Helix Investment Management, SLP v. Privilege Direct Corp. et al

Filing 115

ORDER: The Motion to Dismiss Helix's Third Amended Complaint or, in the Alternative, to Stay the Litigation (Doc. # 100 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 3/5/2019. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HELIX INVESTMENT MANAGEMENT, LP,
Plaintiff,
v.

Case No.: 8:18-cv-206-T-33AEP

PRIVILEGE DIRECT CORP., ET AL.,
Defendants.
______________________________/
ORDER
This matter comes before the Court pursuant to the Motion
to Dismiss Plaintiff’s Third Amended Complaint or, in the
Alternative,

to

Stay

the

Litigation,

filed

jointly

by

Defendants Oliphant Financial Group, LLC, Oliphant Financial
Corporation, and Robert A. Morris on December 21, 2018. (Doc.
# 100).

Plaintiff, Helix Investment Management, LP (Helix)

filed a Response in opposition thereto on January 4, 2019.
(Doc. # 104).

For the reasons that follow, the Motion is

denied.
I.

Background
Helix brings this action for breach of contract, breach

of promissory notes, and breach of guarantee arising out of
a set of business transactions related to the purchase and

1

collection of a series of debt portfolios.

(Doc. # 95 at

¶ 1).

A. Factual Discussion1
During 2016, Privilege Direct began contemplating a
business

venture

with

Oliphant

Financial

Group,

LLC

and

Oliphant Financial Corporation (collectively, the Oliphants).
(Doc. # 95 at ¶ 14).

Pursuant to this plan, Privilege Direct

would advance funds to the Oliphants to purchase various debt
portfolios.
contemplated,
Direct.

(Id.).
Helix

When
was

(Id. at ¶ 16).

a

this

business

secured

creditor

venture
of

was

Privilege

And, at least some portion of the

funds that Privilege Direct agreed to advance was sourced
either from loans made by Helix, or loan proceeds that were
due to, or held in trust for, Helix.
Helix’s

consent

business venture.

was

required

to

(Id. at ¶ 18).

(Id. at ¶ 17).
fund

this

Hence,

contemplated

To provide this consent,

Helix entered the Oliphant Security Agreement, as the Lender,
with Privilege Direct, the Oliphants, Privilege Wealth PLC,
and Privilege Wealth One, on November 30, 2016.
1).

(Doc. # 95-

The Oliphant Security Agreement provides Helix’s consent

1

The following facts are taken from Helix’s Third Amended
Complaint. (Doc. # 95). The facts are presented in the
light most favorable to the nonmoving party.

2

for Privilege Direct to advance, or procure the advance of,
more than $5.1 million to the Oliphants.
23).

(Doc. # 95 at ¶

The Oliphants used these funds to purchase various debt

portfolios.

(Id. at ¶ 23).

In paragraph two of the Oliphant Security Agreement,
Privilege Direct grants Helix a security interest in various
Collateral.

(Doc. # 95 at ¶ 2).

This Collateral includes

five promissory notes (the Promissory Notes) and certain debt
portfolios listed in Annexure A to the Oliphant Security
Agreement.

(Doc. # 95-1 at ¶ 2; Annx. A).

The Promissory

Notes referenced in the Oliphant Security Agreement were
issued by the Oliphants to Privilege Direct as security for
the money loaned for the contemplated business venture. (Doc.
## 95 at ¶ 21, 95-1 at ¶ 2).
Morris,

acting

in

his

In addition, on June 29, 2016,

individual

capacity,

executed

a

Guarantee to pay all monies and liabilities under Promissory
Note

1

to

Privilege

Direct

and

representatives, and assigns.
The

Oliphant

Security

its

legal

(Doc. # 95-9).
Agreement

certain rights in the event of a default.
13).

successors,

also

grants

Helix

(Doc. # 95-1 at ¶

These include the right to collect all Collateral in

the name of the Oliphants or Privilege Direct and the right

3

to take control and possession of any Collateral proceeds.
(Id.).
On March 2, 2017, the Oliphants executed a binding Term
Sheet setting forth the terms for Helix to advance funds to
Oliphant in order to purchase additional debt portfolios.
(Doc. # 95-2).

