
    IN RE: The FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as representative of the Commonwealth of Puerto Rico, Debtors.
    Asociación de Salud Primaria de Puerto Rico, Inc., et al., Plaintiffs, v. Commonwealth of Puerto Rico, et al., Defendants.
    No. 17 BK 3283-LTS (Jointly Administered) No. 17-AP-00227-LTS
    United States District Court, D. Puerto Rico.
    Signed July 10, 2018
    Maria Celeste Colberg Guerra, Miguel J. Rodriguez Marxuach, Rodriguez Marxuach Law Offices, PSC, John Edward Mudd, Law Offices John E. Mudd, San Juan, PR, James L. Feldesman, Feldesman Tucker Leifer Fidell, Washington, DC, William Santiago Sastre, Carolina, PR, for Plaintiffs.
    James L. Feldesman, Feldesman Tucker Leifer Fidell, Washington, DC, John Edward Mudd, Law Offices John E. Mudd, Susana I. Penagaricano-Brown, Puerto Rico Department of Justice, Miguel J. Rodriguez Marxuach, Rodriguez Marxuach Law Offices, PSC, San Juan, PR, William Santiago Sastre, Carolina, PR, for Defendants.
    Asociacion de Salud Primaria de Puerto Rico, pro se.
    Concilio de Salud Integral de Loiza, Inc., pro se.
    Migrant Health Center, Inc., pro se.
    Morovis Community Health Center, Inc., pro se.
    Consejo de Salud de la Comunidad de la Playa de Ponce, Inc., pro se.
    Junta del Centro de Salud Comunal Dr. Jose S. Belaval, Inc., pro se.
    COSSMA, pro se.
    Rio Grande Community Health Center, Inc., pro se.
    Johnny Rullan, pro se.
    William Gonzalez, pro se.
    Health Insurance Administration of Puerto Rico, pro se.
    Municipality of San Juan, pro se.
    PROMESA Title III
    MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION
    LAURA TAYLOR SWAIN, United States District Judge On April 2, 2018, Magistrate Judge Judith Gail Dein issued a Report and Recommendation (Docket Entry No. 55, the "Report") recommending that the Court grant the Commonwealth of Puerto Rico's Motion for Abstention (Docket Entry No. 29, the "Abstention Motion") and remand the above-captioned adversary proceeding to the Puerto Rico Court of First Instance, San Juan Part (the "State Court"). Additionally, the Report recommends that the Court lift the automatic stay to allow the State Court Action (as defined below) to proceed to judgment, but that the stay be maintained with respect to the execution or enforcement of any such judgment. The Court has received two objections to Judge Dein's Report. (See Docket Entry Nos. 58 and 60.) Specifically, on April 15, 2018, the Corporación de Servicios Intergrales de Salud del Area de Barranquitas, Comerío, Corozal, Naranjito y Orocovis (the "Corporación") filed its Objection to Magistrate's Report and Recommendation (Docket Entry No. 58, the "Corporación Objection"). On April 30, 2018, certain Plaintiffs in the above-captioned adversary proceeding (the "Additional Objectors" and, together with the Corporación, the "Objectors") filed their Objections to Magistrate's Report and Recommendation on the Commonwealth of Puerto Rico's Motion for Abstention (Docket Entry No. 60, the "Omnibus Objection" and, together with the Corporación Objection, the "Objections"). The Commonwealth filed an omnibus reply submission on May 30, 2018. (Docket Entry No. 62.) The Court has reviewed all of the submissions of the parties carefully and, for the following reasons, adopts the Report. The Objections are overruled in their entirety.
    BACKGROUND
    In 2002, Plaintiffs commenced a suit against the Commonwealth of Puerto Rico (the "Commonwealth") for retroactive unpaid "wraparound payments" or "WAPs" in the State Court in an action captioned Asociación de Salud Primaria de Puerto Rico, Inc., et al. v. Estado Libre Asociado de Puerto Rico, et al., Civil No. KPEO2-1037 (the "State Court Action"). As explained in the Report, the WAPs are amounts payable to certain federally qualified health care providers that receive Medicaid funds. On August 2, 2017, Plaintiffs commenced the instant adversary proceeding by removing substantially all of the State Court Action to this Court under 48 U.S.C. § 2166(d)(1) (the "Removed Claims"). There is no dispute that, in light of the Commonwealth's filing of a debt adjustment petition under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"), this Court has jurisdiction of the Removed Claims.
    On November 14, 2018, the Commonwealth filed its Abstention Motion, requesting that the Court abstain from hearing this adversary proceeding and remand the Removed Claims to the State Court. (Docket Entry No. 29). The Commonwealth proffered that it would agree to a limited modification of the automatic stay to permit the State Court proceedings to continue through the entry, but not the execution or enforcement, of judgment. Plaintiffs oppose the Abstention Motion and argue that the Court lacks authority to abstain and should entertain the adversary proceeding. On April 2, 2018, Judge Dein issued the Report, recommending that the Court (i) grant the Abstention Motion and remand the above-captioned adversary proceeding to the State Court, and (ii) lift the automatic stay to allow the State Court Action to proceed to judgment, but that the stay be maintained with respect to the execution or enforcement of any such judgment in the State Court.
    DISCUSSION
    Standard of Review
    In reviewing a report and recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2018). The court must make a de novo determination insofar as a party makes specific objections to portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made. Id.; see also Vega-Feliciano v. Doctors' Center Hosp., Inc., 100 F.Supp.3d 113, 116 (D.P.R. 2015) ("A party that files a timely objection is entitled to a de novo determination of those portions of the report or specified proposed findings or recommendations to which specific objection is made.") (citations omitted).
    However, a district court need not consider "frivolous, conclusive, or general objections." Id. at 116 (citations omitted). To the extent that objections to a magistrate judge's report and recommendation are general or conclusory, a de novo review is unwarranted, and the district judge will instead review the report and recommendation for clear error. Id. Objections that do not specify the analytical aspects of the report and recommendation to which the party is objecting are considered "general or conclusory," as are objections that are repetitive of arguments already presented to the magistrate judge. Id. While many of the objections raised here by Plaintiffs reiterate arguments that were presented in their original motion papers, Plaintiffs have also tendered specific objections and the Court has reviewed de novo the Report's analysis and recommended conclusions.
    Overview of Objections
    In its Objection, the Corporación argues that Sections 306 and 309 of PROMESA are not applicable to the Removed Claims because this Court has exclusive jurisdiction of the Removed Claims, and that the return of the Removed Claims to the State Court would violate Section 7 of PROMESA by impairing Plaintiffs' federal claims. Section 7 reads in its entirety as follows:
    Except as otherwise provided in [PROMESA], nothing in this chapter shall be construed as impairing or in any manner relieving a territorial government, or any territorial instrumentality thereof, from compliance with Federal laws or requirements or territorial laws and requirements implementing a federally authorized or federally delegated program protecting the health, safety, and environment of persons in such territory.
    48 U.S.C.A. § 2106 (West 2017). The Corporación also argues, among other things, that abstention will impede the efficient administration of the Commonwealth's bankruptcy estate and that Plaintiffs would be prejudiced by the resulting delays and expenses. The Corporación incorporates by reference its arguments on the original motion, and identifies pages eight to eighteen of the Report, which comprise the entire "Discussion" section of the Report, as the portion of the Report to which the Corporación objects.
    In the Omnibus Objection, the Additional Objectors also argue that this Court has exclusive jurisdiction over the Removed Claims under Title III of PROMESA. They further contend that this Court's abstention from hearing the Removed Claims would render PROMESA Section 7 a "nullity," asserting that the Report's construction of PROMESA Sections 306 and 309 "eviscerates the prohibition against impairment or relieving the Commonwealth from its compliance obligations." (Omnibus Objection at II.A., II.C.) The Additional Objectors also take issue with the Report's characterization of their removal of the claims from the State Court as "forum shopping," arguing that the Eleventh Amendment permits them to seek only prospective injunctive relief in the pending federal district court action and that the State Court lacks the authority to enforce a monetary judgment in favor of Plaintiffs under Puerto Rico law. The Objectors also argue that the Report errs both in its selection of factors for analysis in connection with the propriety of abstention and in its application of those factors.
    Power to Remand and Abstain Under PROMESA Sections 306 and 309
    Judge Dein concluded in the Report that this Court has the authority under PROMESA Sections 306(d)(2) and 309 to abstain from hearing the Removed Claims and to remand them. The Court has reviewed de novo the analysis of these issues as set forth in the Report and adopts section III.A. thereof in full. As the Report explains, this Court has non-exclusive jurisdiction of proceedings such as the Removed Claims, and Section 309 authorizes the Court to abstain from entertaining such proceedings, including such proceedings involving issues of federal law.
    The Objectors' invocation of Section 7 of PROMESA as a barrier to remand or abstention is unavailing. Section 7 guides the construction of PROMESA, directing that PROMESA is not (except as otherwise provided) to be construed to impair, or in any manner relieve, a territorial government of certain obligations in connection with federal health, safety and environmental laws and related programs. Even assuming (without so deciding) for purposes of this discussion that all aspects of the Removed Claims implicate "laws and requirements implementing a federally authorized ... program protecting the health, safety and environment of persons in" the Commonwealth, the exercise of the Court's power to determine where the scope of the Commonwealth's obligations under such laws is to be adjudicated does not impair or relieve the Commonwealth from such obligations. Nothing in the decision to remand and abstain from pre-judgment determinations precludes or impairs the pursuit within the Title III proceedings of enforcement of any judgment rendered in the State Court Action. Accordingly, Section 7 of PROMESA does not preclude the normal operation of Sections 306 and 309 of PROMESA.
    
