ORDER

Pending in this adversary proceeding is the Plaintiffs motion to remand this action to the U.S. District Court for the Southern District of California, after the action was removed to this Court by the Chapter 7 Trustee of the Defendant Gary Brew Ent. Ltd., Debtor. Gary W. Brugh and Joyce Brugh are also Chapter 7 Debtors in Bankruptcy Case 95-00538-B7. An adversary proceeding by Thomas against Debtors Brugh is pending in case 96-09302-B7 seeking a determination of non-dischargeability under 11 U.S.C. § 523 (a)(6). Both adversary proceedings have been assigned to this Court. The basis for the non-dischargeability complaint in cause 96-90302 is based on the same complaint and circumstances in this pending adversary proceeding, which is the alleged racial discrimination in employment under 42 U.S.C. § 1981 ( 42 U.S.C. § 2000 (e)). It is also conceded that the Plaintiff filed Proofs of Claim in each Chapter 7 case seeking unliquidated damages of $100,000 against each Debtor based on the racial discrimination allegations.

Procedurally, the Plaintiff initially filed the racial discrimination complaint in the U.S. Bankruptcy Court in adversary proceeding no. 93-90264. That action was dismissed by Order of June 28, 1994, due to lack of prosecution. Plaintiff then renewed the action in the United States District Court on June 24, 1995, and filed the Second amended complaint on February 20, 1996. On February 15, 1996, the Chapter 7 Trustee filed objection to the Thomas Proof of Claim. On May 2, 1996, the Chapter 7 Trustee removed the District Court action to this Court. On May 6, 1996, the Trustee filed an answer to complaint. Plaintiff, on June 3, 1996, filed the pending motion to remand to District Court. This Court held a telephone conference hearing on the motion on July 11, 1996, after briefs were filed by the Plaintiff and the Chapter 7 Trustee. Brughs have not appeared in support or opposition to the remand motion. Further, on August 29, 1995, Defendant Adams filed a motion to dismiss the complaint under F.R.Civ.P. 12(b)(6) on the basis the action against Adams is barred by the applicable statute of limitations. Both parties have filed briefs on the Rule 12(b)(6) motion, which is still pending. Adams, however, filed an answer to the complaint on April 19, 1996, alleging, in part, an affirmative defense of the statute of limitations. In addition, there is a separate ground argued by Adams for dismissal that the complaint fails to allege that the plaintiff sought an administrative right to sue letter against Adams as required by 42 U.S.C. § 2000e-5(f)(1), which Adams contends must be affirmatively plead in the complaint.

MOTION TO REMAND

In re S.G. Phillips Constructors, Inc., 45 F.3d 702 , 704-705 (2nd Cir.1995) states:

Phillips also analyzed whether an exception to the above general jurisdictional rule applied, one of which exceptions is based on In re Castlerock, 781 F.2d 159 (9th Cir.1986). Castlerock concedes that where a creditor files a proof of claim voluntarily, the matter on resolution of that claim is a core proceeding. Id. at 162 . Where the creditor has not voluntarily filed a proof of claim, but has taken other “defensive” action in the case to protect its interests, Castlerock holds that such “defensive” maneuvering does not constitute voluntary appearance consenting to core jurisdiction. Id. at 163 ; see, In re BKW Systems, 66 B.R. 546, 548 (Bankr.D.N.H.1986)(Casiieroc/c involved a unique situation in which the creditor was not given an opportunity to freely elect whether or not to assert a claim in the bankruptcy proceeding).

In the ease sub judice, it is clear the Plaintiff not only freely and'voluntarily filed a Proof of Claim in each Chapter 7 ease, but the Plaintiff also took further affirmative action in filing the racial discrimination complaint in bankruptcy court as an adversary proceeding against the Debtor. In so doing, the Plaintiff necessarily became a party to the Court’s core jurisdiction. Langenkamp v. Culp, 498 U.S. 42, 44 , 111 S.Ct. 330, 331 , 112 L.Ed.2d 343 (1990).

The above general rule would ordinarily resolve the matter against the Plaintiffs motion to remand. However, in 1984 the Congress adopted section 157(b)(5), which provides:

Moreover, § 157(b)(2)(B) provides that core proceedings include the allowance or disallowance of claims against the estate “but not the liquidation or estimation of contingent or unliquidated personal injury torts or wrongful death claims against the estate for purposes of distribution in a case under title 11.” Section 157(b)(4) then provides that non-core proceedings under § 157(b)(2)(B), i.e., per sonal injury tort claims, “shall not be subject to mandatory abstention provisions of section 1334(c)(2).”