Helix alleges that, pursuant to the Term

Sheet, money was to be collected on the past due accounts in
these portfolios and Oliphant Financial Group, LLC and Helix
were to share the collection proceeds.
27).

Helix

approximately

advanced

Oliphant

$273,825.00

and

(Doc. # 95 at ¶¶ 25-

Financial

$163,073.95

Group,
to

fund

LLC
the

purchase of two additional debt portfolios pursuant to the
Term Sheet.

(Id. at ¶¶ 28-29).

B. Procedural Posture
Helix filed this action against Privilege Direct and the
Oliphants on January 23, 2018.

(Doc. # 1).

The Oliphants

and Morris moved to dismiss Helix’s original complaint as a
shotgun pleading.

(Doc. # 32, 37).

With leave of the Court,

Helix filed an Amended Complaint on May 17, 2018.
46).

(Doc. #

Thereafter, Helix sought leave to file a Second Amended

Complaint correcting various pleading errors, which the Court
granted. (Doc. ## 49, 50).

The Oliphants then moved to

4

dismiss Helix’s Second Amended Complaint arguing, among other
things, that Helix failed to join Privilege Wealth PLC as an
indispensable party.

(Doc. # 54).

The Court held oral

argument on the motion to dismiss and directed the parties to
provide further briefing regarding this issue.

(Doc. # 71).

In its supplemental brief, Helix requested the opportunity to
amend

the

Second

Amended

Complaint

to

clarify

Privilege

Wealth PLC’s limited role, which the Court granted.
56,

88).

The

Third

Amended

Complaint,

the

(Doc. ##
operative

Complaint, was filed on December 10, 2018. (Doc. # 95).
The Third Amended Complaint bases this Court's exercise
of jurisdiction on diversity of citizenship, arguing the
parties are completely diverse and the amount in controversy
exceeds $75,000.

(Id. at ¶¶ 6-13).

Helix is incorporated,

and has its principal place of business, in Luxembourg.

(Id.

at ¶ 8).

During this litigation, Helix also registered to do

business

in

Complaint

Florida.

provides

(Doc.

that

#

24).

Privilege

The

Direct

Third

Amended

is

Florida

a

corporation with its principal place of business in the United
Kingdom.

(Doc. # 95 at ¶ 9).

Oliphant Financial Group, LLC

is a Delaware limited liability company that is registered to
do business in Florida.

(Id. at ¶ 10).

5

Its sole member is

Anglo Scottish American Holdings Corporation, a for-profit
corporation incorporated in and with its principal place of
business

in

Florida.

(Doc.

#

112).

Oliphant

Financial

Corporation is a Florida corporation with its principal place
of business in Florida.

(Doc. # 95 at ¶ 11).

Robert Morris

is an individual who is a citizen of Florida.

(Id. at ¶ 12;

Doc. # 111 at ¶ 4).

He serves as president of the Oliphants.

(Doc. # 95 at ¶ 12).
Helix

asserts

the

following

claims

against

the

Oliphants: breach of the Oliphant Security Agreement, unjust
enrichment, breach of Promissory Notes 01-04, and breach of
the Term Sheet.

(Id. at ¶¶ 30-165).

In addition, Helix sues

Morris for the breaching the Guarantee and sues Privilege
Direct for breaching the Oliphant Security Agreement. (Id. at
¶¶ 166-194).

Finally, Helix requests declaratory relief

regarding the Oliphant Security Agreement.

(Id. at ¶¶ 195-

199).
On December 21, 2018, the Oliphants filed this Motion to
Dismiss

Helix’s

Third

Amended

Complaint

Alternative, to Stay the Litigation.

6

in

(Doc. # 100).

responded in opposition on January 4, 2019.
The Motion is ripe for review.

or,

the
Helix

(Doc. # 104).

II.

Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint
and

construes

plaintiff.

them

in

the

light

most

favorable

to

the

Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004).

Further, this Court favors the

plaintiff with all reasonable inferences from the allegations
in the complaint. Stephens v. Dep’t of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990).
its

consideration

to

well-pleaded

The Court must limit
factual

allegations,

documents central to or referenced in the complaint, and
matters judicially noticed.

La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004).
Additionally, motions to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) may attack
jurisdiction facially or factually.
323

F.3d

920,

924

n.5

(11th

Morrison v. Amway Corp.,

Cir.

