FILED

United States Court of Appeals

Tenth Circuit

July 28, 2015

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

In re: RENEWABLE ENERGY

DEVELOPMENT CORPORATION,
Debtor.

ELIZABETH R. LOVERIDGE,
Chapter 7 Trustee,
Plaintiff,
No. 14-4001

v.
TONY HALL; ELLIS-HALL
CONSULTANTS, LLC; SUMMIT
WIND POWER, LLC; SSP, a trust,
Scott Rasmussen-Trustee; CLAY R.
CHRISTIANSEN; DIANE E.
CHRISTIANSEN; RICHARD D.
FRANCOM; STEPHEN K. MEYER;
BONNIE G. MEYER; DOES I-X;
Defendants,
and
SUMMIT WIND POWER, LLC;
KIMBERLY CERUTI, an individual,
Third-Party Plaintiffs Appellants,
v.
PARSONS KINGHORN HARRIS, a
professional corporation; GEORGE B.

HOFMANN; MATTHEW M. BOLEY;

KIMBERLEY L. HANSEN; VICTOR
E. COPELAND; LISA R. PETERSON;
MELYSSA DAVIDSON, individuals,
Third-Party Defendants Appellees.

ORDER

Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.

This matter is before the court on the appellees petition for panel
rehearing. The petition is denied. The panel has determined, however, that sua
sponte amendment of the original opinion is in order. An amended version of the
opinion issued July 10, 2015, is attached and shall be issued nunc pro tunc to the
original filing date.

ENTERED FOR THE COURT

Elisabeth A. Shumaker, Clerk

FILED
United States Court of Appeals
Tenth Circuit

July 10, 2015

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: RENEWABLE ENERGY

DEVELOPMENT CORPORATION,
Debtor.

ELIZABETH R. LOVERIDGE,
Chapter 7 Trustee,
Plaintiff,
No. 14-4001

v.
TONY HALL; ELLIS-HALL
CONSULTANTS, LLC; SUMMIT
WIND POWER, LLC; SSP, a trust,
Scott Rasmussen-Trustee; CLAY R.
CHRISTIANSEN; DIANE E.
CHRISTIANSEN; RICHARD D.
FRANCOM; STEPHEN K. MEYER;
BONNIE G. MEYER; DOES I-X;
Defendants,
and
SUMMIT WIND POWER, LLC;
KIMBERLY CERUTI, an individual,
Third Party Plaintiffs Appellants,
v.

PARSONS KINGHORN HARRIS, a

professional corporation; GEORGE B.
HOFMANN; MATTHEW M. BOLEY;
KIMBERLEY L. HANSEN; VICTOR
E. COPELAND; LISA R. PETERSON;
MELYSSA DAVIDSON, individuals,
Third Party Defendants Appellees.

Appeal from the United States District Court

for the District of Utah
(D.C. No. 2:12-CV-00771-RJS)

Stephen Q. Wood (Mary Anne Q. Wood with him on the briefs) of Wood
Balmforth LLC, Salt Lake City, Utah, for Third Party Plaintiffs-Appellants.
Stuart H. Schultz of Strong & Hanni, Salt Lake City, Utah for Third Party
Defendants-Appellees.

Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.

GORSUCH, Circuit Judge.

This case has but little to do with bankruptcy. Neither the debtor nor the
creditors, not even the bankruptcy trustee, are parties to it. True, the plaintiffs
claim they once enjoyed an attorney-client relationship with a former bankruptcy
trustee. True, they now allege the former trustee breached professional duties due
them because of conflicting obligations he owed the bankruptcy estate. But the

plaintiffs seek recovery only under state law and none of their claims will be
necessarily resolved in the bankruptcy claims allowance process. And to know
that much is to know this case cannot be resolved in bankruptcy court. The
bankruptcy court may offer a report and recommendation. It may even decide the
dispute if the parties consent. But the parties are entitled by the Constitution to
have an Article III judge make the final call. So the district courts ruling
otherwise its decision to send the dispute to an Article I bankruptcy court for
final resolution without their consent violates the Constitutions commands
and must be corrected.
Conflicts of interest often spell trouble for lawyers. The rules are complex
and missteps happen. And at least as the complaint in this case tells it, a misstep
happened here. When Renewable Energy Development Corporation (REDCO)
found itself facing Chapter 7 proceedings, the bankruptcy court appointed
attorney George Hofmann to serve as trustee for the estate. REDCO was in the
wind business and its assets included lease options with private property owners
who agreed to allow wind farms on their lands. As trustee, Mr. Hofmann was
eager to ascertain the value of REDCOs leases so he consulted another client of
his with expertise in the field Kimberly Ceruti, the owner of Summit Wind
Power, LLC. The pair eventually discovered that REDCO had failed to pay some
property owners the consideration it owed them. As a result, Mr. Hofmann

