- Category: Judge Somers
- Published: 29 July 2011
- Written by Judge Somers
SIGNED this 27 day of July, 2011.
Dale L. Somers
UNITED STATES BANKRUPTCY JUDGE
Decision for print publication and on-line use.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
SUNBRIDGE CAPITAL, INC.,
CHRISTOPHER J. REDMOND,
GULF CITY BODY & TRAILER
WORKS, INC. ,
CASE NO. 09-20747
ADV. NO. 11-06113
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE
Case 11-06113 Doc# 15 Filed 07/27/11 Page 1 of 16
This is an adversary proceeding in which the Chapter 7 Trustee, Christopher J.
Redmond (hereafter "Trustee") seeks to recover a prepetition transfer of $7,794.38,
pursuant to 11 U.S.C. §§ 547, 548, and 550. The matter under advisement is Defendant
Gulf City Body &Trailer Works, Inc.'s (hereafter "Defendant") Motion to Dismiss
(hereafter "Motion") for improper venue under 28 U.S.C. § 1409(b). The Trustee appears
by Michael D. Fielding of Husch Blackwell, LLP. Defendant appears by Gilbert L.
Fontenot of Maples & Fontenot, LLP and Cynthia F. Grimes of Grimes & Rebein, LLC.
There are no other appearances. The Court has jurisdiction.1
The relevant facts are simple and uncontested. Plaintiff is the duly appointed and
acting Chapter 7 Trustee of the bankruptcy estate of the Debtor, pending in this Court.
This adversary case was filed on March 7, 2011, against Defendant seeking to recover for
the estate $7,794.38 allegedly transferred to Defendant by the Debtor by wire transfer on
January 15, 2009. The theories of recovery alleged are: Preferential transfer under 11
U.S.C. § 547; constructive fraudulent conveyance under 11 U.S.C. § 548(a)(1)(B) and
K.S.A. §§ 33-204(2) and 33-205(a), and recovery of avoided transfer pursuant to 11
U.S.C. § 550 and K.S.A. § 33-207. When moving to dismiss, Defendant states it resides
in the Southern District of Alabama and has no place of business, office, or branch in the
1 This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§
157(a) and 1334(a) and (b), and the Standing Order of the United States District Court for the District of
Kansas that exercised authority conferred by § 157(a) to refer to the District's bankruptcy judges all
matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a
case under the Code, effective July 10, 1984. Furthermore, this Court may hear and finally adjudicate this
matter because it is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E)and (F).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 2 of 16
State of Kansas. The Trustee does not controvert these facts.2 Defendant moves to
dismiss the Complaint under Federal Rule of Bankruptcy Procedure 7012, which
incorporates Federal Rules of Civil Procedure 12(b)(3), for improper venue. Defendant
contends this case falls within the venue limitation of 28 U.S.C. § 1409(b), which
provides in part that an action seeking to recover a "debt (excluding a consumer debt)
against a noninsider of less than $11,725, [may be commenced] only in the district court
for the district in which the defendant resides." The Trustee argues that 28 U.S.C. §
1409(b) does not apply and venue is proper under 28 U.S.C. § 1409(a).3
This case therefore poses an unsettled question of bankruptcy procedure: Do the
limitations on venue codified at § 1409(b), in particular that applicable to small-dollar
cases filed by a trustee to recover a debt against a noninsider, apply to actions to recover
preferences and fraudulent conveyances? Although the “conventional wisdom” is that
subsection (b) applies to preference actions,4 cases have answered the question both "yes"
and "no." There is no precedent in the Tenth Circuit, although there is at least one
unpublished decision answering “no.”5 Those cases from other circuits answering "yes,"
2 The Trustee also does not controvert Defendant's position that it is not an insider of the Debtor.
3 Future references in the text to 28 U.S.C. § 1409 will be to the section only.
4 See e.g., Charles J. Tabb, The Brave New World of Bankruptcy Preferences, 13 Am. Bankr. Inst.
L. Rev. 425 (2005); Bryon C. Starcher, Second Thoughts on “Home Court Advantage” for Small-Dollar
Preference Defendants, 25 Am. Bankr. Inst. J. 10 (2006); Paul R. Hage and Patrick R. Mohan, Does
BAPCPA’s Small-Dollar Venue Restriction Apply to Preference Actions? 29 Am. Bankr. Inst. J. 26
5 The only decision from the Tenth Circuit located by the Court’s research is an unpublished
decision of Bankruptcy Judge McFeeley in Ryan v. Wolter (In re Nashmy), 2007 WL 2305672 (Bankr.
