United States District Court, S.D. New York
GARY TATINTSIAN, on his own behalf and for the benefit of Shoplink, Inc. Plaintiff,
MIKHAIL VOROTYNTSEV, and ELENA VOROTYNTSEV, Defendants and, SHOPLINK, Inc. Nominal Defendant. MIKHAIL VOROTYNTSEV Third-Party Plaintiff,
DMITRIY KHMALADZE, ITADAPTER CORPORATION, INC., YOUNIS ZUBCHEVICH, and DIABETICA RESEARCH SOLUTIONS, INC. Third-Party Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS UNITED STATES DISTRICT JUDGE
Gary Tatintsian (“Tatintsian”) filed this lawsuit
against Defendant and Third-Party Plaintiff Mikhail
Vorotyntsev (“Vorotyntsev”) and his
for allegedly misappropriating hundreds of thousands of
dollars from nominal defendant ShopLink Inc. to fund their
“lavish lifestyle.” After he discovered the
misappropriation, Tatintsian filed a complaint against the
Vorotyntsevs, bringing claims both directly against
Vorotyntsev for misrepresenting the company's condition
at the time of his investment, and derivatively as a
shareholder on behalf of ShopLink for breach of fiduciary
duty, waste, and unjust enrichment.
after Tatintsian filed suit, Vorotyntsev brought this
third-party complaint against Dmitriy Khmaladze, ITAdapter
Corporation, Inc., Younis Zubchevich, and Diabetica Research
Solutions, Inc. (together, the “Third-Party
Defendants”). Third-Party Complaint
(“TPC”), Dkt. No. 40. Vorotyntsev alleges that
the Third-Party Defendants schemed, together with Tatintsian,
to usurp ShopLink's technology and business plan.
Id. ¶ 1. Because Vorotyntsev's contribution
claim is not adequately pleaded, and because allowing his
unjust enrichment claim to proceed would not be a sound
exercise of the Court's discretion under Federal Rule of
Civil Procedure 14, the motion to dismiss brought by
Third-Party Defendants Khmaladze and ITAdapter Corporation,
Inc. is granted.
Court assumes familiarity with the facts underlying this
case, which were fully set forth in this Court's earlier
opinions, see Dkt. Nos. 179, 180, and are referred
to herein only as necessary. Vorotyntsev founded ShopLink in
2012 to develop software to sell and market goods on social
media. Dkt. No. 1, Complaint (“Compl.”)
¶¶ 12-13. In January 2013, Vorotyntsev was
introduced to Khmaladze, an experienced software architect
and computer programmer. TPC ¶¶ 30, 31. Vorotyntsev
told Khmaladze about his ideas for ShopLink, and by February
2013, Khmaladze began working for ShopLink as its Chief
Technology Officer. Id. ¶¶ 32-33. Later,
Vorotyntsev formed AUM Code LLC (“AUM Code”) with
Khmaladze to develop source code and ShopLink's
“backend architecture.” Id. ¶ 34.
AUM Code has two members-Vorotyntsev, who owns 60 percent,
and Khmaladze, who owns 40 percent. Id. ¶ 35.
AUM Code, in turn, has a wholly owned subsidiary, IT Adapter
LLC, which oversees certain operations for AUM Code and
ShopLink. Id. ¶¶ 36, 37. Khmaladze became
the Chief Technology Officer, and managing member, of AUM
Code. Id. ¶ 39. From approximately May 2013 to
August 2016, Vorotyntsev caused ShopLink to pay over $300,
000 to Khmaladze and his company, ITAdapter Corporation,
Inc.,  to compensate Khmaladze for the work that
he promised to perform for ShopLink. Id. ¶
2014, Vorotyntsev hired Zubchevich, an investment banker and
businessman, as a business advisor to ShopLink. Id.
¶¶ 45-47. In that capacity, Zubchevich learned
proprietary and confidential information about ShopLink.
Id. ¶ 48. Zubchevich owned his own company at
the time, third-party defendant Diabetica Research Solutions,
Inc. Id. ¶ 49. In June 2015-as set forth more
fully in the Court's earlier opinions-Vorotyntsev told
his old friend Tatintsian about ShopLink, and in September
2015, Tatintsian expressed an interest in investing in
ShopLink. Id. ¶ 52. Ultimately, in April 2016,
Tatintsian purchased a three-percent stake in the company.