      
      The Debtors in these Title III Cases, along with each Debtor's respective Title III case number and the last four (4) digits of each Debtor's federal tax identification number, as applicable, are the (i) Commonwealth of Puerto Rico (Bankruptcy Case No. 17 BK 3283-LTS) (Last Four Digits of Federal Tax ID: 3481); (ii) Puerto Rico Sales Tax Financing Corporation ("COFINA") (Bankruptcy Case No. 17 BK 3284-LTS) (Last Four Digits of Federal Tax ID: 8474); (iii) Puerto Rico Highways and Transportation Authority ("HTA") (Bankruptcy Case No. 17 BK 3567-LTS) (Last Four Digits of Federal Tax ID: 3808); and (iv) Employees Retirement System of the Government of the Commonwealth of Puerto Rico ("ERS") (Bankruptcy Case No. 17 BK 3566-LTS) (Last Four Digits of Federal Tax ID: 9686). (Title III case numbers are listed as Bankruptcy Case numbers due to software limitations.)
    
    
      
      All docket entry references are to entries in Case No. 17-AP-00227, unless otherwise specified.
    
    
      
      PROMESA is codified at 48 U.S.C. § 2101 et seq. References to "PROMESA" sections herein are to the uncodified version of the statute.
    
   Nor is the Court's exclusive jurisdiction over the property of the Commonwealth as a Title III debtor preclusive of remand or abstention. Suffice it to say that the Objectors' property-based exclusive jurisdiction argument would nullify the remand and abstention provisions of PROMESA and of the federal Bankruptcy Code entirely, since both statutes provide that the Court has exclusive jurisdiction of the property of the debtor or of the estate, as applicable.