2003).

Where

the

jurisdictional attack is based on the face of the pleadings,
the Court merely looks to determine whether the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in the plaintiff’s complaint are taken as
true for purposes of the motion.

7

Lawrence v. Dunbar, 919

F.2d 1525, 1529 (11th Cir. 1990).

Alternatively, where, as

here, the defendants assert a factual attack, a trial court
can “weigh the evidence and satisfy itself as to the existence
of its power to hear the case.

In short, no presumptive

truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial

court

from

evaluating

jurisdictional claims.”
III.

for

itself

the

merits

of

Id.

Analysis
The Oliphants move to dismiss Helix’s Third Amended

Complaint for the following reasons: (1) the Court lacks
subject matter jurisdiction because there is no diversity of
citizenship, (2) Helix failed to join an indispensable party
(Privilege Wealth PLC), and (3) Helix lacks standing.
# 100 at 6-11).

(Doc.

Alternatively, the Oliphants seek a stay of

this action pending the resolution of Privilege Wealth PLC’s
ongoing bankruptcy action in the United States Bankruptcy
Court for the District of New Jersey.
disputes

these

contentions.

(Doc.

addresses each argument in turn.

8

(Id. at 11-13).
#

104).

The

Helix
Court

A. Jurisdiction
First,

the

Oliphants

challenge

the

existence

of

diversity jurisdiction. The parties do not dispute that Helix
is an alien corporation.
Oliphants

claim

corporation,
corporation

that

which
is

a

(Doc. ## 100, 104).

Privilege

destroys
citizen

Direct

is

diversity
of

both

But, the

also

an

jurisdiction.
the

state

of

alien
A
its

incorporation and the state where it has its principal place
of business.

See 28 U.S.C. § 1332(c)(1); Hertz Corp. v.

Friend, 559 U.S. 77, 92-93 (2010).

“Thus, to sufficiently

allege the citizenship of a corporation, a party must identify
its states of incorporation and principal place of business.”
Asphalt Paving Sys., Inc. v. S. States Pavement Markings,
Inc., No. 3:18-CV-255-J-34JBT, 2018 WL 3067906, at *1 (M.D.
Fla. Feb. 20, 2018) (citing Rolling Greens MHP, L.P. v.
Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1021-22 (11th
Cir. 2004)).
Similarly,

a

foreign

corporation

maintains

dual

citizenship as a citizen both of its state of incorporation
and its principal place of business.

Cabalceta v. Standard

Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989).

Previously,

the Eleventh Circuit has held that diversity jurisdiction

9

existed between an alien plaintiff and a corporate defendant
that was incorporated in Florida and had its principal place
of business abroad.

Id.

However, a 2012 amendment to the

diversity jurisdiction statute may modify this analysis.

The

Congressional Report explains the purpose of this amendment
as follows:
The amendment would result in denial of diversity
jurisdiction in two situations: (1) where a foreign
corporation with its principal place of business
in a state sues or is sued by a citizen of that
same state and (2) where a citizen of a foreign
country (alien) sues a U.S. corporation with its
principal place of business abroad.

H.R. REP. NO. 112-10, at 9 (2011), as reprinted in 2011
U.S.C.C.A.N.

576,

580.

Recently,

the

Eleventh

Circuit

resolved the first situation but left open the question of
whether the amendment overrules Cabalceta with respect to the
second situation.

Caron v. NCL (Bahamas), Ltd., No. 17-

15008, 2018 WL 6539178, at *3 (11th Cir. Dec. 13, 2018) (“We
are not required to decide, and do not decide, whether a
corporation incorporated in a State, but with its worldwide
place

of

business

abroad,

can

invoke

alienage-diversity

jurisdiction in a suit against an alien.

This court held in

Cabalceta that alienage-diversity jurisdiction was proper in

10

that circumstance.

Whether the 2012 amendments to § 1332

overruled Cabalceta is a question for another day.”).
Regarding

a

dissolved

or

inactive

corporation,

the

Eleventh Circuit has adopted the Third Circuit’s rule that a
corporation with no business activities is a citizen only of
the state in which it was incorporated and has no principal
place

of

business.

