USCA1 Opinion

May 7, 1996
[Not for Publication]
[Not for Publication]

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1736

CHERYL ADAMS, RICHARD WAUGH, BRENT ADAMS, RONALD RING,

PATRICIA ADAMS, ROBERT RAVITZ, CARRIE BURKE, WELDON ADAMS,
ELIZABETH TARGEE, TINA LEVESQUE AND MELISSA SMITH RAPA,

Plaintiffs - Appellants,

v.

CUMBERLAND FARMS, INC.

AND LANCE CURLEY, ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Stanley R. Cohen for appellant.

________________
Barbara D. Gilmore,
___________________

with whom

Kathleen Provost
________________

Worcester, were on brief for appellee.

_________
____________________

____________________

and Sullivan
________

STAHL,
STAHL,

review of

an

Circuit Judge.
Circuit Judge.
______________

order entered

effectively estimated and

by

This appeal

the bankruptcy

Cheryl Adams and ten

of

(collectively

debtor

claims constituted

that

other former employees

"Adams"),

bankruptcy court lacked authority

the

court

discharged the appellants' claims.

The appellants,

the

involves the

claim

that

the

to enter the order because

"personal injury

tort claims."

We

former employees

of

affirm.

I.
I.
__

Background
Background
__________

Cheryl

Adams

and ten

other

Cumberland Farms, Inc. ("CFI"), filed proofs of claim against

CFI

in

the

bankruptcy

Massachusetts.

action

court

The claims

for

stemmed

in which Adams alleged that

supervisors

had

conspired

falsely accusing

stealing

money

further alleged

from

and

alleged

thefts

other

had not committed them.

prosecution,

intentional infliction of

abuse

CFI employees of

stores.

Adams

confessing to

that Adams

and

the

the

other

The complaint in the case

asserted claims of false imprisonment,

malicious

by

officials had knowingly

employees into

notwithstanding

civil

inventory losses

from CFI

that these same CFI

Adams and

of

various CFI officers and

recoup

merchandise

District

a pending

Adams and other low-level

coerced

employees

to

the

of

wrongful termination,

process,

emotional distress, and

defamation,

violation

-22

of Massachusetts civil

rights laws

(collectively the

"loss

prevention claims").

In 1993,

separate

CFI reached

in a

class action suit involving similar loss prevention

claims (the "Curley suit").

in

a tentative settlement

The Curley suit had been brought

New Jersey federal district court by a different group of

former CFI employees that did not include Adams.

As part

of

the proposed Curley settlement, the parties to that agreement

filed a

joint motion

requesting

the

in the Massachusetts

creation of

mandatory

bankruptcy court

class that

would

include all loss prevention claimants who had filed proofs of

claim

in

Adams).

the

Massachusetts

Moreover,

Massachusetts

bankruptcy

the parties

bankruptcy

court

proceeding

further requested

use

the

loss prevention

newly

August

created class.

30, 1993,

claims alleged

Adams

the bankruptcy

Adams appealed to the

by individuals

objected to

that the

Curley settlement

agreement as a vehicle for estimating and discharging

the

(e.g.,
____

all of

in this

this motion.

court granted

On

the motion.

Massachusetts federal district

court,

and

the

Jersey

district court

district court

Circuit affirmed, the

Curley suit.

See
___

affirmed.

ultimately

Additionally, the

approved,

proposed settlement

and the

556 (3d Cir. 1994).

II.
II.
___

-33

Third

agreement in

Curley v. Cumberland Farms, Inc.,

______
______________________

New

the

27 F.3d

Discussion
Discussion
__________

On

complaint is

to

appeal

enter a final order

bankruptcy

assertion

this

court,

that the bankruptcy court

raises several

the

to

court's

estimation

bankruptcy

Seventh Amendment right

brief overview of the

to a

Adams also

including an attack

on

of her

an

court's

claims

and

order violated

jury trial.

her

We begin with

statutory framework and follow with

discussion of Adams's assignments of error.

A. Statutory Overview
______________________

principal

lacked the authority

discharging her claims.

additional arguments

that the

Adams's

Title 28 U.S.C.

broad

grant

of

1334

subject-matter

bankruptcy-related

matters,

"district

shall

court

jurisdiction

not exclusive

vests in the district court

jurisdiction

expressly

have

providing

original

of all cases under

and

over

all

that

the

exclusive

title 11" and "original but

jurisdiction of all

civil proceedings arising

under title 11, or arising in or related to cases under title

11."

28

Edwards,
_______

U.S.C.

115

comprehensive

1334(a), (b); see

___

S.

Ct.

scope of

1493,

1334

1498-99

also Celotex Corp.

____ _____________

(1995)

v.

(discussing

jurisdictional grant).

The

bankruptcy court, in turn, is authorized to hear matters, not

as

an independent

court."