Case 11-06113 Doc# 15 Filed 07/27/11 Page 3 of 16
that the venue limitations apply, rely upon construction of the phrase “arising in” and the
legislative history of the BAPCPA6 amendments to subsection (b).7 Those cases
answering "no," that the venue limitations do not apply to preference claims and other
avoidance actions, rely upon the plain wording of the subsection.8 For the reasons
examined below, this Court finds the analysis answering "no" more persuasive and
therefore denies Defendant's Motion to Dismiss.
The general rule, established by 1409(a), is that the district court in which a
bankruptcy case is pending is the proper venue for a "proceeding arising under title 11 or
D. N.M. Aug. 6, 2007), holding 28 U.S.C § 1409(b) does not apply to preference claims.
6 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. NO. 109-8, 119
Stat. 23 (2005).
7 Muskin, Inc. v. Strippit Inc. (In re Little Lakes Indust., Inc.), 158 B.R. 478 (9th Cir BAP 1993);
Dynamerica Manuf., LLC v. Johnson Oil Co., LLC (In re Dynamerica Manuf., LLC), 2010 WL 1930269
(Bankr. D. Del. May 10, 2010); Miller v. Hirn (In re Raymond), 2009 WL 6498170 (Bankr. N.D. Ga.
June 17, 2009).
8 Moyer v. Bank of America, N.A. (In re Rosenberger), 400 B.R. 569 (Bankr W.D. Mich. 2008);
Ehrlich v. American Express Travel Related Services Co., Inc. (In re Guilmette), 202 B.R. 9 (Bankr
N.D.N.Y. 1996); Van Huffel Tube Corp. v. A & G Indust. (In re Van Huffel Tube Corp.), 71 B.R. 155
(Bankr. N.D. Ohio 1987).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 4 of 16
arising in or related to" such case under title 11.9 Subsection (b) codifies the exception on
which Defendant relies. It provides:
(b) Except as provided in subsection (d) of this section,10 a
trustee in a case under title 11 may commence a proceeding
arising in or related to such case to recover . . . a debt
(excluding a consumer debt) against a noninsider of less than
$11,725, only in the district court for the district in which the
The exception for small-dollar claims against noninsiders was added in 2005 by
9 28 U.S.C. §§ 1409 (a), (b), and (c), which are relevant to this case provide:
(a) Except as otherwise provided in subsections (b) and (d), a proceeding
arising under title 11 or arising in or related to a case under title 11 may
be commenced in the district court in which such case is pending.
(b) Except as provided in subsection (d) of this section, a trustee in a case
under title 11 may commence a proceeding arising in or related to such
case to recover a money judgment of or property worth less than $1,175
or a consumer debt of less than $17,575, or a debt (excluding a
consumer debt) against a noninsider of less than $11,725, only in the
district court for the district in which the defendant resides.
(c) Except as provided in subsection (b) of this section, a trustee in a case
under title 11 may commence a proceeding arising in or related to such
case as statutory successor to the debtor or creditors under section 541 or
544(b) of title 11 in the district court for the district where the State or
Federal court sits in which, under applicable nonbankruptcy venue
provisions, the debtor or creditors, as the case may be, may have
commenced an action on which such proceeding is based if the case
under title 11 had not been commenced.
10 28 U.S.C. § 1409(d) applies to claims of a trustee arising after the commencement of the case
from the operation of the business of the debtor.