See

Holston

Invs.,

Inc.

B.V.I.

v.

LanLogistics, Corp., 677 F.3d 1068, 1071 (11th Cir. 2012)
(adopting Midlantic Nat. Bank v. Hansen, 48 F.3d 693, 696 (3d
Cir. 1995)).

In its analysis, the court emphasized that this

rule rejects the idea that a court should strain to identify
a principal place of business.

Id.

The Eleventh Circuit

reasoned that this rule aligns most closely with the Supreme
Court’s

analysis

in

Hertz,

wherein

it

held

that

simple

jurisdictional tests are preferable even if such application
occasionally cuts against the basic rationale of diversity
jurisdiction.

Id. (citing Hertz, 559 U.S. at 89-94).

The Oliphants point out that the Third Amended Complaint
describes Privilege Direct as a Florida corporation with its
principal place of business abroad.

(Doc. # 95 at ¶ 9).

The

Oliphants proffer that records from the Florida Division of
Corporations show that Privilege Direct was dissolved on

11

September 28, 2018, several months after Helix filed its
original complaint.

(Doc. # 97-1).

Thus, the Oliphants

assert that when this lawsuit was filed, Privilege Direct was
an active Florida corporation with its principal place of
business abroad.
corporation

for

This would make Privilege Direct an alien
diversity

purposes

pursuant

to

the

2012

amendments to the diversity jurisdiction statute.
Helix disputes this allegation, arguing that Privilege
Direct is a Florida citizen for jurisdiction purposes because
it was inactive at the time the suit was originally filed.
(Doc. # 104).

According to Helix, Privilege Direct has not

conducted business activities since late 2017.

Helix claims

that the original complaint was drafted in late December 2017,
and was mistakenly not updated prior to filing.

Helix

received a letter from Privilege Direct’s parent prior to
filing this suit, which informed its creditors that it was
seeking voluntary liquidation.

(Doc. # 104-2).

Ultimately,

Privilege Wealth PLC entered bankruptcy administration on
January 23, 2018, the same date this action was filed.
# 104 at 5-6).

(Doc.

Helix also provides evidence that mail sent

via FedEx to Privilege Direct’s address in the United Kingdom
was returned as undeliverable on January 19, 2018, prior to

12

Helix filing its initial complaint.

(Doc. # 104-1).

Thus,

Helix contends that despite Privilege Direct’s status with
the Florida Division of Corporations, it was not conducting
business activities at the time the suit was filed.

(Doc. #

104 at 4-6) (citing Centcorp. Invests., Ltd. v. Folgueira,
No. 13-23019-CIV-MOORE-MCALILEY, 2014 WL 12584298, *2 (S.D.
Fla. Sep. 4, 2014)) (holding that corporation conducting no
business activities has no principal place of business and
its citizenship is controlled by its place of incorporation).
The corporate records presented by the Oliphants reveal
that Privilege Direct filed its last statutorily required
annual corporate report in 2017. (Doc. # 97-1 at 2). Florida
law provides that if an entity does not file an annual report
by the third Friday of September, the business entity will be
administratively dissolved or revoked in the state’s records
at the close of business on the fourth Friday of September.
See Chapters 607, 617 and 620, Fla. Stat.

Accordingly, the

evidence proffered by the Oliphants likely indicates that the
Privilege Direct was administratively dissolved in September
of 2018 for failing to file a 2018 corporate report.
supports

Helix’s

position

that

13

Privilege

Direct

did

This
not

conduct any business activities, or has been inactive, since
December of 2017.
The

Oliphants

also

argue

that

Helix’s

evidence

is

insufficient to demonstrate inactivity, falling far short of
the

sworn

declaration

that

established

inactivity

in

Centcorp. (Doc. # 107 at 2-3). Helix acknowledges the signed
affidavit in Centcorp but disputes that such evidence is
required.

As Helix notes, Centcorp was in a different

procedural posture because jurisdictional challenges were
raised earlier in the litigation. Centcorp, 2014 WL 12584298,
at *2.

Helix claims that the delay here, where the Oliphants

challenged jurisdiction after the close of discovery, has
hindered Helix’s ability to obtain evidence establishing
Privilege Direct’s inactivity.

(Doc. # 108 at 3-5).