allegedly concluded that REDCOs options were unenforceable and even

encouraged Summit to pursue its own leases with the same individuals. Which it
promptly did.
What started off sounding like a good idea and maybe even a win-win for
REDCO and Summit soon yielded a rats nest of conflicts. On further study, Mr.
Hofmann came to the view that the property owners couldnt cancel their leases
with REDCO in favor of Summit without first giving REDCO a chance to cure its
nonpayment. And, in Mr. Hofmanns estimation, the chance to cure was a
valuable opportunity for REDCO and its creditors. So he asked Summit to forgo
its new leases in favor of REDCOs old ones. Summit refused. Things got so
testy that Mr. Hofmann, yes, brought an adversarial proceeding in bankruptcy
court against one client (Summit) on behalf of another (the REDCO estate).
Unsurprisingly, Summit responded with state law claims against Mr. Hofmann
and his law firm, alleging legal malpractice, breaches of fiduciary duties, and a
good many other things besides. Mr. Hofmann, by now irredeemably conflicted,
was replaced as trustee.
How do these unfortunate but hardly uncommon (and still unproven and
only alleged) facts yield a dispute of constitutional magnitude? Summit filed suit
in federal court against Mr. Hofmann alleging diversity jurisdiction and the right
to have the case resolved in an Article III court. Mr. Hofmann replied that the
case belonged in and should be resolved by an Article I bankruptcy court.
4

Ultimately, the district court sided with Mr. Hofmann even as it acknowledged
some uncertainty about this much and certified its decision for an immediate
appeal.
The Constitution assigns [t]he judicial Power to decide cases and
controversies to an independent branch of government populated by judges who
serve without fixed terms and whose salaries may not be diminished. U.S. Const.
art. III, 1. This constitutional design is all about ensuring clear heads . . . and
honest hearts, the essential ingredients of good judges. 1 Works of James
Wilson 363 (J. Andrews ed., 1896) (alteration omitted), quoted in Stern v.
Marshall, 131 S. Ct. 2594, 2609 (2011). After all, the framers lived in an age
when judges had to curry favor with the crown in order to secure their tenure and
salary and their decisions not infrequently followed their interests. Indeed, the
framers cited this problem as among the leading reasons for their declaration of
independence. The Declaration of Independence 11; Stern, 131 S. Ct. at 2609.
And later they crafted Article III as the cure for their complaint, promising there
that the federal government will never be allowed to take the peoples lives,
liberties, or property without a decisionmaker insulated from the pressures other
branches may try to bring to bear. Stern, 131 S. Ct. at 2609. To this day, one of
the surest proofs any nation enjoys an independent judiciary must be that the
government can and does lose in litigation before its own courts like anyone
else.
5

Despite the Constitutions general rule, over time the Supreme Court has
recognized three narrow situations in which persons otherwise entitled to a
federal forum may wind up having their dispute resolved by someone other than
an Article III judge. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 64 (1982) (plurality opinion). Cases arising in the territories or the
armed forces or those involving public rights may be sent to Article I tribunals
of Congresss creation even if decisionmakers there do not enjoy the same
insulation and independence as Article III judges. Id. at 63-72. Bankruptcy
courts are, of course, legislative creations of just this sort. And because they
dont have a thing to do with the territories or armed forces, the Supreme Court
has suggested that their lawful charter depends on and is limited by public rights
doctrine.
As developed to date, public rights doctrine has something of a potluck
quality to it. Waldman v. Stone, 698 F.3d 910, 918 (6th Cir. 2012) (Kethledge,
J.). The original idea appears to have been that certain rights belong to
individuals inalienably things like the rights to life, liberty, and property
and they may not be deprived except by an Article III judge. Meanwhile,
additional legal interests may be generated by positive law and belong to the
people as a civic community and disputes about their scope and application may
be resolved through other means, including legislation or executive decision. See
Stern, 131 S. Ct. at 2612; Caleb Nelson, Adjudication in the Political Branches,
6

