The Court will not conduct its own constitutional analysis of the Act since the issue is not before the Court and has not been briefed by the parties. Nevertheless, "[t]he court has substantial discretion in ruling on a motion to dismiss under section 707(a), and in exercising that discretion must consider any extenuating circumstances, as well as the interests of the various parties." Collier on Bankruptcy P 707.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (emphasis added); see also In re Atlas Supply Corp., 857 F.2d 1061 (5th Cir. 1988) (stating that a court may be guided by equitable principals in determining a motion to dismiss). One extenuating circumstance that the Court finds relevant is that the United States Department of Justice, acting under the instruction of the Attorney General and the President of the United States, argues that "DOMA may not be constitutionally applied to same-sex couples" and has stopped defending the law in cases pending in this Circuit. See Letter from Tony West to Judge Barbara S. Jones (Feb. 24, 2011) (Docket No. 10), Windsor v. United States, No. 1:10-cv8435 (S.D.N.Y.); see also Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). In this case, the United States Trustee, who is appointed by the Attorney General pursuant to 28 U.S.C. §581, appears to defend the law and yet has offered nothing more than a restatement of the language of DOMA. The mere existence of DOMA is not sufficient to remove the duty imposed on this Court by section 707(a) to find "cause" prior to dismissing the case. See 11 U.S.C. §707(a).
When dismissal of a case is not premised upon one of the enumerated reasons set forth in 707(a), the Second Circuit requires a case-by-case analysis to determine "whether dismissal would be in the best interest of all parties in interest." In re Dinova, 212 B.R. 437, 442 (B.A.P. 2d Cir. 1997) (emphasis added) (quoting In re Price, 211 B.R. 170, 172 (Bankr. M.D. Pa. 1997) ("A motion to dismiss is a serious matter affecting the rights of the debtor and all creditors. At a hearing on a motion to dismiss, the court is required to consider the impact the dismissal will have on the various entities and ascertain which direction satisfies the best interest of all parties.").
Here, the Trustee has failed to convince the Court that dismissal is in the best interests of all parties. Section 302 is a means of jointly administering the Debtors' estates "to the benefit of both the debtors and their creditors." In re Malone, 50 B.R. at 3 (quoting S. Rep. No. 989, 95th Cong., 2d Sess. 32 (1978)). Dismissal is not in the best interests of the Debtors, who would lose the benefit of their fresh start and would incur greater administrative costs if they sever their petition and file a second case. The record is absent of allegations of bad faith, hidden assets, or attempts to stall collection by the Debtors, factors normally considered by courts in deciding whether or not to dismiss. See Dinova, 212 B.R. at 442. The Debtors' joint case has substantially progressed; they reaffirmed mortgage and vehicle debt and appeared at the meeting of creditors. Dismissing or severing the case at this stage, would duplicate work and costs for the Debtors, the creditors, the Trustee, and the Court.
