EB Holdings II, Inc. ("EBH") filed a Request for Judicial Notice along with the Dismissal Motion. (ECF No. 74). The opposition to the Dismissal Motion also is accompanied by a Request for Judicial Notice filed by the "PIK Lender Group." (ECF No. 90). Both requests are granted. In this Memorandum Decision, the exhibits attached to those requests will be referenced, respectively, as "RJN-EBH Ex." and "RJN-PIK Ex." Where necessary, the reference to specific exhibits also will include specific page numbers.

The parties to these proceedings subsequently attempted to supplement the record, and the Dismissal Motion was retaken under submission as of September 29, 2017. See note 13, infra.

EBH is incorporated in the State of Nevada. See Corporate Ownership Statement. (ECF No. 27). EB Holdings, Inc., a Delaware corporation, was the borrower under a certain "PIK Loan Agreement" dated March 23, 2007. (RJN-PIK Ex. "A," 005-122). The last 46 pages of the PIK Loan Agreement consists of an "Annex" setting forth various additional terms governing the agreement ("PIK Loan Annex"). (RJN-PIK Ex. "A," 077-122). According to the PIK Loan Agreement, EB Holdings, Inc. borrowed €600,000.00 from Credit Suisse International and Citibank N.A., New York Branch, with Credit Suisse, London Branch ("Credit Suisse") named as the administrative agent. EBH apparently is the successor in interest to EB Holdings, Inc.

Numerous documents were filed concurrently with the Petition. GLAS USA LLC ("GLAS") filed a "Statement of Petitioning Creditor GLAS USA LLC, in its Capacity as Administrative Agent in Support of Involuntary Chapter 11 Petition under Section 303 of the Bankruptcy Code" ("GLAS Statement"). (ECF No. 3). All of the Petitioning Creditors, including GLAS, filed a disclosure required by FRBP 1010(b) and FRBP 7007.1 (ECF Nos. 4, 8, 11, 14, 17, 21, and 24) along with declarations of their representatives under FRBP 1003(a). (ECF Nos. 5, 7, 10, 12, 15, 19, and 22). An additional "Statement of the PIK Lender Group in Support of Their Involuntary Chapter 11 Petition Under Section 303 of the Bankruptcy Code" ("PIK Lender Group Statement") was filed. (ECF No. 6). The PIK Lender Group apparently holds 77 percent of the principal issue face amount of the "PIK Loan." The PIK Lender Group is an unofficial collective that consists of the following six entities: GoldenTree Asset Management LP, Alcentra Limited, Fortress Investment Group/Mount Kellet Capital Management, HIG Capital International Advisors LLP/Bayside Capital, Sound Point Capital Management, LP, and Varde Partners Europe Limited. The six entities apparently are, or are affiliates of, the managers and/or advisors of the funds and/or accounts that hold beneficial interests in the PIK Loan. See PIK Lender Group Statement at 2 n.1. GLAS represents that there are 61 participants in the PIK Loan. See GLAS Statement at 2:7-8.

GLAS apparently is the successor in interest to Credit Suisse, as the result of an assignment dated May 17, 2017. See GLAS Statement at 2:15-23.

One of the two State Court actions is entitled GoldenTree Master Fund, Ltd., et al. v. Howard Meyers, et al., denominated Case No. A-16-742507-B ("GoldenTree Action"). With the exception of GLAS, all of the Petitioning Creditors appear to be named plaintiffs in the GoldenTree Action. The participants in the PIK Loan who commenced the GoldenTree Action are commonly referred to as the "GoldenTree Group," but may also be referred to as the "GoldenTree Plaintiffs" or "GoldenTree Parties" as the context requires in this Memorandum Decision. Defendants named in the GoldenTree Action include EBH, its principal Howard Meyers ("Meyers"), Eco-Bat Technologies Ltd. ("Eco-Bat"), Quexco Inc. ("Quexco"), RSR Corporation ("RSR"), and others. The other State Court action is entitled EB Holdings II, Inc. v. Goldentree Master Fund Ltd., et al., denominated Case No. A-16-745669-B ("EBH Action"). With the exception of GLAS, all of the Petitioning Creditors appear to be named defendants in the EBH Action. On December 15, 2016, the State Court entered an order coordinating the two actions. (RJN-EBH Ex. 22). Where appropriate, the GoldenTree Action and EBH Action will be referred to jointly as the "State Court Litigation."

On the same date GLAS filed it's opposition to the Dismissal Motion, it also filed its Motion for Summary Judgment and Entry of an Order for Relief, etc. ("Summary Judgment Motion") (ECF No. 80), accompanied by the Declaration of Daniel R. Fisher. (ECF No. 82). GLAS' written argument in support of its Summary Judgment Motion is included in the GLAS Opposition. GLAS concurrently filed an ex parte motion seeking to schedule an expedited hearing so that the Summary Judgment Motion would be argued concurrently with the Dismissal Motion. (ECF No. 85). The court delayed ruling on the ex parte request until the initial status conference was held on June 27, 2017. At the status conference, EBH requested that its Dismissal Motion be heard before the completion of briefing and presentation of arguments on the GLAS Summary Judgment Motion. After oral arguments were presented, the ex parte motion for an expedited hearing on the Summary Judgment Motion was denied. As a result, EBH was able to present the instant Dismissal Motion on July 20, 2017, and a separate hearing on the Summary Judgment Motion was held on August 17, 2017. (ECF No. 98).

The relief from automatic stay stipulation ("RAS Stipulation") approved by that order had been filed on June 6, 2017. (ECF No. 71). The RAS Stipulation purports to be between EBH on one hand, and certain Petitioning Creditors "[T]ogether with a group of alleged holders of interests in a payment-in-kind loan ..." That description includes a footnote stating that the description "[I]s not intended as an admission by EB Holdings that any one of the Petitioning Creditors is a lender to EB Holdings or that the GLAS USA LLC, in its capacity as successor administrative agent ("Administrative Agent"), was properly appointed. EB Holdings reserves its right to contest the standing of the Petitioning Creditors and/or the Administrative Agent." RAS Stipulation at 1 n.1. The RAS Stipulation was approved by counsel for EBH and counsel for the PIK Lender Group. Attached to the RAS Stipulation as Exhibit "1" was a proposed form of order approving the RAS Stipulation. The introductory paragraph of the proposed order recites that the RAS Stipulation is filed by "EB Holdings II, Inc., the PIK Lender Group, and GLAS-USA, by and through their counsel of record ...." The order approving that RAS Stipulation entered on June 27, 2017, is identical to the proposed order except for the insertion of the docket number for the Stipulation. Again, the introductory paragraph of the docketed order indicates that the parties who stipulated to relief from stay, so that the State Court Litigation could proceed, included EBH, the PIK Lender Group, and GLAS. The docket indicates that electronic notice of the filing of both the RAS Stipulation and the order approving the stipulation was sent to both lead and local counsel for GLAS.

