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UNITED STATES BANKRJ DISTRICT OF MASSAi (Eastern DivisL
NOTICE OF REMOVAL
V & M Management, Inc.
HAROLD H. MURPHY,
DONALD F. FARRELL, JR.
HANIFY & KING, P.C, AND
STEPHEN S. GRAY,
TO: THE JUDGES OF THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS:
Pursuant to 28 U.S.C. § 1452 and Rule 9027 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), defendant Stephen S. Gray, the Trustee (the "Trustee") in the above-captioned bankruptcy proceeding, hereby removes an action from the Superior Court of the Commonwealth of Massachusetts for Suffolk County to the United States Bankruptcy Court for the District Court of Massachusetts, based upon the following:
1. The Trustee is a defendant in a civil action brought against him by Alphonse Mourad in the Superior Court of the Commonwealth of Massachusetts for Suffolk County, entitled Alphonse Mourad v. Harold H. Murphy, Donald F. FarrelL Jr.. Hanifv & King. P.C.
(A Law Partnership) and Stephen Gray. Civil Action No. 99-1470-C (the "State Court Action"). Copies of the Complaint, Summons, Civil Action Cover Sheet, and Stipulation to Extend Time are attached hereto as Exhibit A and constitute all process and pleadings served to date upon or by the Trustee in the State Court Action.
2. The Complaint was filed with the Clerk of the Court for the Massachusetts Superior Court of Suffolk County on or about March 31, 1999.
3. The Trustee received the Complaint and Summons on or after April 6, 1999. This Notice of Removal is being filed within thirty days after receipt of the Complaint and Summons, as required by Bankruptcy Rule 9027(a)(3).
4. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334. The proceeding has been commenced pursuant to Bankruptcy Rule 7001(10). This District is the proper venue for this proceeding pursuant to 28 U.S.C. § 1409.
5. The above-captioned adversary proceeding constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). To the extent this Court deems the matters raised in this adversary proceeding to be non-core, the Trustee consents to the entry of final orders or judgment by the Bankruptcy Judge.
6. The Complaint alleges misconduct against the Trustee in his capacity as Trustee in the above-captioned bankruptcy proceeding. Although the Complaint does not state a specific cause of action against the Trustee, the primary allegation against the Trustee appears to be that the Trustee was not "disinterested" within the meaning of 11 U.S.C. § 101(14) and 11 U.S.C. § 1104. See Complaint ^ 120.
7. The Complaint thus seeks to challenge the appointment of the Trustee under 11 U.S.C. § 1104 in the above-captioned bankruptcy proceeding. The State Court does not have
jurisdiction to resolve this question, and accordingly this matter should be heard in the Bankruptcy Court.
8. Furthermore, the matters raised in the Complaint have been exhaustively litigated in the above-captioned bankruptcy proceeding. To the extent, if any, that any matters remain to be litigated regarding the Trustee's performance of his duties in the above-captioned bankruptcy proceeding, the Bankruptcy Court is the proper court for the litigation.
9. The Complaint also alleges various acts of misconduct by Harold Murphy, Donald Fan-ell, and Hanify & King, P.C., in their capacity as counsel to V&M Management, Inc., the Debtor in the above-captioned bankruptcy proceeding. The Trustee submits that these allegations also relate to the administration of the bankruptcy estate and thus give rise to core proceedings under 28 U.S.C. § 157(b)(2)(A) that must be heard before the Bankruptcy Court.
WHEREFORE, the Trustee respectfully states that removal of the above-captioned adversary proceeding to the United States Bankruptcy Court for the District of Massachusetts
1 HEREBY CERTIFY-THAT ATRUE COW OF THE ABOVE DOCUMENT WAS SERVED UPON THE ATTORNEY OFRECORCI FOR EACH OTHER PARTY BY<@HAND ON:
STEPHEN S. GRAY, AS CHAPTER 7 TRUSTEE
By his attorneys,
Paul D. Moore (bma 02m) Andrew C. Griesinger (bma 01985) W. Daniel Troyka (bbo 625762) CHOATE, HALL & STEWART Exchange Place 53 State Street
Boston, Massachusetts 02109 (617) 248-5000
Dated: May 5, 1999