Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

In re: VICKIE LYNN MARSHALL, 

Debtor.
Nos. 02-56002,
ELAINE T. MARSHALL, Executrix of 02-56067
the Estate of E. Pierce Marshall, D.C. No.
Plaintiff-Counter-Defendant/
Appellant-Cross-Appellee,  CV-01-00097-DOC
Central District of
v. California, Santa
Ana
HOWARD K. STERN, Executor of the
Estate of Vickie Lynn Marshall, OPINION
Defendant-Counter-Claimant/
Appellee-Cross-Appellant.

On Remand from the United States Supreme Court

Argued and Submitted

June 25, 2009—Seattle, Washington

Filed March 19, 2010

Before: Robert R. Beezer, Andrew J. Kleinfeld and

Richard A. Paez, Circuit Judges.

Opinion by Judge Beezer;

Concurrence by Judge Kleinfeld

4483
 IN RE MARSHALL 4487

COUNSEL

G. Eric Brunstad, Jr., Dechert, LLP, Hartford, Connecticut,

for the appellant-cross-appellee.
4488 IN RE MARSHALL
Kent L. Richland and Alan Diamond, Greines, Martin, Stein
& Richland LLP, Los Angeles, California, for the appellee-
cross-appellant.

Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver &

Heges, LLP, Redwood Shores, California; Craig Goldblatt,
Wilmer Cutler Pickering Hale and Dorr LLP, Washington,
D.C., for the amici.

OPINION

BEEZER, Circuit Judge:

This case returns to us after the Supreme Court determined

that we had construed too broadly the “probate exception” to
our subject matter jurisdiction. Marshall v. Marshall, 547
U.S. 293 (2006). Confident that we have subject matter juris-
diction over this case, id.; 28 U.S.C. § 1291, we turn to the
merits of the longstanding and acrimonious dispute.

This case involves a tort claim by Vickie Lynn Marshall

against E. Pierce Marshall, the son of her late husband
J. Howard Marshall II, for Pierce Marshall’s purported inter-
ference with a substantial inter vivos gift (estimated to exceed
$300 million) that her late husband intended to give to her.
The claim comes to us in an unusual procedural posture. It
was asserted as a state law counterclaim to a nondischargea-
bility complaint and proof of claim that Pierce Marshall filed
in Vickie Lynn Marshall’s bankruptcy proceedings in the
Central District of California. Both the bankruptcy and district
courts found that Pierce Marshall was liable for tortious inter-
ference and awarded Vickie Lynn Marshall millions of dollars
in compensatory and punitive damages.

While Vickie Lynn Marshall’s tortious interference claim

was pending in federal court in California, a probate court in
 IN RE MARSHALL 4489
Texas was administering the estate of J. Howard Marshall II.
Both Vickie Lynn Marshall and Pierce Marshall were actively
engaged in this Texas litigation, participating fully in the five-
month jury trial held by the Texas probate court. To discern
J. Howard Marshall II’s true intentions regarding his will and
assets held in trust, the Texas probate court had to resolve
allegations that J. Howard Marshall II’s estate plan and the
transactions underlying it were tainted by illegality and that,
contrary to his estate plan, J. Howard Marshall II intended to
give Vickie Lynn Marshall a substantial inter vivos gift. In its
judgment, which was issued after the bankruptcy court’s
“judgment” on Vickie Lynn Marshall’s tortious interference
claim but before the district court had adjudicated the appeal
from the bankruptcy court, the Texas probate court upheld the
validity of J. Howard Marshall’s estate plan and estate plan-
ning documents, finding that J. Howard knowingly effected
his estate plan free from the undue influence or coercion of
his son Pierce Marshall. The Texas probate court further
found that J. Howard Marshall II did not intend to give Vickie
Lynn Marshall a gift from the assets that passed through his
will or that were held in his living trust. These and other legal
and factual determinations adverse to Vickie Lynn Marshall
would be fatal to her tortious interference counterclaim,
should they be afforded preclusive effect in this proceeding.

We conclude that the findings of the Texas probate court

should be afforded preclusive effect because it is the earliest
final judgment on matters relevant to this proceeding. The
bankruptcy court exceeded its statutory grant of power and
the constitutional limitations on that power when it purported
to enter a final judgment in favor of Vickie Lynn Marshall on
her counterclaim. The bankruptcy court is empowered by 28
U.S.C. § 157(b)(1) to hear and finally determine “core pro-
ceedings arising under title 11, or arising in a case under title
11.” Vickie Lynn Marshall’s counterclaim for tortious inter-
ference is not such a “core proceeding” because its resolution
was not a necessary precursor to the resolution of Pierce Mar-
shall’s claim against the bankruptcy estate for defamation. In
4490 IN RE MARSHALL
other words, her counterclaim was not so closely related to his
claim that they essentially merged, with her counterclaim
becoming part and parcel of the bankruptcy court’s claims
determination and allowance process. Thus, the bankruptcy
court could, at most, enter proposed findings of fact and con-
clusions of law on Vickie Lynn Marshall’s counterclaim for
tortious interference. See 28 U.S.C. § 157(c).

The district court should have afforded preclusive effect to

the Texas probate court’s factual findings and relevant legal
conclusions. The determinations adverse to Vickie Lynn Mar-
shall in the Texas probate court prevent her from establishing
the elements of her counterclaim, such as J. Howard Marshall
II’s intent to give her a substantial inter vivos gift, the tortious
nature of Pierce Marshall’s conduct regarding the estate plan-
ning documents, and the reasonableness and amount of her
expectancy. We reverse the judgment of the district court and
remand with instructions that judgment be entered in favor of
the Estate of Pierce Marshall.

This case arises out of the bankruptcy of appellee/cross-

appellant Vickie Lynn Marshall, the widow of the late
J. Howard Marshall II. During the course of her bankruptcy,
Vickie Lynn Marshall made a counterclaim for tortious inter-
ference with a gift expectancy against appellant/cross-
appellee E. Pierce Marshall, the younger of J. Howard Mar-
shall II’s two sons, who had sought a determination of nondis-
chargeability and filed a proof of claim against Vickie Lynn
Marshall’s bankruptcy estate.1 Vickie Lynn Marshall’s coun-
1
Both of the original parties are now themselves deceased. Elaine T.
Marshall is the executrix of Pierce Marshall’s estate and has filed a notice
of appearance in this court on behalf of his estate. Howard K. Stern is the
executor of Vickie Lynn Marshall’s estate and has filed a notice of appear-
ance in this court on behalf of her estate. For the sake of readability, we
refer to Vickie Lynn Marshall and Pierce Marshall in the present tense as
if they are still living and are still the current parties.
 IN RE MARSHALL 4491
terclaim is the focus of this appeal. Although the case arises
out of her bankruptcy, a broader review of the relationships
between Vickie Lynn Marshall, J. Howard Marshall II, and
Pierce Marshall, the business and estate planning measures of
J. Howard Marshall II, and the Texas probate proceeding is
necessary to appreciate the issues before us.

As detailed by the district court, J. Howard Marshall II was

a self-made entrepreneur who eventually found great success
in the oil industry. Born in 1905, J. Howard Marshall II
attended Haverford College and graduated magna cum laude
from Yale Law School before working during the 1930s for
the Roosevelt Administration on the proration of oil produc-
tion. After continued involvement in the oil industry,
J. Howard Marshall II became one of the founders of the
Great Northern Oil and Gas Company in 1954. The wealth of
the Marshall family is primarily based on the interest acquired

Additionally, on March 19, 2009, we ordered the parties to “identify (1)

all parties in interest, (2) the attorneys of record, (3) the real parties in
interest, (4) any executors of an estate having an interest in these proceed-
ings and (5) any guardian and/or guardian ad litem of an interested
minor.” Both parties filed responses to our order stating that the correct
parties are currently before us. No third party has sought to intervene in
this appeal.
The interests of Vickie Lynn Marshall’s minor daughter, “DB,” are rep-
resented by DB’s father and legal guardian, Larry E. Birkhead, as deter-
mined by the Los Angeles Superior Court in In re Vickie Lynn Marshall,
Case Nos. BP-104574, BP-104575. Mr. Birkhead had notice of these pro-
ceedings, attended oral argument, and at no time sought to intervene as a
party on behalf of his daughter. Under California law, the executor or
administrator of an estate is the real party in interest. See Olson v. Toy, 54
Cal. Rptr. 2d 29, 33 (Ct. App. 1996). Both parties here agreed that we did
not need to appoint a guardian ad litem for DB, but that her interests in
this proceeding were adequately represented by Mr. Birkhead and Mr.
Stern. See Supplemental Opening Br. filed by Elaine Marshall at 58; Sup-
plemental Answering Br. filed by Howard Stern at 66.
4492 IN RE MARSHALL
by J. Howard Marshall II in Great Northern Oil and Gas,
which was the predecessor company to Koch Industries.2

In 1982, as an estate planning mechanism to reduce (or

avoid) the cost of probate, J. Howard Marshall II placed
almost all of his assets (including his interest in Marshall
Associates, the family partnership that then held the Koch
stock) in a revocable inter vivos trust, known as the J. Howard
Marshall II Living Trust, or the Living Trust.3 From 1982
until his death, J. Howard Marshall II executed a series of
amended and restated instruments governing the terms of the
Living Trust.

During his lifetime, J. Howard Marshall II retained the

income from the Living Trust’s assets, and the Living Trust
was responsible for his debts. The terms of the Living Trust
permitted J. Howard Marshall II to borrow money using the
Living Trust’s assets as security. Although the distributions
from the Living Trust were his primary source of income,
J. Howard Marshall II also drew a salary from Marshall Petro-
leum, Inc. (MPI), earned directors’ fees from the corporate
boards of which he was a member, and received minor pen-
sion payments.

The Living Trust also named the beneficiaries who would

receive the Living Trust property after J. Howard Marshall
2
Koch Industries (Koch) is a privately held, integrated petroleum and
chemical conglomerate headquartered in Wichita, Kansas. See Marshall v.
Marshall (In re Marshall), 275 B.R. 5, 13-16 (C.D. Cal. 2002) (describing
in greater detail the creation and ownership of Koch Industries). In 1995,
J. Howard Marshall II represented to Texas Commerce Bank that, through
entities he controlled, he owned 14.7 percent of Koch. Id. at 15.
3
For some time, the shares of Koch stock were held by Marshall Asso-
ciates. In 1984, the Koch stock and other assets owned by Marshall Asso-
ciates were transferred to Marshall Petroleum, Inc. (MPI), a corporate
entity created by J. Howard Marshall II and his first and second wives.
The Living Trust also held J. Howard Marshall II’s shares of MPI stock
after its creation.
 IN RE MARSHALL 4493
II’s death. At the time J. Howard Marshall II died, the primary
beneficiary of the Living Trust was Pierce Marshall.4

Also as part of his estate planning measures, J. Howard

Marshall II executed a will that provided for the disposition
of the assets that he held directly, i.e., not in the Living Trust
or any other form of trust. J. Howard Marshall II executed his
last will and testament relevant to these proceedings on
December 22, 1992. This will contained pour-over provisions,
which required the distribution of J. Howard Marshall II’s
probate estate to the Living Trust. Thus, the Living Trust was
J. Howard Marshall II’s primary estate planning document.
Also in 1992, J. Howard Marshall II signed a document
requesting that Pierce Marshall be appointed his guardian if
a guardianship was ever warranted.

At the time J. Howard Marshall II met Vickie Lynn Mar-

shall, essentially all of his assets were held by the Living
Trust. J. Howard Marshall II modified his Living Trust for the
last time on July 13, 1994, just a few days after his marriage.
On that date, J. Howard Marshall II made the Living Trust irrev-
ocable.5

J. Howard Marshall II met Vickie Lynn (Smith) Marshall in

October 1991. At the time, Vickie Lynn was a twenty-four
year old divorcee and single mother living in Houston, Texas.
4
Minor distributions from the Living Trust would also be made to vari-
ous charities and family beneficiaries upon J. Howard Marshall II’s death.
5
J. Howard Marshall II did, however, retain the limited power to make
certain changes such as adding a charity as a beneficiary or substituting
one beneficiary for another, as long as the beneficiary that was being sub-
stituted was already a beneficiary as of July 13, 1994. Thus, J. Howard
Marshall II could have eliminated Pierce Marshall as a beneficiary of the
Living Trust by substituting a charity in his place. J. Howard Marshall II
could not, however, have added either his new wife or elder son as benefi-
ciaries because they were not already beneficiaries as of July 13, 1994.
4494 IN RE MARSHALL
She worked as a waitress and dancer to provide for her son,
but she aspired to become an international superstar like her
idol Marilyn Monroe. After a courtship lasting more than two
years, J. Howard Marshall II and Vickie Lynn Marshall mar-
ried on June 27, 1994.

Their union was short lived: J. Howard Marshall II died on

August 4, 1995, of heart failure at the age of ninety. Although
he lavished gifts and significant sums of money on Vickie
Lynn Marshall during their courtship and marriage,6
J. Howard Marshall II did not devise any real or personal
property to her in his will, nor was a provision for distribution
of income or principal of the Living Trust ever made in her
favor. Similarly, J. Howard Marshall II did not give Vickie
Lynn Marshall any interest in his business assets or stock
holdings.

