United States District Court, D. Connecticut
MEMORANDUM AND ORDER
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Andrew Chien, appearing pro se, filed in this Court
on July 10, 2017 a self-styled "Motion for Permission of
Filing a New Companion Case." That submission bore the
caption and docket number of an earlier action brought by
Chien, the docket number being 3:09-cv-1873 (CSH). Chien
attached to his motion a proposed complaint against
Defendants "Barron" and "Skypeople Fruit Juice
Corp." Chien's effort to file a "new companion
case" in the litigation bearing docket number
3:09-cv-1873 is a nullity. This Court granted the
Defendants' motion to dismiss the complaint in that case,
Chien v. Barron Capital Advisors, LLC, et al.
[Ruling, Doc. 34], the Clerk entered judgment in favor of
Defendants Barron Capital Advisers LLC and Skypeople Fruit
Juice and against Chien [Doc. 36], and no appeal was taken by
Chien. Accordingly, there was no pending case for which
Chien's present pleading could act as a
"companion." In these circumstances, the Clerk of
the Court properly gave Chien's present submission a
"miscellaneous" docket number, 3:17-mc-147. The
matter was assigned by random to District Judge Meyer. Judge
Meyer transferred the case to the undersigned, because
Chien's latest complaint arises out of the same contract
that formed the subject matter of his previous case, No.
3:09-cv-1873. Specifically, that is a contract dated August
28, 2006 between USChina Channel LLC, a Connecticut entity,
and Shaanxi Tianren Organic Food Co., Ltd., a Chinese
Court dismissed Chien's complaint in 3:09-cv-1873 on the
ground that "Chien as a pro se
litigant, may not bring claims on behalf of a corporate
entity" such as USChina, an LLC. [Doc. 34] at slip op.
3. Chien seeks to overcome that obstacle by contending, in
his present submission:
In this case, this court denied Chien's claim because
Chien can't represent USChina. But this new case is
different. Chien's personal claim is based on
"§ 34-208 Winding Up of LLC" of Connecticut
General Statutes. § 34-208 (b)(1) specifies that the
person who winding LLC [sic], can prosecute and
defend suits of LLC."
Motion [Doc. 1] at 4. The newly submitted complaint alleges
in ¶ 50 that "USChina was dissolved several years
ago with one member of Chien." The meaning of the
concluding phrase is obscure. In any event, Chien takes the
position that whatever happened to USChina, it triggered
§ 34-208(b) of the Connecticut General Statutes, which
provides in part: " The persons winding up the business
and affairs of the limited liability company may, in the name
of, and for and on behalf of, the limited company: (1)
Prosecute and defend suits. . . . "
perhaps unbeknownst to Chien, § 34-208 of the
Connecticut General Statutes has been repealed effective July
1, 2017, and replaced by § 34-267a, captioned
"Winding up, " under Chapter 613A of the Uniform
Limited Liability Company ("LLC") Act, Part VII.
("Dissolution and Winding up"). According to
Connecticut's newly adopted Uniform LLC Act, its
provisions generally "govern all limited liability
companies." Conn. Gen. Stat. § 34-243i. In other
words, as indicated by the caption of § 34-243i, the
"[e]ffective date" of the new Uniform Limited
Liability Act [July 1, 2017] has general "[a]pplication
to existing relationships."
the new § 34-267a(b), "[i]n winding up its
activities and affairs, a limited liability company: . . .
(2) may . . . (B) prosecute and defend actions and
proceedings." Conn. Gen. Stat. § 34-267a(b)(2)(B).
Moreover, "[i]f a dissolved limited liability company
has no members, the legal representative of the last person
to have been a member may wind up the activities and affairs
of the company." Id. § 34-267a(c).
case at bar, it is unclear from the submitted papers whether
Chien is, and/or can prove, that he was the final member in
the dissolved USChina LLC. However, under §
34-267a(b)(2)(B) and (c), in winding up a limited liability
company, it is the LLC itself or the "legal
representative of the last person to have been a member"
of the LLC who may wind up the activities and the affairs of
the LLC. Chien, as an individual, may not be able to wind up
the LLC's affairs by asserting that he is acting as the
"limited liability company" under Conn. Gen. Stat.
§ 34-267a(b). Furthermore, if he was the last person to
be a member of the LLC, it is his "legal
representative" who is statutorily empowered to wind up
the LLC's activities and affairs under Conn. Gen. Stat.
§ 34-267a(c). Given the language of the statute, it is
unknown whether the last member may act as his own legal
representative for that purpose and/or prosecute actions on
behalf of the LLC. There are no advisory committee notes to
the statute to provide clarification.
Court notes that in the newly adopted Connecticut General
Statutes § 34-271b, a member of a limited liability may
bring a "derivative action to enforce a right of a
limited liability company, " but only if that person is
"a member at the time the action is commenced" and
"[w]as a member when the conduct giving rise to the
action occurred" or who has a status as a member
"devolved" upon him "by operation of law or
pursuant to the terms of the operating agreement from a
person that was a member at the time of the
conduct." In addition, as a prerequisite to such a
derivative action, before bringing suit, the member must
first demand that the other members or managers of the LLC
bring the action to enforce the LLC's rights and the
other member or managers must fail to bring the action within
90 days. Id. § 34-271a. Alternatively, a member
may bring a derivative action if the aforementioned demand
under this provision "would be futile." Given
Connecticut's new statutory law regarding LLCs, it is
unclear whether Chien possesses statutory entitlement to
pursue USChina's claims for breach of the underlying
contract. In order to proceed with the proposed litigation
and represent USChina, he will ultimately have to establish
that he has standing - i.e., that he is the proper
plaintiff to bring an action - to enforce the dissolved
USChina's rights under Connecticut law. He made no claim
that he was entitled to wind up USChina's affairs by
bringing suit in his earlier litigation, so that assertion
was not considered in the Court's ruling dismissing the
prior action. That ruling held only that under familiar
non-statutory principles, Chien as a pro se litigant
could not represent USChina. In fashioning this Memorandum
and Order, the Court intimates no view on whether the
newly-adopted Connecticut Uniform LLC Act applies to the
facts of this case, or confers any powers upon Chien, or
whether other impediments exist to the course he wishes to
pursue. But Chien is entitled to make the effort.
Chien's motion for leave to file his pleading [Doc. 1] is
GRANTED. The Clerk is directed to re-docket the complaint,
presently appearing at pages 10 to 69 of Doc. 1 in Case No.
3:17-mc-147, as a document in a new civil action, with the
case number being altered accordingly. The re-docketed and
re-numbered action will remain on the calendar of the
undersigned. If Chien intends to pursue the action, he must
arrange for service of the complaint upon the Defendants, who
will then be required to move or answer the complaint in a
manner consistent with the Federal Rules of Civil Procedure.
 In this context, under Connecticut
law, a "derivative action" is one that is brought
by a member of an LLC "to enforce a right of a limited
liability company, " Conn. Gen. Stat. § 34-271a, if
the harm suffered by the member is not separate and distinct
from the harm suffered by the limited liability company or
the members collectively. Ward v. Gamble, No.
CV085017829S, 2009 WL 2781541, at *2 (Conn. Super. Ct. July
23, 2009). On the other hand, a member may bring a
"direct action" in his own name if he can
"plead and prove an actual or threatened injury that is
not solely the result of an injury ...