Dave v. 2012 Bobby Shah Irrevocable Trust

Filing 24

ORDER that the Trust's motion to dismiss (Doc. 8 ) is DENIED. FURTHER ORDERED that Dave's motion for partial summary judgment (Doc. 14 ) is DENIED as premature. Signed by Senior Judge Douglas L Rayes on 1/3/25. (EJA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Reshma Dave,
Plaintiff,

10
11

v.

12

2012 Bobby Shah Irrevocable Trust,

13

Defendant.

No. CV-24-08053-PCT-DLR
ORDER

14
15
16

Before the Court are two motions: Defendant 2012 Bobby Shah Irrevocable Trust’s

17

(“Trust”)1 motion to dismiss (Doc. 8) the Complaint (Doc. 1) and Plaintiff Reshma Dave’s

18

motion for partial summary judgment (Doc. 14). Both motions are fully briefed. (Docs. 9,

19

11, 12, 16, 19.) The Court heard arguments from the parties on the motion to dismiss on

20

December 16, 2024. For the reasons set forth below, the Court denies both motions.

21

The Trust’s Motion to Dismiss

I.

22

A. Background2

23

This case arises from an alleged scheme by Bobby Shah (“Shah”), co-trustee of the

24
1

25
26
27
28

The parties disagree about the proper name of the Trust. (See Docs. 8 at 1 n.1; 11
at 1 n.1.) Whatever the correct name, the Court understands the parties to be referring to
the same trust. Because the disagreement is immaterial to the Court’s analysis, the Court
uses the name supplied in the caption and used by Dave, but use of Dave’s name for the
Trust should not be construed as a resolution of that dispute.
2
Because the Trust levies a factual attack to subject matter jurisdiction, the Court
has considered and drawn the facts in this section from the Complaint and exhibits
submitted by both parties. The Court has not attached presumptive truthfulness to the
Complaint’s allegations. See infra Section II.

1

Trust, to move the Trust and shield assets from Dave. Dave and Shah were married but are

2

now in divorce proceedings. (Doc. 1 ¶ 1.) In 2012, while they were still together, Shah

3

formed the Trust with its situs in Arizona for the benefit of his spouse3 and their children.

4

(Id. ¶ 5; id. at 18.) Shah initially named Dave4 the trustee of the Trust. (Id. at 18.) Shah

5

named Arjav Shah (“Arjav”) the Trust Protector. (Id. at 23.)

6

A decade after its formation, Arjav and Shah allegedly took steps to move the Trust

7

situs and ensure a South Dakota court would assume supervision of the Trust. First, Shah

8

removed Dave as a trustee and appointed Arjav in her stead. (Id. at 8.) Pursuant to his

9

authority as Trust Protector, Arjav appointed Shah as the sole successor trustee of the Trust.

10

(Doc. 10-1 at 34.) Arjav later appointed Michael Wright, a South Dakota resident, as co-

11

trustee of the Trust. (Doc. 1 ¶ 2; Doc 10-1 at 36.)

12

In November 2022, Shah created a South Dakota company called Overwatch LLC

13

(“Overwatch”) and made the Trust the owner. (Doc. 1 ¶ 6.) Shah named himself manager

14

of Overwatch. (Id.) Overwatch is the Trust’s primary asset. (Id.; id. at 9.) In the same

15

month, he transferred membership interests of two Arizona companies—which Dave

16

alleges were marital property—to the Trust without Dave’s consent. (Id. ¶ 13.) Since at

17

least 2022, the Trust’s records have been kept in South Dakota; tax returns on its behalf

18

are prepared, reviewed, and signed in South Dakota; and annual reports for Overwatch

19

LLC have been prepared and filed in South Dakota. (Id. at 10.) By making these changes,

20

Arjav and Shah were able to move the situs of the Trust to South Dakota. (Id. ¶ 2; Doc. 10-

21

1 at 35.)

