E.D. Tenn. Discusses Split Re Right to Indemnity under ERISA

Per Henderlight v. Lay, Slip Copy, 2006 WL 1663695 (E.D. Tenn., June 14, 2006):

Finally, the Court turns to third-party defendant's argument that third-party plaintiff has failed to state a claim for which relief may be granted because there is no right to indemnity under ERISA. There are two lines of cases, neither of which clearly resolves whether there is such a right. …Considering the non-fiduciary line of cases first, there is very little law, but a right to contribution or indemnification from a non-fiduciary may not exist under ERISA. See Glaziers & Glassworkers v. Newbridge, 823 F. Supp. 1191, 1193–96 (E.D. Pa. 1993) (collecting cases). On the other hand, the Sixth Circuit has discussed the question without deciding it, and has suggested that a right to contribution from a non-fiduciary could only exist if the non-fiduciary shares common liability with the fiduciary in a direct suit by participants. See McDannold v. Star Bank, 261 F.3d 478, 486 (6th Cir.2001).

Turning to the co-fiduciary line of cases, the law in the Sixth Circuit is only slightly clearer in suggesting that contribution probably is not available from a co-fiduciaries in favor of a party that has breached its fiduciary duties to an ERISA plan. See Roberts v. Taussig, 39 F.Supp.2d 1010, 1012-13 (N.D.Ohio 1999); Williams v. Provident Inv. Counsel, Inc., 279 F.Supp.2d 894, 898 (N.D.Ohio 2003). On the other hand, the Sixth Circuit has not addressed the issue directly, and other circuits are split. Compare Chemung Coal Trust Co. v. Sovan Bank/Maryland, 939 F.2d 12 (2d Cir.1991) (recognizing right of contribution among co-fiduciaries in ERISA action) with Kim v. Fujikawa, 871 F.2d 1427, 1432-33 (9th Cir.1989) (concluding ERISA does not permit breaching fiduciary to claim right of contribution from co-fiduciary). See also Free v. Briody, 732 F.2d 1331, 1336-38 (7th Cir.1984) (holding fiduciary may make claim for contribution under ERISA). Although this area of the law is fraught with uncertainty, what is clear is that a starting point for determining whether there is a right to contribution, if such a right exists, may depend upon whether a party is a co-fiduciary or non-fiduciary under ERISA.


Supreme Court Decision Resolves Split Re Whether Relief is Equitable or Legal under ERISA, Finds it Equitable

Here is an excerpt from the syllabus of Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869, a case the Supreme Court decided last month (May 15, 2006):

Petitioner Sereboffs are beneficiaries under a health insurance plan administered by respondent Mid Atlantic and covered by the Employee Retirement Income Security Act of 1974 (ERISA)…The Sereboffs were involved in an automobile accident and suffered injuries. The plan paid the couple's medical expenses. The Sereboffs sought compensatory damages for the accident from third parties in state court. After the Sereboffs settled their tort suit, Mid Atlantic filed suit in District Court under § 502(a)(3) of ERISA, seeking to collect from the Sereboffs' tort recovery the medical expenses it had paid on the Sereboffs' behalf. The Sereboffs agreed to set aside from their tort recovery a sum equal to the amount Mid Atlantic claimed, and preserve this sum in an investment account pending the outcome of the suit. The court found in Mid Atlantic's favor and ordered the Sereboffs to turn over the amount set aside. The Fourth Circuit affirmed in relevant part, and observed that the Courts of Appeals are divided on the question whether § 502(a)(3) authorizes recovery in these circumstances. This Court granted review to resolve this disagreement.

Held: Mid Atlantic's action properly sought “equitable relief” under § 502(a)(3).

(a) A fiduciary may bring a civil action under § 502(a)(3)(B) “to obtain ··· appropriate equitable relief ··· to enforce ··· the terms of the plan.” The only question here is whether the relief requested was “equitable.” …Mid Atlantic sought identifiable funds within the Sereboffs' possession and control-that part of the tort settlement due Mid Atlantic under the ERISA plan and set aside in the investment account.

