On the following day, the Debtors filed a motion for approval of a sale of substantially all their assets.
That same day, the Debtors informed Rialto of the bankruptcy filing and advised Rialto that unless the WSA was renegotiated, the Debtors would reject it within 30 days of completion of the contemplated sale of their assets.
BWI designed, built and implemented systems for the treatment of contaminated groundwater, industrial process water, and air streams from municipal and industrial sources.
Luton, Esquire, Frank Grese, III, Esquire, Young, Conaway, Stargatt & Taylor, LLP, Wilmington, DE, for Plaintiff. Jameson, Esquire, Prickett, Jones & Elliott, PA, Wilmington, DE, for Defendants. For the reasons set forth below, the Motion will be granted, in part, and the adversary will be dismissed for lack of jurisdiction.
This alternative has a good deal of its own baggage, but there are cases for which it will be the best alternative.
Under the confirmed Plan, the Plaintiff was assigned all of the Debtors' claims and causes of action. In this case, the Plaintiff argues that there is a sufficiently close nexus between this adversary proceeding and the bankruptcy case because (1) the claims arose pre-confirmation, (2) the claims were incorporated into the Plan, which reserved jurisdiction over them, (3) the proceeds of the claims, if any, will benefit the estate's creditors, (4) the adversary proceeding was commenced shortly after the Plan's effective date, (5) this is a liquidating case rather than a reorganization, and (6) federal policy and consistency is fostered by having all actions in one central court. To find a sufficiently close nexus, the plan must "specifically describe an action over which the Court had `related to' jurisdiction pre-confirmation and expressly provide for the retention of such jurisdiction to liquidate that claim for the benefit of the estate's creditors...." Id. Admitting that the Debtors' Plan does not contain specific language retaining jurisdiction over these claims, the Plaintiff asserts nonetheless that the Plan's broad retention of jurisdiction language is still sufficient.For example, there may not be sufficient unencumbered assets to fund the rest of the case, or there may not be enough assets to satisfy the various types of claims that must be paid in full in order to obtain confirmation.In such circumstances a dismissal or as it is sometimes called a "structured dismissal" may make more sense.The Plaintiff commenced this adversary proceeding on March 11, 2010, seeking damages for: (1) breach of contract for the failure to pay the outstanding invoices; (2) breach of contract for the wrongful termination of the contract; (3) quantum merit; and (4) unjust enrichment. The Plaintiff asserts that the events giving rise to its claims, including the services provided by the Debtors and the alleged breach of contract, occurred before the Plan was confirmed. Plan provisions that purport to preserve the bankruptcy court's jurisdiction are not alone sufficient to establish post-confirmation jurisdiction; instead the court must determine whether "a matter affects the interpretation, implementation, consummation, execution, or administration of a confirmed plan...." Resorts, 372 F.3d at 168-69. Such specific language helps ensure that "bankruptcy court jurisdiction would not raise the specter of unending jurisdiction" post-confirmation. It contends that the claims in this adversary will affect the Plan's implementation, consummation and execution by potentially increasing the pool of cash available to creditors. at 324 (finding sufficient specificity where the Plan specifically retained jurisdiction over claims arising from the Debtor's sale of stock in Xantrax Technology, Inc.), and LGI, 322 B. at 97 (finding jurisdiction where the plan specifically identified recovery of the casualty loss as an asset to be distributed to creditors), with Insilco, 330 B. at 512 (finding that while the complaint fell within the broad language of the plan, it lacked the required close nexus because it did "not provide any notice to creditors (or to the Court, for that matter) as to the importance of this or any particular litigation.").On April 12, 2010, Rialto filed a motion to dismiss the Complaint for lack of subject matter jurisdiction or alternatively for abstention or transfer of venue to California. (In fact, the services underlying the two invoices were performed pre-petition.) The Plaintiff argues that because the claims could have been brought pre-confirmation, there is a "close nexus" to the Plan. Corp.), , 265 (3d Cir.2007) (concluding that with respect to "related to" jurisdiction, the Pacor test does not apply to post-confirmation disputes and the "close nexus" test must be applied "regardless of when the conduct alleged in the complaint occurred."). A "close nexus" may be found where the plan specifically enumerates the cause of action. The Court disagrees with the Plaintiff and concludes a Plan must specifically describe a cause of action in order to retain "related to" jurisdiction. The Plaintiff argues nonetheless that because the Debtors sent a formal demand letter to Rialto regarding the claims now asserted, Rialto was on notice that jurisdiction over the claims was preserved under the Plan.
Under Supreme Court personal jurisdiction jurisprudence, the facts were insufficient to establish personal jurisdiction over the Merrill Lynch Defendants.