UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BAZARIAN INTERNATIONAL FINANCIAL ASSOCIATES, L.L.C., Plaintiff,

v. DESARROLLOS AEROHOTELCO, C.A., Defendant. Civil Action No. 09-1764 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The parties to this case are two companies that have collaborated as business partners in the development of a proposed luxury resort on the island of Aruba. The plaintiff, a Florida company, alleges that it has helped to procure a lease for the reso rt property and has attempted to secure financing for the planned resort. The defendant, a Venezuelan company, is directly developing the resort. The parties have a contr act that spells out their respective rights and duties in connection with the re sort project. The plaintiff brought this lawsuit seeking a declaratory judgment regarding its right to certain investment banking fees under the parties’ contract. The defendant has moved to dism iss the lawsuit on the grounds that, among other things, the request for declarator y judgment is premature. For the reasons explained below, the Court grants the motion to dismiss and di smisses the Complaint without prejudice. 1

1 Federal jurisdiction in this case is premised upon 28 U.S. C. § 1332. The plaintiff has alleged that this is an action between a citizen of the United States and a citizen of a foreign state and that the amount in controversy exceeds $75,000. See Compl. ¶ 3. In addition, venue is proper in this District pursuant to 28 U.S.C. § 1391(d), which2 I. BACKGROUND Plaintiff Bazarian Intern ational Financial Associates, L.L. C. (“BI”) is a Florida company in the business of providing investment banking se rvices. Compl. ¶ 1. In 2003, the Government of Aruba granted BI the option to lease land on Palm Beach, Aruba, in order to establish and develop a luxury resort (the “Palm Beach Option”). Id. ¶ 7. BI approached Ritz Carlton Hotels to manage this contemplated resort. Id. ¶ 8. While BI and Ritz Carlton were negotiating the possible sale of the Palm Beach Option, Ritz Ca rlton introduced BI to the defendant Desarrollos Aerohotelco, C.A., a Venezuelan company in th e business of developing and owning hotels. Id. ¶¶ 2, 9. After several successful renewa ls of the option, BI and R itz Carlton were unable to consummate sale of the Palm Beach Option. Id. ¶ 10. The option expired by its own terms at the end of 2006. Id. The Government of Aruba re-opened bids for the Palm Beach Option and the defendant retained BI to assist with its efforts to obtain the Pa lm Beach Option and to arrange for funding for the resort development project. Id. ¶¶ 11-12. BI and the de fendant entered into an agreement on February 5, 2007, to memorialize thei r duties and oblig ations (the “Agreement”). Id. ¶ 12. The Agreement called for the defendan t to pay BI $70,000 upon execution of the Agreement, which the defendant paid. Id. ¶¶ 14, 21. The Agreement also called for the defendant to pay BI $70,000 upon award of the Palm Beach Option. Id. ¶ 15. In early 2008, the Government of Aruba did award the option to th e defendant, and the defe ndant accordingly paid BI the second $70,000 fee. Id. ¶ 26.