11 28 U.S.C. § 1409(b).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 5 of 16
The terms used in § 1409 describing venue, although not defined by the
Bankruptcy Code or other statutes, have well established meanings. "A proceeding 'arises
under' the Bankruptcy Code if it asserts a cause of action created by the Code, such as
exemption claims under 11 U.S.C. § 522, avoidance actions under 11 U.S.C. §§ 544, 547,
548, or 549, or claims of discrimination under 11 U.S.C. § 525."12 "Proceedings 'arising
in' in a bankruptcy case are those that could not exist outside of a bankruptcy case, but
that are not causes of action created by the Bankruptcy Code."13 If a proceeding "could
have been commenced in federal or state court independently of the bankruptcy case, but
the ‘outcome of that proceeding could conceivably have an effect on the estate being
administered in bankruptcy,’”14 it is "related to" a bankruptcy case. These terms of art are
used not only when defining venue but also in the statutes defining jurisdiction of
bankruptcy cases and proceedings.15
Under these definitions, the claims asserted by the Trustee against Defendant arose
under the Bankruptcy Code. The Complaint alleges causes of action created by the Code
§§ 547, 548, and 550 and are within the foregoing definition of proceedings “arising
12 Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764, 771 (10th Cir. BAP 1997).
14 Id., quoting Gardner v. United States (In re Gardner), 913 F. 2d 1515, 1518 (10th Cir. 1990)
15 28 U.S.C. § 1334.
Case 11-06113 Doc# 15 Filed 07/27/11 Page 6 of 16
under” title 11.16 Subject to the exceptions in subsection (b) and (c), the general venue
provision of § 1409(a) applies to proceedings “arising under title 11" and provides that
such proceedings may be commenced in the district where the title 11 case is pending.
The exception in § 1409(b) for small-dollar claims applies to proceedings “arising in or
related to” the case under title 11. The Complaint does not allege claims arising in or
related to the Sunbridge bankruptcy. The plain language of the exception on which
Defendant relies does not support its applicability to this proceeding.
Cases holding the § 1409(b) limitations on venue do not apply to preference
actions do so based primarily upon well recognized distinctions between proceedings
“arising under,” “arising in,” and “related to” bankruptcy cases and Congressional intent
that these phrases have precise meanings. In Van Huffel,17 the Chapter 11 debtor in
possession brought an adversary proceeding in Ohio, where the bankruptcy case was
pending, to recover allegedly preferential transfers from various defendants. One
defendant, who resided in Pennsylvania, moved to dismiss under § 1409(b) because the
claim alleged against it was less than $1,000. The court denied the motion, finding that a
preference action is clearly a proceeding “arising under” title 11 and to “ignore the
‘arising under’ language found in Section 1409(a) and to refuse to make the distinction
between the ‘arising under,’ ‘arising in,’ and ‘related to’ language found in the various
16 As the foregoing definitions demonstrate, an avoidance action under 11 U.S.C. § 544 is created
by the Code and therefore arises under the Code, even though the Trustee relies upon applicable state law
as to the standard for avoidance.
17 In Re Van Huffel Tube Corp., 71 B.R. at 155.
Case 11-06113 Doc# 15 Filed 07/27/11 Page 7 of 16
jurisdictional and venue provisions relating to the bankruptcy courts would be to ignore
Congressional intent as set forth in the legislative history of those statutes.”18
In Guilmette,19 the Chapter 7 Trustee brought a preference action to recover
$913.28 in the Southern District of New York, where the bankruptcy case was pending,
against a defendant who resided in the Northern District of New York. After engaging in
a thorough analysis of the meaning in “arising under,” the court denied the motion to
dismiss for improper venue under § 1409(b). It held that the preference action arose
under the bankruptcy code and did not also “arise in” the bankruptcy case.
Rosenberger20 also held that a preference action “arose under” the Code and
therefore venue was proper in the district in which the bankruptcy case was pending. It
found that Congress’ omission of “arising under” in subsection (b) was deliberate, citing
the rule that “[I] is generally presumed that Congress acts intentionally and purposefully
when it includes particular language in one section of a statute but omits it from
A well respected commentator on the Code finds that the exception to the general
venue statute does not apply to avoidance actions. Colliers, although denoting the
