US Attorneys > USAM > Title 4 > Civil Resource Manual
prev | next

186.

Reference of Cases and Proceedings to the Bankruptcy Judges

1.Reference Orders
2.Core Proceedings
3.Non-core Proceedings
4.Core v. Non-Core Jurisdiction
5.Withdrawal of the Reference

Bankruptcy judges "constitute a unit of the district court to be known as 
the
bankruptcy court" for each district.  28 U.S.C. § 151.

1.    Reference Orders

District courts are authorized, but not required, to refer to bankruptcy 
judges cases under title 11, and proceedings arising under title 11, or 
arising in or related to cases under title 11. 28 U.S.C. § 157(a).  
Schulman v. Cal. Water Res. Control Bd. (In re Lazar), 200 B.R. 358, 
366 (Bankr. C.D. Cal. 1996) (each district court is authorized to adopt 
general order of reference for bankruptcy cases).  See Walls v. 
Wells Fargo Bank, N.A., 255 B.R. 38 (E.D. Cal. 2000) (district court 
exercising discretion not to refer claims involving FDCPA which might 

require jury trial).  

Bankruptcy judges may "hear and determine" -- i.e., enter final judgments in 
--

     a.    all cases under title 11;

     b.    all "core proceedings" arising under title 11 or arising in a 
           case under title 11.

28 U.S.C. § 157(b)(1).

Absent consent of the parties, a bankruptcy judge may only "hear" (but not 
determine) a proceeding that is not a core proceeding but that is otherwise 
related to a bankruptcy case.  28 U.S.C. § 157(c)(1).

28 U.S.C. § 157 does not confer jurisdiction separate and apart from 28 

U.S.C. § 1334.  Bass v. Denney (In re Bass), 171 F.3d 1016, 
1025-26 (5th Cir. 1999) (holding that § 1334 does not confer 
jurisdiction over action to enforce a non-dischargeable money judgment 
against a bankruptcy debtor, and thus,   § 157 cannot confer 
jurisdiction independently).


2. Core Proceedings.

28 U.S.C. § 157(b)(2)(A)-(O) provides examples of core proceedings 
including but not limited to --

     (A)   matters concerning the administration of the estate. See 
           Manville Corp. v. Equity Sec. Holders Comm. (In re 
           Johns-Manville Corp.), 801 F.2d 60 (2d Cir. 1986) (§ 105 

           action by debtor to enjoin equity security holders committee from 

           prosecuting state court action to require shareholders' meeting); 

           In re Mercado- Jiminez, 193 B.R. 112 (D.P.R. 1996) (motion 

           to vacate order dismissing bankruptcy case); In re Delta 
           Petroleum (P.R.), Ltd., 193 B.R. 99 (D.P.R. 1996) 
           (compensation of debtor's professionals); In re Res. Tech. 
           Corp., 254 B.R. 215 (Bankr. N.D. Ill. 2000) (assumption or 
           rejection of executory contract);

     (B)   allowance or disallowance of claims against the estate or 
           exemptions from property of the estate, and estimation of claims 
           or interests for the purposes of confirming a plan of 
           reorganization but not the liquidation or estimation of 
           contingent or unliquidated personal injury tort or wrongful death 

           claims against the estate for purposes of distribution in a 
           bankruptcy case; see U.S. Abatement Corp. v. Mobil 
           Exploration & Producing U.S., Inc. (In re U.S. Abatement 
           Corp.), 79 F.3d 393 (5th Cir. 1996) (dispute over amount of 
           creditor's claim and recoupment rights is core proceeding); 
           S.G. Phillips Constructors, Inc. v. City of Burlington (In re 
           S.G. Phillips Constructors, Inc.), 45 F.3d 702, 705 (2d Cir. 
           1995) (determination of state claim against debtor); In re 
           Gurry, 253 B.R. 406 (Bankr. E.D. Va. 2000) (objection to 
           exemptions); In re Trident Shipworks, Inc., 247 B.R. 513 
           (Bankr. M.D. Fla. 2000) (claim estimation proceeding);