LEG does not identify itself as a creditor of EBH, but apparently is in favor of this involuntary proceeding because of LEG's relationship to Eco-Bat. As mentioned in note 7, Eco-Bat was a named defendant in the GoldenTree Action. Eco-Bat and related entities apparently are the world's largest producer and recycler of lead (including from lead-acid car batteries). EBH apparently owns approximately 87 percent of the equity interests in Eco-Bat while LEG holds nearly 7 percent. See LEG Statement at 3:7-12. On or about January 18, 2017, Eco-Bat was dismissed from the GoldenTree Action for lack of personal jurisdiction inasmuch as Eco-Bat was formed under the laws of the United Kingdom and lacks sufficient contacts with the State of Nevada. (RJN-EBH Ex. 10). LEG represents that it will be proceeding with a shareholder derivative action in the English High Court addressing various improper and allegedly illegal acts of Meyers, either directly or through his control of EBH. See LEG Statement at 3:21 to 4:13 & nn. 5 and 7.

On July 18, 2017, EBH filed a motion to strike the LEG Statement (ECF No. 132) along with a notice scheduling the motion to be heard on August 17, 2017, i.e., concurrently with the Summary Judgment Motion. (ECF No. 136). Additionally, EBH filed an ex parte motion (ECF No. 133) to advance the hearing on its motion to strike to July 20, 2017, i.e., the same date as the Dismissal Motion. On July 18, 2017, LEG filed an objection to the ex parte motion. (ECF No. 135). At the July 20, 2017, hearing on the instant Dismissal Motion, the court orally denied the ex parte motion. Accordingly, the motion to strike the LEG Statement was not vacated from the August 17, 2017, calendar.

The EBH Reply is accompanied by a supplemental request for judicial notice that includes two additional exhibits ("Supp. RJN-EBH"). (ECF No. 112). That request is granted.

The Summary Judgment Motion was heard on August 17, 2017, and taken under submission. On August 22, 2017, the PIK Lenders filed a "Notice of Clarification of the Record in Connection with The Alleged Debtor's Representation Regarding the Status of the State Court Litigation at the August 17, 2017 Hearing on the Motion for Summary Judgment Filed by GLAS USA LLC." ("Clarification Notice") (ECF No. 181). That document included a letter addressed to this court from the PIK Lenders' bankruptcy counsel conveying information obtained from counsel for the GoldenTree Plaintiffs as to the status of the State Court Litigation. On August 30, 2017, GLAS filed a "Motion to Reopen the Record in Connection with GLAS USA LLC's Motion for Summary Judgment" (ECF No. 188), along with a request for an expedited hearing. EBH filed opposition to both requests, as well as the request for an expedited hearing. (ECF Nos. 187, 192, and 196). On September 12, 2017, the court entered an Order Regarding: (1) Notice of Clarification of the Record in Connection with the Alleged Debtor's Representation Regarding the State [sic] of the State Court Litigation at the August 17, 2017 Hearing on the Motion for Summary Judgment Filed by GLAS USA LLC, (2) Motion to Reopen the Record in Connection with GLAS USA LLC's Motion for Summary Judgment, and (3) Ex Parte Application for Order Shortening Time to Hear Motion to Reopen the Record on GLASS[sic] USA, LLC's Motion for Summary Judgment. (ECF No. 193). For reasons set forth in that order, the court struck the Clarification Notice without prejudice to the parties stipulating to supplement the record as to the status of the State Court Litigation. The order also established a deadline of September 29, 2017, for briefing to be completed on the motion of GLAS to reopen the record on its Summary Judgment Motion. The order also provided that upon completion of that briefing, both the Dismissal Motion and the Summary Judgment Motion are resubmitted for decision.

The original complaint was filed on August 26, 2016. Before that complaint was served, an amended complaint ("Amended Complaint") was filed on September 9, 2016. (RJN-EBH Ex. 1).

Whether improper acceleration of a promissory note results in a complete or partial cancellation of the obligations under the note is clearly raised in the EBH Action. See EBH Complaint at ¶¶ 51-52. As required by the PIK Loan Agreement, that issue will be decided under New York law. At the hearing, GLAS submitted copies of several court opinions on the acceleration issue, e.g., Fleet National Bank v. Liuzzo, 766 F.Supp. 61 (D. R.I. 1991), Shawmut Bank, N.A. v. LaFazia, 1992 WL 139003 (D. R.I. 1992), and United States v. 1300 Lafayette East, 455 F.Supp. 988 (E.D. Mich. 1978), but none of those decisions were decided based on New York law. Moreover, it does not appear that EBH is asserting the allegedly improper acceleration as a basis for recoupment or setoff to reduce the amount of the GoldenTree Parties' claims. Compare In re Focus Media, Inc., 378 F.3d 916, 924-27 (9th Cir. 2004) (alleged debtor's counterclaim for "post-analysis" invoice adjustments to reduce the amount of petitioners' claims); In re Seko Investment, Inc., 156 F.3d 1005, 1008-1010 (9th Cir. 1998) (alleged debtor's counterclaim to offset amount due under separate title insurance policy against amount separately due under promissory notes).

Section 4.02 of the PIK Loan Annex provides in pertinent part that in certain continuing events of default, the administrative agent or PIK Lenders holding at least 25 percent of the principal amount outstanding "[M]ay declare the entire amount of the Loans then outstanding to be due and payable immediately." Certain other events of default render the entire amount outstanding immediately due and payable without further action or notice.

Section 4.04 of the PIK Loan Annex provides in pertinent part that PIK Lenders holding a majority of the outstanding principal amount may waive a non-continuing default or event of default, and may rescind an acceleration of the obligation.