In April 1995, before J. Howard Marshall II had died,

Vickie Lynn Marshall filed suit against Pierce Marshall and
others in Texas probate court, which was handling guardian-
ship proceedings relating to J. Howard Marshall II. She
alleged that Pierce Marshall was tortiously interfering with
her statutory right to support from her husband and that Pierce
Marshall had breached his fiduciary duties as a trustee of the
Living Trust. She also asserted that Pierce Marshall used
fraud and undue influence to have J. Howard Marshall II
make the Living Trust irrevocable and make other estate plan-
6
On September 29, 1994, J. Howard Marshall II transferred gifts to
Vickie Lynn Marshall out of his love and affection for her as his new wife.
These gifts were valued at more than $6 million and included a ranch, sev-
eral houses, cars, jewelry, and a substantial amount of cash. The gifts were
memorialized in a document called the “Act of Donation.” Vickie Lynn
Marshall accepted these gifts on October 27, 1994.
J. Howard Marshall II also took steps to promote Vickie Lynn Mar-
shall’s career as a model.
 IN RE MARSHALL 4495
ning changes that favored Pierce Marshall. By way of relief,
Vickie Lynn Marshall sought the level of support to which
she had become accustomed, a declaration from the court that
J. Howard Marshall II was a beneficiary of the Living Trust,
and the removal of Pierce Marshall from certain fiduciary
capacities with respect to his father and his father’s assets.

In August 1995, three days after J. Howard Marshall II

died, Vickie Lynn Marshall added an application in the Texas
probate court requesting that the court find that J. Howard
Marshall II died intestate. Pierce Marshall opposed this appli-
cation and petitioned for a declaration that his father’s Living
Trust and will were valid. Pierce Marshall offered J. Howard
Marshall II’s will for probate on August 16, 1995.

J. Howard Marshall III, J. Howard Marshall II’s elder son,

filed a will contest on December 20, 1995.7 On January 23,
1998, Vickie Lynn Marshall joined this will contest. Several
other individuals and institutional claimants brought actions
seeking a share of J. Howard Marshall II’s estate, but none are
parties to this appeal.

By a third amended petition dated January 4, 2000, Vickie

Lynn Marshall alleged that Pierce Marshall in his representa-
tive capacities, his attorneys, and others tortiously interfered
with her expectation based upon her belief that J. Howard
Marshall II had made oral promises to give her gifts both dur-
ing his lifetime and upon his death.8 In her third amended
7
In 1980, J. Howard Marshall II and J. Howard Marshall III disagreed
about the management of Koch Industries, and J. Howard Marshall III
threatened to vote his father off the Board of Directors. To prevent this,
J. Howard Marshall II bought the Koch stock back from J. Howard Mar-
shall III for $8 million, an amount J. Howard Marshall II considered to be
an exorbitant premium for stock he had gifted to his son years earlier. Fol-
lowing this dispute, J. Howard Marshall II changed his estate plan to
exclude his elder son as a beneficiary under his will and Living Trust.
8
Some of Vickie Lynn Marshall’s claims in her third amended petition
were made against Pierce Marshall in his individual capacity; because of
the bankruptcy proceeding in California, however, Vickie Lynn Marshall
limited her tortious interference claim in the Texas probate court to Pierce
Marshall in his representative capacities.
4496 IN RE MARSHALL
petition, Vickie Lynn Marshall again challenged the validity
of both the Living Trust, as amended, and J. Howard Marshall
II’s will.

After the Texas proceedings had commenced, but before

she had filed her amended petition and will contest in that
forum, Vickie Lynn Marshall filed for protection under fed-
eral bankruptcy laws in California, the state of which she
claimed to be a resident. Vickie Lynn Marshall filed a volun-
tary chapter 11 bankruptcy petition in the United States Dis-
trict Court for the Central District of California on January 25,
1996. At this point, all non-exempt assets owned by Vickie
Lynn Marshall, including her claims against J. Howard Mar-
shall II’s estate and against Pierce Marshall, constituted the
bankruptcy estate.9 See 11 U.S.C. § 541.

On May 7, 1996, Pierce Marshall commenced an adversary

proceeding in the bankruptcy court seeking a declaration that
in the event Vickie Lynn Marshall were to be found liable to
Pierce Marshall for earlier instances of alleged defamation,
her liability to him would not be dischargeable in her bank-
ruptcy proceeding.10 See 11 U.S.C. § 523(a)(6). Specifically,
Pierce Marshall filed a “complaint to determine dischargea-
bility of debt pursuant to 11 U.S.C. § 523(a)(6),” in which he
alleged that after J. Howard Marshall II’s death Vickie Lynn
Marshall and her attorneys “instituted a plan to obtain a quick
recovery from the estate of J. Howard Marshall II by embark-
9
Although certain interested parties sought to have a trustee appointed
to oversee Vickie Lynn Marshall’s bankruptcy estate, the bankruptcy court
denied the request. Instead, the bankruptcy court appointed an examiner
to investigate all of Vickie Lynn Marshall’s transactions and financial
affairs and allowed Vickie Lynn Marshall to remain a “debtor in posses-
sion,” holding her assets for the benefit of the bankruptcy estate.
10
Pierce Marshall had filed suit against Vickie Lynn Marshall and her
two attorneys in Texas court, but he dismissed Vickie Lynn Marshall from
the suit without prejudice after she filed for bankruptcy.
 IN RE MARSHALL 4497
ing on a tortious smear campaign against E. Pierce Marshall
and his family.” According to the complaint, Vickie Lynn
Marshall’s attorney expressed concern to a member of the
press about the “blizzard of documents” that Pierce Marshall
presented to his father in the days following his marriage to
Vickie Lynn Marshall, noting that J. Howard Marshall II
“signed [the documents] in an almost completely illegible
fashion, which makes sense because he couldn’t read at the
time” and that “[t]he effect of it was basically an attempt to
remove [J. Howard Marshall II] from control of his estate.”
The attorney further told a member of the press that “the law
clearly entitles [Vickie Lynn Marshall] to half of whatever her
late husband earned during the marriage” and described
Pierce Marshall as “greedy and miserly” and a “real control
freak.” The complaint further alleges that the attorney knew
the documents had been validly executed and effected
J. Howard Marshall II’s estate planning wishes, but neverthe-
less suggested in the media that Pierce Marshall had engaged
in one or more criminal acts in an effort to obtain his father’s
property. It also alleges that Vickie Lynn Marshall knew of
the smear campaign efforts and in fact “participated in the
civil conspiracy in an effort to extort a speedy settlement.” By
way of relief, Pierce Marshall specifically sought the follow-
ing:

1. A determination that [Pierce Marshall’s] claims

against [Vickie Lynn Marshall] have not been dis-
charged; 2. An order granting [Pierce Marshall]
recovery for his reasonable costs and attorney’s fees
incurred herein and pre- and post-judgment interest
as allowed by law; and 3. An order granting [Pierce
Marshall] such other relief as is just.

On June 12, 1996, Pierce Marshall filed a proof of claim

against Vickie Lynn Marshall’s bankruptcy estate seeking an
unliquidated amount of damages for his unsecured nonpriority
claim arising from the alleged defamation. Attached to his
proof of claim as “exhibit A” was his previously filed “com-
4498 IN RE MARSHALL
plaint to determine dischargeability of debt pursuant to 11
U.S.C. § 523(a)(6).”11 Two days later, on June 14, 1996,
Vickie Lynn Marshall’s bankruptcy estate filed an answer to
Pierce Marshall’s nondischargeability complaint asserting a
number of affirmative defenses, an objection to Pierce Mar-
shall’s creditor’s claim, and counterclaims against Pierce
Marshall in his individual capacity. Vickie Lynn Marshall
asserted as an affirmative defense that “the statements com-
plained of in this action are in fact substantially true, in whole
and in part, and therefore cannot form the basis of a [defama-
tion claim].”12 Vickie Lynn Marshall’s counterclaims
included: tortious interference with her expectation of a gift
or inheritance from J. Howard Marshall II; tortious interfer-
ence with her rights as J. Howard Marshall II’s spouse; breach
of fiduciary duty; fraudulent transfer of J. Howard Marshall
II’s assets; abuse of the legal process; imprisoning J. Howard
Marshall II against his will; breach of agreement and contract;
11
Pierce Marshall argues to us that he did not actually make a claim
against Vickie Lynn Marshall’s estate and, instead, sought only a determi-
nation of dischargeability. Like the district court, we, too, reject this argu-
ment. See Marshall v. Marshall (In re Marshall), 264 B.R. 609, 629 (C.D.
Cal. 2001). Pierce Marshall plainly filed a nondischargeability complaint,
and then, more than a month later, he made a separate claim against the
bankruptcy estate by filing his proof of claim for an unspecified amount
of damages. Had he simply desired a nondischargeability determination,
there would have been no reason to file a proof of claim seeking damages
on the underlying defamation claim.
12
She also asserted as an affirmative defense that:
[The statements] were made in good faith, honestly, and not mali-
ciously in that the signatures of J. Howard Marshall, II on the
several documents allegedly signed by him shortly after his mar-
riage to Mrs. Marshall were almost completely illegible; the phy-
sician of J. Howard Marshall, II has declared that [J. Howard
Marshall II] could not read the typeface of the size used in the
several documents at issue; the several documents allegedly
signed by J. Howard Marshall, II did purport to give [Pierce Mar-
shall] full control over the . . . Living Trust; and the several docu-
ments did purport to have the effect of transferring control over
Mr. Marshall’s estate.
 IN RE MARSHALL 4499
and fraud, duress, and undue influence over J. Howard Mar-
shall II.

Pierce Marshall moved to dismiss the counterclaims based

on jurisdiction and also moved for the bankruptcy court to
abstain from hearing the tortious interference claim. The
bankruptcy court denied both motions.

Vickie Lynn Marshall entered into a settlement with her

creditors, and the bankruptcy court confirmed Vickie Lynn
Marshall’s chapter 11 plan of reorganization on March 8, 1999.13
The reorganization plan specifically provided that any pro-
ceeds from “disputed claims/interests” determined in Vickie
Lynn Marshall’s favor would be held by a disbursing agent to
first satisfy creditors’ claims, with any remaining amounts
then going to Vickie Lynn Marshall. The reorganization plan
also discussed the specific disbursement process for the “Mar-
shall Claims,” defined as those in the adversary proceeding
initiated by Pierce Marshall.14 In the order confirming the
plan, the bankruptcy court discharged Vickie Lynn Marshall’s
preexisting debts and caused the property remaining in the
bankruptcy estate to be revested in her.

Trial of the adversary proceeding began on October 27,

1999. Marshall v. Marshall (In re Marshall), 253 B.R. 550,
553 (Bankr. C.D. Cal. 2000). On November 5, 1999, the
bankruptcy court granted summary judgment for Vickie Lynn
Marshall on Pierce Marshall’s adversary complaint, conclud-
ing that she did not publish or ratify any defamatory state-
ments about him. Marshall v. Marshall (In re Marshall), 275
B.R. 5, 9 (C.D. Cal. 2002).
13
This order was the subject of a separate appeal in this court. Marshall
v. Marshall (In re Marshall), 119 F. App’x 136 (9th Cir. 2004).
14
A complaint to determine the discharge of a debt coupled with an
objection to a creditor’s claim is an adversary proceeding. See Fed. R.
Bankr. P. 3007, 7001.
4500 IN RE MARSHALL
On September 27, 2000, the bankruptcy court found that
Pierce Marshall had tortiously interfered with Vickie Lynn
Marshall’s expectation that she would inherit from J. Howard
Marshall II’s estate.15 The bankruptcy court reasoned that a
“widow’s election” under Texas law supported a monetary judg-
ment.16 The court awarded Vickie Lynn Marshall
$449,754,134, but stated that the final calculation of damages
remained to be determined after completion of the Texas pro-
bate action.

On October 6, 2000, the bankruptcy court entered a revised

judgment against Pierce Marshall in his individual capacity,
again for $449,754,134, less whatever proceeds Vickie Lynn
Marshall received from J. Howard Marshall II’s estate. In its
revised judgment the bankruptcy court did not rely on Vickie
Lynn Marshall’s “widow’s election,” but concluded based
upon “a preponderance of the evidence admitted at trial and
the findings imposed as sanctions against Pierce Marshall for
discovery abuses, that Pierce . . . tortiously deprived [Vickie
Lynn Marshall] of her expectancy of a substantial inter vivos
gift from her deceased husband.”17 On December 29, 2000,
15
The bankruptcy court entered a ruling only on Vickie Lynn Marshall’s
claim for tortious interference with her expectation of a gift. It does not
appear that the bankruptcy court ever entered a ruling addressing Vickie
Lynn Marshall’s other various claims. Vickie Lynn Marshall did not
appeal the bankruptcy court’s judgment; thus, the claims that she aban-
doned would now seem to be barred.
16
Vickie Lynn Marshall’s community property interest in J. Howard
Marshall II’s income from his separate property was approximately $1
million. Because J. Howard Marshall II gifted her property during their
marriage in excess of this amount, Vickie Lynn Marshall did not file a
community property claim.
17
The bankruptcy court imposed various sanctions on Pierce Marshall
for perceived discovery abuses. These sanctions included, in addition to
factual findings made against him, limiting Pierce Marshall’s ability to
introduce percipient witnesses and present certain evidence on the merits
of the claims levied against him. Our discussion of these matters will be
limited because the parties agreed that there are no sanctions issues before
us on appeal.
 IN RE MARSHALL 4501
the bankruptcy court entered a judgment against Pierce Mar-
shall in the amount of $474,754,134. A timely appeal of this
ruling to the federal district court followed.

Proceedings in the Texas probate court continued unabated

during Vickie Lynn Marshall’s bankruptcy in California. On
January 5, 2001, days after the bankruptcy court entered its
judgment, Vickie Lynn Marshall filed a voluntary nonsuit of
all her claims against Pierce Marshall in the Texas probate
proceeding. The probate judge explained to Vickie Lynn Mar-
shall’s counsel that, by doing so, she would be giving up any
claim to money that was in her late husband’s estate and any
claim that the Living Trust or will were invalid. The Texas
probate judge warned her in open court as follows:

Even if you take a nonsuit, which under the Rules of

Civil Procedure give you a right to refile it, as a
practical matter you don’t, because the Estate is
gone. . . . Your claim to anything that [J. Howard
Marshall II] had at any time in his life is over when
this final judgment is signed. The fact that the Rules
of Civil Procedure allow you to take a nonsuit and
re-file later doesn’t really apply in Probate Court
when we’re talking about who is entitled to an
Estate.