provides that “[a]n alien may be sued in any district.” Id. ¶ 6. The contract at issue in this case also provides that disputes will be resolved by courts in the District of Columbia. Id. , Ex. A., ¶ 5.3 In addition to specifying that BI would help the defendant acquire the Palm Beach Option, the Agreement also called for BI to “pe rform exclusive investment banking services” in connection with the development of a luxury hote l and resort on the Palm Beach Option land (the “Project”). Id. ¶ 13. Specifically, BI was to “conduct negotia tions . . . to secure, on a best efforts basis, financing for the Project.” Compl. Ex. A, ¶ 1.D. In exchange for these services, the defendant agreed to pay BI a percen tage-based investment-banking fee. Id. ¶ 2.C. According to the Complaint, BI is entitled to this fee under the Agreement upon settlement of binding loan or guarantee commitments for the Project obtained di rectly or indirectly by BI. Compl. ¶ 16. Payment of the fee becomes due “u pon the earlier of the first dr aw-down of funds and/or first infusion of equity capital, provided that financing has been committed to the project as a result of the efforts of BI.” Id. ¶ 18. The Agreement further entitles BI to this fee “if the financing for the Project is concluded within thirty-six (36) m onths following the termination of this Agreement from sources introduced to the Project by [BI].” Compl. Ex. A, ¶ 3. Finally, the Agreement also provides that it is to “beco me part of the relevant loan do cuments, management agreements, joint-venture agreements, guaranty agreements, bridge loan faciliti es and Memorandum of Association for [the] Project amongst and betwee n the equity shareholders and lenders.” Id. In or about December 2006 and January 2007, BI allegedly introduced the defendant to key executives and decision-makers at two banks—AIB Bank and Scotiabank—to begin the process of obtaining financing for the Project. Compl. ¶¶ 23-24. BI also claims that it worked with the defendant to coordinate the fi nancing process with these two banks. Id. ¶ 25. Ultimately, the defendant chose not to proceed with Scotiabank but continued to pursue financing from AIB Bank. Id. ¶ 26. BI claims that it obtaine d an Indicative Term Sheet from4 AIB Bank for the defendant as of March 26, 200 7 setting forth a tota l facility amount of $170
million. Id. At some point thereafter, however, the re lationship between BI and the defendant apparently soured. In around June 2009, the defenda nt allegedly informed BI in writing that it did not intend to pay the investment banking fees specified in the Agreement for Project financing from AIB Bank. Id. ¶ 28. BI claims that the defendant asserted that BI had no role in facilitating its relationship with AIB Bank. Id. On September 17, 2009, BI brought this acti on seeking declaratory judgment as to whether it is entitled to the investment ba nking fees called for unde r the Agreement upon the settlement of binding loan or guarantee co mmitments for the Project from AIB Bank. Id. ¶ 33. At the time of filing the Complaint on September 17, 2009, BI believed that AIB Bank would provide total project financ ing to the defendant, and anticipat ed the financing deal closing within sixty days of filing the Complaint. Id. ¶ 27. In October 2009, about a month after the filing of the instant Complaint, AIB Bank and various other lenders apparently did issue a financing commitment for the Project (the “AIB Financing Commitment”), although it appears that this loan commitment remains subject to various contingencies and the loan has never settled, closed, or been drawn upon. Def.’s Mot. Dismiss Pl.’s Compl. & Incorporated Mem. (“Def.’s Mem.”) at 4. The defendant denies th at BI had any involveme nt in obtaining the AIB Financing Commitment. Ex. A to Def.’s Mem ., Declaration of Pedro Vera dated January 26, 2011 (“Vera Decl.”) ¶ 9.5 On January 19, 2011, the defendant filed a moti on to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. 2 Def.’s Mem at 1. This motion is currently before the Court.
II. STANDARD OF REVIEW UNDER RULE 12(b)(1) A court must dismiss a case when it lacks subject matter jurisdiction. McManus v. District of Columbia , 530 F. Supp. 2d 46, 62 (D.D.C. 2007). “Plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Am. Farm Bureau v.
U.S. EPA , 121 F. Supp. 2d 84, 90 (D.D.C. 2000); accord Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court must construe the allegations in the Complaint liberally but “need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must th e Court accept plaintiffs’ legal conclusions.” Speelman v. United States , 461 F. Supp. 2d 71, 73 (D.D.C. 2006); see also Hohri v. United
States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). The Court must be assured that it is acting within the scope of its jurisdictional authority and therefore must give the plainti ff’s factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be requ ired for a Rule 12(b)(6) motion for failure to state a claim.
See Macharia v. United States , 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Westberg v. FDIC , 759 F. Supp. 2d 38, 41 (D.D.C. 2011); Dubois v. Wash. Mut. Bank , 2010 U.S. Dist. LEXIS 91855, at *5-6 (D.D.C. Sept. 2, 2010); Hoffman v. District of Columbia , 643 F. Supp. 2d 132, 135-136 (D.D.C. 2009); Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13-14