     (C)   counterclaims by the estate against "persons" filing claims 
           against estate; see Lombard-Wall Inc. v. N.Y. City 
           Housing Dev. Corp. (In re Lombard-Wall Inc.), 48 B.R. 986 
           (S.D.N.Y. 1985); In re RBGSC Inv. Corp., 253 B.R. 369 
           (E.D. Pa. 2000); Colvard v. Gulf States Drilling Co. (In re 
           Bar M Petroleum Co.), 63 B.R. 343 (Bankr. W.D. Tex. 1986); 
           see also Katchen v. Landy, 382 U.S. 323 (1966).  
           But see Kamine/Besicorp Allegany, L.P. v. Rochester Gas 

           & Elec. Co. (In re Kamine/Besicorp Allegany, L.P.), 214 B.R. 
           953, 972 (Bankr. D.N.J. 1997) (subsequent filing of "protective" 
           or "defensive" proof of claim does not convert debtor's complaint 

           from non-core to core proceeding).  Note: 11 U.S.C. § 
           101(41) definition of "person" does not include "governmental 
           units";

     (D)   orders in respect to obtaining credit; 
     
     (E)   orders to turn over property of the estate; see 
           McClatchey v. Ohio Pub. Employees Deferred Comp. Program (In 
           re Matheney), 138 B.R. 541 (Bankr. S.D. Ohio 1992); Fisher 

           v. Ins. Co. of Pa. (In re Pied Piper Casuals), Inc., 50 B.R. 
           549 (Bankr. S.D.N.Y. 1985).  But see Roddam v. 
           Metro Loans, Inc. (In re Roddam), 193 B.R. 971 (Bankr. N.D. 
           Ala. 1996) (unliquidated, disputed state law claim is non-core, 
           related to proceeding and not properly the subject of a turnover 
           order);

     (F)   proceedings to determine, avoid or recover preferences; 
           see John E. Burns Drilling Co. v. Central Bank of 
           Denver, 739 F.2d 1489 (10th Cir. 1984); Country Junction, 
           Inc. v. Levi Strauss & Co. (In re Country Junction), Inc., 41 

           B.R. 425 (W.D. Tex. 1984), aff'd, 798 F.2d 1410 (5th Cir. 
           1986); Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld 
           L.L.P., 201 B.R. 635 (S.D.N.Y. 1996).  But see 
           Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) 
           (suggesting that not all "core proceedings" are "public rights" 
           for purposes of Article III analysis);

     (G)   motions to terminate, annul or modify the automatic stay; 
           Divane v. A & C Elec. Co., 193 B.R. 856 (N.D. Ill. 1996);

     (H)   proceedings to determine, avoid, or recover fraudulent 
           conveyances; see Duck v. Munn (In re Mankin), 823 
           F.2d 1296 (9th Cir. 1987).  But see Granfinanciera, 

           supra;

     (I)   determinations as to the dischargeability of particular debts; 
           LTV Steel Co. v. Union Carbide Corp. (In re Chateaugay 
           Corp.), 193 B.R. 669 (S.D.N.Y. 1996) (action to determine 
           dischargeability of CERCLA liability is "core" proceeding); 
           Martin v. Stoddard (In re Stoddard), 248 B.R. 111 (Bankr. 
           N.D. Ohio 2000); Fraley v. United States Dep't of Educ. (In re 

           Fraley), 247 B.R. 417 (Bankr. N.D. Ohio 2000) 
           (dischargeability of student loan debt);

     (J)   objections to discharges; Wechsler v. Squadron, Ellenoff, 
           Plesent & Sheinfeld L.L.P., 201 B.R. 635 (S.D.N.Y. 1996); 
           French v. Miller (In re Miller), 247 B.R. 704 (Bankr. N.D. 