Despite the probate court’s warnings, and in apparent reliance

We further note that, when it took additional evidence on the case, the
district court likewise limited to some extent the testimony and evidence
Pierce Marshall was able to introduce. Pierce Marshall claims that the dis-
trict court violated his due process rights with this ruling and other eviden-
tiary decisions. Because we conclude that Pierce Marshall is entitled to
judgment in his favor for other reasons, we need not address his due pro-
cess claim.
4502 IN RE MARSHALL
on her belief that the bankruptcy court had the authority to
enter a final judgment on the counterclaim against Pierce
Marshall, Vickie Lynn Marshall elected to dismiss her claims
against J. Howard Marshall II’s estate and against Pierce Mar-
shall both individually and in his representative capacities.18

On February 9, 2001, with the leave of the Texas probate

court, Pierce Marshall filed an amended counterclaim against
Vickie Lynn Marshall for declaratory relief to determine her
rights as to the estate and property of J. Howard Marshall II.
Pierce Marshall also sought a declaratory judgment against
Vickie Lynn Marshall and J. Howard Marshall III that
J. Howard Marshall II’s Living Trust and will reflected his
true intentions and were valid. Thus, Vickie Lynn Marshall
remained in the probate proceedings as a defendant to Pierce
Marshall’s counterclaims. The Texas probate court held a
five-month jury trial in which all parties, including Vickie
Lynn Marshall, fully participated.19 On March 7, 2001, the
Texas jury returned its verdict. The jury unanimously
answered a number of special verdict questions, making the
following factual findings: (1) the Living Trust and will were
valid and had not been forged or altered; (2) J. Howard Mar-
shall II had not been the victim of fraud or undue influence;
(3) he had the requisite mental capacity when he executed his
18
Vickie Lynn Marshall also moved to dismiss other counterclaims
against her in the Texas probate court, but the probate court denied her
motion.
19
Vickie Lynn Marshall vigorously argued against the validity of the
Living Trust in the Texas probate court. For example, prior to trial, Vickie
Lynn Marshall submitted her preliminary proposed jury interrogatories,
which included instructions and jury queries on tortious interference with
a gift expectancy and on fraud, duress, and undue influence. In his open-
ing statement, Vickie Lynn Marshall’s counsel explained to the jury that
this was a case “about tortious interference with an intent to give an inter
vivos gift.” He told the jury Vickie Lynn Marshall would testify that
J. Howard Marshall II promised her “half of everything that he had.”
Vickie Lynn Marshall presented her case in chief in great detail over
approximately 60 hours. After she nonsuited her affirmative claims, she
continued to defend against Pierce Marshall’s counterclaims.
 IN RE MARSHALL 4503
Living Trust and will; and (4) he did not have an agreement
with Vickie Lynn Marshall that he would give her one-half of
all his property.

The Texas probate court entered a final judgment in accor-

dance with the jury’s verdict on August 15, 2001. Subse-
quently, the probate court amended its judgment on two
occasions, the last being entered on December 7, 2001. In the
second amended judgement, the Texas probate court found
that the will and Living Trust, as amended, were valid and not
the product of undue influence. The probate court concluded
as a matter of law:

that Vickie Lynn Marshall does not possess any

interest in and is not entitled to possession of any
property within the estate of J. Howard Marshall II
or [the Living Trust] because of any representations,
promises or agreements made by J. Howard Mar-
shall II; . . .

that any and all claims that have been or should have
been asserted by Vickie Lynn Marshall . . . based
upon alleged representations, promises, or agree-
ments made by J. Howard Marshall II to or with
Vickie Lynn Marshall . . . have been disposed of in
this proceeding; . . .

that J. Howard Marshall did not intend to give and

did not give to Vickie Lynn Marshall . . . a gift or
bequest from the Estate of J. Howard Marshall II or
from the [Living Trust] either prior to or upon his
death; . . .

that Vickie Lynn Marshall . . . shall take nothing

from any claim that she should have made in this
proceeding as a compulsory counterclaim against . . .
E. Pierce Marshall.
4504 IN RE MARSHALL
Accordingly, the Texas probate court entered judgment in
favor of Pierce Marshall on all claims and held that Pierce
Marshall was entitled to his inheritance, free from all claims
by Vickie Lynn Marshall or J. Howard Marshall III.

Pierce Marshall appealed the bankruptcy court’s judgment

to the district court, which asserted original bankruptcy juris-
diction. 28 U.S.C. § 1334. After the Texas probate court
entered its final judgment, Pierce Marshall moved to dismiss
Vickie Lynn Marshall’s claims against him in the district
court based on principles of claim and issue preclusion.

On June 19, 2001, the district court issued an opinion and

order affirming the bankruptcy court’s determination that it
had federal jurisdiction over Vickie Lynn Marshall’s claim of
tortious interference with the expectation of a gift. Marshall
v. Marshall (In re Marshall), 264 B.R. 609, 619-21 (C.D. Cal.
2001). The district court also held that the Texas probate court
had not ruled on Vickie Lynn Marshall’s claim against Pierce
Marshall in his individual capacity. See id. at 621-24, 633 &
n.24. The district court went on to reverse the bankruptcy
court’s determination that the bankruptcy court could enter a
final judgment on the claim as a “core” bankruptcy proceed-
ing. Id. at 632-33. The district court recognized that Vickie
Lynn Marshall’s claim arguably arose out of the same factual
transaction as that of Pierce Marshall, but it reasoned that the
“connection [was] attenuated” and “the reasons for why coun-
terclaims arising out of the same transaction should usually be
considered core do not apply.” Id. at 631-32. The court
explained that the attenuated factual nexus between the
claims, the different legal theories underlying the claims, the
fact that Vickie Lynn Marshall’s claim dwarfed Pierce Mar-
shall’s claim in terms of recovery sought and evidence
required to establish it, and Ninth Circuit jurisprudence cau-
tioning courts to avoid characterizing a proceeding as core if
to do so would raise constitutional problems, all counseled in
 IN RE MARSHALL 4505
favor of classifying Vickie Lynn Marshall’s counterclaim as
non-core. Id. at 625-32. Because bankruptcy courts may only
issue proposed findings of fact and conclusions of law in non-
core matters (absent the parties’ consent), the district court
vacated the bankruptcy court’s entry of judgment. Id. at
632-33.

On December 21, 2001, the district court denied Pierce

Marshall’s motion for summary judgment based on claim and
issue preclusion. Marshall v. Marshall (In re Marshall), 271
B.R. 858 (C.D. Cal. 2001).

After receiving additional evidence on Vickie Lynn Mar-

shall’s claim, the district court entered judgment in her favor
on March 7, 2002. The district court found that “J. Howard
always intended to give Vickie . . . half of his ‘new communi-
ty,’ ” a term he created to mean the growth of his assets dur-
ing the time of their marriage. In re Marshall, 275 B.R. at 29
& n.19, 52. The district court found that the circumstantial
evidence before it “sufficiently establishes the existence of a
draft ‘catchall trust’ instrument” prepared by J. Howard Mar-
shall II’s attorney as a means of effecting this gift of new
community. Id. at 26-29, 26 n.17. The district court further
found that Pierce Marshall, in concert with an attorney,
“backdated documents, altered documents, destroyed docu-
ments, suborned falsified notary statements, presented docu-
ments to [J. Howard Marshall II] under false pretenses, and
committed perjury,” all in an effort to prevent his father from
giving this gift of new community to Vickie Lynn Marshall.
Id. at 53. The district court found that J. Howard Marshall II
was “duped” by this fraudulent conduct into making various
estate planning changes, such as making the Living Trust
irrevocable. See id. at 42-50. Based on this and other factual
findings, the district court determined that Pierce Marshall
had tortiously interfered with Vickie Lynn Marshall’s expec-
tancy of an inter vivos gift from J. Howard Marshall II. Id. at
58.
4506 IN RE MARSHALL
The district court awarded Vickie Lynn Marshall damages
based upon what it believed she would have received as a gift
from J. Howard Marshall II, absent the purported interference.
The award consisted of $44,292,767.33 in compensatory dam-
ages and an equal amount in punitive damages, for a total of
$88,585,534.66, plus costs of suit. In re Marshall, 275 B.R.
at 58.

Pierce Marshall appealed the district court’s judgment, and

Vickie Lynn Marshall cross-appealed. Believing that the pro-
bate exception to federal subject matter jurisdiction precluded
our consideration of the case, we vacated the judgment and
remanded with instructions that the district court order the
bankruptcy court to vacate its judgment against Pierce Mar-
shall. Marshall v. Marshall (In re Marshall), 392 F.3d 1118,
1137-39 (9th Cir. 2004).

The United States Supreme Court granted certiorari “to

resolve the apparent confusion among federal courts concern-
ing the scope of the probate exception.” Marshall v. Marshall,
547 U.S. 293, 305 (2006). The Supreme Court concluded that
the probate exception did not apply, reversed our decision,
and remanded for us to consider the merits of the case, includ-
ing the question “whether Vickie’s claim was ‘core’ ” and
“Pierce’s arguments concerning claim and issue preclusion.”
Id. at 314-15; see also id. at 313 n.5 (discussing Texas appel-
late cases that found tortious interference claims to be
“barred” after “applying ordinary principles of preclusion”
and stating that, in this case, the “matter of preclusion remains
open on remand”).

We ordered supplemental briefing on these and other issues

and held oral argument on June 25, 2009.20
20
In addition to the supplemental briefs filed by the parties, we also
received two thoughtful amicus briefs filed in support of Pierce Marshall.
 IN RE MARSHALL 4507
II

We review de novo questions of law.” Forest Grove Sch.

Dist. v. T.A., 523 F.3d 1078, 1083 (9th Cir. 2008); see In re
Valdez Fisheries Dev. Ass’n, Inc., 439 F.3d 545, 547 (9th Cir.
2006) (bankruptcy court’s determination of its jurisdiction);
Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050 (9th Cir.
2008) (issue preclusion); Siegel v. Fed. Home Loan Mortgage
Corp., 143 F.3d 525, 528 (9th Cir. 1998) (claim preclusion).
We review a district court’s findings of fact for clear error,
reversing only if “left with the definite and firm conviction
that a mistake has been committed.” Easley v. Cromartie, 532
U.S. 234, 242 (2001).

III

Pierce Marshall argues that the district court correctly con-

cluded that Vickie Lynn Marshall’s tortious interference
counterclaim was a non-core proceeding for which the bank-
ruptcy court could issue only proposed findings of fact and
conclusions of law. Pierce Marshall further argues that the
district court erred, however, when it refused to give any pre-
clusive effect to the Texas probate court’s judgment, which
was issued while the case was pending before the district
court. Vickie Lynn Marshall responds by arguing that her
counterclaim is a core proceeding, that the bankruptcy court
properly entered a final judgment on it well before the Texas
probate court’s judgment, and that preclusion principles there-
fore do not apply.

The first brief, filed by Professors of Law S. Todd Brown, G. Marcus

Cole, Ronald D. Rotunda, and Todd J. Zywicki, discusses “the proper dis-
tinction between ‘core’ and ‘non-core’ bankruptcy proceedings—and the
application of that distinction to counterclaims like the one in this case.”
Professors’ Amicus Br. at 2. The second brief, filed by the Washington
Legal Foundation, explained its concern “that the district court’s refusal
to give preclusive effect to the Texas judgment undermines the principles
of federalism and contravenes the Full Faith and Credit Act.” Wash. Legal
Found. Amicus Br. at 1.
4508 IN RE MARSHALL
A

For parties whose views seldom correspond, both sides

appear to share the position that the determination whether
Vickie Lynn Marshall’s counterclaim is “core” or “non-core”
is central to the disposition of this case and will affect the
manner in which our analysis proceeds. We agree. For the
reasons detailed below, we conclude that Vickie Lynn Mar-
shall’s counterclaim is a non-core proceeding that is, at most,
related to her bankruptcy case.

In an article discussing the Bankruptcy Code, Professor

Vern Countryman wrote, “To understand how we got where
we are, it is necessary to understand where we were.” Vern
Countryman, Scrambling to Define Bankruptcy Jurisdiction,
22 Harv. J. on Legis. 1, 2 (1985). This statement holds true
today: one must have some familiarity with the evolution of
the current bankruptcy regime in order to appreciate the
important distinctions between “arising under,” “arising in,”
and “related to” proceedings and how the notion of “core”
proceedings came to exist.

