Beane v. Beane

Filing 70

///ORDER: Court's stay of the action in Doc. 59 is lifted except as to Count 5 of Glenn's amended complaint. Because stay is largely lifted, 64 Motion for an Order Modifying Stay is denied as moot. Mii Technologi es, Inc. to be added as a plaintiff-in-counterclaim. Count 1 of Glenn's amended complaint is dismissed as moot in part and otherwise unripe; 67 Motion for Voluntary Dismissal is denied as moot. By Alan's agreement at the status conferenc e, judgment is granted for Glenn on Count 2 of his amended complaint as outlined. Further declarations in Count 2 are either moot or dismissed for lack of standing. Counts 3 and 4 are dismissed for lack of standing. Parties cross-motions for summar y judgment 17 and 35 which were denied without prejudice following entry of the stay are reinstated and denied as moot. Motion to Substitute 42 , together with objection, reply and surreply reinstated and to be decided by the court in the ordinary course without the need for further action by the parties. So Ordered by Judge Joseph N. Laplante. (dae)

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Glenn L. Beane v. Alan F. Beane PROCEDURAL ORDER On March 13, 2010, the court held an in-chambers status conference with counsel in this action to address the matters set forth in a prior procedural order (document no. 69). As a result Civil No. 08-cv-236-JL

of counsel's representations at that conference, the court makes the following rulings: 1. Motion to modify stay denied as moot, stay lifted. The

court's stay of this action (document no. 59) is lifted in light of the limited preclusive effect, if any, of the Grafton County Superior Court's decision in Beane v. Mii Techs., LLC, No. 2008C-079 (N.H. Super. Ct. July 9, 2009), appeal docketed, No. 20090562 (N.H. Aug. 24, 2009), except as to count 5 of Glenn's amended complaint, which seeks relief for certain allegedly fraudulent transfers that at one point were a subject of the Superior Court action. Nothing in this order shall prevent any

party from making, or the court from considering, res judicata or collateral estoppel arguments based on the Superior Court's judgment, if it is affirmed in whole or in part on appeal.

Because the stay is largely lifted, Glenn's motion for an order modifying the stay (document no. 64) is denied as moot. 2. Diversity. Mii Technologies, Inc. is not a necessary At the time

party-defendant to Glenn's claims against Alan.

Glenn says his membership in Mii ceased, it had no other members besides Alan, and has not had any other members since. (In fact,

Mii was administratively dissolved by the New Hampshire Secretary of State in 2007.) So only Glenn and Alan--both of whom are

already before the court--have any interest in whether Glenn remained a member of Mii, and whether its existence as a limited liability company continued, after February 4, 2004. It follows

that no person aside from Glenn and Alan has an interest in Mii which could be practically impaired by the declaratory and equitable relief Glenn seeks, and that the court can grant that relief effectively through a decree binding Glenn and Alan, without the need to join Mii as a party. Mii is not a necessary

party-defendant to Glenn's claims and therefore not an indispensable one. See Fed. R. Civ. P. (a)(1), (b); Polak v.

Kobayashi, No. 05-330, 2005 WL 2008306, at *3 (D. Del. Aug. 22, 2005); Wright v. Herman, 230 F.R.D. 1, 6-7 (D.D.C. 2005). The

court therefore has diversity jurisdiction without regard to Mii's membership.

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3.

Mii's status.

Mii, however, shall be added as a

plaintiff-in-counterclaim, because most if not all of the counterclaims asserted by Alan actually belong to Mii, as this court has previously ruled. (McAuliffe, C.J.). Beane v. Beane, 2008 DNH 082, 14-16

Joining Mii in that capacity will have no

effect on the court's subject-matter jurisdiction, because it may exercise supplemental jurisdiction over the counterclaims without regard to the diversity of Mii. 28 U.S.C. §§ 1367(a), (b); Kyle

v. Fidéle Tremblay, Inc., 2008 DNH 201, 2. 4. Count I dismissed as moot and unripe. Count 1 of

Glenn's amended complaint, seeking equitable relief under the Employee Retirement Security Act, specifically 29 U.S.C. § 1132(a)(3)(B)(ii), is dismissed as moot in part and otherwise unripe. Based on the representations in Glenn's motion for

voluntary dismissal, the relief he sought from Alan has been or will shortly be provided through the actions of a third party, Summit Financial. And insofar as Glenn seeks indemnification

from Alan for any potential liability connected to the employee benefit plans, that liability is too speculative at this point to support a claim that is ripe for adjudication, as Glenn conceded at the conference. Because the court lacks subject-matter

jurisdiction over count 1 as moot and unripe, the count is

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dismissed on that basis, and Glenn's motion for voluntary dismissal (document no. 67) is denied as moot. 5. Count 2--partial judgment for Glenn, partial dismissal By Alan's agreement at the status conference,

for mootness.

judgment is granted for Glenn on count 2 of his amended complaint insofar as it seeks a declaration that he ceased being a member of Mii as of February 4, 2004. As a result of that declaration,

Glenn's requests for further declarations in count 2 are either moot, viz., his request to declare "improper" various tax filings describing him as a member of Mii after that date, or he lacks standing to bring them, viz., his requests to declare that Mii's "limited liability/partnership status terminated as of" that date and that Alan's membership in Mii subsequently terminated. Glenn's claim for that relief is therefore dismissed for lack of standing and mootness. 6. Counts 3 and 4 dismissed. For the same reason, Glenn

also lacks standing to bring counts 3 and 4 of his amended complaint which seek, respectively, the judicial dissolution of Mii and an accounting and distribution of Mii's profits after the date Glenn's membership terminated, as an alternative to the relief sought in count 2. Counts 3 and 4 are dismissed for lack of standing.

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7. moot.

Summary judgment motions on Count 1 and 2 denied as Given the disposition of counts 1-2 of Glenn's amended

complaint, the parties' cross-motions for summary judgment on those counts (document nos. 17, 35), which were denied without prejudice following entry of the stay, are reinstated and denied as moot. 8. Motion to substitute reinstated. Glenn's motion to

substitute himself as the plaintiff-in-counterclaim and to dismiss the counterclaims (document no. 42), which had been denied without prejudice following entry of the stay, is reinstated, together with the objection, reply, and surreply, and shall be decided by the court in the ordinary course without the need for further action by the parties.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge Dated: cc: March 22, 2010

W.E. Whittington, Esq. William S. Gannon, Esq.

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