           Ohio 2000); 

     (K)   determinations of the validity, extent, or priority of liens; 
           see In re Weaver, 248 B.R. 106 (Bankr. N.D. Ohio 
           2000); Diversified Mortgage Co. v. Gold (In re Gold), 247 
           B.R. 574 (Bankr. D. Mass. 2000); In re Sims, 181 B.R. 125, 

           127 n.2 (Bankr. N.D. Ala. 1995) (only applies to liens on 
           property of the estate);

     (L)   confirmations of plans; 
     
     (M)   orders approving the use or lease of property, including the use 
           of cash collateral;

     (N)   orders approving the sale of property other than property 
           resulting from claims brought by the estate against persons who 
           have not filed claims against the estate; and

     (O)   other proceedings affecting the liquidation of the assets of the 
           estate or the adjustment of the debtor-creditor or the equity 
           security holder relationship, except personal injury tort or 
           wrongful death claims;  see St. Clare's Hosp. & Health 
           Ctr. v. Ins. Co. of N. Am. (In re St. Clare's Hosp. & Health Care 

           Ctr.), 934 F.2d 15 (2d Cir. 1991) (action for declaratory 
           judgment that insurer was obligated to defend medical malpractice 

           action); Kirk v. Hendon (In re Heinsohn), 247 B.R. 237 
           (E.D. Tenn. 2000) (proceeding is "core" if it invokes substantive 

           right provided by title 11 or if it is a proceeding that, by its 
           nature, could arise only in the context of bankruptcy); Artra 
           Group, Inc. v. Salomon Bros. Holding Co. (In re Emerald 
           Acquisition Corp.), 170 B.R. 632 (Bankr. N.D. Ill. 1994) 
           ("core" matters are ones with which bankruptcy court has greater 
           familiarity and expertise than the district court); New Magma 
           Irrigation & Drainage Dist. v. Bd. of Supervisors (In re New 
           Magma Irrigation & Drainage Dist.), 193 B.R. 528 (Bankr. D. 
           Ariz. 1994) ("catch-all" definitions of core proceedings should 
           be relied on with great care and caution).

      
3.  Non-core Proceedings.

     a.    A non-core proceeding has a "life of its own in either state or 
           federal common law or statute independent of the federal 
           bankruptcy laws."  Salomon v. Kaiser (In re Kaiser), 722 
           F.2d 1574, 1582 (2d Cir. 1983); Wechsler v. Squadron, 
           Ellenoff, Plesent & Sheinfeld L.L.P., 201 B.R. 635 (S.D.N.Y. 
           1996) (non-core matters are those in which the district court is 
           more proficient than the bankruptcy court); Bethlahmy, IRA v. 
           Kuhlman (In re ACI-HDT Supply Co.), 205 B.R. 231 (B.A.P. 9th 
           Cir. 1997); Scotland Guard Servs. v. Autoridad de Energia 
           Electrica (In re Scotland Guard Servs., Inc.), 179 B.R. 764 
           (Bankr. D.P.R. 1993) (non-core proceedings, where the action 
           "would survive outside of bankruptcy," include causes of action 
           by the debtor against a third-party based on non-bankruptcy law).

     b.    In non-core proceedings, absent consent, the bankruptcy judge is 
           limited to submitting proposed findings of fact and conclusions 
           of law to the district court.  28 U.S.C. § 157(c)(1).  A 
           final order or judgment is entered by the district judge after 
           considering the proposed findings and conclusions and reviewing 
           de novo those matters to which any party has timely 

           (i.e., within 10 days of service of proposed findings and 
           conclusions) and specifically objected.  28 U.S.C. § 
           157(c)(1); Fed. R. Bankr. P. 9033; see McFarland v. 
           Leyh (In re Tex. Gen. Petroleum Corp.), 52 F.3d 1330, 1337 
           (5th Cir. 1995) (district court must review bankruptcy court's 
           judgment de novo); Moody v. Amoco Oil Co., 734 F.2d 1200 
           (7th Cir. 1984) (new trial not required; record should be 
           examined without giving deference to proposed factual findings).

