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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. Their contact with the Debtor was solely as third-party purchaser of stock of Xantrex Technology, Inc. Also, the Merrill Lynch Defendants did not seek out the Debtor; instead it was the Debtors, through an intermediary, who reached out to the Merrill Lynch Defendants in Europe. Neither of the Merrill Lynch Defendants were registered to do business in the United States, and neither filed proofs of claim in the bankruptcy case.
In response, Rialto advised the Debtors that it had no interest in renegotiating the contract and acknowledged that the WSA would be terminated 30 days after completion of the sale.
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.
In sum, the proper retention of claims and causes of action in a plan not only protects a liquidating trustee from attack under res judicata but also may be necessary, depending on the jurisdiction, to confer jurisdiction on the bankruptcy court to hear and determine such claims and causes of actions under the bankruptcy court's "related to" jurisdiction.
In some other cases, following the sale of the assets with the confirmation of a liquidating plan is the not best path.
The Merrill Lynch defendants thereafter filed a motion to dismiss the amended complaint for lack of personal jurisdiction.