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Deep v. Boies


January 17, 2007


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff's present action is based on his legal malpractice and related state tort claims against his former attorney David Boies and the firms of Boies, Schiller, & Flexner, LLP and Straus & Boies, LLP. These claims arise from Defendants' representation of Plaintiff in certain transactions and court proceedings involving his software program called "Aimster." Currently before the Court is Defendants' motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Alternatively, Defendants request that the Court abstain from adjudicating Plaintiff's claims pursuant to 28 U.S.C. §§ 1334(c)(1) and 1334(c)(2).


Plaintiff alleges that, during the course of Defendants' representation of him, William Duker approached Plaintiff as a potential investor in Aimster.*fn1 Thereafter, Plaintiff contends that Defendant David Boies engaged in a series of concealed sham transactions involving Mr. Duker and members of the Bois Family for the purpose of misappropriating Plaintiff's assets. Furthermore, Plaintiff argues that Defendants received compensation for legal services that they never provided. During this course of conduct, Plaintiff asserts that Defendants concealed their representation of conflicted clients and also disclosed confidential material received from Plaintiff. Finally, Plaintiff asserts that Defendant David Boies commingled funds and that he or Boies Family-controlled businesses took actions that were fraudulent and adverse to Plaintiff's interests.

Based on these allegations, Plaintiff asserts nine causes of action in his seventy-eight page complaint for (1) attorney malpractice and breach of fiduciary duty, (2) inducing breach of fiduciary duty, (3) conspiracy to breach fiduciary duty, (4) fraud, (5) constructive fraud, (6) accounting, (7) constructive trust, (8) unjust enrichment, and (9) conversion.

Plaintiff originally asserted diversity jurisdiction, but Defendants' motion to dismiss and supporting affidavit established that complete diversity was lacking. In response, Plaintiff asserted for the first time that jurisdiction exists under 28 U.S.C. § 1334(b) on the basis that Defendants' alleged acts "relate to" his bankruptcy because the bankruptcy estate could increase as a result of this action.*fn2 In response, Defendants argue that the Court must abstain and dismiss the action pursuant to 28 U.S.C. § 1334(c)(2) because Plaintiff has filed several lawsuits with the same allegations, including a pending action in New York State Supreme Court. Alternatively, Defendants contend that the Court should abstain and dismiss Plaintiff's action pursuant to the permissive abstention provision in 28 U.S.C. § 1334(c)(1).

A. Subject-Matter Jurisdiction

As a threshold matter, the Court must determine whether it has subject-matter jurisdiction over Plaintiff's claims. Conceding that diversity jurisdiction does not exist, Plaintiff now bases his claim of jurisdiction solely on "related to" jurisdiction pursuant to 28 U.S.C. § 1334(b).

An action is related to a bankruptcy proceeding if its outcome could conceivably have any effect on the bankruptcy estate. See Covanta Onondaga Ltd. v. Onondaga County Res. Recovery Agency, 281 B.R. 809, 813 (N.D.N.Y. 2002) (citing In re Cuyahoga Equipment Corp., 980 F.2d 110, 114 (2d Cir. 1992)) (other citations omitted). For example, in Covanta, whichinvolved a breach-of-contract claim, the district court concluded that it had subject-matter jurisdiction because "recovery of damages could alter the debtor's rights, liabilities, options, or freedom of action, either positively or negatively and may impact upon handling and administration of the bankrupt estate." Id. at 814 (citing Pacor v. Higgins, 743 F.2d at 994).

In this case, there is an ongoing bankruptcy proceeding and the cause of action belonging to the debtor arose prior to the filing of the bankruptcy petition. Moreover, Plaintiff asserts in his bankruptcy plan that nearly all of his assets have been misappropriated and indicates that he will report any recovery to the Bankruptcy Trustee for inclusion in the schedule of assets. See Declaration of John A. Deep, sworn to June 15, 2005, at Exhibit 1 at 18-20. Therefore, it is conceivable that, if Plaintiff prevails in this action, the bankruptcy estate would be augmented, thereby affecting the rights of creditors. Accordingly, the Court concludes that it has subject-matter jurisdiction over Plaintiff's claims.