(b) This Court's case law from the days of the divided bench confirms that Mid Atlantic's claim is equitable. In Barnes v. Alexander, 232 U.S. 117, 34 S.Ct. 276, 58 L.Ed. 530, attorney Barnes promised two other attorneys “one-third of the contingent fee” he expected in a case, id., at 119, 34 S.Ct. 276. Based on “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing,” id., at 121, 34 S.Ct. 276, the Court found that Barnes' undertaking “create[d] a lien” upon the portion of the recovery due him from the client, ibid., which the other attorneys could “follow ··· into [Barnes'] hands” “as soon as [the fund] was identified,” id., at 123, 34 S.Ct. 276. The “Acts of Third Parties” provision in the Sereboffs' plan, like Barnes' promise, specifically identified a particular fund distinct from the Sereboffs' general assets, and a particular share of that fund to which Mid Atlantic was entitled. Thus, Mid Atlantic could rely on a “familiar rul[e] of equity” to collect for the medical bills it had paid by following a portion of the recovery “into the [Sereboffs'] hands” “as soon as [the settlement fund] was identified,” and imposing on that portion a constructive trust or equitable lien. Ibid.

(c) The Sereboffs' contention that the lower courts erred in allowing enforcement of the “Acts of Third Parties” provision, without imposing limitations that would apply to an equitable subrogation action, is rejected. Mid Atlantic's claim is not considered equitable because it is a subrogation claim. Rather, it is considered equitable because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by Barnes.


Supreme Court Resolves Split Re Burden of Proof for Duress Defense

Per Dixon v. U.S., No. 05–7053 [from the Syllabus]:

Petitioner was charged with receiving a firearm while under indictment in violation of 18 U. S. C. §922(n) and with making false statements in connection with the acquisition of a firearm in violation of §922(a)(6). She admitted at trial that she knew she was under indictment when she purchased the firearms and knew that doing so was a crime, but claimed that she was acting under duress because her boyfriend had threatened to harm her and her daughters if she did not buy the guns for him. Bound by Fifth Circuit precedent, the District Court declined her request for a jury instruction placing upon the Government the burden to disprove, beyond a reasonable doubt, her duress defense. Instead, the jury was instructed that petitioner had the burden to establish her defense by a preponderance of the evidence. She was convicted, and the Fifth Circuit affirmed.


1. The jury instructions did not run afoul of the Due Process Clause. . . .

2. Modern common law does not require the Government to bear the burden of disproving petitioner’s duress defense beyond a reasonable doubt. . . .

Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion, in which Souter, J., joined.


SCOTUS Resolves Split Re Showing Needed for Retaliation Claims

Per Burlington Northern and Santa Fe Ry. Co. v. White, No. 05-259 [from the Syllabus]:

Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on “race, color, religion, sex, or national origin,” 42 U. S. C. §2000e–2(a), and its anti-retaliation provision forbids “discriminat[ion] against” an employee or job applicant who, inter alia, has “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation, §2000e–3(a). Respondent White, the only woman in her department, operated the forklift at the Tennessee Yard of petitioner Burlington Northern & Santa Fe Railway Co. (Burlington). After she complained, her immediate supervisor was disciplined for sexual harassment, but she was removed from forklift duty to standard track laborer tasks. She filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the reassignment was unlawful gender discrimination and retaliation for her complaint. Subsequently, she was suspended without pay for insubordination. Burlington later found that she had not been insubordinate, reinstated her, and awarded her backpay for the 37 days she was suspended. The suspension led to another EEOC retaliation charge. After exhausting her administrative remedies, White filed an action against Burlington in federal court claiming, as relevant here, that Burlington’s actions in changing her job responsibilities and suspending her for 37 days amounted to unlawful retaliation under Title VII. A jury awarded her compensatory damages. In affirming, the Sixth Circuit applied the same standard for retaliation that it applies to a substantive discrimination offense, holding that a retaliation plaintiff must show an “adverse employment action,” defined as a “materially adverse change in the terms and conditions” of employment. The Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation.