      
4. Core v. Non-Core Jurisdiction.

     a.    Parties may consent to trial and entry of final orders by 
           bankruptcy judge, whether proceeding is core or non-core. In an 
           adversary proceeding, the complaint, counterclaim, cross-claim, 
           or third party complaint must state whether the proceeding is 
           core or non-core and, if non-core, whether party consents to 
           entry of final order by bankruptcy judge. Fed. R. Bankr. P. 
           7008(a).  Responsive pleading must do likewise.  Fed. R. Bankr. 
           P. 7012(b).  See generally McFarland v. Leyh (In re 
           Tex. Gen. Petroleum Corp.), 52 F.3d at 1337 ("A party who 
           fails to object to bankruptcy court's assumption of core 
           jurisdiction consents to that court's entry of final judgment."); 

           Plaza at Latham Assocs. v. Citicorp N. Am., Inc., 150 B.R. 

           507 (N.D.N.Y. 1993).

      b.   The distinction between core and non-core is often difficult to 
           discern.  See In re United States Brass Corp., 110 
           F.3d 1261, 1268-69 (7th Cir. 1997) (impact of claim on estate 
           showed it was "related to" the case and, thus, a non-core 
           proceeding, rather than core). See generally Houbigant, 

           Inc. v. ACB Mercantile, Inc. (In re Houbigant, Inc.), 185 
           B.R. 680 (S.D.N.Y. 1995) (proceeding is core`if it invokes a 
           substantive right provided by the Bankruptcy Code or by nature 
           could arise only in the context of a bankruptcy case); Chiang 
           v. Barclays Bank, PLC (In re Caledonia Springs, Inc.), 185 
           B.R. 712 (D.V.I. 1995) (proceedings integral to restructuring 
           debtor-creditor rights and postpetition activities are core 
           proceedings); Hudgins v. Shah (In re Sys. Eng'g & Energy Mgmt. 

           Assocs., Inc., 252 B.R. 635 (Bankr. E.D. Va. 2000) (among 
           factors that court may consider in deciding whether claim is 
           "core" or "non-core" matter are the following: (1) whether claim 
           is not specifically identified as "core" matter in jurisdictional 

           provision; (2) whether claim existed prepetition; (3) whether 
           claim would continue to exist independent of provisions of title 
           11; and (4) whether parties' rights, obligations, or both are 
           significantly affected as result of debtor's bankruptcy filing).

           Compare Beard v. Braunstein, 914 F.2d 434, 443-45 
           (3d Cir. 1990) (proceeding based on claims of pre- and 
           postpetition breaches of prepetition contract non-core), Ralls 

           v. Docktor Pet Ctrs., Inc., 177 B.R. 420 (D. Mass. 1995) 
           (debtor's suit to recover claims on a prepetition breach of 
           contract is "entirely non-core matter"), Aristera C. v. Chaney 

           (In re Aristera Co.), 65 B.R. 928 (Bankr. N.D. Tex. 1986), 
           and Atlas Automation, Inc. v. Jensen, Inc. (In re Atlas 

           Automation, Inc.), 42 B.R. 246 (Bankr. E.D. Mich. 1984) 
           (collection of prepetition accounts receivable found not to be 
           core proceeding) with Sacred Heart Hosp. of Norristown 
           v. Independence Blue Cross (In re Sacred Heart Hosp. of 
           Norristown), 181 B.R. 195, 202 (Bankr. E.D. Pa. 1995) 
           (proceedings raising claims of postpetition breaches of 
           prepetition contracts are core).  See generally 
           "Action for Breach of Contract As Core Proceeding in Bankruptcy 
           Under 28 U.S.C. § 157(b)," 123 A.L.R. Fed. 103 (1995 and 
           Supp. 2000).
      