22

Shah and Wright filed a petition “for court supervision and sealing of court file”

23

(“Petition”) in a South Dakota state court on February 6, 2024. (Doc. 1 at 8, 11.) The

24

Petition included an inventory of the Trust assets, a copy of the governing Trust instrument,

25

and a statement of interested parties. (Id. at 11; Docs. 10-2; 10-3.) A copy of the Petition

26

and its attachments were served on Dave. (Doc. 10-4.) Dave received notice of the hearing

27

The Trust defines “My Spouse” as “the individual who, as determined from time
to time, is married to and living with me, or was married to and living with me at the time
of my death.” (Doc. 1 at 37.)
4
The name “Reshma Shah” in the Trust refers to Dave. (Doc. 1 at 8.)

28

3

-2-

1

scheduled for the Petition. (Doc. 10-5.) The South Dakota court held the hearing and

2

entered an order confirming the court’s supervision. (Doc. 10-6.) Neither Dave nor any

3

attorney on behalf of Dave appeared at the hearing or filed any objection to the Petition.

4

(Docs. 10-4; 10-5; 10-8; 13.) A notice of entry of the order was mailed to Dave, and Shah

5

filed the judgment with the Mohave County Superior Court. (Docs. 10-7; 10-8.)

6

Two days after the South Dakota state court issued its order, Dave filed the present

7

suit. (Compare Doc. 1, with Doc. 10-8 at 9.) Dave brings three counts against the Trust:

8

(1) aiding and abetting Shah’s breach of fiduciary duty; (2) intentional fraudulent transfer;

9

and (3) constructive fraudulent transfer. (Doc. 1 at 4–5.) The second and third claims are

10

brought under the Uniform Fraudulent Transfer Act (“UFTA”). A.R.S. § 44-1001 et seq.

11

(Id. ¶¶ 26, 30.) The Trust moves to dismiss5 for lack of subject matter jurisdiction.6 (Doc.

12

8.)

13

While the Trust’s motion to dismiss was pending, Shah filed a petition in the South

14

Dakota court to determine beneficiaries and interested persons of the Trust and to obtain

15

approval of the Trust’s inventory and accounting (“Second Petition”). (Doc. 10-9.) A copy

16

of the Second Petition was mailed to Dave. (Doc. 18-5.) Dave received several notices of

17

the hearing scheduled for the Second Petition. (Docs. 18-4; 18-6; 18-7.) The court held the

18

hearing in June. (Doc. 13.) Neither Dave nor any attorney on behalf of Dave appeared at

19

the hearing or filed any objection to the Second Petition. (Docs. 10-4; 10-5; 10-8; 13.) The

20

court entered an order after the hearing, concluding that Dave was neither a beneficiary nor

21

an interested party to the Trust and that no transfer to the Trust was fraudulent. (Id. at 3,

22

12–13.) The Trust notified the Court of the South Dakota court’s decision. (Doc. 13.)

23

Shortly thereafter, Dave filed a “Motion for Partial Summary Judgment re: Non-Preclusive

24

Effect of South Dakota State Court Orders,” asking this Court to rule that Dave is not bound

25

by the South Dakota court order and that the decision has no preclusive effect on this case.

26
27
28

5

Though it moves to dismiss the entire case, the Trust makes no argument in its
briefs in favor of dismissal of the first count, so the Court only considers dismissal of the
second and third counts.
6
In its motion, the Trust states that it also moves for dismissal on Rule 12(b)(6)
grounds, but it does not develop any argument in support of dismissal on that basis in the
briefs. The Court therefore limits its analysis to the jurisdictional arguments.
-3-

1

(Doc. 14.)

2

B. Legal Standard

3

“Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause

4

lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon

5

the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377

6

(1994) (quotations and citations omitted). Under Federal Rule of Civil Procedure 12(b)(1),

7

a party may move to dismiss a case for lack of subject matter jurisdiction. Tosco Corp. v.

8

Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001), overruled on other grounds

9

by Hertz Corp. v. Friend, 559 U.S. 77 (2010); see also Carijano v. Occidental Petroleum

10

Corp., 643 F.3d 1216, 1227 (9th Cir. 2011). “Motions to dismiss under this Rule ‘may

11

attack either the allegations of the complaint as insufficient to confer upon the court subject

12

matter jurisdiction, or the existence of subject matter jurisdiction in fact.’” Sabra v.

