MARK A. RANDON, Bankruptcy Judge.
Avinash Rachmale founded and grew Lakeshore TolTest Corporation ("LTC") — in Michigan — into an award-winning, global construction and environmental services company with a book of business valued in
Rachmale blames Defendants (six directors of LTC, two corporations that contributed equity to LTC, and five affiliated corporations (collectively, "Defendants")) for the company's financial demise, which personally damaged him as a shareholder. He sued Defendants in Michigan's Wayne County Circuit Court for $100 million, asserting state law claims related to Defendants' alleged plan to squeeze him out of LTC.
After Rachmale's lawsuit was filed, LTC and its affiliates — none of whom is a named defendant in this lawsuit — filed for bankruptcy in Delaware, where LTC is incorporated.
Defendants contend that Rachmale's claims are intertwined with LTC — and, in some instances, may constitute property of LTC's bankruptcy estate — such that they must be heard in conjunction with LTC's bankruptcy proceeding. Rachmale disagrees. He says that Defendants' attempt to transfer the case to a faraway forum is an unfounded tactical maneuver designed to thwart his legal rights. He believes his claims for personal injuries, which arose in Michigan against non-parties to the bankruptcy, belong in state court. The Court heard argument on the parties' motions on August 7, 2014.
Because the Court has jurisdiction — but nonetheless believes an equitable remand is appropriate — Rachmale's motion to remand is
LTC had its start in Michigan in 1994. That year, Rachmale founded Lakeshore Engineering Services, Inc. ("Lakeshore"), an engineering firm that performed environmental assessment and remediation for construction projects. Over the years, Lakeshore grew quickly in number of employees, revenue, and the significance of its contracts.
In 2010, Lakeshore acquired TolTest, Inc., an engineering and construction firm which, for decades, tackled large infrastructure projects around the world; at
In 2011 — with LTC valued at $150 million — Defendant Gridiron Capital sought to invest in LTC. In exchange for $50 million, Rachmale sold 35% of LTC to Gridiron. As part of the transaction, LTC — then incorporated in Michigan — was reincorporated in Delaware, but its Michigan presence remained strong: LTC's headquarters, principal place of business, and registered office stayed in Detroit, Michigan.
Rachmale says the makeup of LTC's board soon changed: members from his group were replaced with new directors affiliated with Gridiron, ultimately placing Gridiron squarely in control of corporate decision making. These changes marked the start of the sweeping transformations of LTC alleged in Rachmale's Complaint, including: mismanagement of LTC; removal of all persons of Indian descent from top positions at LTC; alienation of Rachmale from LTC's daily affairs and corporate decision making; and, withholding certain economic dues owed to Rachmale as LTC's part-owner. In July 2011, Defendant Jeff Miller was appointed CFO and Treasurer. Before Miller's appointment, Rachmale had long managed LTC's finances. But Miller did not collaborate with Rachmale, who was then CEO; instead, he opted to take direction directly from the Gridiron group.
By 2012, seven of eight LTC board members were from the Gridiron group; only Rachmale remained. That year, Defendant Grant McCullagh was appointed CEO and President. The fallout found Rachmale without his officer positions and effectively shut out of LTC's affairs; persons of Indian descent were allegedly removed from top positions; and, Rachmale's staff was replaced with McCullagh's own, seemingly unseasoned staff: individuals with comparatively less construction and overseas expertise. LTC also stopped bidding on overseas-market contracts and other strategic growth areas.
Things began to turn thoroughly sour for LTC throughout 2012 and 2013: jobs — including lucrative projects in Afghanistan — began to fail; new business ceased; cash flow dried up; and, bonding difficulties mounted, leaving a multitude of subcontractors unpaid.
In May 2013, in an effort to shore up LTC's finances, Gridiron contributed $5 million to LTC. In exchange, Gridiron acquired an additional 30% of LTC's common stock — then valued at just $0.89 per share. Rachmale says this value did not account for various underbillings on LTC's accounts, leaving Gridiron with a greatly inflated
A few months later, Defendants changed the terms of the Detroit Portfolio Transaction. The original terms, discussed in December 2012, were that Rachmale would start his own company — Lakeshore Global — in order to acquire all of LTC's Detroit municipal contracts; transfer 1,175,000 shares of voting common stock to LTC; take over LTC's lease obligations on properties he owned (valued at approximately $8 million), while LTC paid him approximately $2 million to cover the cost of rent (the "Municipal Services Agreement"); and, continue to receive compensation as a company executive through September 2015 (the "Amendment to Employment Agreement").