28

entity, but

U.S.C.

151.

as "a

unit of

the district

Subject-matter

jurisdiction

remains

in

the

district

court, which

is

authorized,

in

-44

appropriate

bankruptcy

circumstances,

judges

of th[at]

to

refer

district."

matters

"to

the

Id.
___

157;

cf.
___

Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458

_____________________________
_______________________

U.S. 50 (1982)

scheme

that

independently

courts

(holding unconstitutional previous

authorized

all

under the

bankruptcy

jurisdiction

bankruptcy

statutory

courts

to

exercise

conferred to

the

district

laws).

The district

court's

power of referral extends to any case or proceeding for which

it has

subject-matter jurisdiction

U.S.C.

157.

under

1334.

this provision for cause shown

own motion or by the request of either party.

While the district court

it has

28

The district court, however, may withdraw any

matter referred under

which

See
___

jurisdiction under

bankruptcy

judge

to

proceeding

is limited.

enter

Id.
___

on its

157(d).

may refer all matters for

1334,

final

See 28 U.S.C.
___

the power

orders

157.

in

of the

referred

In general, a

bankruptcy

judge may

hear and

bankruptcy proceedings.

Id.
___

finally determine

157(a).

only core

Core proceedings are

those that involve rights that are created by, and depend on,

the bankruptcy laws for their existence.

938

F.2d 1467, 1475 (1st

Cir. 1991); see

___

Print Works, Inc., 815

___________________

(reading

the

F.2d

legislative

bankruptcy

court's

core

broadly).

Section 157

In re G.S.F. Corp.,
__________________

165, 166-67

history

authority

sets forth

-55

as

also In re Arnold
____ ____________

(1st

Cir. 1987)

indicating

should

be

that

interpreted

a nonexhaustive list

of

"core

proceedings"

that includes

"allowance or disallowance of

U.S.C.

157(b)(2)(B),

catchall

covering

most

such

obvious

claims against the estate," 28

as well

"other

as a

final broadly-phrased

proceedings

affecting

liquidation of the assets of the estate," id.

___

bankruptcy

referred non-core

judge

proceeding

matters as

may

also

hear

otherwise falling

the

157(b)(2)(O).

properly

within

the

district

may

court's bankruptcy

only issue

conclusions

review.

those

proposed

findings of

of law subject

Id.
___

157(c)(1).

matters

bankruptcy

sufficiently

for

not

their

directly

existence,

to

the

relationship to

party," to

court's

or

non-core

dependent on

are

within

the

nonetheless

the

of

the

district

The bankruptcy court is

own motion or on the

determine whether

core

court's de novo
__ ____

restructuring

come

court's broad jurisdictional grant.

authorized, on its

recommended

This non-core authority extends to

connected

debtor/creditor

in general,

fact and

to the district

that, while

laws

jurisdiction, but,

"timely motion of a

a proceeding comes

authority.

Id.
___

within the

157(b)(3).

Finally, with the consent of

may hear and

the

district

the parties, a bankruptcy court

finally determine

court's

non-core proceedings

bankruptcy

157(c)(2).

-66

jurisdiction.

within

Id.
___

Significantly,

personal

injury tort

and wrongful

death claims are afforded special status under the bankruptcy

laws.

Several express

authority

of the

e.g., 28 U.S.C.
____

example,

the

exceptions

address

bankruptcy court over

such claims.

157(b)(2)(B), (O), and

estimation

of

personal injury tort claims

and limit

157(b)(5).1

unliquidated

or

the

See,
___

For

contingent

for the purposes of distribution

____________________

1.

Subsection 157(b)(2)

provides, in relevant

core proceedings include:

(B) allowance or
against

the

disallowance of

estate

or exemptions

claims
from

property of the estate, and estimation of

claims

or interest

for the

purposes of

confirming a plan under chapter 11, 12 or

13 of title 11 but not the liquidation or

part, that

___ ___
estimation of
personal
________

contingent or unliquidated

injury
______

tort or
____

wrongful death
________ _____

claims against the estate for purposes of

distribution in a case under title 11
. . .
(O)

other

proceedings

liquidation

of the assets

or the adjustment of
or

the

equity

affecting

the

of the estate

the debtor-creditor
security

holder

relationship, except personal injury tort

______ ________ ______ ____
or wrongful death claims.
________ _____

28 U.S.C.

157(b)(2) (emphasis added).

Subsection 157(b)(5)

provides that:

The

district

court

personal injury tort

________ ______ ____
claims shall
court

in

be

shall

and wrongful
________

tried in

which the

order

the

district in

which

death
_____

district

bankruptcy

pending, or in the district

that

case is

court in the

the claim

arose,

as

determined by the district court in which

the bankruptcy case is pending.