13

Maricopa Cnty. Comty. Coll. Dist., 479 F. Supp. 3d 808, 813 (D. Ariz. 2020) (quoting

14

Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006)).

15

The Trust levies a factual attack on subject matter jurisdiction. In support of a factual

16

subject matter attack pursuant to Rule 12(b)(1), the moving party may submit “affidavits

17

or any other evidence properly before the court.” Ass’n of Am. Med. Colls. v. United States,

18

217 F.3d 770, 778 (9th Cir. 2000) (quoting St. Clair v. City of Chico, 880 F.2d 199, 201

19

(9th Cir. 1989)). And the Court may properly consider that evidence without converting

20

the motion to dismiss into a motion for summary judgment. Dreier v. United States, 106

21

F.3d 844, 847 (9th Cir. 1996). If the moving party submits evidence showing a lack of a

22

subject matter jurisdiction, the plaintiff must respond with any evidence necessary to

23

satisfy her burden of establishing that the court has subject matter jurisdiction. Ass’n of

24

Am. Med. Colls., 217 F.3d at 778. In resolving a factual attack, the Court does not attach

25

presumptive truthfulness to the allegations in the pleadings. McCarthy v. United States,

26

850 F.2d 558, 560 (9th Cir. 1988).

27

C. Analysis

28

The Trust asserts that the Court lacks subject matter jurisdiction because Shah

-4-

1

petitioned a South Dakota state court to exercise supervision over the Trust before Dave

2

filed suit here, giving the state court prior exclusive jurisdiction over in rem suits against

3

the Trust.7 Though federal courts are courts of limited jurisdiction, where jurisdiction

4

exists, federal courts have a “virtually unflagging obligation” to exercise it. Colo. River

5

Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Generally, state and

6

federal courts should not interfere with or restrain each other’s proceedings. Koken v. Viad

7

Corp., 307 F. Supp. 2d 650, 655 (E.D. Pa. 2004). In fact, “it is settled that where the

8

judgment sought is strictly in personam, both the state court and the federal court, having

9

concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained

10

in one of them which may be set up as res judicata in the other.” Princess Lida of Thurn &

11

Taxis v. Thompson, 305 U.S. 456, 466 (1939).

12
13

But where a court has custody of specific property, that court has prior exclusive
jurisdiction over all in rem or quasi in rem proceedings against that property. Id.

14

The question whether the prior exclusive jurisdiction doctrine
applies turns on what, precisely, is at issue in the state and
federal court proceedings. If both courts exercise either in rem
or quasi in rem jurisdiction, then the courts may be
simultaneously exercising jurisdiction over the same property,
in which case the prior exclusive jurisdiction doctrine applies
and the district court is precluded from exercising jurisdiction
over the res.

15
16
17
18
19

Goncalves By & Through Goncalves v. Rady Child.’s Hosp. San Diego, 865 F.3d 1237,

20

1253 (9th Cir. 2017). The prior exclusive jurisdiction doctrine is a mandatory jurisdictional

21

limitation. Chapman v. Deutsche Bank Nat. Tr. Co., 651 F.3d 1039, 1043 (9th Cir. 2011).

22

Thus, in cases where it applies, federal courts must dismiss or stay the proceedings.

23

An action is in rem where it “determine[s] interests in specific property as against

24

the whole world.” State Eng’r of Nev. v. S. Fork Bank of Te-Moak Tribe of W. Shoshone

25

Indians of Nev., 339 F.3d 804, 811 (9th Cir. 2003) (quoting In Rem, Black’s Law Dictionary

26

(6th ed. 1990)). An action is quasi in rem where “the parties’ interests in the property serve

27
Dave mistakenly asserts that “prior exclusive jurisdiction” is not a matter of subject
matter jurisdiction. It is. See Applied Underwriters, Inc. v. Lara, 37 F.4th 579, 587 (9th
Cir. 2022).
7

28

-5-

1

as the basis of the jurisdiction for the parallel proceedings.”8 Town of Colo. City v. United

2

Effort Plan Tr., No. CV11-08037-PHX-DGC, 2012 WL 12542, at *4 (D. Ariz. Jan. 4,

3

2012). On the other hand, “[w]here the relief sought is a money judgment only, the action

4

is in personam.” Koken, 307 F. Supp. 2d at 655 (citing Kline v. Burke Constr. Co., 260

5

U.S. 226, 228 (1922)). In personam actions “enforce a personal liability” or “establish a

6

debt or a right to share in property, and thus obtain an adjudication which might be had

7

without disturbing control of the state court.” United States v. Bank of N.Y. & Tr. Co., 296

8

U.S. 463, 478 (1936).

