Tatintsian v. Vorotyntsev

          MEMORANDUM OPINION AND ORDER

          GREGORY H. WOODS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Gary Tatintsian (“Tatintsian”) filed this lawsuit against Defendant and Third-Party Plaintiff Mikhail Vorotyntsev (“Vorotyntsev”) and his wife^[1] 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.

         Shortly 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.

         II. BACKGROUND

         The 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., ^[2] to compensate Khmaladze for the work that he promised to perform for ShopLink. Id. ¶ 42.^[3]

         In 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. ¶ 68.

         In the 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.

         III. PROCEDURAL HISTORY

         Vorotyntsev 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.

         The 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”).

         On May 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 Diabetica.

         IV. LEGAL STANDARD

         A. Moti ...