107 Colum. L. Rev. 559, 566-72 (2007). But the boundary between private and
public rights has proven anything but easy to draw and some say its become only
more misshapen in recent years thanks to seesawing battles between competing
structuralist and functionalist schools of thought. Compare, e.g., Northern
Pipeline, 458 U.S. 50, and Stern, 131 S. Ct. 2594, with Commodity Futures
Trading Commn v. Schor, 478 U.S. 833 (1986), and Wellness Intl Network, Ltd.
v. Sharif, 135 S. Ct. 1932 (2015). Indeed, the Court itself has acknowledged, its
treatment of the doctrine has not been entirely consistent. Stern, 131 S. Ct. at
2611; see also S. Elizabeth Gibson, Jury Trials and Core Proceedings: The
Bankruptcy Judges Uncertain Authority, 65 Am. Bankr. L.J. 143, 168-175 (1991)
(How a majority of the Court could have embraced these opposing views of
article III within the span of less than a decade is difficult to understand, id. at
174).
Bankruptcy courts bear the misfortune of possessing ideal terrain for testing
the limits of public rights doctrine and they have provided the site for many such
battles. See Northern Pipeline, 458 U.S. 50; Granfinanciera, S.A. v. Nordberg,
492 U.S. 33 (1989); Stern, 131 S. Ct. 2594. Even today, its pretty hard to say
what the upshot is. Through it all, the Supreme Court has suggested that certain
aspects of the bankruptcy process may implicate public rights and thus lawfully
find resolution in Article I courts. See, e.g., Northern Pipeline, 458 U.S. at 71
(plurality opinion); Granfinanciera, 492 U.S. at 56 n.11; Stern, 131 S. Ct. at 2614
7

n.7. But the Court has also emphasized time and again that not every proceeding
[that] may have some bearing on a bankruptcy case implicates a public right
amenable to resolution in an Article I tribunal. Stern, 131 S. Ct. at 2618.
That much, of course, hardly decides cases. What most everyone wants to
know is which aspects of typical bankruptcy proceedings do and dont implicate
public rights. Yet even Stern, perhaps the Courts most comprehensive tangle
with the question, offered no comprehensive rule for application across all cases.
Instead, it invoked a number of different factors to support the result it reached in
the particular and rather unusual case at hand. Id. at 2614 (justifying its decision
because the case at hand didnt fall within any of the varied formulations of the
public rights exception in this Courts cases); see also id. at 2621 (Scalia, J.,
concurring) (noting the surfeit of factors and formulations offered by the
majority); Ralph Brubaker, A Summary Statutory and Constitutional Theory of
Bankruptcy Judges Core Jurisdiction After Stern v. Marshall, 86 Am. Bankr. L.J.
121, 172 (2012).
But along the way Stern did clearly take at least one thing off the table. It
held that when a claim is a state law action . . . and not necessarily resolvable by
a ruling on the creditors proof of claim in bankruptcy, it implicates private
rights and thus is not amenable to final resolution in bankruptcy court. Stern, 131
S. Ct. at 2611. Indeed, the Court repeated this point repeatedly. See id. at
2617, 2618, 2620. So whatever else you might say in the midst of this still-very8

much-ongoing battle over bankruptcy and public rights doctrine, you can say this
much: cases properly in federal court but arising under state law and not
necessarily resolvable in the claims allowance process trigger Article IIIs
protections.
Happily, too, this is all the guidance we need to answer this appeal. While
the parties before us agree on little else, they agree that Summits claims against
Mr. Hofmann and his firm are properly heard in federal court under the federal
diversity statute, that they arise under state law, and that none will necessarily be
resolved in the process of allowing or disallowing claims against the estate.
Accordingly, we can be sure this is not the sort of case that may be forcibly
shipped to an Article I bankruptcy court for final decision. The parties may
waive their right to an Article III forum and choose to have their claims resolved
in bankruptcy court. Wellness Intl Network, 135 S. Ct. at 1939. But a district
court may not as the district court did here send parties entitled to an
Article III court to an Article I forum for final decision without their consent.
Mr. Hofmann resists this result by suggesting that Summits claims are
factually intertwined with the bankruptcy proceedings and for this reason
belong in bankruptcy court. After all, he says, any harm that happened here
happened only because of a conflict of interest arising from his service as a
bankruptcy trustee. This much may be true but it equally strikes us as irrelevant.
As we read Stern, it doesnt leave room for the notion that a claim independently
9