The Bankruptcy Act of 1898 is the basis for modern bank-

ruptcy law. 30 Stat. 544 (repealed 1979); see Collier on Bank-
ruptcy ¶ 1.0[1] (15th Ed. Revised 2007). It designated the
district courts as the “courts of bankruptcy” and created the
office of the referee to assist the district courts in the dis-
charge of their duties. Bankruptcy Act of 1898 §§ 1-2, 33-43.
The Act gave the referees jurisdiction, “subject always to a
review by the judge,” id. § 38, “to perform all duties con-
ferred on ‘courts of bankruptcy’ as distinguished from those
conferred on ‘judges,’ which were to be performed only by
district judges.” Countryman, supra, at 2-3; see Bankruptcy
Act of 1898 §§ 1(20), 38.
 IN RE MARSHALL 4509
The jurisdiction exercised by “courts of bankruptcy” (and,
in turn, bankruptcy referees) under the 1898 scheme was cus-
tomarily referred to as “summary jurisdiction.” Countryman,
supra, at 2-4. This “summary jurisdiction” covered three gen-
eral areas: (1) handling administrative proceedings in the
bankruptcy case, such as accepting the bankruptcy petition,
allowing claims, granting discharges, and confirming debt
adjustment plans, etc., Bankruptcy Act of 1898 §§ 2, 38; see,
e.g., U.S. Fidelity & Guaranty Co. v. Bray, 225 U.S. 205, 218
(1912), (2) resolving controversies over property in the actual
or constructive possession of the court, Bankruptcy Act of
1898 §§ 2, 38; see, e.g., Thompson v. Magnolia Petroleum
Co., 309 U.S. 478, 481 (1940), and (3) deciding, “by consent
of the defendant,” actions brought by the bankruptcy trustee
that were “plenary in character” because the bankrupt could
have brought them in another forum in the absence of the
bankruptcy proceedings, Bankruptcy Act of 1898 § 23b; Mac-
Donald v. Plymouth County Trust Co., 286 U.S. 263, 266-67
(1932); see also Countryman, supra, at 2-3.21

Bankruptcy proceedings under the 1898 Act “were gener-

ally conducted before referees, except in those instances in
which the district court elected to withdraw a case from a ref-
eree.” N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 53 (1982). The district court presided over any
appeal from a referee’s final order. Id.

In 1978, Congress passed the Bankruptcy Reform Act,

which eliminated the referee system and established “in each
judicial district, as an adjunct to the district court for such dis-
trict, a bankruptcy court which shall be a court of record
known as the United States Bankruptcy Court for the district.”
Id. (quoting 28 U.S.C. § 151(a) (Supp. IV 1981)). The 1978
21
An example of a “plenary matter” that could be heard by consent of
the parties was a “dispute[ ] involving property in the possession of a third
person.” N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
53 (1982).
4510 IN RE MARSHALL
Act eliminated the distinction between “summary” bank-
ruptcy jurisdiction and “plenary” jurisdiction, and it “grant-
[ed] the new courts jurisdiction over all ‘civil proceedings
arising under title 11 [the Bankruptcy title] or arising in or
related to cases under title 11.’ ” Id. at 54 (second alteration
in original) (emphasis omitted) (quoting 28 U.S.C. § 1471(b)
(Supp. IV 1981)); see also 28 U.S.C. § 1471(b) (Supp. IV
1981) (noting that the district courts’ jurisdiction was “origi-
nal but not exclusive”). With limited exception, under the
1978 Act, the judges of the bankruptcy courts had “all of the
‘powers of equity, law, and admiralty.’ ” Id. at 55 (quoting 28
U.S.C. § 1481 (Supp. IV 1981)).

The most important provision of the 1978 Act was

§ 1471(c), which provided that “[t]he bankruptcy court . . .
shall exercise all of the jurisdiction conferred by this section
on the district courts.” 28 U.S.C. § 1471 (Supp. IV 1981).
Congress knew that this provision raised serious constitu-
tional concerns because it permitted an Article I tribunal to
exercise the same jurisdiction bestowed upon an Article III
court, but the risk of invalidation was deemed worth achiev-
ing the goal of setting up a faster and cheaper method to
accomplish reorganization. See Countryman, supra, at 7-9;
see also H.R. Rep. No. 95-595, at 5968 (1977) (acknowledg-
ing “serious constitutional doubts” raised by the full grant of
jurisdiction under the proposed bankruptcy system to non-
Article III judges).

The risk of invalidation was soon realized. In Northern

Pipeline Construction Co. v. Marathon Pipe Line Co., the
Supreme Court considered whether the Constitution permitted
the bankruptcy court to exercise jurisdiction over a state law
breach of contract claim filed by the debtor in possession
against a third party who was a stranger to the bankruptcy
proceeding. 458 U.S. 50 (1982). The plurality explained that
the Bankruptcy Act of 1978 impermissibly shifted essential
attributes of judicial power from the Article III district court
to the non-Article III bankruptcy court. Id. at 87. The holding
 IN RE MARSHALL 4511
of six justices in Marathon is fairly well summarized in a
footnote to the plurality opinion:

[A]t the least, the new bankruptcy judges cannot

constitutionally be vested with jurisdiction to decide
this state-law contract claim against Marathon. As
part of a comprehensive restructuring of the bank-
ruptcy laws, Congress has vested jurisdiction over
this and all matters related to cases under Title 11 in
a single non-Art. III court, and has done so pursuant
to a single statutory grant of jurisdiction. In these cir-
cumstances we cannot conclude that if Congress
were aware that the grant of jurisdiction could not
constitutionally encompass this and similar claims, it
would simply remove the jurisdiction of the bank-
ruptcy court over these matters, leaving the jurisdic-
tional provision and adjudicatory structure intact
with respect to other types of claims, and thus sub-
ject to Art. III constitutional challenge on a claim-
by-claim basis. Indeed, we note that one of the
express purposes of the Act was to ensure adjudica-
tion of all claims in a single forum and to avoid the
delay and expense of jurisdictional disputes. Nor can
we assume, as THE CHIEF JUSTICE suggests that
Congress’ choice would be to have these cases
“routed to the United States district court of which
the bankruptcy court is an adjunct.” We think that it
is for Congress to determine the proper manner of
restructuring the Bankruptcy Act of 1978 to conform
to the requirements of Art. III in the way that will
best effectuate the legislative purpose.

458 U.S. at 88 n.40 (Brennan, J., plurality) (joined by Justices

Marshall, Blackmun, and Stevens) (citations omitted); see
also id. at 91-92 (Rehnquist, J., concurring) (joined by Justice
O’Connor). The Court stayed its judgment in Marathon for
six months to allow Congress the opportunity to remedy the
4512 IN RE MARSHALL
constitutional flaws in the 1978 Act’s grant of jurisdiction to
the bankruptcy courts. Id. at 88.

Congress did not act in time, and the Court’s mandate took
effect. Faced with the potential collapse of the bankruptcy
system, the Judicial Conference “adopt[ed] a resolution
requiring the Director of the Administrative Office of the
United States Courts to ‘provide each circuit with a proposed
rule’ which was to take effect [as a local rule] in the absence
of congressional action.” Countryman, supra, at 19; see Col-
lier ¶ 3.01[2][b][ii] & n.16 (discussing the emergency rule and
reproducing its text). The purpose of this resolution was “to
permit the bankruptcy system to continue without disruption
in reliance on jurisdictional grants remaining in the law as
limited by” Marathon. Countryman, supra, at 19.

The Emergency Rule continued the bankruptcy system

established by the 1978 Act with the exception of how “re-
lated proceedings” like the contract claim in Marathon would
be treated. See Collier ¶ 3.01[2][b][ii] & n.16. The Emergency
Rule defined “related proceedings” as “those civil proceed-
ings that, in the absence of a petition in bankruptcy, could
have been brought in a district court or state court.”22 Emer-
gency Rule § d(3)(A), reproduced at Collier ¶ 3.01[2][b][ii]
n.16. The Emergency Rule prohibited bankruptcy judges from
entering a judgment or dispositive order on related proceed-
22
The Emergency Rule went on to explain that:
Related proceedings include, but are not limited to, claims
brought by the estate against parties who have not filed claims
against the estate. Related proceedings do not include: contested
and uncontested matters concerning the administration of the
estate; allowance of and objections to claims against the estate;
counterclaims by the estate in whatever amount against persons
filing claims against the estate . . . . A proceeding is not a related
proceeding merely because the outcome will be affected by state
law.
Emergency Rule § d(3)(A), reproduced at Collier ¶ 3.01[2][b][ii] n.16.
 IN RE MARSHALL 4513
ings; instead, the bankruptcy court was to “submit findings,
conclusions, and a proposed judgment or order to the district
judge, unless the parties to the proceeding consent to entry of
the judgment or order by the bankruptcy judge.” Emergency
Rule § d(3)(B), reproduced at Collier ¶ 3.01[2][b][ii] n.16.

More than two years after the Marathon decision, Congress

finally passed the Bankruptcy Amendments and Federal
Judgeship Act of 1984. Pub. L. No. 98-353 (HR 5174), 98
Stat. 333 (1984). The 1984 Act, with amendments not rele-
vant to this proceeding, governs the dispute before us.

[1] Under the 1984 Act the district court continues to have
original jurisdiction over all cases under title 11 and “all civil
proceedings arising under title 11, or arising in or related to
cases under title 11.” 28 U.S.C. § 1334(a)-(b). The district
court, in turn, may refer “any or all cases under title 11 and
any or all proceedings arising under title 11 or arising in or
related to a case under title 11” to the bankruptcy court. Id.
§ 157(a). Thus, as under the 1978 Act, the bankruptcy court’s
subject matter jurisdiction under the 1984 Act is coterminous
with that of the district court. See id. §§ 157(a), 1334; Fietz
v. Great W. Sav. (In re Fietz), 852 F.2d 455, 457 (9th Cir.
1988).

The manner in which the bankruptcy court may exercise its

delegated jurisdiction under the 1984 Act, however, differs
greatly from its 1978 predecessor. In an obvious effort to
comply with the principles of Marathon, gone is the problem-
atic provision from the 1978 Act empowering the bankruptcy
court to exercise “all of the jurisdiction” of the district court.
28 U.S.C. § 1471 (Supp. IV 1981). Instead, subsections (b)
and (c) to § 157 prescribe the manner in which the bankruptcy
court may exercise its delegated jurisdiction by identifying
those situations (1) when the bankruptcy court is authorized
to issue a final order disposing of some or all of the matters
before it and (2) when the bankruptcy court is empowered
only to make a report and recommendation to the district
4514 IN RE MARSHALL
court. 28 U.S.C. § 157(b)-(c); see also Countryman, supra, at
35 (noting that like the Emergency Rule, the 1984 Act distin-
guishes between “when the bankruptcy judge can act as a
judge” and “when he acts only as a special master”).

[2] Section 157(b)(1) provides that “Bankruptcy judges

may hear and determine all cases under title 11 and all core
proceedings arising under title 11, or arising in a case under
title 11” that are referred to it by the district court.23 28 U.S.C.
23
The term “core” has its roots in Justice Brennan’s plurality in Mara-
thon. 458 U.S. at 71 (referring to matters “at the core of federal bank-
ruptcy power”). There, Justice Brennan concluded that the statutory grant
of “causes of action owned by the debtor at the time of the petition for
bankruptcy” could not be squared with the separation of powers doctrine,
which requires that Article III federal judicial power be vested in Article
III judges. Id. at 54, 62, 76, 84, 87. Justice Brennan went on to explore
“three narrow” exceptions to the separation of powers doctrine that per-
mitted the use of “legislative courts” because of the appellant’s argument
that the bankruptcy courts could have been so constituted. Id. at 63-64.
One exception was for territorial courts in “certain geographical areas, in
which no State operated as sovereign” such as the District of Columbia,
Indian tribal courts, and consular courts. Id. at 64-65. The second excep-
tion was for the establishment of military courts-martial. Id. at 66. The
third exception was for adjudications involving “public rights,” which are
those matters that “aris[e] between the Government and persons subject to
its authority in connection with the performance of the constitutional func-
tions of the executive or legislative departments, and . . . that historically
could have been determined exclusively by those departments.” Id. at
67-68 (internal citations and quotations omitted).
In contrast, Justice Brennan explained that “the liability of one individ-
ual to another under the law as defined, is a matter of private rights. . . .
Private-rights disputes . . . lie at the core of the historically recognized
judicial power.” Id. at 69-70. He further cautioned that “the restructuring
of debtor-creditor relations, which is at the core of the federal bankruptcy
power, must be distinguished from the adjudication of state-created private
rights, such as the right to recover contract damages that is at issue in this
case. The former may well be a ‘public right,’ but the latter obviously is
not.” Id. at 71 (emphasis added).
The Supreme Court has not explicitly held that the restructuring of
debtor-creditor relations is a public right. See Granfinanciera v. Nordberg,
492 U.S. 33, 56 n.11 (1989) (“We do not suggest that the restructuring of
debtor-creditor relations is in fact a public right. This thesis has met with
substantial scholarly criticism . . . and we do not seek to defend it here.”).
 IN RE MARSHALL 4515
§ 157(b)(1) (emphasis added). In subsection (b)(2) Congress
provided a non-exhaustive definition of core proceedings that
includes the omnibus categories of “matters concerning the
administration of the estate” and “other proceedings affecting
the liquidation of assets of the estate.” Id. § 157(b)(2)(A), (O);24
24
In full, subsection (b)(2) provides as follows:
Core proceedings include, but are not limited to—
(A) matters concerning the administration of the estate;
(B) allowance or disallowance of claims against the estate
or exemptions from property of the estate, and estima-
tion of claims or interests for the purposes of confirm-
ing a plan under chapter 11, 12, or 13 of title 11 but not
the liquidation or estimation of contingent or unliqui-
dated personal injury tort or wrongful death claims
against the estate for purposes of distribution in a case
under title 11;
(C) counterclaims by the estate against persons filing
claims against the estate;
(D) orders in respect to obtaining credit;
(E) orders to turn over property of the estate;
(F) proceedings to determine, avoid, or recover prefer-
ences;
(G) motions to terminate, annul, or modify the automatic
stay;
(H) proceedings to determine, avoid, or recover fraudulent
conveyances;
(I) determinations as to the dischargeability of particular
debts;
(J) objections to discharges;
(K) determinations of the validity, extent, or priority of
liens;
(L) confirmations of plans;
(M) orders approving the use or lease of property, includ-
ing the use of cash collateral;
(N) orders approving the sale of property other than prop-
erty resulting from claims brought by the estate against
persons who have not filed claims against the estate;
4516 IN RE MARSHALL
Harris v. Wittman (In re Harris), 590 F.3d 730, 738 (9th Cir.
2009). Congress also indicated that a matter may be a core
proceeding even if its outcome may be affected by state law.
See 28 U.S.C. § 157(b)(3).