Objectors' Further PROMESA Section 7 Arguments

The Corporación asserts that Section 7 of PROMESA requires this Court to hear the Removed Claims. In the Omnibus Objection, as noted above, Plaintiffs argue that this Court's abstention from hearing the Removed Claims would render PROMESA Section 7 a "nullity." Neither of the Objectors has demonstrated that this Court's remand of, and abstention from hearing, the Removed Claims would be at all inconsistent with the provisions of PROMESA Section 7.

First of all, notwithstanding the references to Section 7 in Plaintiffs' Notice of Removal, no pleading in the State Court Action invokes Section 7 of PROMESA. The underlying actions were commenced more than ten years ago, and assert claims under federal laws relating to Medicaid and federal health care programs. An argument that Section 7 precludes discharge in the Title III proceeding of the types of claims that have been asserted in the State Court Action is asserted in a separate adversary proceeding in this Court, but forms no part of the Removed Claims. Secondly, as explained above, Section 7 provides interpretive direction only. It does not purport to confer new rights or create any cause of action, and its provisions are not hindered or nullified by the continuation of proceedings that were commenced to determine and quantify any retroactive financial obligations of the Commonwealth in connection with the federal statutory provisions under which the Removed Claims were brought. Finally, the Commonwealth has not argued, nor does a remand or abstention decision entail a finding, that PROMESA relieves the Commonwealth of the obligation to pay any judgment resulting from the Removed Claims. The Court therefore concludes that abstention is not inconsistent with Section 7.

Abstention Factors

The Objectors, proceeding from their reasoning that PROMESA Section 309 is rendered inoperative by PROMESA Section 7, argue that the Court may only properly consider non-PROMESA-based abstention doctrines. As explained above, PROMESA Sections 306 and 309 remain operative with respect to the Removed Claims. Thus, the Court may remand the Removed Claims "on any equitable ground" pursuant to PROMESA Section 306(d)(2). 48 U.S.C.A. § 2166(d)(2) (West 2017). PROMESA Section 309 authorizes the Court to abstain from adjudicating the Removed Claims if it determines that abstention is in the interests of justice, providing that "[n]othing in this [title] prevents a district court in the interests of justice from abstaining from hearing a particular proceeding arising in or related to a case under this title." Id. § 2169. The language of Section 306(d)(2) is substantially similar to that of 28 U.S.C. § 1452, and the language of Section 309 tracks the language of 28 U.S.C. § 1334(c)(1). Those Sections of Title 28 govern removal and abstention in matters pertaining to cases under the federal Bankruptcy Code, and Judge Dein appropriately applied the standards governing abstention in bankruptcy cases in interpreting and applying the parallel provisions of PROMESA. The Court, having reviewed the Objections and the Report thoroughly under the de novo standard, adopts section III.B. of the Report.

To Judge Dein's fine and thorough analysis the Court adds the following, in light of the Objections. The federal nature of the claims under the health-related laws is not at all unimportant. It does not, however, outweigh other factors warranting abstention. The Court notes in this connection that the State Court has jurisdiction of the Removed Claims and is competent to adjudicate those claims, as it has been since the cases underlying the State Court Action were originally filed. The State Court has, as the Report notes, familiarity with the legal context and with the Spanish-language proceedings that have been under way for over a decade. This competence and familiarity, as well as the complexity of the proceedings, weigh in favor of abstention, particularly given the breadth and complexity of the debt adjustment aspects of the Title III proceedings that are before this Court and the relatively limited resources of this Court, in which a single district judge presides over all of the jointly administered Title III cases of Puerto Rico and its instrumentalities as required by PROMESA. Under these circumstances, recommitting the Removed Claims to a court of competent jurisdiction for the finalization of determinations of the scope and economic specifics of any liability of the Commonwealth is in the interests of justice and of the expeditious administration of the Title III cases.

CONCLUSION

For the foregoing reasons, the Court adopts Judge Dein's thorough and well-reasoned Report in its entirety and the Objections are overruled.

The Commonwealth's Motion for Abstention is granted and the Clerk of Court is respectfully directed to effectuate the remand promptly. The automatic stay imposed by 11 U.S.C. Section 362(a) as made applicable to these PROMESA Title III proceedings by Section 301 of PROMESA is lifted to the extent necessary to permit the State Court Action and related appeals to proceed through the entry, but not the execution or enforcement, of final judgment.

This Order resolves Docket Entry Nos. 29, 55, 58, and 60 in Case No. 17-AP-00227.

SO ORDERED.

REPORT AND RECOMMENDATION ON THE COMMONWEALTH OF PUERTO RICO'S MOTION FOR ABSTENTION

Judith Gail Dein, United States Magistrate Judge

In re: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as representative of THE COMMONWEALTH OF PUERTO RICO, Debtors.

ASOCIACIÓN DE SALUD PRIMARIA DE PUERTO RICO, INC. et al., Plaintiffs,

-v-

COMMONWEALTH OF PUERTO RICO, et al., Defendants.

I. INTRODUCTION

The plaintiffs are not-for-profit federally-qualified health centers that receive Medicaid funds for services they provide. Under the Medicaid statutory scheme, the Commonwealth of Puerto Rico (the "Commonwealth") is obligated to make supplemental payments, known as "wraparound payments" or "WAPs" to the health centers. In 2002, the plaintiffs brought suit against the Commonwealth for retroactive unpaid WAPs in the Puerto Rico Court of First Instance, San Juan Part (the "State Court"). That suit is Asociacion de Salud Primaria de Puerto Rico, Inc., et al. v. Estado Libre Asociado de Puerto Rico, et al., Civil No. KPEO2-1037 (the "State Court Action"). The State Court Action has continued over the years, resulting in various partial rulings in favor of the plaintiffs.