1. The anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. . . .

2. The anti-retaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or applicant. This Court agrees with the Seventh and District of Columbia Circuits that the proper formulation requires a retaliation plaintiff to show that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ”

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Alito, J., filed an opinion concurring in the judgment


U.S. Court of Appeals for the Armed Forces Notes Split Re Applicability of Doggett Presumption to Appellate Delay Analyses

Per U.S. v. Moreno, 63 M.J. 129 (U.S. Armed Forces May 11, 2006):

In the speedy trial context, “extreme cases of delay would produce a strong presumption of prejudice to the ability of a party to defend itself at trial····” United States v. Smith, 94 F.3d 204, 211 (6th Cir.1996) (citing Doggett v. United States, 505 U.S. 647, 655-58, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Circuit courts have split on whether the Doggett presumption of prejudice is applicable to a due process appellate delay analysis. Compare Harris II, 15 F.3d at 1564, and Smith, 94 F.3d at 211-12 (presumption applicable), with United States v. Mohawk, 20 F.3d 1480, 1487-88 (9th Cir.1994) (presumption not applicable).


Tenth Circuit Notes Split Re Baseline for Comparing Challenged Inmate Conditions

Per Jordan v. Federal Bureau of Prisons, Slip Copy, 2006 WL 1587456 (10th Cir. June 12, 2006):

It is well established that lawfully incarcerated persons retain only a narrow range of protected liberty interests, Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994), and “[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995). . . . However, under the Supreme Court's decision in Sandin, the government may create a liberty interest protected by the Due Process Clause which is generally limited to freedom from restraint that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”515 U.S. at 484. In determining whether the government has imposed an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” as required by Sandin, we consider the conditions of confinement, including both its duration and degree of restrictions, as compared with other inmates. . . .

When considering whether the conditions, duration or restrictions of confinement are atypical as compared with other inmates, this court has inconsistently used comparisons either with inmates in the same segregation or those in the general prison population. See Hill v. Fleming, 2006 WL 856201, at *4 (10th Cir. Apr. 4, 2006) (unpublished op.) (citations omitted). The Supreme Court has recognized, without deciding the issue, that the circuit courts are split on which baseline comparison to use. See Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 2394 (2005). In this circuit, regardless of which baseline we have utilized, this court “has never held the conditions, duration or restrictions of the detentions presented on appeal created a liberty interest····” Hill, 2006 WL 856201, at *4. Similarly, the majority of other circuits have also held no liberty interest arose in administrative detentions presented on appeal, while a few others have rendered contrary decisions.


SCOTUS Resolves Split Re Priority Status of Premiums Owed by a Bankrupt Employer to a Workers' Compensation Carrier

Last week in Howard Delivery Service, Inc. v. Zurich American Ins. Co., --- S.Ct. ----, 2006 WL 1639224 (June 15, 2006) the Supreme Court resolved a circuit split concerning the priority status of premiums owed by a bankrupt employer to a workers' compensation carrier. Here's an excerpt:

In sum, we find it far from clear that an employer's liability to provide workers' compensation coverage fits the § 507(a)(5) category “contributions to an employee benefit plan ··· arising from services rendered.” Weighing against such categorization, workers' compensation does not compensate employees for work performed, but instead, for on-the-job injuries incurred; workers' compensation regimes substitute not for wage payments, but for tort liability. Any doubt concerning the appropriate characterization, we conclude, is best resolved in accord with the Bankruptcy Code's equal distribution aim. We therefore reject the expanded interpretation Zurich invites. Unless and until Congress otherwise directs, we hold that carriers' claims for unpaid workers' compensation premiums remain outside the priority allowed by § 507(a)(5).


N.D. Iowa Opines that Leocal Resolved Circuit Split re Status of 26 U.S.C. s. 5861 Violation as "Crime of Violence"

Per U.S. v. Barnett, 426 F.Supp.2d 898 (N.D. Iowa Apr. 05, 2006):

The question here is whether the predicate offenses alleged in this case, violations of 26 U.S.C. §§ 5841, 5845, 5861, and 5871, are “crimes of violence” within the statutory definition in § 924(c)(3), as the Supreme Court has interpreted the identical provisions of § 16 in Leocal [v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)].