18 Id. at 157.
19 In re Guilmette, 202 B.R. at 9.
20 In re Rosenberger, 400 B.R. at 569.
21 Id., at 573, quoting In re Cormier, 382 B.R. 377, 393-94 (Bankr. W.D. Mich. 2008).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 8 of 16
drafting of §1409(b) “puzzling;” states, “[t]he home court is still a proper venue for
avoiding actions, whatever the amount.”22
In support of its position that subsection (b) applies to this case, Defendant relies
in part upon Little Lake Industries,23 a 1993 decision of the Ninth Circuit BAP. The court
held that a preference action to recover property worth less than $1000 could be brought
only in the defendant’s home district. Although acknowledging the customary
distinctions between proceedings “arising under” and “arising in,” it examined the venue
statute to determine “whether a functional distinction was intended.”24 The court was
frustrated by an attempt to determine any useful distinction from variations in the use the
two terms (particularly in § 1409(c)),25 found the legislative history sparse and
inconclusive, and concluded that the policy served by the small-dollar limitation on venue
“would be more logically accomplished by omitting all core proceedings, i.e. both those
arising under and arising in, from subsection (b).”26 Concluding that the statutory terms
“arising under” and “arising in” should not be interpreted as mutually exclusive and for
purposes of § 1409(b) all proceedings arising under title 11 also arise in the bankruptcy
case, it held that the small-dollar preference action could be brought only in the
22 1 Collier on Bankruptcy ¶ 4.03(Alan N. Resnick & Henry J. Sommer eds.-in-chief, 16th ed.
23 In re Little Lakes Indust., Inc., 158 B.R. at 478.
24 Id., at 483.
26 Id., at 484.
Case 11-06113 Doc# 15 Filed 07/27/11 Page 9 of 16
defendant’s home district.27 Little Lakes Industries was followed in Raymond,28 where
the court concluded that “subjecting reference claims to section 1409(b) is more likely
than not what Congress intended.” Little Lakes Industries was rejected by the Guilmette
court based upon the established meaning of “arising under” and its exclusion from §
1409(b)29 and by the Rosenberger court which disagreed with the conclusion that
Congress’ omission of “arising under” from § 1409(b) was inadvertent.30
Defendant also relies on Dynamerica Manufacturing,31 which held the noninsider
small-dollar provision of subsection (b) applies to preference actions. As Dynamerica
Manufacturing accurately details, the reports and commentary of those supporting the
BAPCPA addition of a limitation on venue applicable to small-dollar actions against
noninsiders clearly intended that it apply to preference actions. The court found this
legislative history sufficient to overcome the otherwise plain language of the subsection.
This Court declines to follow Little Lakes Industries and Dynamerica for two
reasons: (1) The legislative history does not convince this Court that the omission of
“arising under” from subsection (b) was unintentional; and (2) even assuming that
Congress intended to make small-dollar avoidance actions subject to subsection (b), this
27 Id. at 484.
28 In re Raymond, 2009 WL 6498170 at*2.
29 In re Guilmette, 202 B.R. at 12.
30 In re Rosenberger, 400 B.R. at 572.
31 In re Dynamerica Manuf., LLC, 2010 WL 1930269.
Case 11-06113 Doc# 15 Filed 07/27/11 Page 10 of 16
Court is directed by the applicable rules of statutory construction to apply the plain
language of the subsection.
The origin of § 1409 is found in the Bankruptcy Reform Act of 1978, which
enacted former 28 U.S.C. § 1473 addressing venue. It provided in relevant part:
(a) Except as provided in subsections (b) and (d) of this
section, a proceeding arising in or related to a case under title
11 may be commenced in the bankruptcy court in which such
case is pending.
(b) Except as provided in subsection (d) of this section,
a trustee in a case under title 11 may commence a proceeding
arising in or related to such case to recover a money
judgment of or property worth less than $1,000 or a consumer
debt of less than $5,000 only in the bankruptcy court for the
district in which a defendant resides. 32
The House Report accompanying the house version of the bill basically repeats the
statutory language and observes that the section “prevents unfairness to distant debtors of
the estate, when the cost of defending would be greater than the cost of paying the debt
owed.”33 The report does not address the type of claims to which it would apply. Notice
that the statute omits the phrase “arising under” in both subsection (a) and (b). However,
the statute addressing jurisdiction enacted at the same time, codified at 28 U.S.C. § 1471,
provided in part that the district courts shall have original but not exclusive jurisdiction
32 28 U.S.C. § 1473(a) and (b) (1978) (reprinted in A Colliers on Bankruptcy, App. Pt. 4(a), App.