2 The lengthy delay between the filing of the Complaint and th e filing of the motion to dismiss is attributable to BI’s difficulties in serving the defendant, a Venezuelan corporation. The defendant did not appear in this Court until December 2010. See ECF Nos. 8-9.6 (D.D.C. 2001). In evaluating subject matter ju risdiction, the Court, when necessary, may look outside the Complaint to “undi sputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the c ourt’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Sci. , 974 F.2d 192, 197 (D.C. Cir. 1992) (citing Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981)); see also Alliance for Democracy v. FEC , 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
III. DISCUSSION In this case, BI seeks a decl aratory judgment regarding it s legal entitlements under the Agreement. The parties have briefed several substantive legal disput es about the proper construction of the Agreement’s provisions. Be fore addressing any substantive issues of contractual interpretation, however, the Court must address the threshold que stions of whether it has subject matter jurisdiction to entertain BI’s claim and whether a d eclaratory judgment is appropriate in this case. As explained below, the Court fi nds that it lacks subject matter jurisdiction and that judicial intervention in this case is unwarranted at this time. A. Declaratory Judgment is Not Approp riate Because BI Has Not Alleged a Justiciable Controversy The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). Of course, under Article III of the U.S. Constitution, “[t]he federal courts are powerless to decide any matter unless it involves a case or controversy.” Fed. Express Corp. v. Air Line Pilots Ass’n , 67 F.3d 961, 963 (D.C. Cir. 1995); see also U.S. Const., art. III, § 2. The case-or-controversy requirement prohibits courts from issuing advisory opinions or decisions based on hypothetical facts or abstract issues. Flast v. Cohen , 392 U.S. 83, 96, 100 (1968); Westberg , 759 F. Supp. 2d at 43.7 The term “actual controversy” in the language of the Declaratory Judgment Act is “one of emphasis, and not indicative of a different standa rd from Article III as to what qualifies as a controversy.” Fed. Express Corp., 67 F.3d at 964. “To establish th at a matter is a ‘controversy’ rather than an abstract questi on, a party seeking declaratory relie f must ‘show that there is a substantial controversy, between parties having adverse legal inte rests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’” Hoffman v. District of Columbia , 643 F. Supp. 2d 132, 140 (D.D.C. 2009) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co. , 312 U.S. 270, 273 (1941)). In this case, BI asks the Court for a declar atory judgment confirmi ng that “by virtue of BI’s role in introducing Defenda nt to AIB Bank and efforts to obtain AIB Bank’s commitment to provide Project financing, BI is entitled to the investment banking fees called for under the Agreement upon settlement of binding loan and/or guarantee commitments for the Project from AIB Bank.” Compl. ¶ 33. BI concedes that th e contingency that trig gers the defendant’s obligation to pay the fees—namel y, settlement of bindi ng loan or guarantee commitments from AIB Bank—has not occurred. Pl .’s Opp’n Def.’s Mot. Dismiss (“Pl.’s Mem.”) at 6. The defendant contends that BI’s Complaint sh ould be dismissed with prejudice for lack of subject matter juri sdiction pursuant to Rule 12(b)(1) because there is no substantial controversy of sufficient immediacy and reality to warrant a declaratory judgment. Def.’s Mem at 1-2. According to the defenda nt, BI’s claim is “based upon c ontingent and uncertain future rights . . . that may not occur at all” and “merel y calls for the issuance of an advisory opinion.” Id. at 9

. Despite the fact that the contingency that tr iggers its right to a f ee has not occurred, BI asserts that “the existence of a contingency does not per se require a court to find that the8 issuance of a declaratory judgment would be improper.” Pl.’s Mem. at 5 (quoting Nat’l R.R. Passenger Corp. v. Consol. Rail Corp. , 670 F. Supp. 424, 429-30 (D.D.C. 1987)). BI is correct. In evaluating whether a declarat ory judgment claim that hinge s on a contingency presents a justiciable controversy, courts look to the “practical likelihood” th at the contingency will occur. Nat’l R.R. Passenger Corp. , 670 F. Supp. at 429-30; see also Am. Exp. Bank Ltd. v. Banco Espanol de Credito , S.A., 597 F. Supp. 2d 394, 405 (S.D.N.Y. 2009)