The Court agrees with Helix.

The record supports that

Privilege Direct was inactive when Helix originally filed
this lawsuit.
Oliphants

to

This includes the evidence submitted by the
challenge

the

status

of

Privilege

Direct.

Further, reasoning by both the Eleventh Circuit and the
Supreme

Court

in

favor

supports this result.

of

simple

jurisdictional

tests

See Hertz, 559 U.S. at 89-94; Holston,

677 F.3d at 1071.

14

Therefore, Privilege Direct is a Florida corporation for
jurisdictional purposes and diversity jurisdiction exists.
B. Indispensable Party
Next, the Oliphants argue the operative Complaint should
be dismissed based on Helix’s failure to join Privilege Wealth
PLC, an indispensable party.

The Eleventh Circuit employs a

two-step approach when analyzing a motion to dismiss for
failing to join a required party pursuant to Rule 19.
First, the court must ascertain under the standards
of Rule 19(a) whether the [party] in question is
one who should be joined if feasible. If the person
should be joined but cannot (because for example,
joinder would divest the court of jurisdiction)
then the court must inquire whether, applying the
factors enumerated in Rule 19(b), the litigation
may continue.

Focus on Family v. Pinellas Suncoast Transit Auth., 344 F.3d
1263, 1279-80 (11th Cir. 2003) (quoting Challenge Homes, Inc.
v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669-71 (11th
Cir. 1982)).

Rule 19(a) states in relevant part:

(a) Persons to be Joined if Feasible. A person who
is subject to service of process and whose joinder
will not deprive the court of jurisdiction over
the subject matter of the action shall be joined
as a party in the action if
(1) in his absence, complete relief cannot be
accorded among those already parties, or
(2) he claims an interest relating to the subject
of the action and is so situated that the
disposition of the act in his absence may

15

(i) as a practical matter impair or impede his
ability to protect that interest or
(ii) leave any of the persons already parties
subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent
obligations
by
reason
of
his
claimed
interest.

Challenge, 669 F.2d at 669-70.

The District Court for the

Southern

succinctly

District

of

Florida

summarized

the

analysis required by Rule 19(a):
The first part of the [Rule 19(a)] test might be
more clearly understood as involving two questions:
whether the non-party should be joined and whether
joinder is feasible. Where both a nonparty should
be joined and joinder is feasible, the nonparty is
"required" or "necessary" but not necessarily
"indispensable." If so, then pursuant to Rule
19(a)(2), the Court must order that the person be
made a party, rather than dismiss. Thus, dismissal
for failure to join an indispensable party is only
appropriate where the nonparty cannot be made a
party.

Mid-Continent Cas. Co. v. Basdeo, No. 08-61473-CIV, 2009 WL
2450386 at *2-3 (S.D. Fla. Aug. 7, 2009) (internal citations
omitted).

The Court must first determine whether a judgment

without Privilege Wealth PLC can provide the present parties
with complete relief.

See, e.g., Molinos Valle Del Cibao, C.

por A. v. Lama, 633 F.3d 1330, 1345 (11th Cir. 2011).

This

inquiry turns on whether Privilege Wealth PLC has an interest
relating to the subject of the action.

16

See Barow v. OM Fin.

Life Ins. Co., No. 8:11-cv-00159-T-33TBM, 2011 WL 2649987, at
*2-3 (M.D. Fla. July 6, 2011); Basdeo, 2009 WL 2450386, at
*3.
The Oliphants contend that complete relief cannot be
granted without Privilege Wealth PLC because of its status as
an obligor under the Oliphant Security Agreement and owner of
the Promissory Notes.

(Doc. # 100 at 6-7).

Helix disputes

this contention, arguing that all liability alleged in the
Complaint under the Oliphant Security Agreement is completely
independent of Privilege Wealth PLC and that Privilege Wealth
PLC has no rights in the Promissory Notes.

Helix relies on

cases finding that all signatories to an agreement are not
required parties and that co-obligors are not indispensable
parties to a breach of contract claim.