On August 2, 2017, the plaintiffs commenced the instant adversary proceeding by removing substantially all of the State Court Action to this Court under 48 U.S.C. § 2166(d)(1) (the "Removed Claims"). Plaintiffs contend that the Removed Claims relate to the Commonwealth's filing under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA") - a case over which this Court has jurisdiction. The plaintiffs contend that this Court is now the correct forum for their case.

This matter is currently before this Court on the Commonwealth of Puerto Rico's Motion for Abstention (Dkt. No. 29) (the "Abstention Motion"). By this motion, the Commonwealth has asked this Court to abstain from hearing this adversary proceeding and to remand the Removed Claims to the State Court. The Commonwealth has agreed to modify the automatic stay for this purpose. The plaintiffs oppose the Abstention Motion and argue that this Court lacks authority to abstain and should proceed with the adversary proceeding.

For all the reasons detailed herein, this Court concludes that PROMESA grants the Court the power to abstain, and that abstention is warranted. Judicial economy, the efficient administration of the Commonwealth's estate, a lack of prejudice to the plaintiffs, the public policy against forum shopping, and the potential burden on the Title III docket require that the PROMESA Court abstain from hearing this adversary proceeding. This Court hereby recommends to the District Judge to whom this proceeding is assigned that the Abstention Motion be ALLOWED and that this adversary proceeding be remanded to the State Court. This Court further recommends that the stay be lifted so as to allow the State Court Action to proceed to judgment, but that the stay be maintained with respect to the execution or enforcement of any such judgment in the State Court.

II. STATEMENT OF FACTS

Background

The plaintiffs are not-for-profit health centers that operate throughout the Commonwealth and are qualified by the federal government to provide medical services to underserved populations. Am. Compl., Dkt. No. 1-4 ¶ 8; Notice of Removal, Dkt. No. 1 ¶¶ 1-2. As part of that service, they provide healthcare to Medicaid beneficiaries. Am. Compl. ¶ 8. The plaintiffs receive funding from two separate federal sources - Medicaid funds and also grant funds under Section 330 of the Public Health Service Act, 42 U.S.C. § 254(b) ("Section 330"). See Notice of Removal ¶¶ 7-8. The Medicaid funds portion is meant to flow through the Commonwealth to the centers since states and territories are required under federal law to reimburse federally qualified health centers for such services by making wraparound payments. Am. Compl. ¶ 10.

In 2000, an amendment to the Social Security Act, now codified at 42 U.S.C. § 1396a (bb), changed the way the annual Medicaid payments from the Commonwealth to the centers were to be calculated. Am. Compl. ¶ 13. The plaintiffs claim that the Commonwealth failed to make the required Medicaid payments, both from 1997 to 2000 and after the amendment from 2001 until 2006. See Special Commissioner Report, Dkt. No. 39-1 at 7-8 (splitting the analysis for payments into two time periods). As a result, the plaintiffs claim that they "were forced to use their Section 330 grant funds to pay for Medicaid services provided to residents of the Commonwealth." Notice of Removal ¶ 21. The plaintiffs seek a mandamus compelling the Commonwealth to comply with its obligations and to provide retroactive payments to the health centers for Medicaid funding for the years 1997 through 2006. Am. Compl. ¶¶ 32, 36.

The State Court Action

The plaintiffs commenced the State Court Action seeking these retroactive payments in 2002. See Asociacion de Salud Primaria de Puerto Rico, Inc., et al. v. Estado Libre Asociado de Puerto Rico, et al., Civil No. KPEO2-1037. The plaintiffs contend that the reason the case was brought in State Court was that the Eleventh Amendment precluded the Commonwealth from being sued for retroactive relief in federal court. Plaintiffs' Opposition at 8. While the parties disagree as to how far along the State Court Action has progressed, it is undisputed that there have been significant findings made in favor of the plaintiffs. See Abstention Motion ¶ 4; Plaintiffs' Opposition at 11. The litigation has led to three separate appeals, which are currently consolidated before the Puerto Rico Court of Appeals. See Asociacion de Salud Primaria de Puerto Rico, Inc., et al. v. Estado Libre Asociado de Puerto Rico, et al., 2017 PR App. LEXIS 2358 (P.R. Cir. June 30, 2017). The litigation in the State Court and in the Puerto Rico Court of Appeals is stayed due to the Commonwealth's Title III filing under PROMESA. Notice of Removal ¶ 23. The plaintiffs have not sought relief from the PROMESA stay. Rather, they argue that the stay is inapplicable. See Plaintiff CSI's Opposition, Dkt. No. 38 ¶ 3. The Commonwealth has agreed to lift the stay to proceed to judgment, but to maintain the stay with respect to the execution or enforcement of any such judgment in the State Court. Abstention Motion ¶ 10.

The Federal Court Action

In 2003, three Puerto Rican health centers not parties to the State Court Action filed a lawsuit against the Secretary of the Department of Health of the Commonwealth in the United States District Court for the District of Puerto Rico. Rio Grande Cmty. Health Ctr., Inc., et al. v. Commonwealth of Puerto Rico, et al., D.P.R. Case No. 03-1640 (GAG); see Status Report, Dkt. No. 35 at 5. The complaint sought prospective injunctive relief requiring the Commonwealth to comply with the Medicaid Act. Similar suits were filed by other health centers, including the plaintiffs hereto, in 2006. The cases were eventually consolidated before Judge Gelpi, with the lead case being the Rio Grande Cmty. Health Ctr., Inc. case. Soon after the case was filed, Judge Gelpi issued a preliminary injunction requiring the Secretary to make an interim Medicaid reimbursement payment. The Secretary appealed, arguing not only that the injunctive relief was inappropriate, but also that the Federal Court should have abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) due to pendency of the State Court Action. The First Circuit ruled that abstention was not warranted. Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) (hereinafter " Rullan"). The significance of this decision to the instant case, as discussed infra , is disputed by the parties.