B. Mandatory Abstention

Even if "related to" jurisdiction exists pursuant to 28 U.S.C. § 1334(b), a district court must abstain under § 1334(c)(2) if six criteria are met: (1) the motion for abstention was timely; (2) the action is based on a state-law claim; (3) the action is "related to" a bankruptcy proceeding, as opposed to "arising under" the Bankruptcy Code or "arising in" a bankruptcy proceeding; (4) section 1334 is the sole jurisdictional basis for the action; (5) an action was commenced in state court; and (6) the state-court action can be timely adjudicated.*fn3 See Von Richthofen v. Family M. Found. Ltd., 339 B.R. 315, 319 (S.D.N.Y. 2005) (citations omitted); Covanta, 281 B.R. at 816 (citation omitted). The Court will consider these criteria in turn.

First, a motion to abstain is timely if it is promptly filed or if it does not prejudice the rights of others. See Gassman v. Gassman, Griper & Golodny, No. 097 Civ. 0093, 1997 WL 603439, *1 n.5 (S.D.N.Y. Sept. 30, 1997) (citation omitted). Defendants' motion was timely because they filed it promptly on December 16, 2005, a mere ten days after Plaintiff raised § 1334(b) as a basis of subject-matter jurisdiction for the first time. Moreover, there is no evidence of prejudice.

Second, the underlying action must be based on a state-law claim. Here, Plaintiff asserts nine causes of action, which are all based on state law.

Third, the action must be "related to" a bankruptcy proceeding, but it cannot be a "core proceeding." See id. at *2. Core proceedings "arise under" the Bankruptcy Code or "arise in" a bankruptcy case. Common examples of core proceedings include the following:

(A) matters concerning the administration of the estate; (B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 . . . ; [and] (O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship. . ..

Id. (quoting 28 U.S.C. § 157(b)(2)). Plaintiff concedes this point by stating that his claims merely "relate to" his bankruptcy because the amount of property distributed according to the schedule of assets could be affected. See Plaintiff's Response to Defendants' Motion to Dismiss at 2-3. Moreover, none of the circumstances outlined in the passage above apply in this case.

Fourth, "related to" jurisdiction under § 1334 must be the only basis for jurisdiction. Plaintiff's case cannot be based on diversity jurisdiction, no federal question is present, and he raises only state-law claims. Furthermore, the Court finds no other statutory basis for jurisdiction.

Fifth, an action must have "commenced" in state court. This requirement can be met even if the commenced action was removed to federal court. See Mt. McKinley Ins. Co. v. Corning Inc., 399 F.3d 436, 447 (2d Cir. 2005) (citations omitted). Here, Plaintiff concedes that he has filed a lawsuit in New York State Supreme Court alleging attorney malpractice against Mr. Boies.*fn4 See Plaintiff's Response to Defendants' Motion to Dismiss at 7 n.6.

Sixth, the state-court action must be capable of timely adjudication. In this case, there is no reason to conclude that plaintiff's state-court claim will not be timely adjudicated. To the contrary, Defendants provided evidence of the New York State Supreme Court's pattern of timely adjudication.

The Court finds that all six criteria favor mandatory abstention pursuant to § 1334(c)(2). Accordingly, the Court ABSTAINS from adjudicating Plaintiff's claims pursuant to this provision and DISMISSES this action in its entirety.*fn5

C. Permissive Abstention

Alternatively, the Court determines that permissive abstention would be appropriate pursuant to 28 U.S.C. § 1334(c)(1).*fn6 The following factors support permissive abstention: (1) the case involves state-law claims exclusively; (2) the New York court is in the best position to apply state law regarding breach of fiduciary duty; (3) the state claims have no basis in federal jurisdiction other than their being "related to" a bankruptcy proceeding; (4) the substance of the claims arose under state law, not title 11; (5) there is no need to sever federal claims from the state action; and (6) there is no need to burden the court with a case that can proceed to trial in a state court. See Gassman, 1997 WL 603439, at *3. Accordingly, as an alternative, the Court ABSTAINS from adjudicating Plaintiff's claims pursuant to 28 U.S.C. § 1334(c)(1) and DISMISSES this action in its entirety.


Accordingly, after reviewing the parties' submissions and the applicable law, and for the above-stated reasons, the Court hereby

ABSTAINS from adjudicating Plaintiff's claims pursuant to 28 U.S.C. § 1334(c)(2), or in the alternative, pursuant to 28 U.S.C. § 1334(c)(1); and the Court further

ORDERS that Plaintiff's claims are DISMISSED in their entirety; and the Court further

ORDERS that the Clerk of the Court enter judgment and close this case.


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