     c.    The determination of whether a case is core or non-core is made 
           by the bankruptcy judge.  In re Treco, 205 B.R. 358 
           (S.D.N.Y. 1997).

     d.    Where a proceeding presents a mix of core and non-core claims, 
           the bankruptcy court must perform a claim-by-claim analysis to 
           determine the extent of its jurisdiction. Halper v. 
           Halper, 164 F.3d 830, 838-40 (3d Cir. 1999).  However, some 
           courts would hold that an entire proceeding is core if its core 
           aspects heavily predominate. Id. at 839 (citing cases).


5. Withdrawal of the Reference.

      a.    Mandatory Withdrawal.

            District courts are required to withdraw the reference upon 
timely
            motion "if the court determines that resolution of the 
proceeding
            requires consideration of both title 11 and other laws of the
            United States regulating organizations or activities affecting
            interstate commerce."  28 U.S.C. § 157(d); see
            Educ. Credit Mgmt. Corp. v. Barnes, 259 B.R. 328 (S.D. 
Ind.
            2001) (district court was compelled to withdraw reference where
            trustee's objection to student loan creditor's claim challenged
            the constitutionality of 34 C.F.R. § 682.410(b)(2), 
pursuant
            to which disputed collection costs in the claim were imposed);
            S. Pac. Transp. Co. v. Voluntary Purchasing Group, Inc.,
            252 B.R. 373 (E.D. Tex. 2000) (bankruptcy court lacked
            jurisdiction, as part of chapter 11 plan confirmation process, 
to
            approve and then issue mandatory injunctions implementing the
            debtor's settlement with State of CERCLA claims because such a
            decision necessarily involved the substantial and material
            consideration of Federal law regulating interstate commerce 
within
            the meaning of 28 U.S.C. § 157(d)); In re E & S
            Facilities, Inc., 181 B.R. 369, 372 (S.D. Ind. 1995)
            (withdrawal requires either (1) complicated issues of first
            impression requiring significant interpretation of Federal law, 
or
            (2) substantial and material conflicts between the Bankruptcy 
Code
            and non-title 11 laws), aff'd, 96 F.3d 949 (7th Cir. 
1996);
            In re Horizon Air, Inc., 156 B.R. 369 (N.D.N.Y. 1993);
            Contemporary Lithographers, Inc. v. Hibbert (In re 
Contemporary
            Lithographers, Inc.), 127 B.R. 122 (M.D.N.C. 1991) 
(withdrawal
            mandatory if proceeding presents non-bankruptcy Federal question
            (here, alleged violations of Federal securities laws) which will
            affect outcome of bankruptcy proceeding); Block v. Anthony
            Tammaro, Inc. (In re Anthony Tammaro, Inc.), 56 B.R. 999
            (D.N.J. 1986) (legislative history).  But see PBGC v.
            Cont'l Airlines, Inc. (In re Cont'l Airlines, Inc.), 138 
B.R.
            442 (D. Del. 1992) (where court could decide case without 
reaching
            non-bankruptcy ERISA issue, withdrawal was not mandatory).

            (1)   Most courts hold that withdrawal is mandatory only if 
                  "substantial and material consideration" of non-Code 
                  Federal statute is necessary to resolve proceeding. 
                  See, e.g., United Nat'l Ins. Co. v. Vicars Ins. 
                  Agency (In re Vicars Ins. Agency), 96 F.3d 949 (7th 
                  Cir. 1996); LTV Steel Co. v. Union Carbide Corp. (In re 

                  Chateaugay Corp.), 193 B.R. 669 (S.D.N.Y. 1996) 
                  (withdrawal of reference not required if consideration of 
                  non-Code law entails straightforward application of 
                  settled law to facts of particular case, but is required 
                  when the court will be called upon to make significant 
                  interpretation of non-Code statute, when non-Code issues 
                  dominate Code issues, or when the non-bankruptcy Federal 
                  law that governs the case significantly and materially 
                  conflicts with the relevant bankruptcy provisions); 
                  C-TC 9th Ave. P'ship v. Norton Co. (In re C-TC 9th Ave. 