Section 4.06 of the PIK Loan Annex is entitled "Limitation on Suits." That section lists five separate requirements that apparently must be met before a PIK Lender may take action to pursue a remedy to enforce the PIK Loan. Those requirements include the Lender giving notice to the administrative agent of a continuing violation, a written request to the administrative agent to pursue the remedy from PIK Lenders holding at least 25 percent of the principal amount outstanding, and an offer from the requesting PIK Lenders to provide satisfactory indemnity to the administrative agent.

With respect to the declaratory relief claim based on allegations of improper acceleration of the PIK Loan, the GoldenTree Parties argued to the State Court, in pertinent part, that "EB Holdings does not, and cannot, present any facts to show that it is solvent to supports its claims that Defendants improperly accelerated the PIK Loan ...The declaratory judgment and breach of contract claims based on Defendants' alleged violation of the Acceleration Clause are defective for that reason alone." GoldenTree Special Motion at 8:12-15. The GoldenTree Parties further argued to the State Court that "EB Holdings does not, and cannot, point to any contract provision that prohibits lenders from exercising their rights to accelerate the PIK Loan or that grants EB Holdings a remedy if it believes the PIK Loan was improperly accelerated. Without such a contract provision, EB Holdings has no remedy based on the alleged improper acceleration of the PIK Loan, and certainly not a remedy that the entire PIK Loan must be cancelled. See Suzy Phillips Originals, Inc. v. Coville, Inc. , 939 F.Supp. 1012, 1017 (E.D. N.Y. 1996) ('[U]nder New York law a party to a contract action is generally confined to the remedies found in the contract.')" GoldenTree Special Motion at 8:21 to 9:1. It appears that the GoldenTree Parties expressly argued to the State Court that EBH's claim for a declaration canceling the PIK Loan based on improper acceleration is invalid under New York law.

SLAPP is an acronym for "Strategic Litigation Against Public Participation." The term generally refers to lawsuits that are targeted against certain persons for the purpose of silencing or discouraging the named defendants from voicing their concerns to the government or on matters of public interest. This can occur, for example, when a party takes steps to raise a matter of public interest only to be greeted by a lawsuit intended to quell or discourage the original effort. The plaintiff who files the SLAPP lawsuit achieves its purpose by draining the financial resources of the named defendants.

To prevail on a special motion to dismiss under the anti-SLAPP statute, the defendant is required to demonstrate by a preponderance of the evidence that its original claims were "based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." NRS 41.660(3)(a). If that burden is met, the trial court then must determine whether the plaintiff has established with prima facie evidence a probability of prevailing on its claim. See Delucchi v. Songer, 396 P.3d 826, 831 & n.4 (Nev. 2017), citing NRS 41.660(3)(b).

The State Court's findings apparently mean that: (1) the GoldenTree Parties did not establish that the claims they asserted in the GoldenTree Action were based on a good faith communication or right to free speech encompassed by NRS 41.660(3)(a), and (2) there were genuine factual disputes preventing a determination that EBH had established with prima facie evidence a probability of prevailing on the claims asserted in the EBH Complaint.

Denial of a special motion to dismiss under the Nevada anti-SLAPP statute is subject to an immediate appeal to the Nevada Supreme Court (rather than the Nevada Court of Appeals). See Delucchi v. Songer, 396 P.3d at 830 n.3, citing NRS 41.670(4).

The GoldenTree Plaintiffs allege that EBH is in breach of the PIK Loan Agreement through the insolvency event of default set forth in Section 4.01(g) of the PIK Loan Annex. See Amended Complaint at ¶ 133. They further allege that as a result of the insolvency default the PIK Loan has been accelerated without notice or demand under Section 4.02 of the Annex and that "the entire amount of the loan outstanding is immediately due and payable." Id. at ¶ 134. The GoldenTree Plaintiffs further allege that they "have been damaged in an amount not less than €787.71 million, which represents their holdings of the €1.6 billion outstanding due under the EB Holdings Loan Facility as of March 31, 2016." Id. at ¶ 136. In the prayer, the GoldenTree Plaintiffs seek compensatory damages on the breach of contract claim "in an amount to be proved at trial." Id. at 51:22-23. Even though the GoldenTree Plaintiffs alleged in the Amended Complaint that the entire amount of the loan outstanding is immediately due, the alleged damages were less than the entire amount, and the prayer sought only to recover their damages according to proof at trial. Whether acceleration of a promissory note is a binary result akin to pregnancy, i.e., the entire loan is either due or not due, it is arguable that the GoldenTree Plaintiffs are seeking to recover as compensatory damages only the portions of the PIK Loan in which they have an interest. What happens to the remaining portions of the accelerated PIK Loan is not alleged.

The GoldenTree Plaintiffs allege that EBH transferred certain assets to defendants Meyers, Quexco, and RSR, with intent to hinder, delay, and defraud creditors, and that the alleged transfers are avoidable for actual fraud under the Nevada version of the Uniform Fraudulent Transfer Act, NRS 112.180(1)(a). See Amended Complaint at ¶¶ 187 through 191.

The GoldenTree Plaintiffs also allege that EBH, Meyers, Quexco and RSR caused the transfer of certain assets of Eco-Bat to defendants Meyers, Quexco, and RSR, without EBH receiving reasonably equivalent value, that are avoidable as constructive fraudulent transfers under NRS 112.180(1)(b). See Amended Complaint at ¶¶ 193 through 197.

The GoldenTree Plaintiffs allege that EBH was insolvent at all relevant times prior to the commencement of the GoldenTree Action, see Amended Complaint at ¶¶ 77-81 and Second Amended Complaint at ¶¶ 98-102, while EBH denies that it was, and is, insolvent. See EB Holdings II, Inc.'s Answer to Second Amended Complaint, Counterclaim and Third-Party Complaint ("EBH Counterclaim") at ¶¶ 98-102. (RJN-EBH Ex. 28). If EBH was not and is not insolvent, then arguably Section 4.01(g) of the PIK Loan Annex does not apply, and the PIK Loan was not accelerated automatically under Section 4.02 of the Annex.

Apparently in response to the various motions to dismiss, the GreenTree Plaintiffs added an allegation that prior to commencing the GoldenTree Action, they complied with Section 4.06 of the PIK Loan Annex, i.e., the "no action" clause discussed in note 18, supra. In particular, the GoldenTree Plaintiffs alleged in pertinent part that they "provided written notice of the Administrative Agent on September 2, 2016, in compliance with Section 4.06 of Annex 1 to the PIK Loan Agreement, requesting that the Administrative Agent pursue this claim." See Second Amended Complaint at ¶ 160.