. . .

The Supreme Court's decision in Leocal did not specifically address whether possession of an unregistered sawed-off or short-barreled shotgun, in violation of 26 U.S.C. § 5861, constitutes a “crime of violence” within the meaning of either § 16 or the identical provisions of § 924(c)(3). Moreover, before the Supreme Court's decision in Leocal, there was a split in the circuits on that question. This court must decide whether application of the Supreme Court's interpretation of the statutory definitions of “crime of violence” in Leocal resolves the split.

[After analyzing the Court's Leocal decision, the district court concluded as follows:] Consequently, an offense of possessing (or making or receiving) an unregistered sawed-off or short-barreled shotgun, in violation of § 5861, is not a “crime of violence” within the meaning of § 924(c)(3).


E.D.N.Y. Weighs in on Intra-Circuit Split over Awardability of Pre-Judgment Interest on Statutory Damages

Per Kingvision Pay-Per-View Ltd. v. Autar, 426 F.Supp.2d 59 (E.D.N.Y. Apr. 13, 2006):

Plaintiff requests that this Court, in its discretion, award pre-judgment interest on the statutory and enhanced damages “at the legal rate.” . . . Although plaintiff's brief makes it appear the awarding of pre-judgment interest is not at all controversial, the district courts in this circuit are split on the issue of whether pre-judgment interest is appropriate in these cases. Some courts, like Ruiz, have granted pre-judgment interest at a rate of nine percent pursuant to N.Y. C.P.L.R. § 5004. See, e.g., Ruiz, 2005 WL 589403, at *3; Morales, 2005 WL 2476264, at *10 (Report and Recommendation of Matsumoto, M.J.); Kingvision Pay-Per-View, Ltd. v. Recio, 02 Civ. 6583(JSM)(RLE), 2003 WL 21383826, at *5 (S.D.N.Y. June 11, 2003) (Report and Recommendation of Ellis, M.J.). However, other courts have declined to award such interest. See, e.g., CSC Holdings, Inc. v. Khrisat, No. 04 CV 8592(LBS)(RLE), 2005 WL 3030838, at *6 (S.D.N.Y. Nov. 8, 2005) (Report and Recommendation of Ellis, M.J.); Garden City Boxing Club, Inc. v. Rosado, No. CV-05-1037 (DLI)(JMA), 2005 WL 3018704, at *5 (E.D.N.Y. Oct. 6, 2005) (Report and Recommendation of Azrack, M.J.); Kingvision Pay-Per-View, Ltd. v. Batista, CV-05-0614 (RJD) (JMA), 2005 WL 2999427, at *5 (E.D.N.Y. Oct. 6, 2005) (Report and Recommendation of Azrack, J.); Kingvision Pay-Per-View Ltd. v. Olivares, 02 Civ. 6588(JES)(RLE), 2004 WL 744226, at *5 (S.D.N.Y. April 5, 2004) (Report and Recommendation of Ellis, M.J.).

Having carefully reviewed the conflicting case law, this Court concurs with Magistrate Judge Azrack's view, expressed in Rosado and Batista, that those cases denying pre-judgment interest are better reasoned. . . . Khrisat and Olivares-both of which are recent cases authored by the same jurist who decided Recio-contain a lengthy and persuasive analysis of why pre-judgment interest should not be available. In Olivares, which is cited with approval in Rosado and Batista, Magistrate Judge Ellis reasoned that pre-judgment interest was not recoverable because New York law does not award pre-judgment interest on punitive damages, and statutory damages under § 605 are “analogous to punitive damages in that they are designed to deter others from similar infringing activity.” Olivares, 2004 WL 744226, at *5.


E.D. Wis. Notes Split Re BOP Authority to Determine Whether Federal Sentence Should Run Concurrently with State Sentence

Per Bintzler v. Gonzales, Slip Copy, 2006 WL 1431491 (E.D. Wis. May 24, 2006):

Bintzler is asking the court to reverse what he claims to have been an improper sentence modification by the Bureau of Prisons. . . . The BOP lacks authority to determine whether a prisoner's sentences should run concurrently when the federal sentencing court imposes sentence after the state imposes its own sentence. However, in cases like Bintzler's where the federal court imposes sentence before the state court, the BOP has the effective authority to determine how the sentence should run. See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 74 (2nd Cir.2005).

