United States District Court, D. Connecticut
INTELICLEAR, LLC; A. MARTINHO BARRETTO; JOHN PAUL DEVITO; and GUY T. POWELL, Plaintiffs,
ROBERT J. VICTOR, Defendant.
RULING DENYING DEFENDANT'S MOTION TO
Bond Arterton, U.S.D.J.
InteliClear filed this action on August 17, 2016 against
Defendant Robert J. Victor ("Victor") alleging
breach of fiduciary duty (Count One); civil theft in
violation of Conn. Gen. Stat. § 52-564 (Count Two);
conversion (Count Three); and demanding an accounting of all
financial transactions regarding InteliClear assets and funds
performed by Victor or at his direction (Count Four). On
September 1, 2016 Plaintiff filed an amended complaint adding
a claim for tortious interference with business expectancies
(Count Five); and seeking a declaratory judgment (Count Six).
Defendant now moves [Doc. # 32] to dismiss Plaintiffs
Complaint in its entirety. For the reasons that follow,
Defendant's Motion is denied.
Court assumes the parties' familiarity with the
underlying facts of the case. (See Ruling [Doc. #
32] Granting Plaintiffs Motion for a Preliminary Injunction
("Ruling on Injunction").)
argues three separate grounds for dismissal: (1) that the
Court lacks subject matter jurisdiction over the case, (2)
that Plaintiff failed to join necessary parties under Rule
19, and (3) that the Court should abstain because of a
parallel state court proceeding involving the same facts and
issues. None of Defendant's arguments require dismissal
of this case.
Defendant's First Two Arguments Lack Merit
Court previously considered Defendant's argument that it
lacks subject matter jurisdiction over the case in its Ruling
on Injunction and subsequent Ruling denying reconsideration
of that Preliminary Injunction. (See Ruling on
Injunction at 10-12; Ruling [Doc. # 124] Denying Motion for
Reconsideration.) Relying on its analysis in these two
Rulings, the Court remains satisfied for now that it has
subject matter jurisdiction and will not address
Defendant's argument further.
also argues that the case must be dismissed for failure to
join a necessary party, relying on D'Amico v.
Doe, for the proposition that "[w]here a plaintiff
seeks a declaratory judgment regarding the rights of various
parties, all parties affected by the judgment are necessary
parties." No. Civ.A. 3:03CV2164 (SRU), 2005 WL 850961
(D. Conn. Jan. 20, 2005). This argument has been mooted by
subsequent events. Since Defendant filed his Motion to
Dismiss on October 3, 2016, Plaintiff again amended its
Complaint, this time adding as Plaintiffs Antonio Martinho
Barretto, Guy T. Powell, and John Paul DeVito. (Second
Amended Complaint [Doc. # 66].) Consequently, the non-party
members of the Plaintiff LLC have been added and
Defendant's argument is now moot.
The Court Declines to Abstain
also contends that the Court should abstain from this case in
light of parallel state court proceedings,  relying on
Young Pharm., Inc. v. NV Perricone LLC, No.
3:07-CV-1568 (PCD), 2008 WL 4000562, at *1 (D. Conn. Aug. 25,
2008), which in turn applies the Wilton abstention
doctrine. In Wilton v. Seven Falls Co., 515 U.S. 277
(1995) the Supreme Court considered when it was proper for a
federal court to abstain from cases seeking declaratory
relief pursuant to the Declaratory Judgment Act, 28 U.S.C.
§ 2201(a). "In the declaratory judgment context,
the normal principle that federal courts should adjudicate
claims within their jurisdiction yields to considerations of
practicality and wise judicial administration."
Wilton, 515 U.S. at 288. To guide federal courts in
their determination of when to abstain from exercising
jurisdiction, the Supreme Court endorsed the factors
enunciated in Brillhart v. Excess Ins. Co., 316 U.S.
[A] district court should examine the scope of the pending
state court proceeding and the nature of defenses open there
This inquiry, in turn, entails consideration of whether the
claims of all parties in interest can satisfactorily be
adjudicated in that proceeding, whether necessary parties
have been joined, whether such parties are amenable to
process in that proceeding, etc. . . . Other cases, the Court
noted, might shed light on additional factors governing a
district court's decision to stay or to dismiss a
declaratory judgment action at the outset.... But
Brillhart indicated that, at least where another
suit involving the same parties and presenting opportunity
for ventilation of the same state law issues is pending in
state court, a district court might be indulging in
[g]ratuitous interference ... if it permitted the federal
declaratory action to proceed.
Id. at 282-83 (internal citations and quotation
the Second Circuit has held that Wilton applies only
to actions in which a party seeks solely declaratory relief.
See e.g., Kanciper v. Suffolk Cty. Soc.for the Prevention
of Cruelty to Animals, Inc., 722 F.3d 88, 93 (2d Cir.
2013) ("Wilton does not apply where, as here, a
plaintiff does not seek purely declaratory relief, but also .
. . seeks damages caused by the defendant's
conduct.") (internal quotation marks and citations
omitted); Niagara Mohawk Power Corp. v. Hudson
River-Black River Regulating Dist., 673 F.3d 84, 106 (2d
Cir. 2012) (same). In an action seeking declaratory relief
and monetary damages, as here, the Second Circuit directs
that a court should apply the Colorado River
abstention doctrine. See e.g., Kanciper, 722 F.3d at
93 (finding Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976) sets out the
appropriate abstention standard when the plaintiff does not
seek purely declaratory relief.).
being put on notice by Plaintiffs Opposition that
Defendant's Motion to Dismiss relied upon the wrong
abstention doctrine, Defendant chose not to file any Reply
Memorandum addressing the applicability of the
Wilton doctrine, or alternatively applying
Colorado River abstention to the facts of this case.
Because Defendant only ...