                  P'ship), 177 B.R. 760 (N.D.N.Y. 1995) (withdrawal 
                  mandatory only where the resolution of the claims will 
                  require substantial and material consideration of non-Code 

                  statutes which have more than a de minimis impact on 
                  interstate commerce.); In re Philadelphia Training Ctr. 

                  Corp., 155 B.R. 109 (E.D. Pa. 1993) (mandatory 
                  withdrawal not required by mere assertion that claim may 
                  arise under nonbankruptcy Federal statute, by incidental 
                  need to consider nonbankruptcy law, where only routine 
                  application of established legal standards is required, or 

                  where need to apply and interpret nonbankruptcy law to 
                  resolve proceeding is unclear); Am. Body Armor & 
                  Equip., Inc. v. Clark (In re Am. Body Armor & Equip., 
                  Inc.), 155 B.R. 588 (M.D. Fla. 1993) (mandatory 
                  withdrawal only for cases of first impression or where 
                  "substantial and material conflicts" exist between 
                  Bankruptcy Code and other Federal law); Wittes v. 
                  Interco, Inc., 137 B.R. 328 (E.D. Mo. 1992) (where 
                  issues required no more than "straightforward 
                  application," and not significant interpretation of ADEA, 
                  reference not withdrawn).

            (2)   Some courts have declined to interpret  § 157(d) 
                  literally and have withdrawn the reference even though 
                  only consideration of non-Code Federal statute was 
                  required.  See Contemporary Lithographers, Inc. 
                  v. Hibbert (In re Contemporary Lithographers, Inc.), 
                  127 B.R. 122 (M.D.N.C. 1991).  But see 
                  Brizendine v. Montgomery Ward & Co., 143 B.R. 877 
                  (N.D. Ill. 1992) (where adversary proceeding to collect 
                  freight undercharges required consideration of Interstate 
                  Commerce Act but not of Bankruptcy Code, withdrawal of 
                  reference not required).

            (3)   What qualifies as non-bankruptcy Federal statute 
                  regulating interstate commerce?  See Camden 
                  Ordnance Mfg. Co. of Ark. v. United States Trustee (In re 
                  Camden Ordnance Mfg. Co.), 245 B.R. 794, 806 (E.D. Pa. 

                  2000) (consideration of U.S. Constitution could mandate 
                  withdrawal); see also S. Pac. Transp. Co. v. 
                  Voluntary Purchasing Groups, Inc., 252 B.R. 373 (E.D. 
                  Tex. 2000) (CERCLA is statute regulating interstate 
                  commerce);  In re Coe-Truman Techs, Inc., 214 B.R. 
                  183 (N.D. Ill. 1997) (Tucker Act not a law of the U.S. 
                  regulating organizations or activities affecting 
                  interstate commerce; however, discretionary withdrawal was 

                  appropriate because proceeding was non-core).

      b.    Permissive Withdrawal.

            (1)   The district court may, but is not required to withdraw 
                  partially or totally a case referred to the bankruptcy 
                  court, upon its own motion or upon timely motion of a 
                  party, for cause shown.  28 U.S.C. § 157(d).  