. Ultimately, “the difference between an abstract question and a ‘controversy’ contemplat ed by the Declaratory Judgment Act is necessarily one of degree.” Federal Express Corp., 67 F.3d at 964 (quoting Md.
Cas. Co. , 312 U.S. at 273). As explai ned below, BI has failed to establish a practical likelihood that settlement of binding loan or guarantee commitments for the Project will actually occur. Therefore, the Court must conclude that ther e is no substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment at this time. In the Complaint, BI has alleged only that it obtained a non-binding indicative term sheet for the defendant from AIB Bank. Compl. ¶ 26; De f.’s Mem at 4. BI’s entitlement to payment under the Agreement is not triggered, however, until the settlement of binding loan or guarantee commitments for the Project. Compl. ¶ 16. Since the Complaint does not even allege that AIB Bank agreed to provide any financing to the Proj ect, the Complaint itself does not sufficiently allege a practical likelihood that BI will beco me entitled to investment banking fees under the Agreement. The likelihood of BI’s ultimate en titlement to an investment banking fee remains highly uncertain and speculative when based me rely on the allegation that BI helped the defendant obtain a non-binding term sheet reflecting a potential loan proposal. See Am. Exp. Bank Ltd. , 597 F. Supp. 2d at 406 (finding “[d]ismissal pending further developments” to be “the proper course” where claim hinged on “multiple contingencies”). Accordingly, the Complaint9 itself does not present a substant ial controversy of sufficient immediacy and reality to warrant declaratory relief. BI’s opposition to the motion to dismiss relies on an additional factual allegation not mentioned in the Complaint – i.e., the existen ce of the AIB Financing Commitment, which the defendant apparently entered into on October 26, 2009, approximately one month after the Complaint was filed. In considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court may consider undisputed factual information outside the pleadings. Herbert , 974 F.2d at 197. Accordingly, the Cour t may consider factual information regarding the AIB Financing Commitment in assessing whether there is subject matter jurisdiction to entertain BI’s d eclaratory judgment claim. Even upon consideration of the record facts relating to the AIB Financ ing Commitment, however, there is still an insufficient basis to conclude a justiciabl e controversy exists. 3 The existence of the AIB Financing Commitment was first disclosed to this Court in the defendant’s motion to dismiss, which was file d on January 31, 2011, approximately a year and a half after the Complaint was filed. See Def.’s Mem. at 4. Both BI and the defendant cite to a declaration filed by the defendant – the Declarati on of Pedro Vera, an officer of the defendant –