The Federal Court action has been actively proceeding. For the claims from 2006 to 2010, Judge Gelpi ruled in 2010 that retroactive relief was barred in federal court by the Eleventh Amendment, as the Commonwealth had not agreed to be sued in federal court. See Consejo de Salud Playa de Ponce, et al. v. Sec'y of Health of the Commonwealth of P.R., Case No. 06-cv-01260-GAG (consolidated into Rio Grande ), Order and Preliminary Injunction, Dkt. No. 743 at 2. Simultaneously, however, Judge Gelpi entered a preliminary injunction requiring on-going prospective relief for the claims from 2010 onward. Id.; see e.g. Rio Grande, D.P.R. Case No. 03-1640 (GAG), Dkt. Nos. 1090, 1092. The plaintiffs in this case, in their capacity as plaintiffs in Rio Grande, along with other health centers, have filed appeals in the First Circuit related to the calculations used for Judge Gelpi's ordered relief. The First Circuit recently ordered the parties to those appeals to show cause as to whether the PROMESA stay applied to those proceedings. On March 1, 2018, the First Circuit ordered that "[i]n light of the responses to [the First Circuit's] orders to show cause whether the PROMESA automatic stay applies to these appeals; and in light of the broad consensus that the wraparound payment litigation should proceed notwithstanding any stay; these appeals shall be held in abeyance pending further proceedings in the Commonwealth of Puerto Rico's Title III case for the protective lifting of the automatic stay (to the extent that it applies)." Atlantic Medical Ctr., Inc. et. al. v. Rio Grande Cmty. Health Ctr., Inc. et. al. First Circuit No. 17-1812, Document 00117261571 (March 1, 2018). As of this date, no party has moved to have the automatic stay, to the extent that it applies, lifted.

Commencement of the Adversary Proceeding

On August 2, 2017, the plaintiffs filed the Notice of Removal commencing this adversary proceeding. Dkt. No. 1. On November 14, 2017, the Commonwealth filed the Abstention Motion. Dkt. No. 29. Around that same time, the plaintiffs in Rio Grande filed two motions before Judge Gelpi that are relevant to this adversary proceeding. First, they filed Plaintiffs' Motion for Assumption of Jurisdiction over Prior "Special Master Period" and for Meeting in Chambers Regarding Said Motion and Memorandum in Support . Rio Grande, 03-1640 (GAG), Dkt. No. 1065. Therein, the Rio Grande plaintiffs asked Judge Gelpi to assume jurisdiction over the period from 2006-2010, which he previously had ruled was barred by the Eleventh Amendment. It is the plaintiffs' contention that by filing the Title III petition, the Commonwealth waived its Eleventh Amendment immunity. Second, on December 5, 2017, the plaintiffs in Rio Grande filed Plaintiffs' Motion to Transfer and Consolidate and Memorandum in Support . Id., Dkt. No. 1067. Therein, they sought to have the Removed Claims consolidated with the claims for prospective relief that were pending before Judge Gelpi. Judge Gelpi denied both motions on December 20, 2017. Id., Dkt. Nos. 1080, 1081. The denial of the motion for assumption of jurisdiction has been appealed to the First Circuit. Id., Dkt. No. 1086. That appeal has also been held in abeyance pending further proceedings in this Court related to the lifting of the automatic stay. Atlantic Medical Ctr., Inc. et. al. v. Neomed Ctr. Inc. et. al. First Circuit No. 18-1083, Document 00117261571 (March 1, 2018).

On January 8, 2018, this Court ordered additional briefing in light of Judge Gelpi's decisions and informed the parties that the Court would thereafter take the Abstention Motion on submission if appropriate. Dkt. No. 46. The parties have submitted the requested supplemental briefing and the Abstention Motion is now ripe for decision. See Dkt. Nos. 47, 48, 50, 51, 52. The plaintiffs requested that this Court wait to decide the Abstention Motion until the First Circuit entered a ruling related to the applicability of the PROMESA stay to the appeals from Judge Gelpi's ordered relief on prospective payments. See Dkt. No. 47 at 3 ("There is the distinct possibility that the First Circuit will issue a determination that will be relevant to this Court's decision on the [Abstention Motion]."). As noted above, the First Circuit has now entered an order holding the relevant appeals in abeyance pending the lifting of the stay in this Court. In doing so, the First Circuit acknowledged the "broad consensus that the wraparound payment litigation should proceed notwithstanding any stay[.]" Atlantic Medical Ctr., Inc. et. al., First Circuit No. 17-1812, Document 00117261571. After careful consideration of the issues pending in the First Circuit, this Court has determined that the issue of abstention in this adversary proceeding is ripe for resolution. The questions raised by this Motion, in particular whether the PROMESA Court has the authority to remand this action to the State Court, along with an evaluation of the factors relevant to the abstention decision, are not before the First Circuit. Therefore, this Court now addresses the merits of the Abstention Motion.