            (2)   Considerations include: (1) uniformity in bankruptcy 
                  administration; (2) reduction of forum shopping and 
                  confusion; (3) fostering economical use of debtors' and 
                  creditors' resources; and (4) expediting the bankruptcy 
                  process.  See In re Pruitt, 910 F.2d 1160 
                  (3d Cir. 1990); see also Keystone Oncology, LLC 
                  v. Cohen (In re Equimed, Inc.), 259 B.R. 269, 273 (D. 
                  Md. 2001) (additional factor: equitable issues are posed, 
                  not requiring a jury trial, but falling within the 
                  traditional equitable powers of a bankruptcy judge); 
                  compare Hassett v. BancOhio Nat'l Bank (In re 
                  CIS Corp.), 172 B.R. 748 (S.D.N.Y. 1994) 
                  (comprehensive discussion of standards for deciding motion 

                  to withdraw the reference; cause established for 
                  permissive withdrawal where the matter is not core and 
                  creditor demands jury trial), Carmel v. Galam (In re 
                  Larry's Apartment, L.L.C.), 210 B.R. 469 (D. Ariz. 
                  1997) (withdrawal not warranted where no showing of right 
                  to jury trial), Wechsler v. Squadron, Ellenoff, Plesent 

                  & Sheinfeld L.L.P., 201 B.R. 635 (S.D.N.Y. 1996), 
                  Zahn v. Yucaipa Capital Fund (In re Almac's Inc.), 
                  202 B.R. 648 (D.R.I. 1996), and Big Rivers Elec. 

                  Corp. v. Green River Coal Co., 182 B.R. 751 (W.D. Ky. 
                  1995) (concerns of judicial economy warranted withdrawing 
                  the reference of an adversary proceeding against the 
                  debtor-coal company, regarding the validity of a coal 
                  supply contract, where the bankruptcy proceeding involved 
                  common issues of law and fact with another case pending in 

                  the district court) with Ponce Marine Farm, Inc. 

                  v. Browner (In re Ponce Marine Farm, Inc.), 172 B.R. 
                  722 (D.P.R. 1994) (court denies EPA's motion to withdraw 
                  the reference in matter concerning the Clean Water Act 
                  where EPA waited over a year to bring motion, court was 
                  familiar with the issues, and withdrawal would place an 
                  "unnecessary burden" on the debtor), and United 
                  States v. Kaplan, 146 B.R. 500 (D. Mass. 1992) 
                  (discretionary withdrawal requires truly exceptional and 
                  compelling circumstances).

            (3)   Eleventh Circuit has held that district court may withdraw 

                  reference only for cause once bankruptcy court has assumed 

                  jurisdiction.  Dionne v. Simmons (In re Simmons), 
                  200 F.3d 738, 741 (11th Cir. 2000).  However, the 
                  constitutionality of bankruptcy jurisdiction may hinge 
                  upon the district courts' ability to control bankruptcy 
                  proceedings in their discretion at any stage.  See 
                  Land-O-Sun Dairies, Inc. v. Fla. Supermarkets, Inc. (In 

                  re Finevest Foods, Inc.), 143 B.R. 964, 968 (Bankr. 
                  M.D. Fla. 1992).
 
                  Authority to withdraw applies to both core and non-core
                  proceedings.  See Holland Am. Ins. Co. v.
                  Succession of Roy, 777 F.2d 992 (5th Cir. 1985);
                  Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld
                  L.L.P., 201 B.R. 635 (S.D.N.Y. 1996); Zahn v. 
Yucaipa
                  Capital Fund (In re Almac's Inc.), 202 B.R. 648 
(D.R.I.
                  1996); United States v. ILCO, Inc. (In re ILCO,
                  Inc.), 48 B.R. 1016, 1020 (N.D. Ala. 1985); In re
                  White Motor Co., 42 B.R. 693 (N.D. Ohio 1984).  Which
                  court determines core status is subject to controversy. 
                  Compare In re Orion Pictures Corp., 4 F.3d
                  1095, 1101 (2d Cir. 1993) (district court determines)
                  with Mellon Bank v. Del. & Hudson Ry. (In re 
Del.
                  & Hudson Ry.), 122 B.R. 887, 892 (D. Del. 1991)
                  (bankruptcy court determines core/non-core status).