The Chapter 7 Trustee, on this issue under § 157(b)(2)(B), relies on In re Atron, Inc. of Michigan, 172 B.R. 541 (Bankr.W.D.Mich. 1994), holding section 1981 racial discrimination claims are not personal injury tort claims as that term is used in § 157. Atron relies on In re Interco, Inc., 135 B.R. 359 (Bankr.E.D.Mo.1991), and In re Cohen, 107 B.R. 453 (Bankr.S.D.N.Y.1989), while recognizing In re Boyer, 93 B.R. 313 (Bankr. N.D.N.Y.1988) and In re Smith, 95 B.R. 286 (Bankr.N.D.N.Y.1988) held civil rights actions are personal injury tort actions within the meaning of § 157(b)(2)(B) and (b)(5). Atron explains:

Atron, 172 B.R. at 545 . The Atron court looked to the complaint to determine the nature of the relief sought, noting an absence of allegation that “humiliation and emotional distress” were so severe that they rose to the level of a personal injury tort.

After analysis, however, I hold the Atron decision does not comport with the U.S. Supreme Court decisions dealing with civil rights actions. Two seminal decisions, Wilson v. Garcia, 471 U.S. 261 , 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985) and Goodman v. Lukens Steel Co., 482 U.S. 656 , 107 S.Ct. 2617 , 96 L.Ed.2d 572 (1987) give keen insight as to the nature of the litigation under §§ 1981 and 1983. Wilson, 471 U.S. at 276-278 , 105 S.Ct. at 1947-1948 , holds:

Goodman, 482 U.S. at 660-662 , 107 S.Ct. at 2620-2622 , interpreting § 1981, adopts the same theme:

The explicit holdings of Wilson and Goodman govern the applicable state statutes of limitations. That limitations statute is one borrowed for personal injury tort actions. Indeed, in this case, Defendant Adams appropriately insists the California one-year statute of limitations on personal injuries applies to this action. Maddox v. County of San Mateo, 746 F.Supp. 947, 956 (N.D.Cal. 1990); California Code of Civil Procedure § 340(3).

The use of the term “personal injury tort” action in § 157(b)(2)(B) is the same personal injury tort involved in civil rights actions. This Court, to be consistent with Wilson and Goodman , concludes that the use of the term “personal injury tort” in § 157 is the same as applied in civil rights litigation on the use of the appropriate state statute of limitations. It simply defies common sense to hold otherwise. It would be a strange anomaly to adopt the personal injury tort statute of limitations for civil rights actions and then hold such term under § 157(b)(2)(B) means something altogether different when non-core jurisdiction is at issue. I therefore reject the rationale of Atron and hold the gravamen of the Plaintiffs Second Amended Complaint sounds in tort under 28 U.S.C. § 1981 .

Section 157(b)(3) provides:

There is no consent by the Plaintiff to hear this matter in this Court. See, § 157(c)(2). The filing of the Proof of Claim cannot be tantamount to consent where Congress has explicitly restricted this Court’s jurisdiction in § 157(b)(2)(B) and 5. The matter must be tried in district court. Germain v. Connecticut Nat. Bank, 988 F.2d 1323, 1327 (2nd Cir.1993) states:

Atron does not differ with this conclusion. If Atron had found the civil rights action was a personal injury tort case, then the bankruptcy court would have had to accede to the jurisdiction of the district court to try the case.

By reason of this holding, the Defendant’s removal of this action to this bankruptcy court was improvident under 28 U.S.C. § 1478 (a) as the bankruptcy court has no jurisdiction over this non-core proceeding under § 157(b)(2)(B). This cause must be tried in District Court, notwithstanding the filing of the Proofs of Claim by the Plaintiff.

IT IS ORDERED the Plaintiffs Motion for Remand is granted and this case is remanded to the United States District Court for the Southern District of California for all further proceedings.

. 28 U.S.C. § 1478 provides for removal to the bankruptcy court as follows: (a) A party may remove any claim or cause of action in a civil action, other than a proceeding before the United States Tax Court or a civil action by a Government unit to enforce such governmental unit’s police or regulatory power, to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action. (b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order under this subsection remanding a claim or cause of action, or a decision not so remanding, is not reviewable by appeal or otherwise. . Plaintiff seeks remand under 28 TJ.S.C. § 1452(b). The appropriate section, however, is 28 U.S.C. § 1478 (b). There is no motion to abstain pending under § 1334(c)(2). 1 Collier on Bankruptcy ¶ 3.01, pp. 3-86 (15th ed.) states that by excepting suits involving personal injury tort actions from mandatory abstention under § 1334(c)(2), “Congress intended that they be tried by the district court, at least if the only reason is that ground for mandatory abstention exists. On the hand, because there is no exception from discretionary abstention provisions of section 1334(c)(1), the courts have concluded that the statute has not removed their discretion to abstain from trying PITWD [personal injury tort and wrongful death] claims under proper' circumstances.” See In re White Motor Credit, 761 F.2d 270 (6th Cir.1985) and In re S.G. Phillips Constructors, Inc., supra at 708, holding "that the abstention provisions implicate the question whether the bankruptcy court should exercise jurisdiction, not whether the court has jurisdiction in the first place.” . Colliers, supra at 3-87 appropriately notes "[TIhe sections dealing with personal injury tort and wrongful death claims have been the subject of some confusing judicial interpretations."