UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Glenn L. Beane

v. Civil No. 08-cv-236-JL

Alan F. Beane

PROCEDURAL ORDER

On March 13, 2010, the court held an in-chambers status

conference with counsel in this action to address the matters set

forth in a prior procedural order (document no. 69). As a result

of counsel’s representations at that conference, the court makes

the following rulings:

1. Motion to modify stay denied as moot, stay lifted. The

court’s stay of this action (document no. 59) is lifted in light

of the limited preclusive effect, if any, of the Grafton County

Superior Court’s decision in Beane v. Mii Techs., LLC, No. 2008-

C-079 (N.H. Super. Ct. July 9, 2009), appeal docketed, No. 2009-

0562 (N.H. Aug. 24, 2009), except as to count 5 of Glenn’s

amended complaint, which seeks relief for certain allegedly

fraudulent transfers that at one point were a subject of the

Superior Court action. Nothing in this order shall prevent any

party from making, or the court from considering, res judicata or

collateral estoppel arguments based on the Superior Court’s

judgment, if it is affirmed in whole or in part on appeal. 

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Because the stay is largely lifted, Glenn’s motion for an order

modifying the stay (document no. 64) is denied as moot.

2. Diversity. Mii Technologies, Inc. is not a necessary

party-defendant to Glenn’s claims against Alan. At the time

Glenn says his membership in Mii ceased, it had no other members

besides Alan, and has not had any other members since. (In fact,

Mii was administratively dissolved by the New Hampshire Secretary

of State in 2007.) So only Glenn and Alan--both of whom are

already before the court--have any interest in whether Glenn

remained a member of Mii, and whether its existence as a limited

liability company continued, after February 4, 2004. It follows

that no person aside from Glenn and Alan has an interest in Mii

which could be practically impaired by the declaratory and

equitable relief Glenn seeks, and that the court can grant that

relief effectively through a decree binding Glenn and Alan,

without the need to join Mii as a party. Mii is not a necessary

party-defendant to Glenn’s claims and therefore not an

indispensable one. See Fed. R. Civ. P. (a)(1), (b); Polak v.

Kobayashi, No. 05-330, 2005 WL 2008306, at *3 (D. Del. Aug. 22,

2005); Wright v. Herman, 230 F.R.D. 1, 6-7 (D.D.C. 2005). The

court therefore has diversity jurisdiction without regard to

Mii’s membership.

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3. Mii’s status. Mii, however, shall be added as a

plaintiff-in-counterclaim, because most if not all of the

counterclaims asserted by Alan actually belong to Mii, as this

court has previously ruled. Beane v. Beane, 2008 DNH 082, 14-16

(McAuliffe, C.J.). Joining Mii in that capacity will have no

effect on the court’s subject-matter jurisdiction, because it may

exercise supplemental jurisdiction over the counterclaims without

regard to the diversity of Mii. 28 U.S.C. §§ 1367(a), (b); Kyle

v. Fidéle Tremblay, Inc., 2008 DNH 201, 2. 

4. Count I dismissed as moot and unripe. Count 1 of

Glenn’s amended complaint, seeking equitable relief under the

Employee Retirement Security Act, specifically 29 U.S.C. 

§ 1132(a)(3)(B)(ii), is dismissed as moot in part and otherwise

unripe. Based on the representations in Glenn’s motion for

voluntary dismissal, the relief he sought from Alan has been or

will shortly be provided through the actions of a third party,

Summit Financial. And insofar as Glenn seeks indemnification

from Alan for any potential liability connected to the employee

benefit plans, that liability is too speculative at this point to

support a claim that is ripe for adjudication, as Glenn conceded

at the conference. Because the court lacks subject-matter

jurisdiction over count 1 as moot and unripe, the count is

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dismissed on that basis, and Glenn’s motion for voluntary

dismissal (document no. 67) is denied as moot.

5. Count 2--partial judgment for Glenn, partial dismissal

for mootness. By Alan’s agreement at the status conference,

judgment is granted for Glenn on count 2 of his amended complaint

insofar as it seeks a declaration that he ceased being a member

of Mii as of February 4, 2004. As a result of that declaration,

Glenn’s requests for further declarations in count 2 are either

moot, viz., his request to declare “improper” various tax filings

describing him as a member of Mii after that date, or he lacks

standing to bring them, viz., his requests to declare that Mii’s

“limited liability/partnership status terminated as of” that date

and that Alan’s membership in Mii subsequently terminated. 

Glenn’s claim for that relief is therefore dismissed for lack of

standing and mootness.

6. Counts 3 and 4 dismissed. For the same reason, Glenn

also lacks standing to bring counts 3 and 4 of his amended

complaint which seek, respectively, the judicial dissolution of

Mii and an accounting and distribution of Mii’s profits after the

date Glenn’s membership terminated, as an alternative to the

relief sought in count 2. Counts 3 and 4 are dismissed for lack

of standing.

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7. Summary judgment motions on Count 1 and 2 denied as

moot. Given the disposition of counts 1-2 of Glenn’s amended

complaint, the parties’ cross-motions for summary judgment on

those counts (document nos. 17, 35), which were denied without

prejudice following entry of the stay, are reinstated and denied

as moot.

8. Motion to substitute reinstated. Glenn’s motion to

substitute himself as the plaintiff-in-counterclaim and to

dismiss the counterclaims (document no. 42), which had been

denied without prejudice following entry of the stay, is

reinstated, together with the objection, reply, and surreply, and

shall be decided by the court in the ordinary course without the

need for further action by the parties.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: March 22, 2010

cc: W.E. Whittington, Esq.

William S. Gannon, Esq.

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