The fourth cause of action still alleges a breach of contract and still alleges that "the entire amount of the loan outstanding is immediately due and payable by EB Holdings ..." Second Amended Complaint at ¶ 157. It then alleges that the GoldenTree Plaintiffs have been damaged "in an amount in excess of $10,000 based on their €787.71 million in holdings, as of September 5, 2016, of the €1.6 billion outstanding amount due under the PIK Loan Agreement as of March 31, 2016." Id. at ¶ 159.

EBH again alleged the improper acceleration under the PIK Loan Agreement as a basis for complete or partial cancellation of the PIK Loan. See EBH Counterclaim at ¶¶ 87-88 and 122.

As in their prior GoldenTree Special Motion, see note 19, supra, the GoldenTree Plaintiffs argued that improper acceleration would not result in cancellation of the PIK Loan. In pertinent part, they argued that "There are no remedies available to EB Holdings if it thinks acceleration occurred but was improper ... In fact, the only remedy set forth in the Acceleration Clause gives the lenders an ability to rescind the acceleration ...This is fatal to EB Holdings' declaratory relief and breach of contract claims, as New York law provides that a party's 'obligations' do not 'go beyond those intended and stated in the language of the contract.' Wolff v. Rare Medium, Inc. , 210 F.Supp.2d 490, 497 (S.D. N.Y. 2002), aff'd, 65 Fed.Appx. 736, 738 (2d Cir. 2003) ; see also Terwilliger v. Terwilliger , 206 F.3d 240, 246 (2d Cir. 2000) (rejecting breach of contract claim where the agreement 'contains no language' prohibiting conduct or creating remedy); Paul v. Bank of Am. Corp. , No. 09-CV-1932 (ENV)(JMA), 2011 WL 684083, at *6 (E.D. N.Y. Feb. 16, 2011) (no breach where 'the plain language' of the agreement 'did not prohibit' the conduct); Ari & Co., Inc. v. Regent Int'l Corp. , 273 F.Supp.2d 518, 523 (S.D. N.Y. 2003) (improper to imply 'obligations that were not explicitly part of the Agreement'); Ehag Eisenbahnwerte Holding Aktiengesellschaft v. Banca Nationala A Romaniei , 306 N.Y. 242, 249, 117 N.E.2d 346 (1954) (no breach where agreement 'clearly establish[ed] that no duty was imposed upon, or assumed by [defendants]"). EB Holdings cannot establish a probability of prevailing on its declaratory relief and breach of contract claims for this reason alone." Golden Tree EBH Special Motion at 13:25 to 14:12. It again appears that the GoldenTree Plaintiffs expressly argued to the State Court that under New York law, EBH's claim for a declaration canceling the PIK Loan based on improper acceleration is invalid.

As discussed at 711-12 and note 22, supra, the written order setting forth the State Court's ruling on that special motion to dismiss only specified that the Defendants in the EBH Action did not meet their burden on the special motion and that genuine issues of material fact precluded the motion from being granted. Moreover, there was no written finding under NRS 41.660(3)(b) that EBH had demonstrated with prima facie evidence the probability of prevailing on the four causes of action alleged in the EBH Complaint.

The order denying the special motion to dismiss is unclear. The term "Claim" is used in the State Court's findings numbered 1 and 2 set forth on page 3 of the order. "Claim" is previously defined in the order to mean "[T]he fifth cause of action of EB Holdings' Counterclaim and Third-Party Complaint (the "Claim")." See Golden Tree Special Order at 3:2-3. The State Court's finding number 2 clearly pertains to the fifth cause of action in EB Holdings' counterclaim and third party complaint. The State Court's finding number 1, however, presumably refers to claims for relief asserted in the amended complaints filed in the GoldenTree Action. This order is, however, far more specific than the EBH Special Order.

It appears that the State Court's determination that EBH has demonstrated a probability of prevailing on the fifth cause of action cannot be admitted later in the GoldenTree Action nor will it impact EBH's burden of proof on that cause of action. See Delucchi v. Songer, 396 P.3d at 831, citing NRS 41.660(3)(1-2).

The face of the motion indicates that it would be considered by the State Court on June 15, 2017. A copy of the Third Amended Complaint is attached as an exhibit to a motion for leave to file third amended complaint in the GoldenTree Action. (RJN-EBH Ex. 13). That motion for leave to amend was filed in the GoldenTree Action on May 15, 2017. The additional plaintiffs sought to be added are Absalon II Limited, Credit Fund Golden Ltd., GN3 SIP LP, GoldenTree Distressed Master Fund 2014, Ltd., GoldenTree Distressed Debt Master Fund LP, GoldenTree Master Fund II, Ltd., GoldenTree High Yield Value Fund Offshore (Strategic), Ltd., GoldenTree E Distressed Debt Master Fund II LP, GoldenTree Entrust Distressed Debt Master Fund LP, GoldenTree Entrust Master Fund SPC on behalf of and for the account of Segregated Portfolio I, GoldenTree High Yield Value Fund Offshore II, Ltd., GoldenTree High Yield Value Master Unit Trust, GoldenTree High Yield Value Fund Offshore 110 Ltd., GoldenTree Asset Management Lux S.a.r.l., and Stichting PGGM Depositary acting in its capacity as title holder for PGGM High Yield Fund. There are twenty-eight proposed plaintiffs named in the Third Amended Complaint.

Paragraph 178 still alleges an insolvency default under Section 4.01(g) of the PIK Loan Annex. When the parties filed the RAS Stipulation on June 6, 2017, see note 9, supra, a maturity default on the PIK Loan already had been alleged as a basis for the breach of contract claim in the GoldenTree Action. At the hearing on the Dismissal Motion, counsel for GLAS argued that the GoldenTree Action is not based on a loan maturity default, but apparently was not aware that the GoldenTree Plaintiffs had amended their complaint to allege the same maturity default that serves as the basis for GLAS's asserted claim in this involuntary proceeding.

€1.373 billion would represent slightly more than 76 percent of the €1.8 billion outstanding amount of the PIK Loan. So even if the GoldenTree Plaintiffs are now asserting that the entire amount of the PIK Loan is due without acceleration, compare discussion at 715 and note 36, supra, they now seek to collect more than three-quarters of the loan balance.

GLAS originally asserted that there are 61 participants in the PIK Loan. See note 5, supra. In response to the Dismissal Motion and at the hearing, GLAS represented that there are 55 participants in the PIK Loan. See GLAS Opposition at 4:12-13. The court will use the latter figure for purposes of this Memorandum Decision.