There is a split among the circuits as to the source and extent of the BOP's authority to treat a sentence as consecutive or concurrent. The Second and Third Circuits have ruled that 18 U.S.C. § 3583(a) which requires that multiple prison terms “run consecutively unless the court orders that the terms are to run concurrently” is inapplicable to situations such as this in which the federal sentence is imposed first. See McCarthy v. Doe, 146 F.3d 118, 121-22 (2nd Cir.1998); Barden v. Keohanek, 921 F.2d 476, 478 (3d Cir.1990). . . .

The Seventh Circuit disagrees with the legal underpinnings, but not the result of the Second Circuit's McCarthy opinion.


Tenth Circuit Discusses Split Re Scope of Subordinate Bias Liability in Employment Discrimination Claims

Per E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, --- F.3d ---, 2006 WL 1545501 (10th Cir. June 7, 2006):

Despite broad support for some theory of subordinate bias liability, our sister circuits have divided as to the level of control a biased subordinate must exert over the employment decision. Some courts take a lenient approach, formulating the inquiry as whether the subordinate “possessed leverage, or exerted influence, over the titular decisionmaker.” See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.2000). On this view, “summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.1994). This standard apparently contemplates that any “influence,” the reporting of any “factual information,” or any form of “other input” by a biased subordinate renders the employer liable so long as the subordinate “may have affected” the employment action.

At the opposite extreme, the Fourth Circuit has held that an employer cannot be held liable even if a biased subordinate exercises “substantial influence” or plays a “significant” role in the employment decision. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir.2004) (en banc). Taking its cue from the Supreme Court's statements … that “petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker” and was “principally responsible” for his firing, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52 (2000), the Fourth Circuit held that these formulations mark “the outer contours of who may be considered a decisionmaker for purposes of imposing liability upon an employer.” Hill, 354 F.3d at 289.…The Fourth Circuit's peculiar focus on “who is a ‘decisionmaker’ for purposes of discrimination actions”… seems misplaced. The word “decisionmaker” appears nowhere in Title VII. Instead, the statute imposes liability for discrimination by employers and their agents, 42 U.S.C. § 2000e(b), which in accordance with agency law principles includes not only “decisionmakers” but other agents whose actions, aided by the agency relation, cause injury.

We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach as “inconsistent with the normal analysis of causal issues in tort litigation.” Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.2004). To prevail on a subordinate bias claim, a plaintiff must establish more than mere “influence” or “input” in the decisionmaking process. Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action. Id. This standard comports with the agency law principles that animate the statutory definition of an “employer.”


N.D. Ind. Notes Split Re Standing of Pension Plans under 29 U.S.C. s. 1132(d)(1) to Make an ERISA Claim

Per Construction Workers Pension Trust Fund Lake County and Vicinity v. Reeves Fence Co., Inc., Slip Copy, 2006 WL 1518969 (N.D.Ind. May 26, 2006):

Reeves first argues that the Laborers' pension fund has no standing to bring suit under ERISA. The Circuit Courts of Appeals are split “as to whether pension plans have standing under 29 U.S.C. § 1132(d)(1) to make an ERISA claim.” Via Christi Regional Medical Center, Inc. v. Blue Cross and Blue Shield of Kansas, Inc., 361 F.Supp.2d 1280, 1289 (D.Kan.2005)(collecting cases). Suggesting that the Second Circuit's view is more consistent with Supreme Court precedent, Reeves encourages the court to follow that Circuit. See, e.g., Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Company, 700 F.2d 889 (2nd Cir.1983). However, the Seventh Circuit repeatedly has held that multiemployer plans have standing to sue under ERISA for delinquent contributions. See Central States, Southeast and Southwest Areas Pension Fund v. Schilli Corporation, 420 F.3d 663, 670 (7th Cir.2005); Peoria Union Stock Yards Company Retiremen t Plan v. Penn Mutual Life Insurance Company, 698 F. 2 d 320, 326 (7th Cir.1983). See also Coleman Clinic, Ltd. v. Massachusetts Mutual Life Insurance Company, 698 F.Supp. 740, 744-45 (C.D.Ill.1998). Because this court follows the Seventh Circuit, Reeves' standing argument must be rejected.