9

Actions to “administer trusts” are in rem. Goncalves, 865 F.3d at 1253; Princess

10

Lida, 305 U.S. at 280 (holding that prior exclusive jurisdiction principles extend to suits

11

brought to “marshal assets, administer trusts, or liquidate estates, and in suits . . . where, to

12

give effect to its jurisdiction, the court must control the property”). As Dave concedes, the

13

nature of the suit in South Dakota, which deals with all aspects of administration of the

14

Trust, is in rem. The parties disagree, however, about whether this suit is in rem or in

15

personam. The Trust argues that “this action concerns the creation, funding, and proper

16

situs of the Trust,” which are quintessential issues of trust administration, and thus, this is

17

an in rem suit. (Doc. 9 at 12.) Dave responds that fraudulent transfer claims are strictly in

18

personam. (Doc. 11 at 4.)

19

When assessing whether an action is properly described as in rem or in personam,

20

the Court must “look behind the form of the action to the gravamen of a complaint and the

21

nature of the right sued on.” State Eng’r of Nev., 339 F.3d at 810 (quotation and citation

22

omitted). That is to say, characterization of an action as in rem or in personam requires the

23

Court to examine all aspects of the cause of action: the form of the action, as well as the

24

parties involved and the remedies sought.

25

Here, Dave seeks both compensatory damages and equitable relief from the Trust.

26

Though the transferee is an appropriate defendant in a fraudulent transfer action, it is

27

apparent from the Complaint that it is Shah, not the Trust, who performed the fraudulent

28

For clarity and convenience, the Court will hereinafter use “in rem” to refer to both
“in rem” and “quasi in rem.”
8

-6-

1

transfers. That Dave is pursuing an action against the Trust suggests that she wants to

2

retrieve specific assets from it. And, as the Complaint’s request for relief reads, Dave seeks

3

an order “rescind[ing] the fraudulent transfer of marital community assets to the . . . Trust

4

as alleged herein and . . . avoid[ing] such transactions.” (Doc. 1 at 6.) Ordering the Trust

5

to return specific assets to Dave would (1) require the Court to exercise control over

6

property which is not within its territory and (2) disrupt the South Dakota court’s control

7

of the Trust.

8

Money, “unlike an identifiable piece of property, is fungible.” Koken, 307 F. Supp.

9

2d at 656. The Complaint requests money damages as an alternative or in addition to return

10

of specific property. A final judgment finding that the Trust is liable to Dave for the value

11

of the assets she lost establishes the Trust’s personal liability and is thus in personam.

12

Because Dave could obtain complete relief with money damages, this is an in personam

13

action.

14

II.

Dave’s Motion for Partial Summary Judgment

15

Dave’s motion for partial summary judgment asks the Court to declare that the

16

South Dakota state court order has no preclusive effect. The motion is premature.

17

Preclusion is an affirmative defense that a defendant may raise “in respon[se] to a

18

pleading.” Fed. R. Civ. P. 8(c)(1). The Trust merely notified the Court of the South Dakota

19

decision; it has not raised the defense. (See Doc. 13 at 1.) The Court will not decide the

20

preclusive effect of the judgment until the issue is ripe for adjudication.

21

IT IS ORDERED that the Trust’s motion to dismiss (Doc. 8) is DENIED.

22

IT IS FURTHER ORDERED that Dave’s motion for partial summary judgment

23
24

(Doc. 14) is DENIED as premature.
Dated this 3rd day of January, 2025.

25
26
27
28

Douglas L. Rayes
Senior United States District Judge

-7-