[3] By way of comparison, § 157(c)(1) authorizes the

bankruptcy judge to “hear a proceeding that is not a core pro-
ceeding but that is otherwise related to a case under title 11.”
Compare id. § 157(c)(1) (emphasis added), with id.
§ 157(b)(1) (authorizing the bankruptcy court to “hear and
determine” certain matters) (emphasis added). For proceed-
ings falling within § 157(c)(1), the bankruptcy court is
empowered only to “submit proposed findings of fact and
conclusions of law to the district court.” Id. § 157(c)(1). Thus,
unless the parties consent to final determination by the bank-
ruptcy judge, id. § 157(c)(2), the responsibility to “determine”
a “[non-]core proceeding that is otherwise related to a case
under title 11” always remains with the district court, id.
§ 157(c)(1) (“[A]ny final order or judgment shall be entered
by the district judge after considering the bankruptcy judge’s
proposed findings and conclusions and after reviewing de
novo those matters to which any party has timely and specifi-
cally objected.”).

[4] The 1984 Act does not specifically detail what it means
for a civil proceeding to “arise under title 11,” “arise in a case
under title 11,” “or relate[ ] to a case under title 11.” Our case
law, however, holds that proceedings “arise under title 11” if
they “involve a cause of action created or determined by a

(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; and
(P) recognition of foreign proceedings and other matters
under chapter 15 of title 11.
28 U.S.C. § 157(b)(2).
 IN RE MARSHALL 4517
statutory provision of title 11.” In re Harris, 590 F.3d at 737.
On the other hand, civil proceedings “arise in a case under
title 11” when they are “not based on any right expressly cre-
ated by title 11, but nevertheless, would have no existence
outside of the bankruptcy.” In re Eastport Assocs., 935 F.2d
1071, 1076-77 (9th Cir. 1991) (quoting In re Wood, 825 F.2d
90, 96-97 (5th Cir. 1987)); see In re Harris, 590 F.3d at 737.25
Like the Fourth, Fifth, and Eight Circuit Courts of Appeal, we
adopted without modification the Third Circuit’s definition of
what constitutes a “related” proceeding:

The usual articulation of the test for determining

whether a civil proceeding is related to bankruptcy
is whether the outcome of the proceeding could con-
ceivably have any effect on the estate being adminis-
tered in bankruptcy. . . . An action is related to
bankruptcy if the outcome could alter the debtor’s
right, liabilities, options, or freedom of action (either
positively or negatively) and which in any way
impacts upon the handling and administration of the
bankrupt estate.

In re Feitz, 852 F.2d 455, 457 (9th Cir. 1988) (quoting Pacor,
Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)).

With this constitutional and statutory backdrop in mind, we

turn to the question before us today: whether the bankruptcy
judge could “hear and determine,” as a “core proceeding[ ]
arising under title 11, or arising in a case under title 11,”
25
See In re Goodman, 991 F.2d 613, 616-17 (9th Cir. 1993) (discussing
In re Eastport Associates and proceedings arising under title 11 or arising
in a case under title 11); see also H.R. Rep. No. 95-595, at 6401 (Sept. 8,
1977) (“The phrase ‘arising under’ has a well defined and broad meaning
in the jurisdictional context. By a grant of jurisdiction over all proceedings
arising under title 11, the bankruptcy courts will be able to hear any matter
under which a claim is made under a provision of title 11.”); Collier ¶
3.01[4][c][i] (statutory language suggests that civil proceedings arise
under title 11 “when the cause of action is one that is created by title 11”).
4518 IN RE MARSHALL
Vickie Lynn Marshall’s counterclaim for tortious interference
against Pierce Marshall.

Pierce Marshall takes the position that even if a counter-

claim is asserted in response to a proof of claim against the
bankruptcy estate, such that it meets Congress’ definition of
a core proceeding contained in § 157(b)(2)(C), the bankruptcy
court cannot exercise “final order” jurisdiction over it under
§ 157(b)(1) unless the counterclaim “arises under” or “arises
in a case under” the Bankruptcy Code. Pierce Marshall argues
that Vickie Lynn Marshall’s claim neither “arises under” nor
“arises in a case under” the Bankruptcy Code: it is a state law
counterclaim that could have been brought and was brought,
at least in part, in a non-bankruptcy forum. Because there is
nothing unique to bankruptcy about her claim, Pierce Mar-
shall argues that the bankruptcy court could not, consistent
with the Constitution, the Marathon decision, and the bank-
ruptcy court’s statutory grant of power in § 157(b)(1), enter a
final judgment against him.

We agree with Pierce Marshall that our case law presents

a two-step approach. A bankruptcy judge may only determine
a claim that meets Congress’ definition of a core proceeding
and arises under or arises in title 11. See In re Harris, 590
F.3d at 737-41. We disagree, however, with Pierce Marshall’s
argument that the fact that Vickie Lynn Marshall’s counter-
claim could have been brought in state court and was not a
bankruptcy-specific claim automatically renders the claim
non-core. This approach goes too far and may render
§ 157(b)(2)(C) superfluous.26 Under Pierce Marshall’s narrow
26
This concern was appropriately shared by the district court, which
wrote:
Thus, on one hand, calling any counterclaim that falls within the
literal language of the statute core seems to contradict the holding
 IN RE MARSHALL 4519
reading of the statute it is difficult to imagine a counterclaim
against a person filing against the estate that “arises under”
the Bankruptcy Code or “arises in a case under” the Bank-
ruptcy Code and that is not already covered by a more spe-
cific provision of § 157(b)(2). Many creditor claims filed
against a bankruptcy estate are based upon state law, not the
Bankruptcy Code or something else that is unique to the bank-
ruptcy context.27 We do not believe that Congress intended
§ 157(b)(2)(C) to be a meaningless (or near meaningless) pro-
vision, which is what it would become under Pierce Mar-
shall’s overly restrictive approach. See United Sav. Ass’n v.
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 370-71
(1988) (construing several sections of the Bankruptcy Code
and observing that “[s]tatutory construction . . . is a holistic
endeavor”); see also Dole Food Co. v. Patrickson, 538 U.S.
468, 467-77 (2003) (cautioning against construing a “statute
in a manner that is strained and, at the same time, would ren-
der a statutory term superfluous”).

Harris may seem to provide some validity to Pierce Mar-

shall’s argument because that decision relied on the fact that
the contract claim “arose from the administration of [the]
bankruptcy estate.” In re Harris, 590 F.3d at 740. However,
in Harris we required a bankruptcy nexus only because there
we dealt with § 157(b)(2)(A), one of the “catchall” provi-

of Marathon. On the other hand, calling any counterclaim that

could have been asserted as an independent lawsuit seems to ren-
der § 157(b)(2)(C) itself nugatory, because any counterclaim
could have been asserted as a separate lawsuit absent the filing
of the bankruptcy petition. Collier notes this problem and states
that “[t]he matter is still unsettled.”
In re Marshall, 264 B.R. at 630.
27
Indeed, Congress’ awareness of this fact is reflected in its expressed
desire that a determination of whether something is a “core proceeding
under this subsection [§157(b)] or is a proceeding that is otherwise related
to a case under title 11 [§ 157(c)] . . . not be made solely on the basis that
its resolution may be affected by State law.” See 28 U.S.C. § 157(b)(3).
4520 IN RE MARSHALL
sions. See id. at 739-41. Section 157(b)(2)(A) refers to “mat-
ters concerning the administration of the [bankruptcy] estate.”
Harris relied on earlier precedent to determine that if the only
applicable provision in § 157(b)(2) is one of the catchall pro-
visions, the claim must literally fit within the wording of the
catchall provision to be considered core. See Harris, 590 F.3d
at 740. Here, we do not deal with the catchall provisions of
§ 157(b)(2) but with one of the specific provisions,
§ 157(b)(2)(C). Thus, although Vickie Lynn Marshall’s coun-
terclaim for tortious interference could have been brought
independently from the bankruptcy proceeding and was not
unique to the bankruptcy context, we have not reached the
end of our inquiry.

While Pierce Marshall’s approach is too narrow, Vickie

Lynn Marshall’s is too expansive. She takes the position that
her counterclaim falls within the plain language definition of
a “core proceeding” as a “counterclaim[ ] by the estate against
persons filing claims against the estate.” 28 U.S.C.
§ 157(b)(2)(C). As far as Vickie Lynn Marshall is concerned,
that should end the matter because the “ ‘core proceedings’
listed in § 157(b), by definition, meet the arising in/arising
under standard.” Vickie Lynn Marshall Supplemental Br. at 6.
Her criticism of Pierce Marshall’s two step approach finds
some support in the fact that few courts consider separately
the questions whether something is a “core proceeding” and
whether it “arises under” the Bankruptcy Code or “arises in
a case under” the Bankruptcy Code. But see In re Harris, 590
F.3d at 737-41.

Even so, Vickie Lynn Marshall’s reading of § 157(b)(2)(C)

sweeps too broadly and would permit the bankruptcy court to
consider under § 157(b)(2)(C) counterclaims that are factually
and legally unrelated to the claim being asserted against the
bankruptcy estate. Such an expansive reading of
§ 157(b)(2)(C) would certainly run afoul of the Court’s hold-
ing in Marathon.28 It would also arguably be inconsistent with
28
Indeed, most courts to have considered the issue have agreed that a
limiting construction of § 157(b)(2)(C) is necessary to make it conform to
 IN RE MARSHALL 4521
the Congress’ intent to revise the Bankruptcy Code in a man-
ner consistent with the principles of Marathon to make its
jurisdictional grant constitutional.

Recognizing this shortcoming in her argument, and taking

heed of our warning that the term “core proceeding” must be
construed narrowly “to avoid potential constitutional prob-
lems arising from having Article I judges issue final orders in
cases requiring an Article III judge,” Dunmore, 358 F.3d at
1115, Vickie Lynn Marshall argues that her claim is a core
proceeding arising in a case under the Bankruptcy Code
because it is a compulsory counterclaim to the defamation
claim asserted in Pierce Marshall’s proof of claim and under-
lying his nondischargeability complaint. Vickie Lynn Mar-
shall argues that the adjudication of a compulsory
counterclaim effectively becomes part of the claims allow-
ance process, something that is unique and core to bankruptcy
proceedings. She further argues that Pierce Marshall con-
sented to the bankruptcy court’s entering a final order on the
counterclaim because it is a compulsory counterclaim to the
proof of claim that Pierce Marshall chose to file with the
bankruptcy court knowing that the proof of claim would be
finally determined as a “core proceeding[ ] arising under title
11, or arising in a case under title 11.” In support of these
related arguments, she relies primarily on the Supreme Court
case of Katchen v. Landy, 382 U.S. 323 (1966), and other
cases that have discussed and reaffirmed Katchen after the
passage of the 1984 Bankruptcy Amendments and Federal
Judgeship Act. See, e.g., Langenkamp v. Culp, 498 U.S. 42,
44-45 (1990); Granfinanciera v. Nordberg, 492 U.S. 33,
57-60 (1989).

[5] We agree with Vickie Lynn Marshall that her claim is

the Marathon opinion. See Collier ¶ 3.02[3][d][i] (discussing the

approaches that courts have taken to limit the broad sweep of
§ 157(b)(2)(C)).
4522 IN RE MARSHALL
a compulsory counterclaim because the “operative facts
underlying [her] action” are the same as those underlying the
defamation claim. See Pochiro v. Prudential Ins. Co., 827
F.3d 1246, 1250-51 (9th Cir. 1987) (applying Arizona law but
relying on federal law in its analysis); see Fed. R. Civ. P.
13(a)(1) (defining a compulsory counterclaim as one held by
the pleader at the time of service that “arises out of the trans-
action or occurrence that is the subject matter of the opposing
party’s claim” and “does not require adding another party
over whom the court cannot acquire jurisdiction”). The defa-
mation claim, Vickie Lynn Marshall’s affirmative defense of
truth, and her counterclaim for tortious interference all con-
cern the alleged efforts by Pierce Marshall to obtain control
of his father’s estate by inundating his father with estate plan-
ning paperwork and forging or otherwise improperly obtain-
ing his father’s signature on the document that made the
Living Trust irrevocable.29 Thus, under our “logical relation-
ship” test, Vickie Lynn Marshall’s claim qualifies as a com-
pulsory counterclaim. See Pochiro, 827 F.3d at 1249-51.

