28 as a perverse sort of statutory self-fulfilling prophesy, that section’s operation should not
factor into the abstention calculus. Nor ought we to institute a rule of decision that in effect
rewards the party seeking abstention if that party insists on being as obstructionist as possible by
refusing to consent either to the entry of final judgment by the bankruptcy judge or the conduct
of a jury trial by that court.13
In short, the court concludes that the motion for permissive abstention ought not be
granted, and the same is accordingly denied.
MOTION TO DISMISS
When considering a motion to dismiss, the court must accept as true all well-pleaded
facts and view them in a light most favorable to the plaintiff. McCartney v. First City Bank, 970
F.2d 45, 47 (5th Cir. 1992); see also General Electric Capital Corp. v. Posey, 415 F.3d 391, 394
(5th Cir. 2005) (“A claim will not be dismissed unless the plaintiff cannot prove any set of facts
in support of his claim that would entitle him to relief”).
Claims for Breach of Contract and for Attorney’s Fees
Grant Thornton argues that Texas courts routinely dismiss breach of contract claims
against professionals when the complaint is based upon a violation of a professional’s duty of
care because professional negligence claims arise solely in tort. Without a breach of contract
claim, no attorney’s fees can be awarded. See TEX. CIV. PRAC. & REM. CODE § 38.001.
The Committee argues that the breach of contract claims are not based exclusively on a
violation of Grant Thornton’s professional duty of care, but rather the failure of Grant Thornton
to comply with the express terms of its contractual agreements with Schlotzsky’s.
party. See Matter of Clay, 35 F.3d 190 (5th Cir. 1994); see also 28 U.S.C. § 157(d), (e).
13 There may be entirely valid reasons for a party’s not consenting independent of the abstention argument. See Matter of Clay, supra. However, a party cannot be heard to argue its own non-consent as a basis for abstention. After all, non-consent simply moves the matter to the district court for final adjudication, while abstention removes the matter from the federal courts entirely. If the party in fact prefers not to be in federal court at all, there is less equitable justification for that same party’s taking steps to get into federal district court. Equity does not operate in that fashion.