Petition at 3-9. There are seven Petitioning Creditors.

Third Amended Complaint at ¶¶ 14 to 41. There are twenty-eight named plaintiffs.

EBH Counterclaim at ¶¶ 9 to 38. There are thirty named counterclaim and third-party defendants.

EBH Complaint at ¶¶ 8 to 20. There are thirteen named defendants.

Appendix of Exhibits in Support of Special Motion to Dismiss (RJN-PIK Ex. A). There are twenty-eight parties identified in the declarations filed in connection with the special motion to dismiss filed by the GoldenTree Plaintiffs in the GoldenTree Action.

Apparently, EBH is a holding company with no business operations, no creditors other than holders of interests in the PIK Loan, and no employees. See Dismissal Motion at 28:24-25; EBH Reply at 9:16-18.

The title of the Dismissal Motion includes a "Reservation of Rights under 11 U.S.C. § 303(i)." The penultimate section of the text also includes that reservation. See Dismissal Motion at § V. Under that statute, if an involuntary case is dismissed without the consent of all parties, the alleged debtor can seek entry of relief against either all of the petitioners under Section 303(i)(1), or, against any petitioner who filed the petition in bad faith under Section 303(i)(2). As to the former, the relief may consist of either an award of costs, or an award of reasonable attorneys fees under Section 303(i)(1)(A). As to the latter, the relief may consist of any damages proximately caused by the commencement of the involuntary proceeding, or, punitive damages under Section 303(i)(2)(B). Only the alleged debtor may obtain a judgment for relief under Section 303(i). See, e.g., Vibe Micro, Inv. v. SIG Capital, Inc., 2017 WL 2225569 (D. Nev. May 22, 2017) (shareholder of involuntary debtor did not have standing to seek relief under either part of Section 303(i) ).

EBH and GLAS dispute whether GLAS is a qualified petitioning creditor in connection with two arguments: (1) that GLAS acquired the position of Credit Suisse for the actual purpose of filing the involuntary petition in violation of FRBP 1003(a), compare Dismissal Motion at 20:16 to 21:4, with GLAS Opposition at 13 n.8, and (2) that GLAS joined in the Petition in violation of the majority control requirements of Section 4.05 of the Annex to the PIK Loan. Compare Dismissal Motion at 21:5-18, with GLAS Opposition at 13:5 to 14:17.

The lowest amount of the claims of the Petitioning Creditors is €1,577,591.08. See Petition, Attachment "A." If converted to U.S. dollars, that figure presumably exceeds $15,775.

The difference between the GLAS claim and the aggregate amount of the other six claims is €1,029,774,255.84. It therefore appears that most of the GLAS claim alleged in the Petition represents sums owed to other participants in the PIK Loan. It is not clear, however, on whose behalf the €1,029,774,255.84 difference is being asserted by GLAS "solely in its capacity as Administrative Agent" inasmuch as the other six Petitioning Creditors have asserted their separate claims. This uncertainty is heightened because the ad hoc PIK Lender Group has implied that only some of its members are amongst the Petitioning Creditors in this proceeding, see PIK Lender Group Statement at 5 n.5, and the identified members of the PIK Lender Group, see id. at 1 n.1, are not identical to the names of the Petitioning Creditors.

GLAS has acknowledged that it filed the Petition "[O]n behalf of itself as Administrative Agent and in its capacity as agent for each of the 55 PIK Lenders, each of whom have a separate and independent claim against the Debtor ..." GLAS Opposition at 7:8-9.

In this case, there may be an actual dispute over whether a sufficient number of qualifying creditors have joined in the involuntary petition, rather than a bona fide dispute as to liability or amount of the claims. Compare In re Datacom Systems, Incorporated, Case No. 14-11096-ABL, Memorandum and Order Regarding Involuntary Petition and Motion to Dismiss, Docket No. 228, at 20-27 (Bankr. D.Nev. June 25, 2015) (concluding after a contested evidentiary hearing that an involuntary Chapter 7 petition was filed by three qualified creditors under Section 303(b)(1) ).

See GLAS Opposition at 7 n.6 ("Because the Debtor has no debts other than the PIK Loan, GLAS alone can satisfy the creditor numerosity requirement under section 303, either as agent for each of the remaining PIK Lenders (of which there are more than 3), or as a single creditor asserting claims in its own name.").

The language of Sections 303(b)(1) and 303(b)(2) creates an anomalous situation for an alleged debtor having 12 creditors whose claims are not contingent nor subject to bona fide dispute as to liability or amount. If only two active creditors file an involuntary petition under Section 303(b)(1), the case will be dismissed because the petition was not filed by the minimum of three eligible creditors. See Rothery v. Cunningham (In re Rothery), 211 B.R. 929, 934-35 (9th Cir. BAP 1997), rev'd on other grounds, 143 F.3d 546 (9th Cir. 1998). If one or even all of the creditors file an involuntary petition under Section 303(b)(2), the case will be dismissed because the debtor did not have less than twelve creditors. Compare In re 7H Land & Cattle Corp., 6 B.R. 29 (Bankr. D.Nev. 1980) (eligible claim of one creditor is sufficient when fewer than twelve claim holders was alleged in petitions and not controverted), with In re Zapas, 530 B.R. 560, 567 (Bankr. E.D. N.Y. 2015) (petitioning creditors failed to show that alleged debtor had fewer than 12 creditors and therefore the three creditor minimum under 303(b)(1) applied, rather than the single creditor requirement under 303(b)(2) ). Specific numbers appearing in a statute normally are not considered to be ambiguous and therefore should not be subject to court interpretation even if the surrounding language may have different meanings.

In this instance, EBH did not file an answer asserting the existence of 12 or more creditors having qualifying claims along with a list of such creditors under FRBP 1003(b). This may be the preferred method of challenging the number of petitioning creditors, see 2 Collier on Bankruptcy , supra, ¶ 303.14[9], but arguably nothing prevents the issue from being considered in connection with a motion to dismiss.

Alternatively, an order for relief may be entered against a debtor in a contested proceeding if a custodian was appointed or took possession of substantially all of the debtor's property within 120 days before the involuntary petition was filed. See 11 U.S.C. § 303(h)(2).