Eleventh Circuit Notes Split Re Standard of Review for Denial of a Franks Hearing

Per U.S. v. Arbolaez, --- F.3d ---, 2006 WL 1493833 (11th Cir. June 1, 2006):

Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. See United States v. Dynalectric Co., 859 F.2d 1559, 1580 (11th Cir.1988). We have not stated a precise standard of review for a district court's denial of a Franks hearing [regarding the validity of the affidavit supporting a search warrant], and other circuits are split on the issue.[See note 11] Because, as was the case for the Sixth Circuit in United States v. Stewart,“the more exacting de novo standard of review is satisfied” here, we need not address the issue further. Stewart, 306 F.3d 295, 304 (6th Cir.2002).

[Note 11]: Compare United States v. Fairchild, 122 F.3d 605, 610 (8th Cir.1997) (review for abuse of discretion), United States v. Skinner, 972 F.2d 171, 177 (7th Cir.1992) (review for clear error), United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990) (same), and United States v. One Parcel of Property, 897 F.2d 97, 100 (2d Cir.1990) (same), with United States v. Homick, 964 F.2d 899, 904 (9th Cir.1992) ( de novo review), and United States v. Mueller, 902 F.2d 336, 341 (5th Cir.1990) (same); see also United States v. Stewart, 306 F.3d 295, 304 (6th Cir.2002) (discussing split).


S.D. Fla. Bankruptcy Court Notes Split Re Whether Bad Faith is Cause to Dismiss a Chapter 7 Bankruptcy

Per In re Farkas, --- B.R. ----, 2006 WL 1441049 (Bkrtcy.S.D.Fla., March 9 2006):

It appears that the Circuits continue to be split on the issue of bad faith and whether it constitutes cause to dismiss a chapter 7 bankruptcy. Compare U.S. v. Pedigo, 329 B.R. 47 (S.D.Ind.2005) (holding that the list contained in 11.U.S.C. § 707(a) is not exhaustive such that bad faith may constitute “cause” for dismissal in a chapter 7 bankruptcy) and In re Linehan, 326 B.R. 474 (Bankr.Mass.2005) (finding that a debtor's bad faith generally does not constitute “cause” for dismissal of a chapter 7 case).

This Court continues to find the reasoning set forth in In re RIS Inv. Group, Inc., 298 B.R. 848, 852 (Bankr.S.D.Fla.2003), to be sound: [w]hat distinguishes Chapter 11 and Chapter 13 from Chapter 7 is the language of the Bankruptcy Code itself and the post-filing relationship between the debtor and his creditors. In re Padilla, 222 F.3d at 1193. Chapter 11 and 13 specifically delineate a good faith requirement for proposed payment plans. Id. (citing 11 U.S.C 1129(a)(3) and 11 U.S.C. § 1325(a)(3)) Chapter 7 makes no mention of a good faith requirement. Further, the relationship between the debtor and creditor in Chapter 11 and Chapter 13 is significantly different than their relationship in Chapter 7. Chapter 11 and 13 debtors are allowed to continue possession of their assets and alter their contractual relationships with their creditors. Chapter 7, on the other hand, ends the creditor-debtor relationship when the debtor metaphorically “throws in the towel.” So long as the debtor is willing to surrender all of its assets, regardless of whether debtor's motive was grounded in good faith, the debtor is entitled to Chapter 7 protection. Id. (citing Katie Thein Kimlinger and William P. Wassweiler, The Good Faith Fable of 11 U.S.C. § 707(a); How Bankruptcy Courts Have Invented a Good Faith Filing Requirement for Chapter 7 Debtors, 13 Bankr.Dev. J. 61, 65 (1996)).

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