must specifically approve an arbitration provision in any contract
signed on behalf of the university, there is an abundance of controlling authority addressing
arbitration more generally. Thus, a court would likely either rule that it is clear under New
Mexico law that the underlying construction dispute is not arbitrable or resolve any doubt in
favor of arbitration. See, e.g., Luginbuhl v. City of Gallup, 302 P.3d 751, 757 (N.M. Ct.App.
2013) (noting that “any doubts concerning the scope of arbitrable issues should be resolved in
favor of arbitration”).12 Further, the statute relating to the appointment, qualifications, and
powers of a board of regents, N.M.S.A. 1978 § 21-3-4, is relatively straightforward.13 It
therefore does not appear that the issue of arbitrability would be resolved by certification even if
this adversary proceeding were not remanded.
Finally, Makwa has not demonstrated that allowing the State Court to hear the matter will
adversely affect the administration of the bankruptcy estate. As previously noted, a Chapter 11
Plan has been confirmed. Makwa is correct that consummation of the Plan is contingent upon
the resolution of the Declaratory Judgment Action and the underlying construction dispute. The
Court also believes that obtaining a quick decision as to whether the construction dispute is
arbitrable would benefit all parties involved, including the subcontractors associated with the
12 See also Durham v. Guest, 145 N.M. 694, 702, 204 P.3d 19, 27 (2009) (“New Mexico has a strong
public policy in favor of arbitration as a form of dispute resolution.”); Clay v. New Mexico Title Loans,
Inc., 288 P.3d 888, 892 (N.M. Ct.App. 2012) (noting that under New Mexico and federal law,
“[a]rbitration is a highly favored form of dispute resolution”) (internal quotations omitted).
13 That statute provides:
Said normal schools [universities] shall each be controlled and managed by a board of regents
consisting of five members to be appointed by the governor, by and with the advice and consent
of the senate for a term of four years, and not more than three of whom shall belong to the same
political party at the time of their appointment. The members of such board shall be qualified
electors of the state and owners of real estate therein. Each such board shall constitute a body
politic and corporate, and shall have power to sue and be sued, to contract and be contracted with,
and the title to all property belonging to each such normal school shall be vested in the respective
corporate bodies and their successors.
N.M.S.A. 1978 § 21-3-4.
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NMHU project. However, Makwa has failed to point to any delay on the part of the State Court.
Instead, Makwa points to the potential delay that may occur if the State Court declines to compel
arbitration, the New Mexico Court of Appeals declines to issue a stay pending appeal, and
Makwa is forced to continue litigating, appealing, and possibly re-litigating the dispute. As
explained above, the Court will not base its decision on contingencies that are entirely
speculative. Consequently, there is no reason to believe that the subcontractors will be paid
faster, or that Makwa will accomplish its other goals, if a federal court, rather than the State
Court, adjudicates the matters currently at issue in the Declaratory Judgment Action.
The Court concludes that the matter can be timely adjudicated by the State Court. The
Court must therefore abstain from hearing the Declaratory Judgment Action pursuant to Section
1334(c)(2) and remand the Declaratory Judgment Action.
CONCLUSION
Based on the foregoing, NMHU‟s Motion will be granted, insofar as it seeks abstention
under 28 U.S.C. § 1334(c)(2). The Declaratory Judgment Action will be remanded to the State
Court. The Court will enter a separate order consistent with this Memorandum Opinion.
_____________________________________
ROBERT H. JACOBVITZ
United States Bankruptcy Judge
Entered on: February 11, 2014
Copies to:
Gail Gottlieb, Mariposa Padilla Sivage, & Traci Olivas Louis Puccini, Jr
PO Box 1945 PO Box 50700
Albuquerque, NM 87103-1945 Albuquerque, NM 87181-0700
Robert J Berens & Adam Melton
76 East Mitchell Drive
Phoenix, AZ 85012
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