Section 303(h)(1) refers to "such debtor's debts." Section 303(h)(1) then imposes conditions on "such debts." "Such debts" are required to be ones that the alleged debtor generally is not paying as they become due. The alleged debtor's failure to pay "such debts" apparently is then excused if those debts are subject to a bona fide dispute as to liability or amount. Because the phrase "such debtor's debts" refers to all of the alleged debtor's obligations, the inquiry required by Section 303(h)(1) apparently extends beyond the claims of the petitioning creditors. Thus, an alleged debtor's undisputed failure to pay a petitioning creditor's debt is not determinative of whether the debtor generally is not paying all of its debts as they become due.

A more unusual situation may occur where a debtor pays all of its debts as they are incurred subject to a reservation of rights. In such circumstances, a contested involuntary petition apparently would not satisfy the threshold requirement of Section 303(h)(1).

Section 303(b)(1) refers to claims that are not the subject of a bona fide dispute while 303(h)(1) refers to debts that are not the subject of a bona fide dispute. Under Section 101(12), the term "debt" means liability on a "claim." Under Section 101(5)(A), the term "claim" means, inter alia, a right to payment, whether or not such right is disputed or undisputed. So under the Bankruptcy Code, a claim or a debt can be a right to payment regardless of whether it is subject to dispute. This broad definition of debt is important to a debtor who voluntarily seeks bankruptcy relief because it maximizes the scope of the bankruptcy discharge. When a debtor is subjected to an involuntary petition, this broad definition also is important because it identifies the type of debt that will prevent a debtor from having its property taken under a bankruptcy court's jurisdiction without the debtor's consent. Thus, when it comes to involuntary bankruptcy cases, the existence of a dispute over the claims of the petitioning creditors raises a due process concern over the nonconsensual taking of a debtor's property.

A bona fide dispute as to any amount of the petitioning creditor's claim also disqualifies the claim under Section 303(b). See In re Timothy Blixseth, Case No. 11-15010-BAM, Order Granting Motion to Dismiss Involuntary Case, Docket No. 528, at 13:11 to 14:2 (Bankr. D. Nev. July 10, 2013). The order in the Blixseth proceeding was appealed to the United States District Court for the District of Nevada ("USDC") and denominated Case No. 2:13-cv-01324-JAD. At the request of the appellant, the USDC certified the matter for direct appeal to the Ninth Circuit on whether the presence of a bona fide dispute as to any amount of a petitioning creditor's claim disqualifies the claim under Section 303(b). See Montana Dept. of Revenue v. Blixseth, 2013 WL 5408668 (D. Nev. Sep. 25, 2013). On June 11, 2014, the circuit court entered an order denying permission for direct appeal, thereby returning the matter to the USDC for disposition. An appellate decision on the dismissal order has not been entered, but the underlying Blixseth bankruptcy proceeding has been reassigned to the above-signed. While the bankruptcy court's prior decision dismissing the involuntary petition in Blixseth remains on appeal, its conclusion that even a dispute as to part of the claim disqualifies the petitioning creditor is supported by many other court decisions. See 2 Collier on Bankruptcy , supra, ¶ 303.11[2] & nn.32, 33. The absence of a Ninth Circuit determination on this issue was observed by the Bankruptcy Appellate Panel for this circuit in 2009, see In re C & C Jewelry Mfg., Inc., 2001 WL 36340326, at *7, and a list of diverging lower court decisions was provided by the USDC. See Montana Dept. of Revenue v. Blixseth, 2013 WL 5408668, at *2-3. The continued absence of a Ninth Circuit decision resolving this issue was more recently noted in In re Clignett, 567 B.R. 583 (Bankr. C.D. Cal. 2017).

Where litigation between parties to a common agreement has gone to a final, non-appealable judgment, the existence of such a judgment may be sufficient to carry a petitioning creditor's initial burden of proving the absence of a bona fide dispute. See, e.g., In re Datacom Systems, at 25:10 to 26:21.

GLAS apparently claims its costs and expenses separately as administrative agent under the PIK Loan. See GLAS Opposition at 10:2-5.

GLAS now represents that of the fifty-five participants in the PIK Loan, twenty-eight of them are not involved in the State Court Litigation. See GLAS Opposition at 4 n.4. The identities of those other twenty-eight PIK Lenders, however, do not appear in the record, and obviously none of them are the Petitioning Creditors specified in the Petition.

EBH merely states that the subject motion is "brought pursuant to Bankruptcy Rules 1011 and 7012." Dismissal Motion at 1:12. FRBP 7012(b) incorporates by reference Civil Rule 12(b) through 12(i).

Civil Rule 12(b)(6) addresses the sufficiency of pleadings in a civil action. Under Civil Rule 7(a), there are only seven pleadings allowed, with no mention of a petition. Under FRBP 1018, however, references in the Civil Rules to a complaint are to be read as a reference to an involuntary bankruptcy petition. In an involuntary proceeding, a motion under Civil Rule 12(b)(6), therefore, asks whether the involuntary petition states a claim for which relief may be granted. At the hearing, counsel for EBH represented that the Dismissal Motion is not brought under Civil Rule 12(b)(6). Instead, counsel asserted that the Petitioning Creditors had failed to make a threshold, prima facie showing of noncontingent claims that are not subject to bona fide dispute under Section 303(b), apparently irrespective of whether there is proof at trial under Section 303(h)(1) that EBH generally is not paying its debts as they become due. That characterization of the argument, however, simply supports the court's focus on whether the Petitioning Creditors have stated a claim for which relief may be granted under Section 303.

As discussed below, the key statutory language applicable to involuntary bankruptcy cases refers to the absence of a "bona fide" dispute concerning the liability or the amount of the petitioning creditor's claim. The summary judgment standard refers to "genuine" disputes of material fact that will preclude entry of judgment as a matter of law. It is not clear whether a "bona fide" dispute is the same as a "genuine" dispute. It seems clear, however, that when there is no genuine factual dispute between a petitioning creditor and an alleged debtor, there can still be a bona fide dispute over liability for the debt or the amount of the debt. Issues of statutory, common law, or contract interpretation fall into the latter category. If a petitioning creditor seeks summary judgment on its involuntary petition, but fails to demonstrate the absence of a genuine dispute of material fact that would require a judgment as a matter of law, is there necessarily a bona fide dispute as to liability or amount that disqualifies the petitioner's claim? If a petitioning creditor seeks summary judgment on its involuntary petition, but its claim depends on an unsettled question of state law, is there necessarily a bona fide dispute as to liability or amount that disqualifies the petitioner's claim? And what happens on summary judgment when parties to a contested involuntary petition give less than complete consent to the bankruptcy court's entry of a final judgment on all matters, including the underlying claims? See discussion at note 77, infra. Is there a bona fide dispute as to liability or amount until such time as a final judgment is entered by an Article III court? See generally 2 Collier on Bankruptcy , supra, ¶ 303.11[3].

