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Wittich v. Wittich

November 29, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Plaintiff Rolf Wittich filed a complaint in this action on April 7, 2006, in an effort to set aside a Settlement Agreement that was entered between plaintiff and defendant Peter Wittich, among others, in 2003. Defendant Peter Wittich moves pursuant to Rules 12 and 19 to dismiss plaintiff's complaint in its entirety for lack of subject matter jurisdiction, under principles of preclusion, for failure to join an indispensable party, and for failure to state a claim as to plaintiff's third cause of action for a preliminary injunction.*fn1 For the reasons that follow, defendant's motion is granted.


A. Factual Background

The instant action arises out of a family dispute regarding two closely-held corporations. The dispute was the subject of two separate actions in Supreme Court, Nassau County, that were settled in 2003 by one agreement that was signed by all parties to the state court actions (hereinafter the "Settlement Agreement" or "the Agreement"). (Compl. Ex. 3, Def.'s. Mem. Ex. 1.) Only two of the parties to that Settlement Agreement are parties to the instant case. The first action was a shareholder's derivative action brought by defendant Peter Wittich and three of his siblings, derivatively, on behalf of Bell Oil Terminal, Inc., (hereinafter "Bell Oil") a Delaware Corporation, against their father, plaintiff Rolf Wittich. The second action was a direct action brought by Ameropan Oil Corp. (hereinafter "Ameropan"), a New York corporation, directly against the plaintiff in this case, Rolf Wittich, and a third-party. Plaintiff was the majority shareholder in both Bell Oil and Ameropan and his children, including the defendant in this case, were minority shareholders. Plaintiff signed the Settlement Agreement on November 6, 2003, while represented by an attorney. Plaintiff alleges that he was forced to sign the agreement under duress of defendant Peter Wittich and the erroneous advice of his counsel. (Compl. ¶ 12(d).) The Settlement Agreement was "so-ordered" pursuant to N.Y. Bus. Corp. Law § 626(d) by the Honorable Justice Leonard B. Austin of Supreme Court, Nassau County, on June 22, 2006. (Defs.' Mem. Ex. 3.)

Under the Settlement Agreement, plaintiff Rolf Wittich acknowledged unauthorized use of funds belonging to Bell Oil and Ameropan in excess of $6.5 million. Pursuant to the Settlement Agreement, Bell Oil, Ameropan and each of the individual shareholders issued a general release of all claims against Rolf Wittich and Rolf Wittich was to transfer his shares to defendant Peter Wittich while the other shareholders retained their shares. (Defs.' Mem. Ex. 1.)

On April 7, 2006, plaintiff instituted this action in an effort to set aside the Settlement Agreement. Defendant now moves to dismiss the complaint pursuant to Rules 12(b)(1), 12(b)(6), and 19.


A motion to dismiss for want of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) is reviewed under the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Coveal v. Consumer Home Mortg., Inc., No. 04-CV-4755 (ILG), 2005 U.S. Dist. LEXIS 25346, at *6 (E.D.N.Y. Oct. 21, 2005) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003), cert. denied, 540 U.S. 1012, 124 S.Ct. 532, 157 L.Ed. 2d 424 (2003)). In reviewing a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Dismissal is warranted only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim[] which would entitle him to relief." Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Further, in reviewing a motion under Fed. R. Civ. P. 12(b)(1), the court may consider evidence beyond the pleadings to resolve disputed issues of fact regarding its jurisdiction. See Flores v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003). "A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6) must decide the `jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Coveal, 2005 U.S. Dist. LEXIS 25346, at *7 (quoting Magee v. Nassau County Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)); see also Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (noting that a motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction).


A. Rooker-Feldman

Defendant argues that this case should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine stands for the general proposition that "federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005).

In Hoblock, the Second Circuit rigorously re-examined the Rooker-Feldman doctrine in light of the Supreme Court's decision in Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). See Hoblock, 422 F.3d at 83. The Second Circuit noted that Exxon Mobile reduced the expanse of the Rooker-Feldman doctrine, "holding that it `is confined to cases of the kind from which the doctrine acquired its name: cases brought by statecourt losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.'" Hoblock, 422 F.3d at 85 (quoting Exxon Mobile, 544 U.S. at 284). Thus, the Second Circuit found that there are four requirements for the application of Rooker-Feldman: (1) "the federal-court plaintiff must have lost in state court"; (2) "the plaintiff must complain of injuries caused by a state court judgment"; (3) "the ...

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