arising under state law and not necessarily resolvable in the claims allowance
process but factually intertwined with bankruptcy proceedings may be
sent to bankruptcy court for final resolution without consent. As we see it, the
only intertwining Stern cares about concerns the law, not the facts. In the
process of rejecting the idea that the claim before the Court implicated public
rights doctrine, Stern observed (among other things) that the claim was not
intertwined with a federal regulatory program Congress has power to enact but
arose instead under state law. 131 S. Ct. at 2614 (quoting Granfinanciera, 492
U.S. at 54). The Court pointed out that prototypical public rights disputes arise
from federal statutory scheme[s] while quintessential[] private rights disputes
involve common law rights affecting personal life, liberty, or property. Id. at
2614, 2618. In this way, the Court did suggest the source of law generating a
claim may inform its categorization as involving a public or private right. But the
Court nowhere suggested that any claim factually intertwined with bankruptcy
may be sent to bankruptcy court for final resolution without consent.
We confess were glad of this. Asking what source of law generated the
claim at issue may well raise some questions around the edges like what about
claims pursuing fraudulent conveyances, which find a home in a federal statute
but surely implicate longstanding common law rights? See Granfinanciera, 492
U.S. at 56. Still, questions like these arent a patch on what would be involved if
in each case we had to ask whether the plaintiffs claims are factually
10

intertwined with a bankruptcy proceeding. If, as Mr. Hofmann submits, our case
is factually intertwined enough with bankruptcy to warrant its resolution in
bankruptcy court just because a trustee in the bankruptcy happened to generate
a conflict of interest with a client outside the bankruptcy what wouldnt be?
What if a trustee and creditor came to blows in the courthouse parking lot over
the terms of a proposed reorganization plan? What if a trustee stole from a third
person and gave the money to the bankruptcy estate? Couldnt someone plausibly
describe disputes like these as at least as factually intertwined with bankruptcy
as our own?
The implausibility of Mr. Hofmanns factually intertwined test as a
viable interpretation of Stern and its inadvisability as a practical matter are
further underscored by this. If we were to adopt his test, you could make a pretty
good argument Stern itself would have had to come out the other way. In Stern
the debtor brought a tort counterclaim against a creditor in hopes of enlarging the
bankruptcy estate and the Supreme Court found the allegation sufficient to trigger
the bankruptcy courts core authorities. 131 S. Ct. at 2604. That sounds pretty
factually intertwined. Yet the Court held the case triggered Article IIIs
protections. A similar sort of problem may recur with Granfinanciera too. There
the debtor allegedly engaged in a fraudulent conveyance to hide assets from the
bankruptcy estate. Though the Court decided the case on other grounds (the
Seventh Amendment), Stern seemed to suggest that fraudulent conveyance cases
11

involve private rights and thus are of the sort that (absent consent) must be
decided in Article III courts. See id. at 2614 n.7 (describing Granfinanciera as
teaching that Congress could not constitutionally assign resolution of the
fraudulent conveyance action to a non-Article III court); see also In re
Bellingham Ins. Agency, Inc., 702 F.3d 553, 563 (9th Cir. 2012) affd sub nom.
Executive Benefits Ins. Agency v. Arkison, 134 S. Ct. 2165 (2014). Even though,
surely, one could argue fraudulent conveyance claims are usually (always?)
factually intertwined with the bankruptcy process because they challenge
efforts to evade it. That Mr. Hofmanns proposed test would place us at odds
with what the Supreme Court has decided in Stern and at least suggested about
Granfinanciera does much to make us skittish of following where he would
have us go.
Notably, many circuits to come this way before us have read Stern much as
we do. In fact, some have even read the decision as claiming a good deal more
ground for Article III than we must to resolve this appeal. The Ninth Circuit, for
one, has suggested that only the second portion of the Stern test weve discussed
whether the matter would necessarily be resolved in the claims allowance
process must be satisfied to trigger Article IIIs protections. After all, the
Ninth Circuit has noted, Granfinanciera involved a claim at least nominally
arising from federal statute (not state law), yet its one Stern seemed to suggest
belongs on the private side of the rights ledger. In re Bellingham, 702 F.3d at

