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Colucci v. Colucci

Superior Court of Maine, Cumberland

December 20, 2018

SUSAN COLUCCI, Plaintiff
v.
STEPHEN COLUCCI, TRILLIUM PLACE BUILDERS, LLC, and TRILLIUM BUILDERS, INC. Defendants

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          Nacy Mills, Justice

          Before 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.

         I. Background

         Plaintiff 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 7/26/18.)

          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.)

         In her 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 Partnership Act.

         II. Discussion

         a. Superior Court Jurisdiction

         Defendant 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.

         b. Defendant's Motion to Dismiss pursuant to M.R. Civ. P. 12(b)(6)

         When 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.

         i. Derivative vs. Direct Claims

         Defendant 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).

         ii. Count I - Fraudulent Transfers Pursuant to the Uniform ...


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