ORDER ON DEFENDANT'S MOTION TO DISMISS
the court is defendants Steven Colucci, Trillium Place
Builders, LLC, and Trillium Builders, Inc.'s motion to
dismiss plaintiff Susan Colucci's complaint. For the
following reasons defendants' motion is granted.
and defendant Colucci were married in May of 2015 and were
residents of Scarborough, Maine. (Compl. ¶¶ 1, 2,
6.) Plaintiff and defendant were equal shareholders of
defendant corporation Trillium Place Builders, LLC. (Compl.
¶ 3.) In early April 2017, plaintiff was charged with
domestic violence assault and was ordered to have no contact
with defendant Colucci. (Compl. ¶¶ 8, 10(b).) On
April 21, 2017, defendant Colucci incorporated a new company,
Trillium Builders, Inc. (Compl. ¶¶ 4, 5, 8.) On
October 19, 2017, a divorce action between plaintiff and
defendant Colucci was filed in Cumberland County District
Court, Docket No. FM-17-952. (Compl. ¶ 7.) Discovery in
the divorce action has ended. (Status Conference Order filed
Plaintiff alleges that defendant Colucci used his control
over the management of the jointly owned LLC, Trillium Place
Builders, LLC, to transfer assets from that company to the
company he incorporated in April of 2017, Trillium Builders,
Inc. (Compl. ¶¶ 8, 10.) Plaintiff alleges that
defendant also transferred his own assets to Trillium
Builders, Inc. and uses Trillium Builders, Inc. to pay his
personal expenses. (Compl. ¶ 10.)
complaint, plaintiff alleges four causes of action: (1)
defendants made fraudulent transfers pursuant to the Uniform
Fraudulent Transfer Act, (2) defendant Colucci violated his
fiduciary duty to the plaintiff, (3) request for recovery of
income from a joint tenant pursuant to 33 M.R.S. § 954
or 953, and (4) defendant Colucci violated the Maine
Superior Court Jurisdiction
argues that plaintiff's action is duplicative of the
divorce proceeding pending between plaintiff and defendant
Colucci. Colucci v. Colucci. CUMSC-FM-17-952 (Me.
Super. Ct., Cum. Cty.) The District Court Family Division has
exclusive subject matter jurisdiction over divorce
proceedings, see 19-A M.R.S. § 103 (2016), and the
Family Division has the ability to determine the spouses'
ownership interests and to distribute marital property, see
19-A M.R.S. § 953 (2016); Howard v. Howard.
2010 ME 83, ¶ 11, 2 A.3d 318. The Family Division does
not, however, have personal jurisdiction over individuals who
are not parties in the divorce proceeding, see
Howard. 2010 ME 83, ¶ 12, 2 A.3d 318, and joinder
in Family Division cases "is only permitted with actions
that could be brought independently in the Family Division or
persons authorized to file or participate in a Family
Division action." Howard. 2010 ME 83, ¶
16, 2 A.3d 318; see also M.R. Civ. P. 111(a).
Although plaintiff may not join Trillium Place Builders, LLC
or Trillium Builders, Inc. as parties in the divorce action,
she has listed them as marital assets in her financial
statement in the divorce action. See Moody v. State
Liquor & Lottery Comm'n. 2004 ME 20, ¶ 10,
843 A.2d 43 (The court may consider "official public
documents, documents that are central to plaintiffs claim,
and documents referred to in the complaint, without
converting a motion to dismiss into a motion for summary
judgment when the authenticity of such documents is not
challenged.") Any transactions involving these entities
will be dealt with in the divorce action.
Defendant's Motion to Dismiss pursuant to M.R. Civ.
reviewing a motion to dismiss pursuant to M.R. Civ. P.
12(b)(6), the court "examine[s] the complaint in the
light most favorable to the plaintiff to determine whether it
sets forth elements of a cause of action or alleges facts
that would entitle the plaintiff to relief pursuant to some
legal theory." In re Wage Payment Litig. v. Wal-Mart
Stores. Inc., 2000 ME 162, ¶ 3, 759 A.2d 217.
"Dismissal is warranted when it appears beyond a doubt
that the plaintiff is not entitled to relief under any set of
facts that he might prove in support of his claim."
Johanson v. Dunnington. 2001 ME 169, ¶ 5, 785
A.2d 1244. Generally, the court considers only the
allegations in the complaint, which are accepted as true.
Nadeau v. Frydrych. 2014 ME 154, ¶ 8, 108 A.3d
1254. As discussed above, other documents may be considered,
as in this case.
Derivative vs. Direct Claims
argues that plaintiff's suit is improper because
plaintiff's claims should have been brought as a
derivative lawsuit on behalf of Trillium Place Builders, LLC
not as a direct claim by plaintiff. Plaintiff is not required
to bring this suit as a derivative action. Viewing the facts
of the complaint as true, Trillium Place Builders, LLC is a
"closely held limited liability company" within the
definition of 31 M.R.S. § 1637(1) (2016). (Compl. ¶
3.) Accordingly, plaintiff may bring this claim as a direct
action rather than as a derivative action. See 31
M.R.S. § 1637(2) (2016) ("Except to the extent
ordered by the court in an action under subsection 3,
paragraph A, sections 1632 to 1636 do not apply to a closely
held limited liability company."). "Thus, in the
case of a closely held LLC, section 1637(2) dispenses with
all of the prerequisites for a derivative action set forth in
sections 1632-36 unless specifically ordered by the
court." Cianchette v. Cianchette. 2018 Me.
Super. LEXIS 13, *34. Further, section 1637(3)(B) allows for
a plaintiff to recover directly in a direct action claim
based on the plaintiff's status as a member of the LLC.
31 M.R.S.§ l637(3)(B) (2016).
Count I - Fraudulent Transfers Pursuant to the Uniform