12

564. Neither is the Ninth alone in this view. See, e.g., In re Fisher Island Invs.,
Inc., 778 F.3d 1172, 1192 (11th Cir. 2015) (holding that a bankruptcy court had
authority to decide a state law dispute that was necessarily resolved in the claims
allowance process); In re Frazin, 732 F.3d 313, 320-24 (5th Cir. 2013) (invoking
the claims allowance process to explain why a bankruptcy court could decide
certain state law claims but not others); Waldman, 698 F.3d at 921 (finding an
Article III problem because there was never any reason to think that the
debtors disallowance claims would necessarily resolve his affirmative [state
law] claims). To decide the case before us, however, we do not have to travel so
far for both of the factors Stern discussed are present here and surely all the
circuits to have spoken on the subject would agree their combination is enough
(maybe more than enough) to invite Article IIIs application.
Mr. Hofmann brushes aside these authorities and asks us to find inspiration
instead in Albert v. Site Mgmt., Inc., 506 B.R. 453 (D. Md. 2014), and In re Refco
Inc., 461 B.R. 181 (Bankr. S.D.N.Y. 2011). But neither of these cases
acknowledges Sterns direction that a case meeting both of the conditions weve
discussed is entitled to an Article III forum. Neither of these cases appears
reconcilable with the most thoughtful circuit learning on the subject weve just
outlined. Refco even admits that its result is in tension with Stern, going so far as
to acknowledge that the Supreme Court would likely reject its result. Refco, 461
B.R. at 191; see also In re Lyondell Chem. Co., 467 B.R. 712, 721 (S.D.N.Y.

13

2012) (agreeing with Refcos self-assessment). And it can come as no surprise

that a courts well-reasoned confession its ruling runs afoul of Supreme Court
precedent is enough to send us packing in the other direction.
Perhaps what Mr. Hofmann, the district court, and these authorities are
aiming at is something different and a good deal more plausible than an extension
of public rights doctrine to cases factually intertwined with bankruptcy. In
places, you could read them all as suggesting less that cases like ours qualify as
bona fide public rights disputes and more that we should consider recognizing a
fourth qualification to Article III, one particular to bankruptcy, to cover them.
And somewhere in here there may be a good argument premised on historical
understanding. At the time of the founding, English bankruptcy commissioners
could summarily decide matters related to the disposition of property in the
bankruptcy estate a sort of equitable in rem authority to administer and dispose
of the bankrupts assets for the benefit of his creditors. But bankruptcy
commissioners could not resolve plenary suits involving outside parties or
questions about what property belonged in or out of the bankruptcy estate. Such
matters had to be resolved before a judge. Congresss early attempts to
implement a nationwide bankruptcy system reflected this same jurisdictional
divide. See Brubaker, supra, at 123-30; Arkison, 134 S. Ct. at 2170. And theres
a colorable argument that Article III should be read in light of this historical
practice. You might even rationalize Stern and other existing cases along these
14

lines. After all, Sterns second condition, focusing on the amenability of a claim
to resolution in the bankruptcy claims process, could be read as suggesting that
the constitutional line falls along something like the old summary-plenary divide.
So might Sterns suggestion that fraudulent conveyance claims belong in an
Article III court despite the fact they sometimes nominally arise from federal
statute. And so might the logic behind the Ninth Circuits decision in Bellingham
and similar circuit decisions elsewhere.
Recognizing the summary-plenary line as the operative constitutional
boundary in bankruptcy may have the virtue of consistency with historical
practice and afford lower courts (some of) the guidance theyve long wanted. See
Brubaker, supra, at 123-30. It might also have the virtue of avoiding further
entanglements with public rights doctrine in this area a doctrine thats not only
pretty hard to get your hands around, but one that on even a good day may be
poorly suited to the task of allocating decisonmaking authority in bankruptcy
given (after all) that bankruptcy involves the disposition of private assets between
private parties. Its perhaps telling in this regard that, despite suggesting some
aspects of bankruptcy implicate only public rights, precisely none of the Courts
Article III bankruptcy cases has yet upheld a bankruptcy courts decision on this
basis. And perhaps telling, too, that several Justices have expressed openness to
exploring the use of historical practice as a basis for the constitutional boundary
between Article I and Article III in the bankruptcy context. See Wellness Intl
15