III. DISCUSSION

A. This Court Has Authority to Abstain Under PROMESA

The Commonwealth moves for abstention under PROMESA §§ 306(d)(2) and 309 (codified at 48 U.S.C. § 2166(d)(2) and 48 U.S.C. § 2169 respectively). PROMESA § 306(d)(2) permits the Court to remand a removed case as long as this Court does not have exclusive jurisdiction over the claims therein ("[t]he district court to which the claim or cause of action is removed ... may remand the claim or cause of action on any equitable ground.") (emphasis added). See also PROMESA § 306(a) (conferring exclusive and not exclusive jurisdiction over certain proceedings). PROMESA § 309 confirms that ability by providing that "[n]othing in this title prevents a district court in the interests of justice from abstaining from hearing a particular proceeding arising in or related to a case under this title." (emphasis added). Plaintiffs, however, argue that these provisions do not apply to the Removed Claims. They argue first that the PROMESA Court has exclusive jurisdiction over this adversary proceeding and second that PROMESA § 309 does not allow for abstention in the types of claims included in the Removed Claims. Neither argument is persuasive.

First, this Court does not have exclusive jurisdiction over the Removed Claims. PROMESA § 306 governs jurisdiction and gives this Court "original and exclusive jurisdiction of all cases under this title; and ... original but not exclusive jurisdiction of all civil proceedings arising under this title, or arising in or related to cases under this title." (emphasis added). The section of the U.S. Code governing judicial procedure for title 11 bankruptcy cases and proceedings, 28 U.S.C. § 1334, has language that is substantially similar to PROMESA § 306. As such, the First Circuit's interpretation of 28 U.S.C. § 1334 is instructive. See Oscar Mayer & Co. et al. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (holding that where statutes share a common purpose and matching language, one can conclude that Congress intended the construction of one to follow the other). The First Circuit has held that 28 U.S.C. § 1334"sets up two main categories of bankruptcy cases over which the district court has jurisdiction: 'cases under title 11,' over which the district court has original and exclusive jurisdiction ... and 'proceedings arising under title 11, or arising in or related to cases under title 11,' over which the district court has original, but not exclusive jurisdiction[.]" In re Middlesex PowerEquipment & Marine, Inc., 292 F.3d 61, 66 (1st Cir. 2002) (emphasis added). "A case under title 11 is the bankruptcy petition itself, such as a Chapter 11 reorganization." Id. In this case, that petition is analogous to the Commonwealth's Title III petition. As this adversary proceeding is not the Title III petition, and therefore is not a case "under" PROMESA, the Court has original but non-exclusive jurisdiction over the Removed Claims.

Second, PROMESA § 309 permits this Court to abstain from hearing the Removed Claims. PROMESA § 309 is substantially similar to 28 U.S.C. § 1334(c)(1), the provision of the U.S. Code that covers abstention in bankruptcy cases and proceedings. 28 U.S.C. § 1334(c)(1) allows a district court to abstain "in the interest of justice ... [from] a particular proceeding arising under title 11 or arising in or related to a case under title 11." (emphasis added). PROMESA § 309 has almost identical language, but omits the power to abstain from the category of cases "arising under" PROMESA. Thus, PROMESA § 309 only permits this Court to abstain "from hearing a particular proceeding arising in or related to a case under this title." (emphasis added). The plaintiffs claim that the Removed Claims "arise under" PROMESA and are therefore not within the scope of PROMESA § 309. This Court disagrees.

The First Circuit held in Gupta v. Quincy Medical Ctr. that cases "arise under" a statute when the statute "itself creates the cause of action." 858 F.3d 657, 662 (1st Cir. 2017). PROMESA created none of the Removed Claims. The plaintiffs argue that since their removal notice "asserted their removed claims were non-dischargeable under PROMESA[,]" the instant proceeding is one "arising under" PROMESA. Plaintiffs' Opposition at 13. As an initial matter, the issue of non-dischargeability is the subject of a separate adversary proceeding. See id. (plaintiffs have "filed a separate adversary proceeding seeking a declaratory judgment that their claims are non-dischargeable under PROMESA and that such claims may not be impaired in any manner ..."). Moreover, regardless whether the claims are non-dischargeable (about which this Court expresses no opinion), the Medicaid claims were not created by PROMESA and therefore they do not "arise under" PROMESA. The question of whether the claims are ultimately non-dischargeable in the Title III process is separate and apart from deciding the merits of the claims themselves. The issues which make up the merits of the Removed Claims, which are the only issues before the Court on this motion, did not arise under PROMESA.

The Removed Claims, however, are "related to" the Title III case. The First Circuit has held that "related to" encompasses those proceedings which "potentially have some effect on the bankruptcy estate, such as altering debtor's rights, liabilities, options, or freedom of action, or otherwise have an impact upon the handling and administration of the bankrupt estate." In re Middlesex, 292 F.3d at 68 (internal quotations and citations omitted). This definition fits the Removed Claims, which seek funds from the Commonwealth and could therefore have an impact on the estate. This proceeding is "related to" the Title III case and this Court has the power to abstain under PROMESA § 309.

B. Standard for Abstention

The Court now turns to establishing the standard for abstention under PROMESA. The plaintiffs argue that since abstention is not warranted under the frameworks set out by the Supreme Court in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (" Colorado River") and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (" Younger"), the Removed Claims should proceed before the PROMESA Court. Plaintiffs' Opposition at 7-9. Younger requires a federal court to abstain where the continuation of the federal action will either interfere with certain types of state proceedings or where abstention is necessary "in furtherance of the fundamental workings of a state's judicial system." See Rullan, 397 F.3d at 68-69. Colorado River sets out "exceptional circumstances" where a federal court should abstain in light of parallel federal and state proceedings despite the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Id. at 60, 71 (internal quotations omitted). In Rullan, the First Circuit held that neither Younger nor Colorado River required the federal court (by Judge Gelpi) to abstain from deciding the Medicaid payment challenges despite the pending State Court Action. Id. at 70, 72. Plaintiffs argue that the same result should be reached here. However, Rullan is legally and factually distinct from the instant case. Abstention in the instant case is not appropriately analyzed under Younger or Colorado River. Rather, the PROMESA standards apply.