28 U.S.C.

157(b)(5) (emphasis added).

-77

is explicitly excluded from

Id.
___

157(b)(2)(B).

instructed to

death

order that

157's list of core proceedings.

Moreover,

the

district

personal injury tort

claims shall be tried

in the district

court

is

and wrongful

court in which

the

bankruptcy case is pending

the

claims arose.

apparently

stems

Id.
___

or in the

157(b)(5).

from

Congress's

personal

injury tort and

somewhat

different relationship

district in which

This

special status

recognition

wrongful death victims

with the

that

most

stand in a

bankruptcy debtor

because they did not voluntarily enter into dealings with the

debtor (and

accept the risk

traditional

bankruptcy

of loss)

claimants.

Funeral Chapel, Inc., 63

_____________________

B.R.

in the same

See
___

527, 530

sense as

Matter of Poole
_________________

(Bankr. N.D.

Ala.

1986) (quoting statements of Sen. DeConcini).

B. Personal Injury Torts

_________________________

Adams challenges the

to

enter

final

order

bankruptcy court's

with

respect

to

her

authority

claims.

Essentially,

she contests

determination that her

Adams argues that

within at

the

bankruptcy court's

claims constituted core

proceedings.

her claims are non-core because

least one of several

they fall

specific exceptions provided

for "personal

injury tort" claims.

that, because

the

proceeding was

-88

implicit

Therefore, she contends

non-core, the

bankruptcy

court lacked the authority to enter a final order effectively

estimating and discharging her claims.2

Whether or

not Adams's claims

injury tort claims is a close question.

Inc. of Michigan, 172

_________________

1994)

exclude

B.R. 541,

("personal injury

tort"

constitute personal

Compare In re Atron
_______ ____________

542-45 (Bankr.

should be

W.D. Mich.

read narrowly

to

emotional distress and other nontraditional personal

injury

claims), with
____

Poole,
_____

injury

tort" should

be read

63 B.R.

at 529-30

("personal

broadly to include

claims for

emotional

and mental

distress).

reach the issue in this case.

claims

constituted

objection

to the

and, again, in

Accordingly,

personal

joint motion

We

injury

tort

before the

claims

in

her

bankruptcy court

the district court.

waived consideration

appeal to this court.

to

Adams failed to argue that her

her opening brief before

she has

decline, however,

of the

issue on

See, e.g., Fish Market Nominee Corp.

___ ____ __________________________

____________________

2.

Adams does not contend that her claims against the estate

were

outside the

matter

jurisdiction under

surprising.
under

district court's

The

28 U.S.C.

broad grant
1334.

district court's "related

1334(b) is expansive.

of subjectThis

is not

to" jurisdiction

See Celotex Corp. v. Edwards,

___ _____________
_______

115 S. Ct. 1493, 1499 (1995) ("Congress did not delineate the
scope of `related
suggests

articulation

to' jurisdiction, but its choice

grant

of

of the

test

some

breadth.").

for determining

of words

"`The

usual

whether a

civil

proceeding is related to bankruptcy is whether the outcome of

that

proceeding could

conceivably

have any

estate being administered in bankruptcy.'"

at

1475 (quoting Pacor, Inc.

___________

(3d Cir. 1984)).

effect on

the

In re G.S.F., 938
____________

v. Higgins, 743
_______

F.2d 984, 994

We have little doubt that proceedings, such

as this one, involving the estimation and discharge of proofs

of

claim filed against

the estate by

a bankruptcy creditor

come within this broad range.

-99

v.

Pelofsky, 72
________

F.3d 4,

6 (1st

Cir. 1995)

(arguments not

raised

in bankruptcy court are waived on appeal); In re Mark

__________

Bell Furniture Warehouse, Inc., 992 F.2d 7, 9 (1st Cir. 1993)

______________________________

(same).

At bottom, Adams's claim is that she was denied her

right to an

Article III

from the language of

judge.

That

Article III,

right, which

derives

1, is a personal

right

and is subject to waiver upon a party's failure to assert it.

See Commodity Future Trading Comm'n v. Schor, 478 U.S.

___ ________________________________
_____

848-50 (1986).

1, protects

833,

Schor, however, makes clear that Article III,

_____

other non-waivable institutional

interests by

barring "congressional attempts

to transfer jurisdiction [to

non-Article III

the purpose

tribunals] for

constitutional courts."

Id.

of emasculating

at 850 (citations and quotation

___

marks omitted).

No such concerns are at issue in

this case.

The present appeal does not involve a challenge to Congress's

allocation of authority to a non-Article III bankruptcy judge

to

resolve

personal

injury

and

wrongful

death

claims.

Indeed, the specific provisions in question, viz 28 U.S.C.