We also agree with Vickie Lynn Marshall’s second propo-

sition-that a compulsory counterclaim, even one based
entirely on state law, can be a “core proceeding[ ] . . . arising
in a case under title 11.” Cf. In re Harris, 590 F.3d at 738-41
(holding that a state law contract claim was a “core proceed-
ing” that “arose under” title 11). We disagree, however, with
29
Our review of the record reflects that Vickie Lynn Marshall had not
joined the will contest until 1998, well after she had asserted the counter-
claim in the bankruptcy proceeding. Thus the exception to compulsory
counterclaims for those claims pending elsewhere, see Fed. R. Civ. P.
13(a)(2)(A), does not apply to the bankruptcy counterclaim. Furthermore,
even if the claim had been pending in Texas, if the “defendant [here,
Vickie Lynn Marshall] elects to interpose the pending claim as a counter-
claim, . . . [s]he should be allowed to do so, and the counterclaim will be
treated as if it were compulsory and thus under the ancillary jurisdiction
of the court.” 6 Wright & Miller, Federal Practice and Procedure § 1411
(citing, inter alia, Union Paving Co. v. Downer Corp., 276 F.2d 468, 470
(9th Cir. 1960)).
 IN RE MARSHALL 4523
her suggestion that all compulsory counterclaims must be
“core proceedings . . . arising in a case under title 11.”
Instead, a closer consideration of the Supreme Court case
upon which Vickie Lynn Marshall relies, Katchen, leads to
the conclusion that some, but not all, compulsory counter-
claims fall within the scope of § 157(b)(1) & (2)(C). Critical
to the Court’s decision that the bankruptcy court had jurisdic-
tion over the trustee’s counterclaim in Katchen was the fact
that the bankruptcy court was unable to perform its statutory
duty of allowing or disallowing the creditor’s claim unless it
ruled upon the trustee’s counterclaim. See 382 U.S. at 329-30.
According to the Court, ruling on the preference issue was
“part and parcel of the allowance process,” id. at 330, and
“once the bankruptcy court has dealt with the preference issue
nothing remains for adjudication in a plenary suit,” id. at 334.
Thus, the bankruptcy trustee’s counterclaim had to be deter-
mined in order to rule upon the claims originally brought by
the creditor against the estate. See id. at 330 (stating that the
“bankruptcy court must necessarily determine” the voidable
preference issue to resolve the creditor’s claim against the
estate) (emphasis added). That the Court also reasoned that a
claimant “consents” to the court’s jurisdiction of those matters
which must be determined in order to resolve his claim, even
if presented by way of a counterclaim, is an unsurprising con-
clusion.

There is no logical inconsistency to our holding that Vickie

Lynn Marshall’s counterclaim is compulsory but not “core.”
The test for compulsory counterclaims is generous and
designed to promote judicial efficiency by avoiding multiplic-
ity of lawsuits. See Albright v. Gates, 362 F.2d 928, 929 (9th
Cir. 1966). On the other hand, the standard delineating what
is a core proceeding is much narrower because it is designed
to comply with the constitutional limitations on the bank-
ruptcy court’s jurisdiction as set forth in Marathon.

[6] Our review of the evolution of the Bankruptcy Code,

the Supreme Court’s opinions in Katchen and Marathon, as
4524 IN RE MARSHALL
well as our own jurisprudence cautioning against creating
constitutional problems through an overly broad construction
of what is a “core proceeding,” Piombo Corp. v. Castlerock
Props. (In re Castlerock Props.), 781 F.2d 159, 162 (9th Cir.
1986), leads us to agree with the amici curie professors that
“a counterclaim under § 157(b)(2)(C) is properly a ‘core’ pro-
ceeding ‘arising in a case under’ the [Bankruptcy] Code only
if the counterclaim is so closely related to the proof of claim
that the resolution of the counterclaim is necessary to resolve
the allowance or disallowance of the claim itself.” Professors’
Amicus Br. at 11. Such a construction of § 157(b)(2)(C) takes
into account the whole of the statute, avoids rendering any
terms superfluous, follows Katchen, and comports with the
principles of Marathon and Congress’ desire to revise the
Bankruptcy Code in a manner consistent with the Constitu-
tion.

Vickie Lynn Marshall’s compulsory counterclaim is not a

core proceeding arising in a case under the Bankruptcy Code
because it is not so closely related to Pierce Marshall’s defa-
mation claim that it must be resolved in order to determine the
allowance or disallowance of his claim against her bankruptcy
estate.

The district court correctly noted that “the nexus between

the transactions out of which the claim and counterclaim arise
. . . is somewhat attenuated,” but its analysis went astray when
it used a retrospective approach to support this factual finding.
In re Marshall, 264 B.R. at 631 (stating that Pierce Marshall
had obtained a judgment against Vickie Lynn Marshall’s
attorneys “prior to the time when his claim against Vickie was
ruled on by the bankruptcy court,” making the main issue
presented by Pierce Marshall’s claim Vickie Lynn Marshall’s
responsibility for her attorneys’ actions) (emphasis added).
 IN RE MARSHALL 4525
[7] In bankruptcy cases, jurisdiction over a claim and the
compulsory status of a counterclaim is determined as of the
time the claim is pleaded. In re Fietz, 852 F.2d at 457 n.2.
Accordingly, the analysis of whether a compulsory counter-
claim such as Vickie Lynn Marshall’s should be afforded
“core treatment” must focus largely on what is available to the
court at the time of filing, that is, the parties’ pleadings.30 A
review of Pierce Marshall’s proof of claim and attached non-
dischargeability complaint and Vickie Lynn Marshall’s
answer, objections, and tortious interference counterclaim
leads to the inescapable conclusion that the resolution of
Vickie Lynn Marshall’s counterclaim was not a necessary
predicate to the bankruptcy court’s decision to allow or disal-
low Pierce Marshall’s defamation claim.

[8] The differences between the nature and scope of the

factual allegations contained in Pierce Marshall’s claim and
Vickie Lynn Marshall’s counterclaim support our conclusion
that her counterclaim was not an integral part of the claims
allowance and disallowance process. Pierce Marshall’s defa-
mation claim focused upon the alleged “tortious smear cam-
paign” that Vickie Lynn Marshall and her attorneys devised
“to obtain a quick recovery from the estate of J. Howard Mar-
shall II.” The statement at issue by one of the attorneys was
that the attorney was:

“bothered” by “the blizzard of documents that were

put in front of Howard Marshall to sign two weeks
after his marriage to Anna Nicole Smith [Vickie
Lynn Marshall]. . . . He signed all of them in almost
30
We say that the focus is largely on the pleadings because there may
be other information available to the bankruptcy court, for example, by
way of a motion under § 157(b)(3) or oral argument on the motion, that
would not be retrospective in nature. See 28 U.S.C. § 157(b)(3) (providing
that “[t]he bankruptcy judge shall determine, on the judge’s own motion
or on timely motion of a party, whether a proceeding is a core proceeding
under this subsection or is a proceeding that is otherwise related to a case
under title 11”).
4526 IN RE MARSHALL
completely illegible fashion which makes sense
because he couldn’t read at the time, according to his
doctors. . . . J. Howard Marshall’s signature appears
as sort of a squiggle with only the ‘J’ clearly read-
able. . . . The documents, signed about two weeks
after the oilman’s June 27, 1994 marriage, gave the
son full control over the J. Howard Marshall, II liv-
ing trust. . . . The effect of it was basically an attempt
to remove J. Howard Marshall from control of his
estate.”

Another statement by an attorney upon which Pierce Marshall

based his claim was that “the law clearly entitles Smith
[Vickie Lynn Marshall] to half of what her late husband
earned during their marriage” and that there was some con-
cern “about the documents [J. Howard] Marshall purportedly
signed two weeks after his marriage.” Pierce Marshall also
found objectionable Vickie Lynn Marshall and her attorneys’
efforts to tarnish his reputation by characterizing him as
“greedy and miserly” and “a real control freak.” Thus, Pierce
Marshall’s defamation claim and any defense of truth to such
a claim would largely focus on whether J. Howard Marshall II
had the capacity to sign the estate planning documents Pierce
Marshall presented to him after J. Howard Marshall II’s mar-
riage to Vickie Lynn Marshall and whether he did, in fact,
knowingly and validly execute the documents. By way of
comparison, the allegations upon which Vickie Lynn Marshall
bases her tortious interference counterclaim are far less
focused—they span a number of years, encompass various
incidents of purported tortious conduct, and cover a broad
array of financial and estate planning transactions beyond
those which would be determinative of Pierce Marshall’s def-
amation claim.31 In addition to the differences in proof
31
For example, in her counterclaim Vickie Lynn Marshall made the fol-
lowing allegation:
Debtor is informed and believes that Counterdefendant intention-
ally interfered with that expectancy by engaging in a concerted
 IN RE MARSHALL 4527
between the two claims, there is little overlap of the legal ele-
ments of the claims at issue. Pierce Marshall’s defamation
claim could be fully adjudicated without fully adjudicating
Vickie Lynn Marshall’s tortious interference claim. Even if it
were shown that the statements made by Vickie Lynn Mar-
shall’s attorneys were true (with the reasonable inference
drawn from those statements being that Pierce Marshall used
forgery or fraud to gain control of the Living Trust and make
it irrevocable), in order to prevail on her claim, Vickie Lynn
Marshall would still be obligated to establish, inter alia, that
J. Howard Marshall II intended to make her an inter vivos
gift, that it was reasonably certain that J. Howard Marshall II
would have made the gift but for Pierce Marshall’s inference,
and the amount of damages that Pierce Marshall caused
through his tortious conduct. Nothing in Pierce Marshall’s
defamation claim puts these factual and legal questions at
issue.

In conclusion, although a compulsory counterclaim based

on a state law cause of action can, under certain circum-
stances, be a core proceeding arising in a case under the
Bankruptcy Code and be within the constitutional and statu-
tory delegation of authority to bankruptcy judges to enter final
orders, this is not such a case.

campaign to undermine Mrs. Marshall’s rights and Mrs. Mar-

shall’s marriage to her Husband, by effectively imprisoning Mr.
Marshall against his wishes, by surrounding Mr. Marshall with
hired agents who reported to the Younger Son, by stationing
armed guards to prevent access and personal contact between
Husband and Wife, by cutting off support and obstructing the
expressed wishes of Mr. Marshall, by deceiving Mr. Marshall, by
attempting to undo gifts made by Mr. Marshall, by preparing doc-
uments and by ostensibly making transfers of property of Mr.
Marshall which were inconsistent with his expressed wishes and
desires, by making misrepresentations against Mrs. Marshall, by
cutting off income to Mr. and Mrs. Marshall, by suborning false
testimony against Mrs. Marshall, by abusing legal process, and
by other actions that shall be proven at trial.
4528 IN RE MARSHALL
B

[9] Our conclusion that Vickie Lynn Marshall’s counter-

claim for tortious interference was not a “core proceeding[ ]
. . . arising in a case under title 11” means that the Texas pro-
bate court issued the earliest final judgment on certain matters
relevant to this proceeding. Pierce Marshall argues that the
district court erred when it refused to give any preclusive
effect to the Texas probate court’s judgment.32 Having already
noted in our previous opinion that “[o]ur review of the trial
records in the Texas probate court and in the United States
district court discloses conflicting findings of fact critical to
the merits of the cases of the contesting parties,” In re Mar-
shall, 392 F.3d at 1123, it is perhaps unsurprising that we
agree with Pierce Marshall that the doctrine of issue preclu-
sion applies and that it prevents Vickie Lynn Marshall’s suc-
cess on her claim for tortious interference.
32
The district court denied Pierce Marshall’s motion for summary judg-
ment on the basis of res judicata and collateral estoppel. The district court
reasoned that res judicata (claim preclusion) did not apply because Vickie
Lynn Marshall did not actually litigate in Texas her claim against Pierce
Marshall for tortious interference with an inter vivos gift. Nor did the dis-
trict court believe that Vickie Lynn Marshall was obligated to bring the
claim as a compulsory counterclaim because it was pending before the
bankruptcy court when she joined the will contest in Texas. See Tex. R.
Civ. P. 97 (excluding from the definition of compulsory counterclaim
those claims that are “the subject of a pending action”).
With respect to collateral estoppel (issue preclusion), the district court
did not consider the Texas probate court’s judgment to be final because
the Texas probate court had plenary jurisdiction to change its judgment for
a certain amount of time following its entry. The district court further
denied the motion as untimely and inconsistent with the notion of funda-
mental fairness. Noting the motion was filed more than two years after the
bankruptcy court’s trial and after Vickie Lynn Marshall had nonsuited her
affirmative claims in the Texas probate court, the district court also found
that the identity of issues required for issue preclusion was lacking,
explaining that “while it might be the province of the Texas probate court
to determine what J. Howard intended to do with his estate when he died,
the question before this Court is what he intended to do with it while he
was still alive.”
 IN RE MARSHALL 4529
1

[10] Through the Full Faith and Credit Act, 28 U.S.C.

§ 1738, “Congress has specifically required all federal courts
to give preclusive effect to state-court judgments whenever
the courts of the State from which the judgment emerged
would do so.” Allen v. McCurry, 449 U.S. 90, 96 (1980).
Under the doctrine of collateral estoppel, often called issue
preclusion, “once a court has decided an issue of fact or law
necessary to its judgment, that decision may preclude relitiga-
tion of the issue in a suit on a different cause of action involv-
ing a party to the first case.” Allen, 449 U.S. at 94; see also
Robbins v. HNG Oil Co., 878 S.W.2d 351, 361 (Tex. App.
1994). To establish collateral estoppel under Texas law, a
party must demonstrate: “(1) the facts sought to be litigated
in the second action were fully and fairly litigated in the first
action; (2) those facts were essential to the judgment in the
first action; and (3) the parties were cast as adversaries in the
first action.” Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d
796, 801 (Tex. 1994). If these requirements are met, issue pre-
clusion applies even when the subsequent litigation rests on
a new theory of recovery. Wilhite v. Adams, 640 S.W.2d 875,
876 (Tex. 1982).

Under Texas law, an issue has been “fully and fairly litigat-
ed” if the particular fact or issue was the same in the two pro-
ceedings and was “actually litigated” in the prior proceeding.
See Nat’l Union Fire Ins. Co. v. Dominguez, 793 S.W.2d 66,
71 (Tex. App. 1990), rev’d on other grounds, 873 S.W.2d
633, 637 (Tex. 1994). To determine if a matter was “actually
litigated,” Texas courts consider the following factors:
“whether the parties were fully heard; whether the court sup-
ported its decision with reasoned opinion; and whether the
decision was subject to appeal or was in fact reviewed on
appeal.” Cole v. G.O. Assocs., Ltd., 847 S.W.2d 429, 431
(Tex. App. 1993).
4530 IN RE MARSHALL
2

The first step of our issue preclusion analysis is satisfied

because several of the legal and factual issues that Vickie
Lynn Marshall sought to litigate in the bankruptcy proceeding
had already been litigated and finally determined in the Texas
probate action.

