* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 16 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: LMS HOLDING COMPANY; PETROLEUM MARKETING COMPANY; and RETAIL MARKETING COMPANY,

Debtors.

____________________________ BARRY DILL; DIANA DILL,

Appellants,

v. THE SOUTHLAND CORPORATION,

Appellee. No. 99-5081 (D.C. No. 97-CV-371-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellants Barry Dill and Diana Dill (the Dills) ap peal the district court’s order, issued in its appellate capacity, denying th eir requests for a jury trial and for a remand to the state court on their claims aga inst defendant Southland Corporation (Southland). We exercise jurisdiction under 28 U.S.C. §§ 158(d), 1291 and affirm. Briefly, the relevant underlying facts are as follo ws. In 1990, the Dills entered into a 7-Eleven store franchise agreement w ith Retail Marketing Company (RMC). In September 1991, RMC filed a Chapter 11 b ankruptcy petition, which was later converted to Chapter 7. As part of the b ankruptcy proceedings, RMC sold certain of its assets to Contemporary Industri es Southern, Inc., which resulted in the cancellation of the Dills’ franchis e agreement with RMC. The cancellation was approved by the bankruptcy court. The Dills filed an amended claim in the RMC bankruptcy proceedings on June 18, 1994, for losses sustained due to cancellation of the franchise agreement. In December 1993, the Dills filed suit in a state c ourt against Southland alleging that RMC was an agent of Southland and that RMC breached the-3-

franchise agreement with the Dills. Therefore, acc ording to the Dills, RMC’s breach of contract was imputed to Southland, as pri ncipal. The state court lawsuit was removed to federal court and transferred to the bankruptcy court, where a non-jury trial was held. The bankruptcy court deni ed the Dills’ request to remand to state court and ruled that RMC was not Southland ’s agent. It entered judgment in Southland’s favor. The Dills appealed, ultimate ly arriving in this court. We review de novo the district court’s determinatio n of the Dills’ right to a jury trial. See Langenkamp v. Hackler (In re Republic Trust & Sav. Co.) , 897 F.2d 1041, 1043 (10th Cir.), rev’d in part on othergrounds sub nom. , Langenkamp v. Culp , 498 U.S. 42 (1990). In Langenkamp , the Supreme Court held that respondents who filed claims against the bankruptcy estate on a bankruptcy trustee’s preference claim were not enti tled to a jury trial. 498 U.S. at 45. Citing Granfinanciera, S.A. v. Nordberg , 492 U.S. 33, 57-59 (1989), the Court ruled that filing a claim triggers the bankruptcy court’s equitable power to restructure the debtor-creditor relationship. See Langenkamp , 498 U.S. at 44. The Dills argue that the holding of Langenkamp is limited to actions brought by bankruptcy trustees to recover avoidable preferences. They maintain that their claims against Southland did not involve the bankruptcy trustee or the debtor and, therefore, could have no impact on the restructuring of the debtorcreditor relationship.-4-

The Dills’ argument that their suit against Southland is merely a dispute between two non-debtors ignores the fact that the b asis of their state law claims is the action of the bankruptcy court in permitting th e debtor, RMC, to reject their franchise agreement. It also ignores the claim the Dills filed in the RMC bankruptcy proceedings seeking payment for losses i ncurred due to the rejection of the franchise agreement. Principles of equity, upon which the law of bankrup tcy is founded, require that all entities in the same class be treated alik e. SeeWyoming Dep’t of Transp. v. Straight (In re Straight) , 143 F.3d 1387, 1389 (10th Cir.), cert. denied , 119 S. Ct. 446 (1998). Therefore, creditors seeking re lief from the bankruptcy court “expect they will fare no better or no worse than o thers of their stature. Moreover, the whole concept of bankruptcy cannot su cceed without a careful application of these principles and a forthright de dication to their significance.” Id. Here, to permit the Dills to maintain bankruptcy-ba sed litigation independent of the bankruptcy court, in addition to participating in the RMC bankruptcy proceedings, would remove them from the bankruptcy court’s equitable powers while also granting them the benef its of participation in the bankruptcy court’s restructuring of the debtor-cred itor relationship. Doing so would impermissibly grant them rights not available to other creditors of their-5-

class and disrupt the application of the basic prin ciples of bankruptcy law. Accordingly, we hold that because the Dills filed aclaim in the RMC bankruptcy proceedings for losses in a bankruptcy-based action , they had no right to a jury trial. The Dills also challenge the district court’s orderaffirming the bankruptcy court’s decision not to remand the dispute to the s tate court, citing 28 U.S.C. § 1452(b). SeeAppellants’ Opening Brief at 14. They have not sh own why the remand decision is reviewable by this court. See id. (decision declining to remand not reviewable by court of appeals). The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

John C. Porfilio Senior Circuit Judge