                  Where is motion to withdraw filed?  Compare
                  Morse Elec. Co. v. Logicon, Inc. (In re Morse Elec.
                  Co.), 47 B.R. 234, 236 (Bankr. N.D. Ind. 1985) 
(district
                  court) with Fisher v. Ins. Co. of Pa. (In re 
Pied
                  Piper Casuals, Inc.), 48 B.R. 294 (S.D.N.Y. 1985)
                  (bankruptcy court).  See Fed. R. Bankr. P. 5011(a)
                  (heard by district court).  Procedure may vary according 
to
                  local rules.  E.g., District of Kansas Rule 706
                  (filed in bankruptcy court, heard in district court after
                  bankruptcy judge forwards to district court with
                  recommendation); N.D. California Rule 700-4 (filed, heard 
in
                  district court, copy filed in bankruptcy court).  
See
                  Walton v. AG Credit (In re Walton), 158 B.R. 939
                  (Bankr. N.D. Ohio 1993) (court may consider mandatory
                  withdrawal of reference sua sponte).

                  When must motion to withdraw be filed: "In timely
                  fashion" requires filing at the first reasonable 
opportunity
                  as indicated by facts of the case.  Zahn v. Yucaipa
                  Capital Fund (In re Almac's Inc.), 202 B.R. 648 
(D.R.I.
                  1996) (motion to withdraw filed 60 days after complaint
                  deemed timely where no material event had taken place in 
the
                  case); In re Chateaugay Corp., 104 B.R. 622 
(S.D.N.Y.
                  1989); see Consol. Indus. Corp. v. Welbilt 
Holding
                  Co., 254 B.R. 237 (N.D. Ind. 2000) (motion to withdraw
                  reference untimely when filed 5 weeks after jury demand,
                  when local rule required its filing simultaneously with 
jury
                  demand); Lone Star Indus. v. Rankin County Econ. Dev.
                  Dist. (In re N.Y. Trap Rock Corp.), 158 B.R. 574
                  (S.D.N.Y. 1993) (motion to withdraw reference denied where
                  untimely and filed for forum shopping purposes); 
Met-Al,
                  Inc. v. Hanson Storage Co., 157 B.R. 993 (E.D. Wis.
                  1993) (motion timely when filed five days after filing of
                  amended complaint first alleging Federal statutory claim);
                  In re Oil Co., 140 B.R. 30 (E.D.N.Y. 1992) (motion
                  filed six weeks after proceeding commenced was timely).  
In
                  some jurisdictions, local rules set specific time limits 
on
                  motions to withdraw reference although the validity of 
such
                  rules is questionable inasmuch as the statute permits
                  "timely" motion.  Also, the timeliness requirement does 
not
                  apply to the district court's power to withdraw sua
                  sponte.  See Danning v. Lummis (In re Tom
                  Carter Enters., Inc.), 44 B.R. 605 (C.D. Cal. 1984)
                  (district court may withdraw reference any time up to 
final
                  judgment of bankruptcy court).

                  Order granting or denying motion to withdraw reference is
                  not a final, appealable order.  Abney v. Kissel Co. (In
                  re Kissel Co.), 105 F.3d 1324 (9th Cir. 1997).  On
                  appeal, district court's decision is entitled to great
                  deference.  Taxel v. Elec. Sports Research (In re
                  Cinematronics, Inc.), 916 F.2d 1444 (9th Cir. 1990);
                  Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d
                  992, 998 (5th Cir. 1985).

                  A district court sitting as an appellate court cannot
                  conduct a jury trial but can order the reference withdrawn
                  so that it can conduct the jury trial in its original
                  jurisdiction in bankruptcy.  Glannon v. Carpenter (In 
re
                  Glannon), 245 B.R. 882, 892 (D. Kan. 2000); see
                  also E. Equip. & Servs. Corp. v. Factory Point 
Nat'l
                  Bank, 236 F.3d 117, 121 (2d Cir. 2001) (sitting as
                  appellate court, district court lacks jurisdiction to hear
                  complaint alleging violations of automatic stay).