Younger and Colorado River address the situation where there are parallel proceedings in state and federal court. That was the scenario presented in Rullan, namely whether the Federal Court Action should continue in light of the ongoing State Court Action. In the instant case, however, there is no question of parallel proceedings. Plaintiffs are seeking to have all the issues decided in federal court, with no state court action remaining. Younger and Colorado River have no application here.

C. Abstention is Warranted Under PROMESA

As detailed above, PROMESA §§ 306 and 309 authorize this Court to abstain in certain circumstances. PROMESA §§ 306 and 309 are substantially similar to 28 U.S.C. § 1452 and 28 U.S.C. § 1334, provisions of the U.S. Code which govern district court removal and abstention, respectively, for bankruptcy cases. Courts evaluating abstention in bankruptcy cases under those provisions have established a set of factors to consider. Given the similarity in language, this Court applies the same standards.

PROMESA § 306(d)(2) tracks the language in 28 U.S.C. § 1452, which provides that, "[t]he court to which [a] claim or cause of action is removed may remand such claim or cause of action on any equitable ground." (emphasis added). Likewise, PROMESA § 309 mirrors the language in 28 U.S.C. § 1334(c)(1), which provides that "nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding ..." (emphasis added). While 28 U.S.C. §§ 1452 and 1334 are not expressly incorporated into PROMESA, the standards they create are instructive for this Court. See Oscar Mayer & Co. et al., 441 U.S. at 756, 99 S.Ct. 2066.

Courts have broad discretion to abstain from hearing a case under 28 U.S.C. § 1334(c)(1). In re Middlesex, 292 F.3d at 69. Courts in the District of Puerto Rico look to a set of twelve factors when making that decision. In re LM Waste Service Corp., 562 B.R. 845, 851 (Bankr. D.P.R. 2016). No one factor is dispositive. Id. The twelve factors are: (1) the effect on the efficient administration of the estate; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the unsettled nature of applicable law, (4) a related proceeding in state court; 5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334 ; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than form of an asserted core proceeding; 8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court to be enforced in bankruptcy court; (9) the burden on the bankruptcy docket; (10) the likelihood that the bankruptcy court proceeding involves forum shopping by one of the parties; (11) the right to jury trial; and (12) the presence of non-debtor parties. Id.

Likewise, District Courts look at a set of seven factors when deciding questions of remand under 28 U.S.C. § 1452. The seven are conceptually aligned with those identified above and are: (1) the effect of the action on the administration of the bankruptcy estate; (2) the extent to which issues of state law predominate; (3)

the difficulty of applicable state law; (4) comity; (5) the relatedness of the action to the bankruptcy case; (6) any jury trial right; and (7) prejudice to the non-moving party from removal. Estate of Scott v. Cervantes, No. 08-03293, 2008 WL 11337657 at *3-4 (C.D. Cal. July 29, 2008).

This Court draws from both sets of factors in evaluating abstention under PROMESA. For the reasons explained more fully below, this Court finds that abstention is warranted based on an analysis of the most relevant factors. Despite involving issues of federal law, the Removed Claims are only remotely related to the main Title III case, abstention promotes the efficient administration of the estate, the plaintiffs will not be prejudiced by remand, there is a likelihood that removal was an attempt to forum shop, and retaining jurisdiction of the Removed Claims would create an unnecessary burden on this Title III docket.

First, while federal issues predominate, this alone does not mandate retention of the proceeding. The Removed Claims seek a writ of mandamus against the Commonwealth and a declaratory judgment obligating retroactive Medicaid payments. Am. Compl. ¶¶ 32, 36. The resolution of those claims relies on the interpretation of federal statutes. However, while the predominance of federal law is a factor that weighs against abstention, it is not dispositive. In re Middlesex, 292 F.3d at 69 ("The scope of the bankruptcy court's sale order under the Code is an issue of federal law, and, as such, is a factor that weighed against abstention. However, the bankruptcy court also considered other factors which weighed in favor of abstention."). This is particularly true in the instant case where the State Court has been interpreting the federal law for more than a decade. Just as in In re Middlesex, this Court finds that other factors favoring abstention outweigh the presence of federal issues.

Second, abstention promotes the efficient administration of the estate. Where issues are far removed or peripheral, and do not involve issues central to the restructuring, abstention is warranted in bankruptcy cases. See In re Loewen Group Int'l, Inc., 344 B.R. 727, 730 (D. Del. 2006) ("... the instant matter deals only with a peripheral contract dispute. Resolution of that dispute may indirectly impact creditor recovery by potentially affecting the value of the securities issued under the plan. This does not, however, impact the efficient administration of the estate."). The Removed Claims relate to the plaintiffs' rights to Medicaid payments from the Commonwealth and are not central to the restructuring at issue in this Title III case. They do not involve issues requiring interpretation of PROMESA, nor are they directly related to the restructuring process. While it is true that a judgment against the Commonwealth could impact the estate - having those claims adjudicated in the State Court does not hinder the Title III restructuring process. In fact, the efficiency gained by retaining only those cases integral to this Title III process weighs heavily in favor of remanding the Removed Claims to the State Court.

