In re West Coast Interventional Pain Medicine Inc.

Full title: In re WEST COAST INTERVENTIONAL PAIN MEDICINE INC., a California…

Court: United States Bankruptcy Court, Southern District of California

Date published: Jan 20, 2012

10-14968-PB7 (Bankr. S.D. Cal. Jan. 20, 2012)

Opinion

In re WEST COAST INTERVENTIONAL PAIN MEDICINE INC., a California Corporation, Debtor. WEST COAST INTERVENTIONAL PAIN MEDICINE, INC.; and P. KEVIN BARKAL, M.D., Plaintiffs, v. ZENITH INSURANCE COMPANY, INC., Defendant. No. 10-14968-PB7 Adv. No. 10-90406 United States Bankruptcy Court, Southern District of California January 20, 2012

         NOT FOR PUBLICATION

          ORDER ON ZENITH INSURANCE COMPANY'S MOTION TO DISMISS

          PETER W. BOWIE, Chief Judge United States Bankruptcy Court

         West Coast Interventional Pain Medicine, Inc. and Dr. Barkal entered into a confidential settlement agreement with Zenith Insurance. The plaintiffs now claim the agreement was breached by Zenith.

         At the center of the dispute are the plaintiffs' claims that Dr. Barkal and West Coast are parties to the settlement agreement. In doing so, they blur the identities of two West Coast entities. One is known as West Coast California, which is the debtor here and was a party to the settlement agreement. The other is known as West Coast Indiana, which was not even formed when the settlement agreement was reached.

         The Court has reviewed the confidential settlement agreement, maintained by the Court. From it, the Court finds and concludes that as to Dr. Barkal the agreement has been fully performed, so there is no basis for any claim by him. As to West Coast California, it is clear its license to operate as a company and its capacity to sue has been suspended. Community Elec. Service of Los Angeles, Inc. v. Nat'l Elec. Contractors Ass'n, Inc., 860 F.2d 1235 (9^th Cir. 1989) .

         To the extent plaintiffs claim West Coast Indiana is the plaintiff, the complaint would be dismissed because, as noted, West Coast Indiana is not a party to the settlement agreement, nor had it even been formed at the time. Moreover, even if it was a party, it is not a debtor here and there is no basis for this Court's exercise of jurisdiction over a suit by a non-debtor entity against another non-debtor entity, Zenith Insurance.

         For the foregoing reasons, Zenith's motion to dismiss the First Amended Complaint is granted. Last time, the Court granted plaintiffs the opportunity to amend. After consideration of the instant motion, it does not appear plaintiffs can set out a set of facts which, in light of both the parties and the terms of the settlement agreement, could set out a cause of action, much less one that could properly be filed before this Court. Consequently, leave to further amend is denied.

         IT IS SO ORDERED.