West Coast Interventional Pain Med., Inc. v. Zenith Ins. Co. (In re West Coast Interventional Pain Med. Inc.)

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

Court: UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: Apr 20, 2012

Case No. 10-14968-PB7 (Bankr. S.D. Cal. Apr. 20, 2012)

Opinion

Case No. 10-14968-PB7 Adv. No. 10-90406

04-20-2012

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.

PETER W. BOWIE

WRITTEN DECISION - NOT FOR PUBLICATION

ORDER ON ZENITH INSURANCE

COMPANY'S MOTION TO DISMISS

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 (9th 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.

__________________

PETER W. BOWIE, Chief Judge

United States Bankruptcy Court