(Doc. # 104 at 11-

12) (citing Brackin Tie, Lumber & Chip Co., Inc. v. McLarty
Farms, Inc., 704 F.2d 585, 586-87 (11th Cir. 1983); Colbert
v. First NBC Bank, No. 13-3043, 2014 WL 1329834, at *3-4 (E.D.
La. Mar. 31, 2014)).
by

the

Oliphants

signatories

if

the

Indeed, as Helix notes, the cases cited
only

required

lawsuit

the

impaired

joinder
the

signatory to protect a related interest.
n.3).

of

ability

absent
of

the

(Doc. # 104 at 11,

These parties were not required solely because their

17

signatures were on the contract in dispute.

(Id.).

Rather,

each party had specified obligations or rights under the
agreements at issue that were implicated in the lawsuit.

See

also Ward v. Apple, Inc., 791 F.3d 1041, 1049-50 (9th Cir.
2015) (finding reversible error where the court failed to
identify the interests of the absent party or address how
those interests might be impaired if the action were resolved
in its absence).
Thus, the relevant inquiry is whether Privilege Wealth
PLC has an interest that is related to the subject of this
action or that would be impaired or impeded if the case
continues in its absence.

The Oliphants have failed to

identify an interest of Privilege Wealth PLC’s that is related
to this action.

The Oliphant Security Agreement ties certain

Collateral, including the Promissory Notes, to Privilege
Wealth PLC’s existing secured obligations.
¶ 2).

This arrangement functions as a condition precedent to

Privilege

Wealth

PLC

funding

the

contemplated

venture with funds otherwise due to Helix.
15-19).
any

(Doc. # 95-1 at

Oliphant

(Doc # 95 at ¶¶

But, the Oliphant Security Agreement does not grant

rights

to

or

bind

Privilege

Wealth

PLC

with

any

obligations outside of Paragraph eight, pursuant to which

18

Helix, Privilege Direct, Privilege Wealth PLC, and Privilege
Wealth One all confirm and acknowledge that Helix’s security
interests rank in priority to those of other creditors. (Doc.
# 95-1 at ¶ 8).

Indeed, as Helix notes, the first whereas

clause in the Oliphant Security Agreement binds Privilege
Direct as an obligor, jointly and severally, to Helix as the
Lender.

(Doc. # 95-1 at 2).

The pleadings before this Court

do not implicate any rights that Privilege Wealth PLC may
have under the Oliphant Security Agreement.
agreement

references

other

agreements

Although the

pursuant

to

which

Privilege Wealth PLC may have rights or certain obligations,
only the Oliphant Security Agreement, Promissory Notes, Term
Sheet, and Guarantee are presently before the Court.

Two

courts in the Southern District of Florida have declined to
require the joinder of an absent party with no rights or
obligations under a contract even if it is a party to a
separate contract with the parties at issue.

See

Raimbeault

v. Accurate Mach. & Tool, LLC, 302 F.R.D. 675, 684-86 (S.D.
Fla. 2014) (finding joinder not required because the absent
party had no rights or obligations under the contract even
though it may be impacted by the pending action because of a
second contract to which it was a party, but that was not at

19

issue); Jet Pay, LLC v. RJD Stores, LLC, No. 11-60722-CIV,
2011 WL 2708650, at * 7-9 (S.D. Fla. July 12, 2011) (finding
an absent party to the contract at issue was not required
because the parties were not actually joint obligors, as named
in the contract, but rather were each a party to a separate
contract with the plaintiff involving distinct obligations).
In addition, the Oliphants do not identify Privilege Wealth
PLC’s interest in the Promissory Notes, Guarantee, or Term
Sheet.
Finally, apart from declaratory relief regarding the
Oliphant Security Agreement, Helix seeks only money damages.
Where only money damages are sought, a court can grant
complete relief despite an absent party because “money is
fungible; the recipient cares not from whence it came.”
United States v. Townhomes of Kings Lake HOA, Inc., No. 8:12cv-2298-T-33TGW, 2013 WL 807152, at *4 (M.D. Fla. March 5,
2013) (quoting Molinos Valle Del Cibao, 633 F.3d at 1345).
Accordingly, the Court finds that complete relief can be
granted without joining Privilege Wealth PLC.
The

second

part

of

Rule

19(a)

focuses

on

possible

prejudice either to the absent party or the present litigants.
Fed. R. Civ. P. 19(a)(2).