But, one month before the deal closed, Defendants eliminated the provision providing for Rachmale's acquisition of the Detroit contracts: Rachmale would simply provide consulting services as reasonably requested to support the success of LTC's Detroit municipal contracts. The Detroit Portfolio Transaction was signed — with that one significant alteration — in October 2013.
In December 2013, Rachmale stopped receiving payments under the Municipal Services Agreement. And, in February 2014, Rachmale's compensation and benefits under the Amendment to Employment Agreement ended abruptly. Among other alleged harm, the mortgage on one of the buildings involved in the botched Detroit Portfolio Transaction is in default, and sureties of Lakeshore Global continue to make financial demands against Rachmale.
In light of LTC's various dealings and financial difficulties, Rachmale requested documentation and an explanation of financial affairs and corporate condition, including an accounting of bonding contracts in March 2014; his requests went unanswered. Still, Defendants demanded that Rachmale contribute his own finances to cover LTC's various bonding liabilities.
Rachmale resigned from LTC's board of directors on April 2, 2014. Mismanagement, he claims, has led LTC to the brink of financial ruin and, along the way, may have crossed over into illegal conduct.
Rachmale recently filed an 11-count Complaint against Defendants in the Wayne County Circuit Court in Detroit, Michigan. Neither LTC nor any other debtor in the pending bankruptcy case was a named defendant. Defendants removed the case. The counts are summarized below:
Rachmale alleges Defendants violated their special duty of care to act fairly in the balancing of their personal interests against those of other shareholders. Specifically, Defendants are alleged to have violated Michigan Compiled Laws § 450.1489 by acting illegally; fraudulently; in a willfully, unfair, and oppressive manner; and, self-dealing as to both Rachmale and LTC.
Rachmale alleges that some of the Defendants (LTC shareholders, officers, and directors) violated fiduciary duties owed to him: care, good faith, loyalty, and fair dealing.
This count relates to an alleged violation of the Municipal Services Agreement and Amendment to Employment Agreement. Rachmale concedes that LTC was a party to this agreement — rendering it likely within the realm of LTC's bankruptcy trustee. He has, therefore, agreed to the dismiss this claim.
This is closely related to count III; Rachmale also agreed to dismiss this count.
Rachmale alleges that Defendants improperly interfered with and damaged business relationships that he cultivated. These relationships, he says, had a reasonable likelihood of future economic benefit to him.
Rachmale claims Defendants conspired amongst themselves and with non-parties to cause LTC to engage in misconduct.
Rachmale alleges that Defendants took adverse action against him because of his race or national origin, which adversely affected his pay and other terms or conditions of his employment. See Mich. Comp. Laws § 37.2201(a).
Rachmale alleges that by engaging in wrongful actions, Defendants received valuable benefits — at his expense — that would be unjust for them to retain.
Rachmale also agreed to dismiss counts IX, X, and XI (for Removal or Suspension of Director or Officer, Accounting and Payment, and Appointment of Receiver, respectively).
Rachmale's Complaint sets forth no federal claims; Defendants assert federal jurisdiction arising only from LTC's pending bankruptcy.
The Court must first determine whether it has subject matter jurisdiction. If it does, the Court must then decide whether it is most appropriate to: (1) abstain from exercising its jurisdiction; (2) equitably remand the case; or, (3) transfer some or all of the claims to the Delaware Bankruptcy Court. If jurisdiction is not proper, the Court must remand.
Upon referral from the district court, a bankruptcy court has subject-matter jurisdiction over all cases "under title 11," and all civil proceedings "arising under," "arising in," or "related to" a case under title 11. 28 U.S.C. § 1334(a), (b). Actions "arising under" title 11 involve claims created or determined by a statutory provision of title 11. In re Bliss Technologies, Inc., 307 B.R. 598, 602 (Bankr. E.D.Mich.2004). "Arising in" proceedings are those that are not based on any right
The parties make various arguments on the applicability of arising in, arising under, and related to jurisdiction. However, under section 1334(b), the Court need not distinguish between these categories: they "operate conjunctively to define the scope of jurisdiction." In re Wolverine Radio Co., 930 F.2d 1132, 1141 (6th Cir. 1991) (citing In re Wood, 825 F.2d 90, 93 (5th Cir.1987)). Here, the Court finds that Rachmale's Complaint minimally provides the Court with "related to" jurisdiction.
An action is "related to" a case under title 11 if its outcome could "conceivably have any effect" on the bankruptcy estate. Wolverine Radio Co., 930 F.2d at 1142 (finding that even where an indemnification agreement "may ultimately have no effect on the debtor," no conceivable effect could not be ruled out; related to jurisdiction was established).