3 While the Court may consider materials outside the pleadings in assessing jurisdictional sufficiency, an opposition to a motion to dismiss is not a proper medium for BI to inv oke significant factual allegations that go to the merits of BI’s claim, such as the allegations regarding the AIB Financing Commitment in this case. See Middlebrooks v. Godwin Corp. , 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010) (noting that a “plaintiff may not amend [its] complaint by the briefs in opposition to a motion to dismiss”); Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”). BI notes in a footnote in its o pposition that the Complaint alleged its belief that AIB Bank would “close on the Project financing within 60 days,” and that “[s]hould the Court deem the [AIB Financing Commitment] a matter for allegation in the Complaint . . . BI would respectfully request leave to amend the Complaint.” Pl.’s Mem. at 8 n.2. BI, however, has only stated that it would request leave to amend in this footnote and has not filed any motion to amend its Complaint in co nformity with the Federal Rules of Civil Procedure and the Local Civil Rules of this District. See Local Civil Rule LCvR 7(i) (“A motion for leave to file an amended pleading shall be accompanied by an original of the prop osed pleading as amended.”). In addition, as discussed infra , it does not appear that the Complaint’s allegations pr edicting a likely closing on the project financing within 60 days were correct. The loan contemplated in th e AIB Financing Commitment apparently has never settled, closed, or been drawn upon, and remains subject to various contingencies. See Vera Decl. ¶¶ 8-10.10 as their source for information regard ing the AIB Financing Commitment. See id .; Pl.’s Mem. at 6; Vera Decl. The Vera Declar ation describes the AIB Financi ng Commitment as a “binding and enforceable financing loan facility agreement” en tered into on October 26, 2009. Vera Decl. ¶ 8. The declaration, however, goes on to deny BI’s involvement in obtaini ng the AIB Financing Commitment and, most importantly for the pres ent inquiry, states th at the AIB Financing Commitment is “still subject to a numerous c ontingencies and conditions, has not been settled upon and there has not been any draws made by the borrowers pending a final closing [sic].” Id. ¶¶ 9-10. According to the declarat ion, “[i]t is unknown when, and if, the various contingencies and conditions of the [AIB] Facility Agreement w ill be satisfied and no settlement or closing date is currently scheduled to take place in the near future.” Id. ¶ 10. While the existence of the AIB Financing Commitment certainly comes closer to establishing a practical likelihood that the loan se ttlement will occur, th e Court still would not conclude that settlement is likely due to th e facts in the Vera D eclaration, upon which both parties rely. Significantly, the AIB Financ ing Commitment remains subject to various contingencies and “no settlement or closing date is currently scheduled to take place in the near future,” despite the fact that the AIB Financing Commitment was entered into in October 2009, approximately 20 months ago. These facts do not establish that a settlement or closing is particularly likely to occur. In addition to the argument based upon the AIB Financing Commitment, BI’s opposition also raises additional legal issues involving a “drop dead fee” to which BI may be entitled “even if the loan does not settle.” Pl.’s Mem. at 6. BI’s invocation of the drop dead fee, which is not mentioned in the Complaint, only serves to unders core the abstract and contingent nature of the11 parties’ dispute at this time and the correspond ing uncertainty regardi ng the factual and legal claims that must be resolved. Thus, considering all the rele vant facts and claims, the C ourt concludes that it lacks subject matter jurisdiction because the facts of this case do not present an actual controversy within the meaning of the Decl aratory Judgment Act and Article III of the U.S. Constitution. Therefore, the Complaint will be dismissed wit hout prejudice to BI’s ability to file a new complaint, if necessary, at an appropriate time in the future. 4
B. The Court Would Exercise its Discretion to Abstain from Entertaining the Claim for Declaratory Relief Even if subject matter jurisdiction did exist, the Court still has broad discretion to abstain from entertaining an action for declaratory judgment. Patton Boggs, LLP v. Chevron Corp. , No. 10-cv-01975, 2011 WL 1474866, at *7 (D.D.C. Ap r. 19, 2011) (“District courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisf ies subject matter jurisdic tional prerequisites.”) (quoting Wilton v. Seven Falls Co ., 515 U.S. 277, 282 (1995)); see also MedImmune, Inc. v. Genentech, Inc ., 549 U.S. 118, 136 (2007). The text of th e Declaratory Judgment Act itself, which provides that a court “ may declare the rights and other lega l relations of any interested party seeking such declaration,” illustrates the permissive na ture of declaratory judgment jurisdiction. 28 U.S.C. § 2201(a) (emphasis adde d). “In deciding whether to exercise its permissive jurisdiction over decl aratory actions, a court may consid er ‘equitable, prudential, and policy arguments.’” Swish Mktg., Inc. v. F.T.C. , 669 F. Supp. 2d 72, 76 (D.D.C. 2009) (quoting

4 The Court will not dismiss the Complaint with prejudice, as the defendant has urged, because without subject matter jurisdiction, the Court does not have the power to re ach the merits of the case and lacks the power to dismiss with prejudice. Tunica-Biloxi Tribe of La. v. United States , 655 F. Supp. 2d 62, 65 (D.D.C. 2009) (“[D]ismissals for lack of jurisdiction are not decisions on the merits . . . thus, where a court lacks subject-matter jurisdiction, it also lacks the power to dismiss with prejudice.”) (internal citations and quotations omitted).12 MedImmune, Inc. , 549 U.S. at 136). While there is no list of dispositive factors for determining when the Court should exercise its discretion to hear a declaratory judgment action, “the D.C. Circuit has listed several relevant consider ations to guide the Court’s analysis.” Id. Those factors include: Whether a declaratory judgme nt would finally settle th e controversy between the parties; whether other remedies are available or other proceedings pending; the convenience of the parties; the equity of the conduct of the declaratory judgment plaintiff; prevention of “procedural fenci ng”; the state of the record; the degree of adverseness between the partie s; and the public importance of the question to be decided. Id. (quoting Hanes Corp. v. Millard , 531 F.2d 585, 591 n. 4 (D.C. Cir. 1976)). Based on the facts in this case as they cu rrently stand, the Cour t would decline to entertain the claim for declarat ory judgment. A declaratory ju dgment as to the parties’ respective rights and obligations und er the Agreement is not likely to settle the dispute between the parties because the dispute appears to involve both factual and legal issues. For example, the parties dispute the circumstances in which BI is legally entitled to fees under the Agreement as well as the factual issue of whet her BI had a role in procuring the AIB Financing Commitment.
See Vera Decl. ¶ 9; Pl.’s Mem. at 6. Thus, even if the Court were to enter a declaratory judgment regarding the parties’ legal rights and obligations under the Agreement, factual disputes would likely remain. 5 In addition, as noted above, BI’s opposition raises additional legal issues involving a “drop dead fee” to which BI may be entitled if the loan does not settle. Given the uncertain and shifting nature of BI’s a llegations and the existen ce of factual disputes that would not be resolved by a declaratory judg ment, the Court would not exercise its discretion to entertain a declaratory judgment claim in this case at this time.