Here, the Court must consider

20

whether any recovery in the instant case is premised on a
finding that would jeopardize the missing party’s interest or
subject any party to multiple or inconsistent obligations.
See Barow, 2011 WL 2649987 at *1-2.
The Oliphants argue they are prejudiced by Privilege
Wealth PLC’s absence because they will be subject to the risk
of

incurring

multiple

lawsuits

involving

the

rights

of

Privilege Wealth PLC under the Oliphant Security Agreement
and Promissory Notes. But, the Oliphants have not articulated
what suits they may face.

All claims in the instant case

under the Oliphant Security Agreement relate only to specific
duties of the Oliphants or Privilege Direct.
¶¶ 30-44, 180-194).

(Doc. # 95 at

Privilege Wealth PLC is not a party to

the Promissory Notes, the Term Sheet, or the Guarantee. (Doc.
## 95-2, 95-5, 95-6, 95-7, 95-8, 95-9).

Moreover, Privilege

Wealth PLC’s pending bankruptcy petition does not reference
the portfolios sought by Helix.

(Doc. # 79-1).

Thus, it is

not apparent what suits the Oliphants may face. And, as Helix
notes, the theoretical possibility of another lawsuit cannot
be the basis for dismissal under Rule 19(a)(2).

See Northrop

Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1046 (9th
Cir. 1983).

21

Furthermore, Helix argues that the administrator of the
bankruptcy estate has not identified an interest in the
instant litigation, as required by the second part of a Rule
19(a) analysis.

According to Helix, the administrator is

aware of the ongoing litigation and has been in communication
with Helix.

Again, the pending bankruptcy petition does not

reference the portfolios sought by Helix.

(Doc. # 79-1).

Helix urges the Court not to dismiss the entire complaint in
favor of an interest that the bankruptcy trustee is aware of
and

has

not

asserted.

In

support,

Helix

cites

cases

illustrating the general reluctance of courts to join a nonparty for purposes of protecting a non-party’s interest when
the non-party itself has not claimed an interest in the
outcome.

See HDR Eng'g, Inc. v. R.C.T. Eng'g., Inc., No. 08-

81040-CIV, 2010 WL 2402908, at *2-4 (S.D. Fla. June 15, 2010)
(citing School Dist. Of City of Pontiac v. Sec. of U.S. Dept.
of Educ., 584, F.3d 253, 266 (6th Cir. 2009); United States
v. San Juan Bay Marina, 239 F.3d 400, 406-07 (1st Cir. 2001);
United States v. Bowen, 172, F.3d 682, 689 (9th Cir. 1999)).
These cases reinforce the policy that the plaintiff is the
master of its own claim.

22

In

summary,

the

pleadings

before

the

Court

do

not

demonstrate that Privilege Wealth PLC has any interest in the
contracts

at

issue

that

poses

a

risk

of

inconsistent

obligations for itself, the Oliphants, Morris, or Helix.
Thus, the Oliphants have not demonstrated that Privilege
Wealth PLC should be joined or that the failure to join
Privilege Wealth PLC prejudices any remaining parties.
The Court does not reach the 19(b) analysis because it
finds that Privilege Wealth PLC is not required to be joined
under 19(a).
C. Standing to Sue
Next, the Oliphants argue that Helix lacks standing to
enforce the Promissory Notes or the Term Sheet.
at 8-11).

(Doc. # 100

Under Florida law, a promissory note may be

enforced by a holder or a nonholder with certain rights. Fla.
Stat. § 673.3011.

According to the Oliphants, Helix is not

the original payee on any of the Promissory Notes and has not
presented

any

evidence

that

the

transferred or endorsed to Helix.

Promissory

Notes

were

The Oliphants claim that

the UCC filings are associated with a different entity than
Helix and do not support Helix’s claims.

(Doc. # 100 at 10).

Thus, Helix has not shown its status as a holder or a non-

23

holder with the rights of a holder of the Promissory Notes.
On the other hand, Helix maintains that Privilege Direct
granted and assigned its interest in the Promissory Notes to
Helix in the Oliphant Security Agreement.
13).

(Doc. # 95-1 at ¶

Helix insists that the entities are the same and that

any inconsistency in the LP or SLP designation results from
the Florida registration it filed during this litigation.
(Doc. # 104 at 15).