LTC's Articles of Incorporation and Management Agreement may obligate it to indemnify some or all Defendants. Rachmale argues that, because Defendants acted in bad faith, indemnification is not required. But questions of bad faith are factual determinations. And, section 1334(b) "does not require a finding of definite liability of the estate as a condition precedent to holding an action related to a bankruptcy proceeding." Wolverine Radio Co., 930 F.2d at 1142. Because any judgment that results from Rachmale's Complaint could conceivably effect LTC's bankruptcy estate, through the indemnification provisions, the Court has subject matter jurisdiction.
Jurisdiction exists. The Court finds equitable remand the most appropriate course of action.
Section 1452(b) allows the Court to remand "on any equitable ground." 28 U.S.C. § 1452(b) (emphasis added). Courts have established a number of considerations relevant to this determination:
Rachmale's claims for (1) breach of contract and (2) breach of good faith and fair dealing directly involve LTC.
The Court acknowledges the existence of LTC's potential indemnification obligations. But, the effect of this obligation on LTC's bankruptcy estate — if any — will be minimal, and therefore insufficient to impede the efficient administration of judicial resources. Rachmale would first need to establish Defendants' liability; the court would need to make a finding on bad faith; and, any subsequent claims against LTC arising out of Rachmale's state court lawsuit would then be addressed with the remarkably large number of unsecured creditors listed in LTC's Chapter 7 bankruptcy proceeding — any eventual pro rata distribution to Defendants would, thus, be minimal.
Rachmale also emphasizes his request for a jury trial and his unwillingness to consent to the bankruptcy court's jurisdiction. See 28 U.S.C. 157(e) ("[i]f the right to a jury trial applies in a proceeding that may be heard under this section by a bankruptcy judge, the bankruptcy judge may conduct the jury trial if specifically designated to exercise such jurisdiction by the district court and with the express consent of all the parties"). Rachmale contends that, if the case were to be heard in Delaware Bankruptcy Court, he would
Given the case's nascency, prejudice is not at issue.
Rachmale resides in Michigan; the claims arise out of conduct and events that took place almost exclusively in Michigan; key witnesses and evidence remain here; and, none of the individual defendants is a Michigan resident. Defendants concede that just one event occurred in Delaware: LTC's incorporation. But this, standing alone, is insignificant — Michigan is the most convenient forum.
Issues of state law predominate: Rachmale's Complaint is steeped in state law claims — some of which are statutory. For example, in Count I of his Complaint, Rachmale alleges Defendants violated Michigan Compiled Laws Section 450.1489, which reads, in relevant part:
Mich. Comp. Laws § 450.1489(1) (emphasis added). The Michigan Court of Appeals has interpreted this provision to create a direct — not derivative — cause of action for shareholders purportedly abused by individuals in control. Estes v. Idea Eng'g & Fabrications, Inc., 250 Mich.App. 270, 649 N.W.2d 84, 89 (2002).
Finally, to the extent Defendants argue that Delaware law should apply to some of Rachmale's claims under its shareholder choice of law provision, Michigan courts are capable of applying Delaware law.
Comity considerations dictate that "federal courts should be hesitant to exercise jurisdiction when `state issues substantially predominate[.]'" Citibank v. White Motor Corp. (In re White Motor Credit), 761 F.2d 270, 274 (6th Cir.1985). Such is the case here.
As discussed above, duplicative litigation is unlikely; remand does not present a likelihood of inconsistent results.
Michigan courts are well-equipped to handle the important questions of Michigan law at issue.
Because this Court has jurisdiction — but nonetheless believes an equitable remand is appropriate — Rachmale's motion is
In re Martin Designs, Inc., 08-60431, 2009 WL 2707215, at **6-7 (Bankr.N.D.Ohio Aug. 26, 2009) (citing Delphi Automotive Systems, LLC v. Segway, Inc., 519 F.Supp.2d 662, 670-71 (E.D.Mich.2007)). Here, state law claims predominate over any bankruptcy issues; the state law claims are only indirectly related to the bankruptcy case; there is no independent basis for bankruptcy court jurisdiction; and, Defendants are all non-debtor parties. While the grounds relevant to equitable remand do not align perfectly with those for permissive abstention, "[t]he analysis under § 1334(c)(1) is largely the same as under § 1452(b)." In re National Century Fin. Enters., Inc. Inv. Litig., 323 F.Supp.2d 861, 885 (S.D.Ohio 2004); see also Mann v. Waste Management of Ohio, Inc., 253 B.R. 211, 215 (N.D.Ohio 2000) ("Permissive abstention under § 1334(c)(1) and equitable remand under § 1452(b) are essentially identical."). As such, the presence of factors supporting remand of the lawsuit to state court pursuant to 1452(b) also provide ample equitable grounds for discretionary abstention pursuant to 1334(c)(1).