5 The Court is cognizant of the legal dispute between the parties involving Section 2.B of the Agreement regarding whether BI had to obtain the binding loan or guarant ee agreements within eight weeks from the date of the Agreement, i.e., by April 2, 2007. Pl.’s Mem. at 6; Def. ’s Reply Supp. Mot. Dismiss. Pl.’s Compl. At 2-3. The Court need not resolve this dispute, however, given the Court’s conclusion that it lacks subject matter jurisdiction.13 Consideration of the purposes of the Declaratory Judgment Ac t also favors abstention. For example, the purposes of the Declaratory Ju dgment Act include “minimiz[ing] the danger of avoidable loss and the unnecessary accrual of damages and [affo rding] one threatened with liability an early adjudication wi thout waiting until an adversary s hould see fit to begin an action after the damage has accrued.” 10B C HARLES W RIGHT AND A LAN M ILLER , F ED
. P RAC

. & P ROC

. C IV ., § 2751 (3d ed.). The purpose of minimizing a voidable loss and damages is not implicated here because BI is not suffering any ongoing harmfrom the dispute and the amount of damages – which is fixed at two percent of the loan va lue – will not be minimized by early adjudication. Nor is BI a party threatened with liability w hom a declaratory judgment might relieve “from the Damoclean threat of impending litigation which a harassing adversary might brandish, while initiating suit at his leisure—or never.” Id. (quotation omitted). With respect to avoiding damages, BI does ar gue that because the Agreement calls for its entitlement to fees to be made a part of the loan documents, BI’s “ability to be paid from the loan proceeds will [be] lost” if BI “has to wait unt il after settlement and then obtain a breach of contract judgment.” Pl.’s Mem. at 7 n.1. This argument is unavailing, however. The Court fails to comprehend how the defendant’s purported pr e-existing legal obligat ion to pay BI a twopercent fee under the Agreement would be affected by the mention of this fee arrangement in subsequent loan documents. Addi tionally, to the extent BI argue s that a declaratory judgment “would enable and compel the . . . payment of [the investment banking] fees as part of the loan closing,” id. , it is unclear how this claim harmonizes w ith the Complaint’s assertion that payment of the fees becomes due “upon the earlier of the fi rst draw-down of funds a nd/or first infusion of equity capital.’” Compl. ¶ 18. In any event, the Court expresses no opi nion on whether BI will14 ultimately need to seek a breach of contract ju dgment or whether BI might successfully seek a declaratory judgment at a more a ppropriate time in the future. At this time, however, the Court would exerci se its discretion to abstain from deciding BI’s declaratory judgment claim.
IV. CONCLUSION As explained above, the Court l acks subject matter jurisdiction to decide BI’s declaratory judgment claim because the facts of this case do not present an actual controversy within the meaning of the Declaratory Judgment Act and Arti cle III of the U.S. Constitution. Even if the Court did not lack subject matter jurisdiction, th e Court would still exer cise its discretion to abstain from deciding BI’s declaratory judgment cl aim at this time. A ccordingly, the Complaint will be dismissed without prejudice to BI’s ability to file a new complaint, if necessary, at an appropriate time in the future.

DATED: June 22, 2011 /s/ 

# Beryl A. Howell BERYL A. HOWELL United States District Judge