Finally, Helix claims that the Third

Amended Complaint alleges sufficient facts to establish a
default under the Oliphant Security Agreement, which triggers
Helix’s right to enforce the Promissory Notes.
The Court resolves this issue in favor of Helix.
Complaint alleges default by the Oliphants.
30-44).

(Doc. # 95 at ¶¶

And, Helix Investment Management SLP and Helix are

the same entity.

During this litigation, Helix filed a new

registration in order to conduct business in Florida.
#

The

24-1).

Indeed,

Helix

registered

in

Florida

(Doc.
at

the

Oliphants’ request. (Doc. # 20). In order to register, Helix
was required to select an identifying business designation.
The

Luxembourg

designation

in

“SLP”

designation

Florida.

See

§

is

not

620.1108,

an

accepted

Fla.

Stat.

Accordingly, Helix registered itself in Florida as an LP and

24

then requested, and was permitted, to amend the pleadings to
proceed under the LP designation.

(Doc. # 104 at 14-15).

The Oliphants also dispute that Helix has standing to
bring suit under the Promissory Notes because the Term Sheet
is not a final contract.

The Oliphants argue that the Term

Sheet is like a loan commitment and therefore does not
demonstrate that Helix has any rights under the Promissory
Notes.

(Doc. # 100 at 9).

This argument is unpersuasive.

In the case relied on by the Oliphants, the Southern District
of Florida dismissed a plaintiff’s claims because essential
loan terms were missing.

See Univ. Creek Assoc., II, Ltd. v.

Boston Am. Fin. Grp., Inc., 100 F. Supp. 2d 1337, 1340 (S.D.
Fla. 1998).

Notably, the plaintiff in University Creek

asserted a breach of contract claim based on a commitment
letter that failed to specify the amount of interest, terms
of repayment, or funding.
contained

no

mutual

Id. at 1340.

assent

between

the

Also, the letter
parties.

Id.

Accordingly, the University Creek plaintiff had no standing
to bring a breach of contract claim based on the proposed
loan agreement.

The Term Sheet is distinguishable from the

commitment letter at issue in University Creek.

25

See (Doc. #

95-2).

Thus, the Court finds that Helix has standing to

bring this action.
D. Bankruptcy Stay
Finally, the Oliphants ask the Court to stay this action
pending the resolution of Privilege Wealth PLC’s ongoing
bankruptcy proceeding in the United States Bankruptcy Court
for the District of New Jersey.

(Doc. # 100 at 11-13).

According to the Oliphants, the scope of protection in a
bankruptcy stay applies to the interests of the debtor and is
not constrained merely by the named parties.
argue

that

the

Promissory

Notes

and

The Oliphants

Oliphant

Security

Agreement are included within the definition of property of
the

debtor’s

applies

to

documents.

estate
Privilege

and

accordingly

Wealth

PLC’s

the

automatic

rights

under

stay
those

Thus, the Oliphants contend that because Helix

seeks to recover an obligation that is enforceable against
Privilege Wealth PLC, the bankruptcy case should resolve the
action.
Helix responds that a stay is not appropriate because
the estate’s trustee has not asserted an interest in the
action, despite ample mechanisms to do so.

Helix argues that

a stay absent a request from the trustee is unnecessary and

26

would substantially prejudice Helix.

According to Helix,

Privilege Direct, and not Privilege Wealth PLC, granted Helix
its rights in the Collateral at issue here.

In addition,

Privilege Wealth PLC has acknowledged that Helix’s security
interests rank in priority to the other claims as the most
senior

and

secured

obligation.

(Doc.

#

95-1

at

¶

8).

Further, Helix alleges that its representatives are engaged
in ongoing communication with the bankruptcy trustee who has
declined to participate in this action.

Helix also notes

that the bankruptcy proceeding was filed on February 8, 2018,
after the instant action was filed on January 24, 2018.
The

Oliphants

have

not

identified

an

interest

of

Privilege Wealth PLC that is at issue in this lawsuit and
therefore a stay is inappropriate.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
The Motion to Dismiss Helix’s Third Amended Complaint
or, in the Alternative, to Stay the Litigation (Doc. # 100)
is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 5th
day of March, 2019.

27

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