Pt. 4-169 and-170) (emphasis added).
33 H.R. Rep. No. 95-595, 446 95th Cong., 1st Sess. (1977) (reprinted in C Colliers, App. Pt.
4(d)(I), App. Pt. 4-1607).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 11 of 16
over “all civil proceedings arising under title 11 or arising in or related to cases under title
11.”34 The House Report discussing the grant of jurisdiction observes:
The phrase ‘arising under’ has a well defined and broad
meaning in the jurisdictional context. By a grant of
jurisdiction over all proceedings arising under title 11, the
bankruptcy courts will be able to hear any matter under which
a claim is made under a provision of title 11. . . . Any action
by the trustee under an avoiding power would be a proceeding
arising under title 11, because the trustee would be claiming
based on a right given by one of the sections in subchapter III
of chapter 5 of title 11”.35
Title 28 was substantially amended in 1984 in response to the Supreme Court’s
Marathon decision. The bankruptcy jurisdictional statute was relocated to 28 U.S.C. §
1334 and the venue provisions were relocated to 28 U.S.C. § 1408 (venue of cases under
title 11)36 and 28 U.S.C. § 1409 (venue of proceedings arising under title 11 or arising in
or related to cases under title 11). The grant of jurisdiction to district courts continued to
be described in terms of civil proceedings “arising under title 11, or arising in or related
to cases under title 11.”37 The phrase “arising under title 11" was added to subsections (a)
and (d) of § 1409, the replacement for 28 U.S.C. § 1473, but not to subsections (b) or
(c).38 Hence the exception to venue in the court where the bankruptcy case was pending
34 28 U.S.C. § 1471(1978) (reprinted in A Colliers on Bankruptcy, App. Pt. 4(a), App. Pt. 4-169).
35 H.R. Rep. No. 95-595 at 445 (reprinted in C Collier App. Pt. 4(d)(i), App. Pt. 4-1605 and
36 28 U.S.C. § 1408 (1984) (reprinted in E-1 Collier App. Pt. 6(a), App. Pt. 6-3).
37 28 U.S.C. § 1334 (1984) (reprinted in E-1 Collier App. Pt. 6(a), App. Pt. 6-2 and -3).
38 28 U.S.C. § 1409 (1984) (reprinted in E-1 Collier App. Pt. 6(a), App. Pt. 6-3 and -4).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 12 of 16
provided, in certain low-dollar cases, that the trustee “in a case under title 11" could
commence a “proceeding arising in or related to such case” only in the defendant’s home
district. The addition of “arising under” to only two subsections of § 1409 lends support
to the argument that the omission of “arising under” in subsection (b) was intentional.
Other than changes to the monetary limits, § 1409 was not amended until
BAPCPA was enacted in 2005. In the interim, the 1997 American Bankruptcy Task
Force on Preferences identified for consideration the amendment of the venue rules “to
protect defendants from having to defend in a distinct forum, at least when the amount in
controversy is below a stated amount,” suggesting that the then present limits of $1,000
and $5,000 for a consumer debt were insufficient.39 The National Bankruptcy Review
Commission Report as recommendation 3.2.2 stated, “28 U.S.C. § 1409 should be
amended to require that a preference recovery action against a non-insider seeking less
than $10,000 must be brought in the district where the creditor has its principal place of
business. This Recommendation applies to non-consumer debts only.”40
BAPCPA amended § 1409(b) by adding the following italicized language:
(b) Except as provided in subsection (d) of this section, a
trustee in a case under title 11 may commence a proceeding
arising in or related to such case to recover a money judgment
of or property worth less than $1,000 or a consumer debt of
less than $15,000, or a debt (excluding a consumer debt)
39 The ABI Preference Survey recommendation 13, is available at
40 Charles J. Tabb, Brave New World, 13 Amer. Bankr. Inst. L. Rev. at 427, citing Nat’l Bankr.
Rev. Comm’n, Bankruptcy: The Next Twenty Years, 794 (1977).
Case 11-06113 Doc# 15 Filed 07/27/11 Page 13 of 16
against a noninsider of less than $10,000, only in the district
court for the district in which the defendant resides.41
The House Report basically repeats the statutory language and does not make reference to
preference or other Chapter 5 actions.42 The phrase “arising under” title 11 continues to
be omitted from subsection (b).