Third, the plaintiffs are not prejudiced from this Court's decision. The State Court is capable of presiding over the Removed Claims and the Commonwealth has offered to modify the automatic stay such that the State Court Action can proceed to judgment. Through their supplemental briefing to this Court, the plaintiffs have belatedly raised the argument that the State Court lacks the authority to provide the plaintiffs complete relief. Plaintiffs' Supplemental Brief, Dkt. No. 47 at 4. The plaintiffs rely on Roman v. SLG Ruiz, 160 D.P.R. 116, 121 (P.R. 2003) in arguing that "under Puerto Rico law even when public funds are available for payment no lien or attachment of public funds can be ordered to ensure compliance with judgment." Plaintiffs' Supplemental Brief at 4. As an initial matter, it is unclear that this principle is relevant here. Roman v. SLG Ruiz concerns the inability to garnish public funds. Roman, 160 DPR at 116 (as translated). The plaintiffs' use of that case seemingly overlooks the fact that "there are less onerous remedies that may be used by the State's creditor." Stump Corp. D/B/B Aluminum Construction Co. v. Superior Court of P.R. et. al., 99 D.P.R. 179, 183 (P.R. 1970) (as translated). More importantly, the litigation in the State Court on remand would only proceed to judgment; questions of execution and enforcement of any judgments would await further ruling by the PROMESA Court. Abstention Motion ¶ 10. Allowing the State Court to resume jurisdiction over the Removed Claims is not only possible, but the most efficient way forward.

Fourth, the plaintiffs' removal of the State Court Action is an apparent attempt at forum shopping. The plaintiffs have been litigating their claims in the State Court for over fifteen years. The plaintiffs now ask this Court to analyze the same set of facts. Moreover, this Court was not the plaintiffs' first choice. The plaintiffs originally filed this adversary proceeding in the PROMESA Court with the intention of consolidating this action with the Federal Court Action. Plaintiffs' Opposition at 12-13. Judge Gelpi has already denied that request. To the extent that the plaintiffs have removed their claims simply in order to progress in another forum, this weighs heavily in favor of abstention. See In re Encompass Servs. Corp., 337 B.R. 864, 879 (Bankr. S.D. Tex. 2006) (abstaining from hearing an adversary proceeding where there was an "overwhelming presence of indications that [the party] is trying to take the proverbial second bite at the apple.").

Finally, abstention will prevent a heavy burden on this Court's already busy docket. This case has been litigated, in Spanish, in the State Court for over fifteen years. For this Court to pick up the pen now would be no small task. Where the State Court has shown experience and competence with the handling of the Removed Claims, assumption by this Court in the eleventh hour would be irresponsible. Courts have decided accordingly in litigations that have made far less progress. See Estate of Scott v. Cervantes, 2008 WL 11337657 at *4 ("Failing to remand will require a new court to expend resources getting up to speed on an action that has been pending for over a year, a result that should be avoided."). The avoidance of unnecessary burden weighs in favor of abstention.

IV. CONCLUSION

For the reasons herein, this Court recommends to the District Judge to whom this case is assigned that the Commonwealth of Puerto Rico's Motion for Abstention (Dkt. No. 29) be ALLOWED and that this adversary proceeding be remanded to the Puerto Rico Court of First Instance, San Juan Part. This Court recommends to the District Judge that on remand the automatic stay be modified to allow this proceeding, including the related pending appeals, to proceed to judgment, but be maintained with respect to the execution or enforcement of any such judgments.

SO ORDERED.

DATED: April 2, 2018 
      
      The Debtors in these Title III Cases, along with each Debtor's respective Title III case number and the last four (4) digits of each Debtor's federal tax identification number, as applicable, are the (i) Commonwealth of Puerto Rico (Bankruptcy Case No. 17 BK 3283-LTS) (Last Four Digits of Federal Tax ID: 3481); (ii) Puerto Rico Sales Tax Financing Corporation ("COFINA") (Bankruptcy Case No. 17 BK 3284-LTS) (Last Four Digits of Federal Tax ID: 8474); (iii) Puerto Rico Highways and Transportation Authority ("HTA") (Bankruptcy Case No. 17 BK 3567-LTS) (Last Four Digits of Federal Tax ID: 3808); (iv) Employees Retirement System of the Government of the Commonwealth of Puerto Rico ("ERS") (Bankruptcy Case No. 17 BK 3566-LTS) (Last Four Digits of Federal Tax ID: 9686); and (v) Puerto Rico Electric Power Authority ("PREPA") (Bankruptcy Case No. 17 BK 4780-LTS) (Last Four Digits of Federal Tax ID: 3747) (Title III case numbers are listed as Bankruptcy Case numbers due to software limitations).
     
      
      The plaintiffs removed only certain claims against the Commonwealth and assert that non-debtor parties named in the State Court Action are not relevant to the Removed Claims. See Plaintiffs' Opposition, Dkt. No. 39 at 13-14.
     
      
      Unless otherwise indicated, the consolidated cases will be referred to as Rio Grande or the "Federal Court Action."
     
      
      28 U.S.C. § 1334 reads "[t]he district courts shall have original and exclusive jurisdiction of all cases under title 11 ... [and] the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11."
     
      
      The analysis of cases "arising under" PROMESA for § 309 purposes is distinct from the analysis of those cases "under" PROMESA for § 306 purposes discussed supra . See Gupta v. Quincy Med. Ctr., 858 F.3d 657, 661 (1st Cir. 2017) (distinguishing between cases "under" title 11 and cases "arising under" title 11).
     
      
      To the extent that plaintiffs removed only select claims from the State Court Action, they contend that the remaining claims are distinct. Therefore, they do not constitute a parallel proceeding.
     
      
      The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988) ; United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) ; Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980) ; United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982) ; Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983) ; see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999) ; Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994) ; Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).
     