Network, 135 S. Ct. at 1951 (Roberts, C.J., dissenting); id. at 1967-68 (Thomas,
J., dissenting); Stern, 131 S. Ct. at 2621 (Scalia, J., concurring); see also
Brubaker, supra, at 164-67; Gibson, supra, at 170.
Still, its hardly clear that pursuing this idea further would help Mr.
Hofmann. For this case doesnt involve the administration or distribution of
estate assets and it would seem to fit pretty neatly on the plenary side of the line.
Even more problematically still, while the district court discusses a possible
argument in this direction, Mr. Hofmanns brief does no more than allude to it.
And because entertaining an argument for drawing a new doctrinal boundary
between Article I and Article III in the bankruptcy context would require us to
confront highly difficult constitutional question[s] that are not adequately . . .
briefed, we are naturally reluctant to venture farther into this dark wood without
more help from counsel. Wellness Intl Network, 135 S. Ct. at 1970 (Thomas, J.,
dissenting). After all, what looks a promising possibility from afar often reveals
scraggly particulars on closer encounter. So in the end we think the prudent
course is to leave Mr. Hofmanns allusion where we find it and defer its
resolution for another case where it may be more fully explored by the parties.
Still, thats not the end of our encounter with this appeal. It isnt because
saying (as we do) that a bankruptcy court may not decide this case without the
parties consent under Stern doesnt necessarily mean it cannot hear the case and
offer a report and recommendation about its disposition to a district court.
16

Indeed, as the Supreme Court has recently explained, where (as here) we are
faced with a Stern claim a claim the bankruptcy court is statutorily but not
constitutionally authorized to decide and for which it has not received the parties
consent to proceed its still possible under 28 U.S.C. 157(c)(1) and
consistent with Article III for a bankruptcy court to hear the proceeding and
submit proposed findings of fact and conclusions of law to the district court for
de novo review and entry of judgment. Arkison, 134 S. Ct. at 2173. In cases
like this, the bankruptcy court may act as a sort of magistrate or special master,
an adjunct to the decisionmaker, not the decisionmaker itself and in this way
honor both statutory and constitutional commands. Id. So while Summit is right
and the district court erred in sending Mr. Hofmanns case to bankruptcy court for
final decision, the district court remains free on remand to refer the case to a
bankruptcy court for a report and recommendation.
Summit resists this result, fighting even a temporary trip to bankruptcy
court for a report and recommendation. For a bankruptcy court to hear a claim as
a matter of statutory law, Summit notes, 28 U.S.C. 157(a) instructs that the
claim must aris[e] under title 11 or aris[e] in or relate[] to a case under title 11,
the federal bankruptcy code. And Summit says this requirement isnt met in this
case because the parties fight is so far removed from bankruptcy that it cant be
said to aris[e] under title 11 or aris[e] in or relate[] to a case under title 11. But
whatever other problems might attend this line of argument one is by now
17

familiar: it wasnt made before the district court and is therefore another one we
may and do decline to resolve in this appeal. See Waldman, 698 F.3d at 917.
Not ready to give up quite so easily on its effort to avoid even a short
detour from district court, Summit suggests we cannot ignore and must resolve its
argument because it implicates the subject matter jurisdiction of the federal
courts. But that much it does not quite do. The statute Summit invokes, 28
U.S.C. 157, involves only the allocation of responsibility between the
bankruptcy and district court; it does not implicate questions of subject matter
jurisdiction. Stern, 131 S. Ct. at 2607. We acknowledge that 157(a) shares
similar language with 28 U.S.C. 1334(b) and we readily accept that statute is
jurisdictional: quite expressly it provides district courts with jurisdiction over
all civil proceedings arising under title 11, or arising in or related to cases under
title 11. So maybe Summits 157(a) argument could be transferred to
1334(b), and maybe the argument could present a successful jurisdictional
challenge there. But if it did, it wouldnt be just the bankruptcy court that would
lack jurisdiction to hear and report on this case. The district court itself would
have no authority to hear the case either for 1334(b) expressly governs its
jurisdiction too.
Anxious to remain in federal court just not ever visit bankruptcy court
Summit shirks from acknowledging this, the full consequences of its argument,
and nowhere mentions 1334(b) in its opening brief or how its argument might
18

apply to that statute. And, happily for everyone, we dont have to address the
question on our own motion either, even though it does implicate subject matter
jurisdiction. We dont because, whether or not the district court has jurisdiction
to decide this case under 1334(b), everyone acknowledges it clearly has
jurisdiction to do just that under 1332(a) given that the complaint alleges
complete diversity of citizenship and a sufficient amount in controversy. See,
e.g., Penteco Corp. Ltd. Pship1985A v. Union Gas Sys., Inc., 929 F.2d 1519,
1521 (10th Cir. 1991).
At the end of the day, then, we are confident that the district court
possesses subject matter jurisdiction to hear this case at least under the diversity
statute, that Summit is entitled under Stern to have an Article III district court
resolve its claims, and that the district court may refer the case to an Article I
bankruptcy court for a report and recommendation. Many other questions remain
for tomorrow. But resolving this much is enough work for today. The case is
remanded to the district court for further proceedings consistent with this opinion.

19