D.A. ELIA CONSTRUCTION CORP., Plaintiff-Appellant, v. DAMON & MOREY LLP, Defendant-Appellee, 394 F. App'x 769

SUMMARY ORDER Appellant DA. Elia Construction Corp. (“Elia”) appeals the district court’s order declining to remand this case to state court pursuant to 28 U.S.C. § 1334 and granting

summary judgment on the grounds of res judicata. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the specification of appellate issues. Our authority to review the district court’s decision not to remand this case to state court is strictly circumscribed.. See 28 U.S.C. §§ 1334(d), 1452(b). We may review this decision only to the extent that Elia challenges the district court’s conclusion that it was not required to abstain from deciding a non-core bankruptcy matter pursuant to 28 U.S.C. § 1334(c)(2). See Mt. McKinley Ins. Co. v.

Corning Inc., 399 F.3d 436, 445 (2d Cir.2005). We review the denial of a motion to remand a non-core bankruptcy matter — including the question of whether a claim is a “core matter” — de novo. See Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d Cir.2008); In re United States Lines, 197 F.3d 631, 636 (2d Cir.1999). We agree with Appellee Damon & Morey LLP (“Damon”) that the claims raised in Elia’s complaint are core matters not subject to mandatory abstention.

Elia’s latest purported cause of action is a transparent attempt to relitigate an attorneys’ fees dispute that is, or ought to be, long settled, and this is not the first time we have said so. See Bernheim v. Damon & Morey, LLP, — Fed.Appx. —, — (2d Cir.2007) (summary order); see also In re D.A. Elia Const. Corp., 295 Fed.Appx. 394 (2d Cir.2008) (summary order) (“This appeal is frivolous and should not have been brought by counsel, even if authorized by the client.”).

Professional malpractice claims of the sort lodged against Damon are so fundamental to the final disposition of the estate that they cannot be separated from the bankruptcy action itself and can only be considered core matters. See, e.g., In re Southmark Corp., 163 F.3d 925, 931 (5th Cir.1999). Elia’s claim that this case actually concerns prepetition conduct by Damon is wholly incredible, as the plain language of the complaint seeks redress for alleged malpractice, negligence and misconduct before the bankruptcy court.

Elia cannot escape this matter’s repose by pointing to a retainer agreement that was signed before the bankruptcy proceedings began, as any breach or negligent performance of that agreement is alleged to have occurred principally in the bankruptcy proceedings. To the extent that the complaint makes token references to other matters in which Damon represented Elia, the district court had supplemental jurisdiction pursuant to 28 U.S.C. § 1367 to address them. We have reviewed the district court’s grant of

summary judgment de novo, see In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir.2003), and for substantially the reasons stated by the district court affirm its grant of

summary judgment on the grounds of res judicata. We particularly agree with the district court that Elia’s conduct “represents the very essence of what the res judicata doctrine was designed to foreclose.” D.A. Elia Construction Corp. v. Damon & Morey LLP, 389 B.R. 314, 320 (W.D.N.Y.2008). We address Damon’s motion for sanctions in a separate motions order issued herewith. We have considered all of Elia’s other arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.