Those exhibits include seven separate declarations filed on behalf of the GoldenTree Plaintiffs in the State Court Litigation, to which are attached a variety of transactional documents and correspondence.

That case involved an involuntary petition commenced against South Edge, LLC, Case No. 10-32968-BAM. The February 3, 2011, hearing transcript from the South Edge proceeding ("South Edge Transcript") encompasses the bankruptcy court's oral ruling after trial granting the involuntary petition. The court directed the entry of an order for relief and the appointment of a Chapter 11 trustee. Based on stipulated facts, the court concluded that there were sufficient claims not subject to bona fide dispute, see South Edge Transcript at 46:12-20, and that abstention was not in the best interests of either creditors generally or the petitioning creditors. Id. at 52:4-18. The remnants of the South Edge case have been reassigned to the above-signed.

As previously indicated at note 5, supra, separate "statements" in support of the Petition were filed by GLAS and the ad hoc PIK Lender Group. Like the various exhibits for which judicial notice is requested, these statements also are outside of the Petition and not incorporated by reference. Attachment "A" to the Petition describes the nature of each Petitioning Creditor's claim as "Loan Facility Obligations" without alleging that the obligations are due or that they are not being paid. Absent reference to the separate statements, the Petition arguably contains only a bare recital of the language of Section 303(h)(1), which would not be sufficient to state a claim for relief. Compare Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (satisfaction of Civil Rule 12(b)(6) requires more than mere "labels and conclusions" and a "formulaic recitation of the elements of a cause of action.").

Because FRBP 1011(b) requires an alleged debtor to present defenses to an involuntary petition "in the manner prescribed by Civil Rule 12," and Civil Rule 12(b) requires its enumerated defenses to be presented by motion before an answer is filed, the limitations in Official Form 205 commonly result in a motion to dismiss an involuntary petition under Civil Rule 12(b)(6) being converted to a summary judgment motion governed by Civil Rule 56.

The PIK Loan had a maturity date of March 31, 2017. The GoldenTree Plaintiffs commenced the State Court Litigation on August 26, 2016, i.e., seven months before maturity. The commencement before the maturity date was predicated on an allegation that EBH was insolvent under Section 4.01(g) of the PIK Loan Annex, and the loan had accelerated without notice under Section 4.02 of the Annex. Apparently, after the GoldenTree Action was filed, the GoldenTree Plaintiffs made a written request to Credit Suisse to commence an action to enforce the loan as the predecessor administrative agent, but Credit Suisse did not do so. Because EBH disputes that it was or is insolvent, it maintains that acceleration had not occurred and that wrongful commencement of the GoldenTree Action resulted in a cancellation of its obligation under the PIK Loan Agreement. Those factual and legal contentions were alleged before the State Court in the EBH Counterclaim and in the EBH Complaint. Those contentions apparently were raised before the State Court in connection with motions to dismiss and special motions to dismiss, but remain unresolved. Not satisfied with those rulings, the GoldenTree Parties have pursued interlocutory appeals that are now pending before the Nevada Supreme Court.

For whatever reason, the State Court Litigation was commenced before the PIK Loan matured by its own terms. Substantial litigation activity occurred before the current bankruptcy Petition was filed. As a result, the bankruptcy court does not have a blank slate on which to evaluate the parties' arguments on the underlying merits. As much as any party to this involuntary proceeding may want this bankruptcy court to determine the merits of EBH's theories under New York law, those factual and legal issues are now before the State Court. Moreover, there are no final orders or judgments by the State Court, by default, by summary judgment, or otherwise, nor any appellate rulings from the Nevada Supreme Court, on which this bankruptcy court can or should rely.

The concept of limiting petitioning creditors to those holding claims that are "not subject to a bona fide dispute" was added to Section 303 in 1984. See In re Johnston Hawks, Ltd., 49 B.R. 823, 830 (Bankr.D. Haw. 1985). Prior to that, an eligible petitioning creditor was required to have a "provable claim." Id. at 829. In 2005, Congress added the words "as to liability or amount" to the requirements for the eligible claims of involuntary petitioners under Sections 303(b)(1) and 303(h)(1). There are only two other places in the Bankruptcy Code where the term "bona fide dispute" is used. The term appears in Section 363(f)(4) as a basis for permitting property of a bankruptcy estate to be sold free and clear of an interest asserted by a non-debtor party. It also appears in the definition of "insolvent" under Section 101(32)(C)(i) with respect to a municipality. The 2005 amendments added the words "as to liability or amount" to the requirements for the eligible claims of involuntary petitioners, but made no changes to the only other instances in which the term bona fide dispute is used in the Code.

Any summary judgment motion also should address whether the number of eligible claimants required by Section 303(b)(1) or Section 303(b)(2), see discussion at 719-21, supra, have joined in the involuntary Petition. Additionally, EBH's challenge to GLAS's qualification as a petitioning creditor, see note 46, supra, should be addressed, if at all, by summary judgment.

Apparently, none of the parties to the GoldenTree Action nor the EBH Action filed motions for summary judgment in those proceedings. An order from the State Court granting such a motion in either action would suggest the absence of a genuine dispute of material fact warranting entry of at least partial judgment as a matter of law. But no such motions, much less orders from the State Court, are part of the record. Likewise, there are no final judgments on the merits in favor of any party to the State Court Litigation.

The ubiquitous "totality of the circumstances" approach, see, e.g., discussion at 721-22, supra, is commonly applied in determining whether a court should exercise its discretion to abstain under Section 305(a)(1). For discretionary abstention, the factors typically considered are: (1) economy and efficiency of case administration, (2) the availability of another forum to protect the interests of the parties or the pendency of another proceeding in state court, (3) the necessity for a federal proceeding to achieve a just and equitable solution, (4) the availability of alternative means to equitably distribute assets, (5) whether the debtor and creditors are able to achieve a less expensive arrangement out of court, (6) whether continuation of existing non-federal insolvency proceedings would be less costly and time-consuming, and (7) the purpose for seeking bankruptcy jurisdiction. See Dismissal Motion at 35:18 to 36:4, citing Marciano v. Chapnick (In re Marciano), 459 B.R. 27, 46 (9th Cir. BAP 2011). These factors are non-exclusive and no one factor is more important than another. See In re Marciano, 459 B.R. at 48 ("We disagree that any of the § 305(a) factors can be 'primary' where the determination of relief under § 305(a) is based on the totality of the circumstances.").