[11] Under Texas law, a claim for tortious interference

with an inter vivos gift arises when a person “by fraud, duress
or other tortious means intentionally prevents another from
receiving from a third person an inheritance or gift that [s]he
would otherwise have received.” Restatement Second of Torts
§ 774B; see Marshall, 547 U.S. at 311; see also King v.
Acker, 725 S.W.2d 750, 754 (Tex. App. 1987) (discussing tor-
tious interference with inheritance rights and citing the
Restatement formulation of the tort); Brandes v. Rice Trust,
Inc., 966 S.W.2d. 144, 146-47 (Tex. App. 1998) (same). Such
a person will be “subject to liability to the other for loss of the
inheritance or gift.” Restatement Second of Torts § 774B. As
explained by the district court, the Texas courts have not
clearly delineated the elements of a cause of action for tor-
tious interference, but those jurisdictions which have gener-
ally agree that a plaintiff must prove (1) the existence of an
expectancy, (2) a reasonable certainty that the expectancy
would have been realized but for the interference, (3) inten-
tional interference with that expectancy, (4) tortious conduct
involved with the interference, and (5) damages. In re Mar-
shall, 275 B.R. at 51 (citing Dougherty v. Morris, 871 P.2d
380 (N.M. 1994)). Vickie Lynn Marshall’s ability to establish
a number of these elements is compromised by the Texas pro-
bate court’s factual findings.

[12] Most importantly, to prevail on her claim against

Pierce Marshall, Vickie Lynn Marshall must prove that
J. Howard Marshall II would have given her a substantial
inter vivos gift but for Pierce Marshall’s interference. This is
contrary to the Texas probate court’s finding that J. Howard
 IN RE MARSHALL 4531
Marshall II “did not intend to give and did not give to [Vickie
Lynn Marshall] a gift or bequest from the Estate of
[J. Howard Marshall II] or from the [Living Trust] either prior
to or upon his death.”

Vickie Lynn Marshall also has the burden of demonstrating

that any interference by Pierce Marshall was tortious or, in the
words of the Restatement, that he used “fraud, duress or other
tortious means” to prevent J. Howard Marshall II from giving
Vickie Lynn Marshall the intended gift. To do so, Vickie
Lynn Marshall primarily relied on Pierce Marshall’s pur-
ported manipulation of his father’s assets and his father’s
estate planning documents. The Texas probate court found,
however, that the various estate planning documents executed
by J. Howard Marshall were valid and reflected his desires.
Specifically, the Texas probate court found that (1) J. Howard
Marshall II’s will and the 1982 Living Trust were valid, (2)
J. Howard Marshall II had not been the victim of fraud or
undue influence, and (3) J. Howard Marshall II possessed the
requisite mental capacity when he executed the Living Trust,
as amended, and his last will and testament. Also central to
Vickie Lynn Marshall’s ability to demonstrate a reasonable
expectancy and ascertainable damages is the invalidation of
the Living Trust. Vickie Lynn Marshall estimated that the
value of her expected gift exceeded $300 million in her coun-
terclaim; however, essentially all of J. Howard Marshall II’s
assets were held in the Living Trust after its creation in 1982.
Shortly after his wedding to Vickie Lynn Marshall, J. Howard
Marshall II modified his Living Trust to make it irrevocable.
This modification, if valid, would prevent Vickie Lynn Mar-
shall from ever being a beneficiary under the terms of the Liv-
ing Trust, which is problematic to her claim of tortious
interference because the very assets Vickie Lynn Marshall
claimed that J. Howard Marshall II intended to give her were
in the Living Trust. The Texas probate court upheld the valid-
ity of the Living Trust, as amended, and found that it reflected
J. Howard Marshall II’s intended disposition of his property.
4532 IN RE MARSHALL
These issues were fully and fairly litigated by Vickie Lynn
Marshall and Pierce Marshall in the Texas probate court.
Vickie Lynn Marshall was a party to the Texas probate pro-
ceeding during all relevant times and was afforded ample
opportunity to present her affirmative case (until she non-
suited her claims) and to defend against Pierce Marshall’s
counterclaim for a declaratory judgment. During the five-
month trial in Texas, the jury and judge considered the evi-
dence and arguments advanced by the parties, and the Texas
probate court issued a reasoned opinion based upon the find-
ings of fact as made by the unanimous jury.

The next step in our issue preclusion analysis is to consider

whether the factual findings discussed above were essential to
the Texas probate court’s administration and final resolution
of matters pertaining to J. Howard Marshall II’s estate. Vickie
Lynn Marshall argues that because she voluntarily nonsuited
her claims in the Texas probate proceeding, the issues under-
lying her claims were not necessary to the Texas probate
court’s judgment. Although she opted not to pursue her claims
for affirmative relief, Vickie Lynn Marshall remained in the
probate proceeding as a defendant to Pierce Marshall’s coun-
terclaim. Pierce Marshall petitioned the probate court for a
declaration that J. Howard Marshall II’s Living Trust and will
reflected his true intentions and were valid. He further sought
declaratory relief to determine Vickie Lynn Marshall’s rights
as to the estate and property of J. Howard Marshall II. Thus,
Vickie Lynn Marshall was at all relevant times a party
adverse to Pierce Marshall in the Texas probate court.

To decide Pierce Marshall’s counterclaims for a declaratory

judgment, the Texas probate court was obligated to discern
J. Howard Marshall II’s true intentions regarding the property
held by the Living Trust. To do so, the court had to resolve
allegations that J. Howard Marshall II’s estate plan and the
transactions underlying it were tainted by illegality and that,
contrary to his estate plan, J. Howard Marshall II intended to
give Vickie Lynn Marshall a substantial inter vivos gift. Thus,
 IN RE MARSHALL 4533
the Texas jury was tasked with responding to specific queries,
many of which were on issues critical both to the resolution
of Pierce Marshall’s declaratory judgment request and to
Vickie Lynn Marshall’s success on her claim against Pierce
Marshall for tortious interference with an expected inter vivos
gift. The jury unanimously made the following factual find-
ings: (1) the Living Trust and will were valid and had not
been forged or altered, (2) J. Howard Marshall II had not been
the victim of fraud or undue influence, (3) he had the requisite
mental capacity when he executed his Living Trust and will,
and (4) he did not have an agreement with Vickie Lynn Mar-
shall that he would give her one-half of all his property.

The Texas probate court entered a final judgment in accor-

dance with the jury’s verdict and concluded that Pierce Mar-
shall was entitled to his distribution as set forth in the Living
Trust, as amended, and as provided in the last will and testa-
ment of J. Howard Marshall II.

The district court refused to give preclusive effect to any of

the jury findings incorporated into the Texas probate court’s
judgment or to any of the Texas probate court’s other factual
findings or legal conclusions. Instead, the district court
arrived at opposite findings on the same legal and factual ques-
tions.33 In its 2002 judgment, the district court found that:
J. Howard Marshall II intended to give Vickie Lynn Marshall
a substantial gift that was to be in the form of a trust for her
benefit; Pierce Marshall tortiously interfered with J. Howard
Marshall II’s intentions by engaging in illegitimate estate
planning transactions; Pierce Marshall had altered the Living
Trust to make it irrevocable in furtherance of his plan; and the
Living Trust was invalid.
33
Notably, the district court made its factual findings without the benefit
of the percipient witnesses that Pierce Marshall sought to have testify as
part of his defense. The Texas probate court, however, held a five-month
jury trial during which it took live testimony from the witnesses of all par-
ties involved.
4534 IN RE MARSHALL
[13] The district court was not free to reach these contra-
dictory findings of fact; instead, it was bound to afford preclu-
sive effect to the relevant factual findings made by the Texas
probate court. It was similarly bound to afford preclusive
effect to the overlapping legal issues finally determined by the
Texas probate court as a necessary step to the Texas probate
court’s determination of the validity of J. Howard Marshall
II’s estate planning measures.

[14] The final step in our issue preclusion analysis is to

inquire whether the parties were cast as adversaries in the first
action. There can be no doubt that this step is satisfied.34
Before she nonsuited her claims, Vickie Lynn Marshall
named Pierce Marshall as a defendant to many of her claims.
After she nonsuited her claims, Pierce Marshall amended his
claims to include a request that the district court enter a
declaratory judgment with respect to Vickie Lynn Marshall’s
interest (or lack thereof) in the estate of J. Howard Marshall II
and the Living Trust.

[15] All of the elements of issue preclusion have been met

in this case. The district court erred when it did not afford pre-
clusive effect to the relevant determinations by the Texas pro-
bate court. Had it done so, it would have concluded that
various legal and factual issues necessary to establish Vickie
Lynn Marshall’s tortious interference claim had already been
decided against her by the Texas probate court, such that
Pierce Marshall was entitled to judgment as a matter of law.

IV

In conclusion, Vickie Lynn Marshall’s counterclaim

against Pierce Marshall for tortious interference with an inter
vivos gift is not a “core proceeding[ ] arising under title 11,
34
It makes no difference to our issue preclusion analysis that in Texas,
Pierce Marshall was named in his representative capacity, but in Califor-
nia, he was named in the counterclaim in his personal capacity.
 IN RE MARSHALL 4535
or arising in a case under title 11” for which the bankruptcy
court is empowered to enter a final judgment. See 28 U.S.C.
§ 157(c). Because the Texas probate court’s judgment was the
earliest final judgment entered on matters relevant to this pro-
ceeding, the district court erred when it did not afford preclu-
sive effect to the Texas probate court’s determination of
relevant legal and factual issues. Several of these determina-
tions prevent Vickie Lynn Marshall from prevailing on her
tortious interference claim in this proceeding. Because of our
disposition of these two issues, we need not reach, and do not
reach, the many other issues raised by Pierce Marshall and
Vickie Lynn Marshall.

Neither party shall recover costs on the appellate proceed-

ings subsequent to the Supreme Court’s remand.

REVERSED AND REMANDED.

IN RE MARSHALL 4537
Volume 2 of 2
4538 IN RE MARSHALL
KLEINFELD, Circuit Judge, concurring:

I concur in the result reached by Judge Beezer’s opinion.

Vickie’s counterclaim against Pierce is not a core proceeding,
so the Texas probate court judgment preceded the district
court judgment and controls.

I have no quarrel with the majority opinion, and offer no

argument against it. I write merely to offer additional grounds
that compel the same result.

Several alternative and independent grounds compel rever-

sal: (1) because Pierce Marshall sought no damages from the
bankruptcy estate, just a judgment that his Texas defamation
judgment would not be discharged by the California bank-
ruptcy, his claim could not affect the size of the estate avail-
able to Vickie Marshall’s creditors; (2) Vickie’s counterclaim
for money could not affect whether Pierce’s defamation claim
was dischargeable; (3) Vickie’s counterclaim was not related
to the bankruptcy, because she had already been discharged
and her creditors would get none of the money she sought
from Pierce in her counterclaim; (4) Pierce’s defamation
claim in Texas was a common law claim for personal injury,
which cannot be core. Vickie’s counterclaim (itself a non-core
tort claim) amounted to evasion of Pierce’s constitutional
right to jury trial in Texas. That evasion cannot stand shielded
by bankruptcy court jurisdiction, especially when her bank-
ruptcy was over and her debts discharged.

Pierce’s proof of claim is attached to this concurrence as an

appendix. He made two substantive entries on the form. For
the date the debt was incurred he said “see attached Ex. ‘A’.”
And he checked the box for “unsecured nonpriority claim, and
wrote “unliquidated” and “see attached Exhibit ‘A’ ” rather
than stating an amount. To understand what claim he made,
we must therefore look at his exhibit A, which is attached.

Pierce’s exhibit A is not a defamation claim for money. He

had filed that in Texas years before, and was awaiting final
 IN RE MARSHALL 4539
judgment. Instead, exhibit A is entitled “complaint to deter-
mine dischargeability of debt pursuant to 11 U.S.C.
§ 523(a)(6).” Pierce alleges that Vickie and her lawyers
defamed him in the press, in order to humiliate him and to
extort a settlement from him of the claims against his father’s
estate. Their “willful and malicious acts,” he alleges, “resulted
in injury to the Plaintiff and/or the Plaintiff ’s property.” But
he does not seek money damages for this defamation. He was
doing that in Texas. For his “cause of action” in bankruptcy
court, Pierce pleads that “any discharge” Vickie may receive
under bankruptcy law “will not discharge E. Pierce Marshall’s
claims against the Defendant.” His prayer does not seek
money damages, just a declaratory judgement “that the Plain-
tiff ’s claims against the defendant have not been discharged”
and costs, attorneys fees, and such other relief as is just.

Vickie’s counterclaim cannot be core because Pierce care-

fully framed his complaint to seek only a declaratory judg-
ment of nondischargeability, not a judgment that his
defamation claim was meritorious and not a claim for money
damages caused by the defamation. Bankruptcy court is the
right place to litigate whether a debt was dischargeable. Pierce
could not very well obtain judgment in a Texas trial court
controlling dischargeability of a debt in a California bank-
ruptcy. Bankruptcy court is the wrong place to litigate a com-
mon law claim for personal injury to final judgment, and
Pierce did not seek to litigate his personal injury claim there.