Id. ¶ 55. Vorotyntsev alleges that Tatintsian
“devised a scheme to use his resources to punish
Vorotyntsev, ” take over ShopLink and usurp its
technology” because Vorotyntsev declined to accept
additional investments from Tatintsian's associates.
Id. ¶¶ 56-63. In furtherance of this
scheme, Tatintsian allegedly mined confidential business
information from Zubchevich. Id. ¶ 65, 66.
Then, in September 2016, Zubchevich and Tatintsian emailed
Khmaladze to malign Vorotyntsev and attempt to reorganize
ShopLink under Tatintsian's direction. Id.
months that followed, Vorotyntsev alleges that Tatintsian
received copies of ShopLink's bank statements on the
condition that he keep them confidential, and that Tatintsian
nonetheless shared them with Khmaladze and Zubchevich.
Id. ¶ 72. Tatintsian contacted ShopLink
investors, telling them that ShopLink was a scam and that
Vorotyntsev had lied about ShopLink's ownership of the
underlying technology. Id. ¶ 73. Tatintsian and
Zubchevich tried to induce Khmaladze to stop communicating
with Vorotyntsev, to prevent Vorotyntsev from accessing
ShopLink and AUM Code's proprietary source code and his
IT Adapter email account, and to resign as CTO of ShopLink
and work for Zubchevich and Tatintsian instead. Id.
¶ 76. Khmaladze did in fact resign on September 11,
2016, and terminated Vorotyntsev's access to ShopLink and
AUM Code's proprietary source code. Id. ¶
77. The next day, Khmaladze “disavowed his association
with AUM Code and IT Adapter, ” and removed
Vorotyntsev's access to his IT Adapter email account.
Id. ¶ 79. Khmaladze also refused to release
funds to pay software developers and to pay other expenses
necessary to complete the development of ShopLink and AUM
Code's technology. Id. ¶ 78. To date,
Khmaladze has refused to provide Vorotyntsev access to the
“Assembla code repository” where ShopLink's
source code is stored. Id. ¶ 80.
filed the Third-Party Complaint on November 11, 2016 against
Khmaladze and ITAdapter (together, the “Moving
Defendants”), and Zubchevich and Diabetica.
See Third-Party Compl. The Complaint contains four
claims: (1) a claim against all Third-Party Defendants for
contribution arising out of Vorotyntsev's alleged
violations of the federal securities laws and alleged breach
of fidcuairy duty, waste, and unjust enrichment; (2) a claim
against all Third-Party Defendants for unjust enrichment; (3)
a claim against Zubchevich for breach of fiduciary duty; and
(4) a claim against Zubchevich for civil conspiracy.
Id. ¶¶ 84-108.
Moving Defendants moved to dismiss the Third-Party Complaint
on the grounds that, inter alia, impleader was
improper under Fed.R.Civ.P. 14 and Vorotyntsev had not
sufficiently pleaded a claim for securities fraud. Dkt. No.
106, Mem. of Law in Supp. of Mot. to Dismiss
(“Defs.' Mem.”). Vorotyntsev filed an
opposition to the Moving Defendants' motion to dismiss.
Dkt. No. 127, Mem. of Law in Opp'n to Mot. to Dismiss
(“Pl.'s Opp'n”). The Moving Defendants
filed a reply thereafter. Dkt. No. 135, Reply Mem. in Supp.
of Mot. to Dismiss (“Defs.' Reply”).
22, 2018, the Court dismissed Tatintsian's derivative
claims for breach of fiduciary duty, waste, aiding and
abetting breach of fiduciary duty, and unjust enrichment,
leaving only Tatintsian's first cause of action for
securities fraud under Section 10b-5. Dkt. No. 180. As a
result, Vorotyntsev's claim for contribution arising out
of Tatintsian's derivative claims for breach of fiduciary
duty, waste, and unjust enrichment, TPC ¶ 85, is also
dismissed; only the portion of the contribution claim arising
out of Vorotyntsev's alleged violation of the federal
securities laws remains in Count One. In addition, because
Zubchevich and Diabetica Research Solutions, Inc. have not
moved to dismiss the Third Party Complaint, the Court will
not evaluate Counts Three and Four of the Third Party
Complaint, which are asserted only against Zubchevich and