However, a widely cited commentary on BAPCPA includes the amendment of §
1409(b) as one of “several significant amendments . . . made to the bankruptcy and
jurisdictional laws affecting preferences.”43 It states, “The venue rules for
‘proceedings’--which include preference avoidance actions--in 28 U.S.C. § 1409 were
amended in 2005 to give substantially greater protection to creditor defendants.”44 This
position assumes that subsection (b) before BAPCPA applied to preference actions. This
assumption, and the conclusion that the BAPCPA noninsider small-dollar amendment
applies to preferences, have been questioned by a different author, based upon the plain
language of the subsection and an exhaustive analysis of the legislative history.45 The
author concludes, “Congress has had three opportunities to include proceedings arising
under Title 11 in § 1409(b) (and its predecessor, § 1473(b)), but had failed to do so.
41 28 U.S.C. § 1409(b) (2005) (reprinted in E-2 Collier App. Pt. 10(b), App. Pt. 10-654 and -655).
42 H.R Rep. No. 109-31, 88 109th Cong., 1st Sess. (2005) (reprinted in E-2 Colliers. App. Pt.
10(b), App. Pt. 10-355-56).
43 Charles J. Tabb, Brave New World, 13 Amer. Bankr. Inst. L. Rev. at 427.
44 Id. at 428.
45 Bryon C. Starcher, Second Thoughts, 25-Mar Am. Bankr. Inst. J. at 10.
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Given the other changes made to the venue provisions over the years, a court today may
be hard-pressed to find that Congress has not intentionally excluded preference
proceedings arising under Title 11, including preferences, from the operation of
This Court finds the legislative history of § 1409 insufficient to conclude that
Congress intended that preference and other avoidance actions be subject to the small-
dollar limitations on venue stated in subsection (b). When Congress transferred the
section in 1984 from § 1473 to § 1409, it added “arising under” to subsection (a) and (d),
but failed to add it to subsections (b) and (c). That crucial difference between subsections
(a) and (b) has not been subsequently amended, even though the courts have disagreed as
to the scope of the exception in (b). Although, as discussed above, those advocating for
the BABCPA amendment to § 1409 clearly intended the noninsider exception to
subsection (a) to apply to preference actions, there is nothing in the Congressional
documents evidencing that Congress shared that intent. If Congress intended to include
the phrase “arising under” in subsection (b), BAPCPA would have been an appropriate
time to make the amendment, but it failed to do so.
Moreover, the established rules of statutory construction would preclude the Court
from diverting from the plain language of the subsection, even if the legislative history
were more convincing. As the Supreme Court has said when construing the Code, “[I]t is
46 Id. at 51.
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well established that ‘when the statute’s language is plain, the sole function of the courts at
least where the disposition required by the text is not absurd - is to enforce it according
to its terms.’”47 In this case, the construction of 1409(b) as not including preference and
other avoidance within the exception to the general venue statute for certain small-dollar
claims is not absurd, as the exception will apply to other proceedings arising in and
related to the bankruptcy case. The importance of the rule that the plain meaning of the
Code was recently followed by the Tenth Circuit in Dawes48 where the legislative history
and purpose were an insufficient basis for departing from what the Tenth Circuit Court
found to be the plain language of 11 U.S.C. § 1222(a)(2)(A) and related provisions
concerning the priority of taxes from gain on the postpetition sale of farm assets.
For the foregoing reasons, the Court concludes that this Court is a proper venue for
the Trustee’s avoidance action against Defendant. The claims alleged arose under title 11
and therefore are not within § 1409(b), which limits venue to the district where the
defendant resides only for small-dollar claim “arising in” and “related to” the bankruptcy
case. Defendant’s Motion to Dismiss is denied.
IT IS SO ORDERED.
47 Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004), quoting Hartford Underwriters Ins. Co. v.
Union Plainters Bank, N.A., 530 U.S. 1, 6 (2000).
48 United States v. Dawes (In re Dawes), __ F.3d __ , 2011 WL 2450930 (10th Cir. June 21,
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