As discussed at note 10, supra, LEG is not a creditor of EBH but favors this involuntary proceeding due to LEG's relationship to Eco-Bat. EBH's motion to strike the LEG Statement, see note 11, supra, is the subject of a separate ruling in connection with the Summary Judgment Motion.

It must be remembered that the claims of petitioning creditors cannot be subject to bona fide dispute. If the alleged debtor is adjudicated as bankrupt, then entry of an order for relief shifts the focus for the disposition of all creditor claims to the bankruptcy court. That result may be desirable to the Petitioning Creditors but equally undesirable to creditors who prefer a different venue to have their claims adjudicated. In this instance, the GoldenTree Plaintiffs chose to initiate litigation against EBH in State Court while other participants in the PIK Loan did not. When EBH responded by commencing its own action and asserting counterclaims and third party claims, the GoldenTree Parties chose to initiate anti-SLAPP proceedings. Having failed in their anti-SLAPP motions, the same GoldenTree Parties seek review by the Nevada Supreme Court. Now some of the same GoldenTree Plaintiffs seek entry of a bankruptcy order for relief on an involuntary basis that might wrest control from EBH's management of the defense of the GoldenTree Action as well as the prosecution of the EBH Action. Under these circumstances, the court must carefully consider the interests of the Petitioning Creditors, the non-petitioning creditors, and the alleged debtor.

Whether a final judgment between the GoldenTree Parties and EBH would have issue res judicata effect as to other participants in the PIK Loan also is not before this court. For purposes of claim preclusion in this circuit, however, the requirement of privity as to non-parties has been found in a variety of situations, including "(1) where a non-party has succeeded to a party's interest in property; (2) where a non-party controlled the original suit; (3) where the non-party's interests were adequately represented by a party in the original suit; (4) where there is a "substantial identity" between the party and the non-party; (5) where the non-party had a significant interest and participated in the prior action; (6) where the interests of the non-party and the party are so closely aligned as to be virtually representative; and (7) where there is an express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit with identical issues." F.T.C. v. Garvey, 383 F.3d 891, 897 n.5 (9th Cir. 2004).

GLAS states that it "[C]onsents to the entry of final orders or judgment by this Court with respect to the Motion to Dismiss, the Motion for Summary Judgment, the filing of the involuntary petition, and any order for relief entered pursuant to section 303(h) of the Bankruptcy Code, to the extent it is determined that this Court, absent the consent of the parties, cannot enter final orders or judgment consistent with Article III of the Constitution with respect to such matters. GLAS otherwise reserves its right to withhold consent to this Court's entry of final orders of judgment in all other matters." GLAS Statement at 3:20-26 (emphasis added). The PIK Lender Group states that it "[D]oes consent to entry of final orders of judgment by the Court if it is determined that the bankruptcy judge, absent consent of the parties, cannot enter final orders or judgment consistent with Article III of the United States Constitution." PIK Lenders Statement at 2:15-17. EBH states that it "[C]onsents to this Court's jurisdiction for entry of final orders and/or judgments with respect to this Motion and the filing of the Involuntary Petition. EB Holdings respectfully reserves its right to withhold consent to the Court's entry of final orders and/or judgments in all other matters." Dismissal Motion at 5:2-5 (emphasis added). The consent of the PIK Lenders appears to be unrestricted, while the consent of GLAS and EBH is limited. It remains unclear whether the parties consent to the bankruptcy court entering a final order as to any aspects of the merits of the underlying claims amongst the parties.

As previously discussed at 715, supra, the Third Amended Complaint includes an allegation that a maturity default has occurred in connection with the breach of contract cause of action alleged by the GoldenTree Plaintiffs.

As previously discussed at note 13, the PIK Lenders filed a Clarification Notice attempting to update the court on the status of the State Court Litigation. Also as previously discussed, this court entered an order striking that Notice without prejudice to the parties requesting permission to file additional declarations attesting to the current status of the State Court Litigation. None of the parties have done so. As it now stands, the trial scheduling order entered by the State Court indicates that a jury trial in the coordinated actions will commence as early as April 16, 2018.

The PIK Lenders allege that the principal of EBH has engaged in a variety of self-dealing, see PIK Lender Statement at 6:1 to 12:5, and will be enlightened by the fiduciary duties of a Chapter 11 debtor in possession "or be replaced." Id. at 12:6-17. Because EBH is admittedly a holding company with no employees or business operations, see note 44, supra, it begs the question of why any creditor would want to put EBH into Chapter 11 for any purpose other than divest current management of control over the State Court Litigation or of the equity interests in Eco-Bat.

A Chapter 11 trustee, like a Chapter 7 trustee, can also exercise the powers to avoid fraudulent transfers under both bankruptcy law, see 11 U.S.C. § 548, and under applicable state law. See 11 U.S.C. § 544(b). In this instance, the GoldenTree Plaintiffs already seek to avoid various alleged fraudulent transfers under Nevada law. See discussion at 712 & notes 25 and 26, supra. In this respect, bankruptcy does not offer a unique remedy to address the alleged wrongdoing by the principals and affiliates of EBH.

A bankruptcy court's assertion of jurisdiction over parties without their consent is perhaps at its farthest limit when it enters an order substantively consolidating a non-debtor entity with an existing debtor. See, e.g., Clark's Crystal Springs Ranch, LLC v. Gugino (In re Clark), 692 Fed.Appx. 946 (9th Cir. 2017) (Chapter 7 individual debtor's estate substantively consolidated with separate limited liability company and separate family trust). Substantive consolidation of existing bankruptcy estates can be contentious, but is comparatively straightforward. See, e.g., In re R & S St. Rose Lenders, LLC, 553 B.R. 814 (Bankr. D. Nev. 2016) (denial of substantive consolidation of separate voluntary Chapter 11 proceedings). Substantive consolidation of a debtor that has not subjected itself to bankruptcy jurisdiction, however, arguably is the equivalent of an involuntary proceeding without the protections of Section 303(b) and Section 303(h).