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IN RE CUMBERLAND ENTERPRISES, INC.

Bankruptcy Nos. 381-01797, 382-00758 and 382-00757, Adv. No. 382-0289.

22 B.R. 626 (1982)

In re CUMBERLAND ENTERPRISES, INC., Northeast Enterprises, Inc., Northeast Enterprises of Columbus, Inc., Debtors. Mark A. SCHNEIDER, Trustee, in Bankruptcy for Cumberland Enterprises, Inc., Northeast Enterprises, Inc., Northeast Enterprises of Columbus, Inc., and on behalf of himself as sole stockholder of The 1727 Corporation, Plaintiff, v. 2-STAR FOODS, INC., The Chipper Foods Co., Inc., Gulf Coast Foods, Inc., Leon Moore, Moore & Associates, Inc., Venture Enterprises, Inc., Shoney's Inc., David Wachtel, William Tell, Inc., Wilson C. Tate, Sr., Harold F. Morris, Mark R. Moore, Charles Cox, Jr., Tate, Cox & Moore, A Partnership, Sequel II Corporation, James C. Smith, Seafood Distributors, Defendants.

United States Bankruptcy Court, M.D. Tennessee, Nashville Division.

August 18, 1982.

Attorney(s) appearing for the Case

Harry D. Lewis, Nashville, Tenn., for plaintiff/trustee.

Larry Stewart, Nashville, Tenn., for 2 Star Foods, Inc. and The Chipper Foods Co., Inc.

Kenneth Switzer, Nashville, Tenn., for David Wachtel and William Tell, Inc.

David B. Herbert, Nashville, Tenn., for Wilson C. Tate, Sr., Tate, Cox & Moore, and Sequel II Corp.

Russell H. Hippe, Jr., Nashville, Tenn., for Shoney's Inc.

Patrick L. Alexander, Nashville, Tenn., for Gulf Coast Foods, Inc., Leon Moore, Leon Moore & Associates, Inc. and Venture Enterprises, Inc.

MEMORANDUM

KEITH M. LUNDIN, Bankruptcy Judge.

The defendants' motions to dismiss raise two issues: (1) whether this adversary proceeding may continue after the Supreme Court's decision in Northern Pipeline Construction Co. v. Marathon Pipeline Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (U.S.1982); and, (2) whether the debtors' trustee may bring a shareholder's derivative action to recover the value of assets belonging to the debtors' wholly...

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