The statute provides that “core” proceedings include

“claims against the estate . . . but not the liquidation or esti-
mation of contingent or unliquidated personal injury tort . . .
claims against the estate for purposes of distribution in a case
under chapter 11.”1 Thus “claim” for purposes of determining
“core” is a statutory term of art meaning something narrower
than what the word ordinarily means. Pierce’s defamation
claim would not be a “claim” under the statutory definition,
1
28 U.S.C. § 157(b)(2)(B); see also id. § 157 (b)(2)(O).
4540 IN RE MARSHALL
because the statutory definition excludes unliquidated per-
sonal injury claims. Neither his defamation claim being liti-
gated in Texas nor his nondischargeability claim filed in
bankruptcy court would affect distribution of the estate. One
might imagine, from the statutory language alone, that
because Pierce’s claim for a declaratory judgment of nondis-
chargeability is core, that any counterclaim would be core.2
But the cases construing the statute establish that such an
interpretation would be mistaken.3 Compulsory claims, such
as setoff, can be core, but not all counterclaims are core.4
Vickie’s tort claim for interference with an expected gift,
though a counterclaim to Pierce’s claim for a declaratory
judgment of nondischargeability of his defamation claim, is
not core.5 Were core jurisdiction over counterclaims read
2
See id. § 157(b)(2)(C) (“Core proceedings include, but are not limited
to . . . counterclaims by the estate against persons filing claims against the
estate”).
3
See, e.g., Piombo Corp. v. Castlerock Properties (In re Castlerock
Properties), 781 F.2d 159, 162 (9th Cir. 1986) (“The apparent broad read-
ing that can be given to § 157(b)(2) should be tempered by the Marathon
decision.”).
4
See, e.g., Dunmore v. United States, 358 F.3d 1107, 1114 (9th Cir.
2004) (holding that non-core matters are those that “do not depend on the
Bankruptcy Code for their existence and . . . could proceed in another
forum”); Sec. Farms v. Int’l Bhd. of Teamsters, 124 F.3d 999, 1008 (9th
Cir. 1997) (“Actions that do not depend on bankruptcy laws for their exis-
tence and that could proceed in another court are considered ‘non-
core.’ ”); United States v. Yochum (In re Yochum), 89 F.3d 661, 670 (9th
Cir. 1996) (“In determining whether a matter is a non-core proceeding, we
look to a variety of factors ‘such as whether the rights involved exist inde-
pendent of title 11, depend on state law for their resolution, existed prior
to the filing of a bankruptcy petition, or were significantly affected by the
filing of the bankruptcy case.’ ”) (citation omitted).
5
See Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir. 1987) (“If
the proceeding does not invoke a substantive right created by the federal
bankruptcy law and is one that could exist outside of bankruptcy it is not
a core proceeding; it may be related to the bankruptcy because of its
potential effect, but . . . it is an ‘otherwise related’ or non-core proceed-
ing.”) (cited with approval by Eastport Assocs. v. City of Los Angeles (In
re Eastport Assocs.), 935 F.2d 1071, 1077 (9th Cir. 1991)).
 IN RE MARSHALL 4541
more broadly, Marathon would loom as a constitutional barrier.6
The bankruptcy court had jurisdiction to make a determina-
tion of whether Pierce’s claims against Vickie would survive
bankruptcy because the question of whether a claim is dis-
chargeable in bankruptcy involves “the restructuring of
debtor-creditor relations, which is at the core of the federal
bankruptcy power.”7 That determination, however, does not
require adjudication of liability or damages on Pierce’s or
Vickie’s tort claims, and that determination is all Pierce
sought in bankruptcy court.8

We held, applying Marathon and the 1984 Act implement-

ing Marathon, in Piombo Corp. v. Castlerock Properties (In
re Castlerock Properties )9 that even though the debtor had
filed a counterclaim to the creditors’s claim, the counterclaim
did not fall within the Bankruptcy Court’s core jurisdiction.
The creditor had not filed a claim for money in bankruptcy
court, just for relief from the automatic stay, just as Pierce did
not file a claim for money, merely for a nondischargeability
determination. “In reaching this conclusion, we emphasized
that courts ‘should avoid characterizing a proceeding as ‘core’
if to do so would raise constitutional problems.’ ”10 That, on
6
N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76
(1982) (plurality opinion) (“Art. III bars Congress from establishing legis-
lative courts to exercise jurisdiction over all matters related to those aris-
ing under the bankruptcy laws. The establishment of such courts does not
fall within any of the historically recognized situations in which the gen-
eral principle of independent adjudication commanded by Art. III does not
apply.”).
7
Id. at 72.
8
See Eastport Assocs., 935 F.2d at 1077 (“While the district courts have
jurisdiction under 28 U.S.C. § 1334 to decide state claims if they are
related to a bankruptcy case, the bankruptcy courts may only decide
claims if they are part of core proceedings. In noncore proceedings, the
bankruptcy courts may only make recommendations to the district courts.
28 U.S.C. § 157(c)(1).”).
9
781 F.2d 159, 161 (9th Cir. 1986).
10
Taxel v. Elec. Sports Research (In re Cinematronics, Inc.), 916 F.2d
1444, 1450 (9th Cir. 1990) (quoting Castlerock, 781 F.2d at 160).
4542 IN RE MARSHALL
its face, Vickie’s counterclaim appears to fall within the
words of § 157(b)(2)(C), does not, under Castlerock and Mar-
athon, end the matter. The Supreme Court, in Marathon, held
that “Congress may not vest in a non-Article III court the
power to adjudicate, render final judgment, and issue binding
orders in a traditional contract action arising under state law.”11
The same reasoning applies to Pierce’s tort claim arising
under state law, and Congress expressly preserved state law
tort claims outside the jurisdiction of bankruptcy courts.12

Vickie’s counterclaim is not related to the question of

whether Pierce’s defamation claim is dischargeable. Her tor-
tious interference with a gift claim, if there is such a cause of
action and she can prove its elements, could stand or fall
regardless of whether his defamation claim was dischargeable
or not. We need not reach the question whether, had Pierce
sought damages for defamation as a creditor in bankruptcy,
her counterclaim would be core, because he carefully avoided
doing that. All that was required of the bankruptcy court in
this case was to determine whether, if Pierce successfully
proved in Texas what he pleaded in Texas, “willful and mali-
cious injury” would preserve his judgment from discharge in
Vickie’s bankruptcy.13 Whether a claim is dischargeable is a
separate question from whether the claimant will prevail on
the merits of that claim.14 Because Pierce did not seek money
from the bankruptcy estate for Vickie’s defamation, or even
estimation of the value of his claim,15 Vickie’s counterclaim
11
Accord Thomas v. Union Carbide Agricultural Products Co., 473 U.S.
568, 584 (1985) (explaining the holding of Marathon).
12
28 U.S.C. § 157(b)(2)(B); see also id. § 157(b)(2)(O).
13
11 U.S.C. § 523(a)(6).
14
Grogan v. Garner, 498 U.S. 279, 290 (1991) (“[N]ondischargeability
[is] a question of federal law independent of the issue of the validity of
the underlying claim.”).
15
28 U.S.C. § 157(b)(2)(B).
 IN RE MARSHALL 4543
could not affect money distributable to her creditors and
should not be deemed “core.”16

Even if all the above analysis is mistaken, Vickie’s counter-

claim was not “core” for another independent reason. She had
already obtained her discharge in bankruptcy. Her counter-
claim could not enlarge the amount of money distributable to
her creditors, because of the discharge. She sought money for
herself only, not a nickel of which would be shared among her
creditors. Her claim was only nominally “by her bankruptcy
estate,” and was in substance her personal claim for a judg-
ment of hundreds of millions of dollars of which she would
get every penny. Her claim should therefore be deemed not
“related to” her bankruptcy case. My reasoning follows our
holding in In re Fietz17 that once a chapter 13 plan was con-
16
This is consistent with the Supreme Court’s teachings in Langenkamp
v. Culp, 498 U.S. 42 (1990), and Granfinanciera, S.A. v. Nordberg, 492
U.S. 33 (1989). In those cases, the outcome depended on whether the party
claiming a jury trial had invoked the claims allowance process of the
bankruptcy court by filing a claim against the estate. In Granfinanciera,
the Court explained that because the petitioner had “not filed claims
against the estate, [the trustee’s] fraudulent conveyance action [did] not
arise ‘as part of the process of allowance and disallowance of claims.’ Nor
[was] that action integral to the restructuring of debtor-creditor relations.
Congress therefore cannot divest petitioners of their Seventh Amendment
right to a trial by jury.” 492 U.S. at 58-59. In Langenkamp the parties
claiming a right to jury trial had filed a claim against the estate, “thereby
bringing themselves within the equitable jurisdiction of the Bankruptcy
Court,” and thus were not entitled to a jury trial. 498 U.S. at 45. Here,
Pierce did not file a proof of claim seeking anything from the bankruptcy
estate.
17
Fietz v. Great W. Sav. (In re Fietz), 852 F.2d 455, 457 (9th Cir. 1988)
(holding that the standard for the bankruptcy court to exercise “related to”
jurisdiction in an adversary proceeding is whether “the outcome of the
proceeding could conceivably have any effect on the estate being adminis-
tered in bankruptcy.”); Menk v. Lapaglia (In re Menk), 241 B.R. 896, 907
(B.A.P. 9th Cir. 1999) (“Once the administration of the bankruptcy case
has ended, the relation to the case becomes so attenuated that § 1334(b)
‘related to’ jurisdiction presumptively expires unless the court specifically
retains jurisdiction.”).
4544 IN RE MARSHALL
firmed, so that creditors could assert no interest in a subse-
quent recovery on a cross claim, the bankruptcy court lacked
jurisdiction because the claim was not “related to” the bank-
ruptcy case. Because the claim “could not have had any con-
ceivable effect on administration of the bankruptcy estate”
and would have been “beyond the reach” of the creditors,
jurisdiction was absent.18

There is yet another independent reason, elementary and

compelling even without the others, that the bankruptcy court
was without jurisdiction over Vickie’s counterclaim. Pursuant
to the Bankruptcy Code, the bankruptcy court would not have
had jurisdiction over Pierce’s defamation claim even had he
asserted it there, which he did not. 28 U.S.C. § 157(b)(5)
requires that “the district court shall order that personal injury
tort and wrongful death claims shall be tried in the district
court.” This statutory provision implements the holding in
Marathon that Article III precludes bankruptcy courts from
entering final judgments on tort claims founded on state law.
Because bankruptcy judges cannot enter final judgment in
such cases, they also “cannot try selected defenses in these
tort cases. . . . The whole case, including defenses of all kinds,
goes off to the district judge or the state court.”19 Pierce’s def-
amation claim pending in Texas was for personal injury.20
Vickie’s claim, damages for tortious interference with a gift,
18
Fietz, 852 F.2d at 459. See also the discussion of Langenkamp and
Granfinanciera in footnote 16. Because Vickie’s bankruptcy was dis-
charged, Pierce’s claim and Vickie’s counterclaim no longer related to
“the process of allowance and disallowance of claims” or were they “inte-
gral to the restructuring of debtor-creditor relations.” Granfinanciera, 492
U.S. at 58-59.
19
Pettibone Corp. v. Easley, 935 F.2d 120, 123 (7th Cir. 1991).
20
See In re Dillard Dept. Stores, Inc., 186 S.W.3d 514, 516 (Tex. 2006)
(holding an employee’s defamation claim fell within scope of an agree-
ment requiring arbitration of claims for personal injuries); see also Rizzo
v. Passialis (In re Passialis), 292 B.R. 346, 348 (Bankr. N.D. Ill. 2003)
(applying Texas law).
 IN RE MARSHALL 4545
was also a personal injury claim if it is a recognized tort.21
Thus her claim is also outside the jurisdiction of the bank-
ruptcy court. Accordingly, had Pierce filed a proof of claim
for damages for defamation, the bankruptcy court would have
lacked jurisdiction to enter final judgment on that claim.
Because Vickie’s counterclaim was a personal injury claim,
be it in defense of Pierce’s defamation claim or an indepen-
dent cause of action, the bankruptcy court would have lacked
jurisdiction to enter final judgment on it.22 Under Marathon
and the statute, she could not evade Pierce’s right to jury trial
and an Article III court by shoehorning it into a bankruptcy
filing, even had the discharge in bankruptcy not already ren-
dered it not “related.”

Pierce asserted a personal injury claim, defamation, in

Texas, and prevailed in a five month jury trial in Texas. All
he filed in Vickie’s bankruptcy case was a claim for a declara-
tory judgment that whatever judgment he obtained in Texas
would stand undischarged by Vickie’s bankruptcy. Vickie
used the vehicle of her bankruptcy case, even though it was
effectively over, to file a personal injury claim against Pierce
for interfering with a putative gift to her from his father. The
bankruptcy court could not grant final judgment because her
claim was for personal injury, was not related to the bank-
ruptcy estate because she had obtained her discharge, and it
was not “core.” Pierce’s constitutional rights to an Article III
court and to jury trial as well as his statutory rights prevented
jurisdiction in the bankruptcy court over Vickie’s claim
against him. When the bankruptcy court decided otherwise, it
was without jurisdiction to do so.
21
See Marshall v. Marshall, 547 U.S. 293, 313 (2006) (“Texas courts
have recognized a state-law tort action for interference with an expected
inheritance or gift, modeled on the Restatement formulation.”); King v.
Acker, 725 S.W. 2d 750, 754 (Tex. App. 1987) (discussing the availability
of emotional distress damages under the Restatement (Second) of Torts
§ 774A (1977)).
22
28 U.S.C. § 157(b)(5).
4546 IN RE MARSHALL
APPENDIX
IN RE MARSHALL 4547
4548 IN RE MARSHALL
IN RE MARSHALL 4549
4550 IN RE MARSHALL
IN RE MARSHALL 4551
4552 IN RE MARSHALL
IN RE MARSHALL 4553
4554 IN RE MARSHALL