___

157(b)(2)(B) and

bankruptcy

157(b)(5), strictly limit the

judges

with

respect

to

personal

authority of

injury

and

wrongful death claims.

Though, in

extraordinary

cases, we

may

make

exception to the raise-or-waive rule where our failure

so

would

result in

a gross

miscarriage

of justice,

an

to do

see
___

-1010

Credit Francais Int'l

_____________________

(1st

Cir. 1996),

exception

is

v. Bio-Vita, Ltd., 78
_______________

Adams has

warranted in

bankruptcy court's order did

remedy for

simply

had

her

the

not persuaded

this case.

709

us that

such an

The effect

of the

not completely deprive Adams of

alleged injuries.

effect of

F.3d 698,

estimating

Instead, the

the

ruling

value of

her

unliquidated tort

the

claims by

Curley settlement

infra,
_____

Adams

has

settlement will

agreement.

failed to

Because,

persuade

us

provide an unreasonable

likewise unpersuaded

court's

ordering her to

order will

that giving

result in

participate in

as we

that

explain

the Curley

estimation, we

effect

to the

a substantial

are

bankruptcy

miscarriage of

justice.

C. Other Matters
_________________

In

her

reply brief,

bankruptcy court's use

Adams

of the class

vehicle for estimating her claims.

the

directly

attacks the

action settlement as

While title 11 authorizes

bankruptcy court to estimate unliquidated and contingent

claims when

necessary for

the prompt administration

of the

bankruptcy

estate,

see
___

11

U.S.C.

provide methods for conducting

502(c),

such estimations.

in estimating claims, "bankruptcy courts

method

is

best

suited

to

ed.

1995).

The

the particular

bankruptcy

-1111

does

not

Therefore,

should use whatever

Lawrence P. King, 3 Collier on Bankruptcy

_____________________

(15th

it

circumstances."

502.03, at 502-76

courts

are

afforded

substantial deference in this

area, and errors assigned both

to its estimates and its methods for achieving such estimates

generally will be

reviewed only for an

abuse of discretion.

Matter of Continental Airlines, 981 F.2d 1450, 1461 (5th Cir.

______________________________

1993); Bittner v. Borne Chem. Co., 691 F.2d 134, 136 (3d Cir.
_______
_______________

1982).

the

Moreover, in this case, because Adams did not attack

actual estimates in her opening brief, she has, in fact,

waived consideration of this issue absent a

estimates

See
___

would result

in a

Indian Motocycle Assocs.

_________________________

showing that the

clear miscarriage

of justice.

v. Massachusetts Hous. Fin.

__________________________

Agency, 66 F.3d 1246, 1253 n.12 (1st Cir. 1995).

______

On the

particulars of this case,

Adams has failed

to convince us that the bankruptcy court's decision to

her

participation in

abuse

of

discretion,

the Curley

much

order

settlement constituted

less

asserted

clear

justice.

The claims

in the

brought by

employees similarly situated to

from essentially

the same

scheme that

general, we find

no reason

to think

miscarriage

Curley

of

action were

Adams, and arose

Adams

that a

an

alleges.

In

court-approved

settlement in such a strikingly parallel proceeding would not

provide a

Adams's

reasonable benchmark

claims.

for estimating the

Though there

estimation would

may be

method

for

not

cases,

Adams has not provided us

be

value of

reasons that

such a

appropriate in

other

with any compelling reason

for finding it inappropriate here.

-1212

Adams raises several additional issues, including a

claim that the

Seventh

bankruptcy court's order deprived her

Amendment

right to

a jury

trial.

We

of her

find these

additional claims either waived, substantially without merit,

or

both.

Specifically,

Amendment

a jury trial.

See
___

(1990) (filing

proof

equitable

We

Langenkamp v. Culp,
__________
____

of claim

and

general rule

death

Seventh

claim in a bankruptcy

invokes

generally

490 U.S. 42,

bankruptcy

waives

do note, however, that 28 U.S.C.

wrongful

forfeited

to Adams's

has done, generally waives any right to

jurisdiction

restrict this

and

respect

argument, filing a proof of

proceeding, as Adams

right).

with

with respect to

claims.3

the application

of this

44-45

court's

jury

trial

1411(a), may

personal injury

Nonetheless,

provision by

Adams

has

failing to

argue that her claims constituted personal injury tort claims

to the courts below.

9.

See, e.g., In re Mark Bell, 992 F.2d at

___ ____ _______________

III.
III.
____

Conclusion
Conclusion
__________

For the

foregoing reasons, we affirm

the decision

of the district court.

____________________

3.

28 U.S.C.

1411(a) provides in relevant part that

this chapter and title

any

right

individual

to
has

trial
under

11 do not
by

jury

affect
that

applicable

bankruptcy law with regard to

non-

a personal

injury or wrongful death tort claim.

-1313

an