Opinion
X03HHDCV146047993S
12-07-2018
Rakshitt CHUGH et al. v. Aashish KALRA et al. ARC Capital, LLC v. Asia Pacific Limited et al.
UNPUBLISHED OPINION
OPINION
Carl J. Schuman, Judge, Supreme Court
The defendants in Rakshitt Chugh v. Aashish Kalra (the primary case)-Aashish Kalra (Kalra) and Trikona Advisers, Ltd. (TAL)-have moved for dismissal against two of the plaintiffs-ARC Capital, LLC (ARC) and Peak XV Capital, LLC (Peak)-in counts two, three, and five of the six count operative July 27, 2018 Second Amended Complaint (complaint). These defendants have also moved to strike the entire complaint. The plaintiffs in the primary action-Rakshitt Chugh (Chugh), ARC, and Peak-have applied for a prejudgment remedy against the defendants in that case. The plaintiff in ARC Capital, LLC v. Asia Pacific, Ltd. (the domestication action) has applied for a prejudgment remedy in that case against defendants Asia Pacific Limited (Asia Pacific) and Kalra. The court heard evidence and argument on all of these matters on November 29, 2018. The following opinion constitutes the ruling of the court on these pending matters.
I
These cases involve what is commonly known as a corporate divorce. The primary parties here-Chugh and Kalra-have been embroiled in wasteful litigation for almost seven years. Three years ago our Supreme Court noted that "[t]hese parties have filed several actions in multiple domestic and international courts. For example, other than the present [interpleader] action, the parties have filed actions in the United States District Court for the District of Connecticut, the New York Supreme Court, the Grand Court of the Cayman Islands, India, and Mauritius." Trikona Advisers Ltd. v. Haida Investments Ltd., 318 Conn. 476, 480 n.5, 122 A.3d 242 (2015).
Earlier this year, in an interlocutory appeal by the plaintiff in the present domestication action, the Appellate Court, quoting from a decision of the Second Circuit in yet another related case, provided the following factual summary. "[TAL] is an investment advisory company. Its two beneficial owners, [Rakshitt] Chugh and Aashish Kalra, formed the company in 2006 as a vehicle for helping foreign investors invest in Indian real estate and infrastructure. Each man held a [50] percent equity stake in TAL through entities controlled by them. Chugh’s shares were owned by ARC Capital LLC ... and Haida Investments ... and Kalra’s shares were owned by Asia Pacific Investments, Ltd. ... By 2009, the relationship between Chugh and Kalra had deteriorated to the point where they could no longer work together ... Eventually, TAL’s board of directors voted to remove Chugh as a director, leaving Kalra to treat TAL and its assets as his own ...
"On February 13, 2012, ARC [Capital, LLC] and Haida [Investments], which held Chugh’s TAL shares and were controlled by Chugh, filed a petition in the [Cayman court] seeking to wind up TAL, a Cayman corporation. The [petition] sought to liquidate the business and divide its assets between Chugh and Kalra. Asia Pacific, which held Kaha’s TAL shares and was controlled by Kalra, opposed Chugh’s petition ... The Cayman court tried the wind-up proceeding over seven days in January of 2013. At the trial’s conclusion, the court granted Chugh’s petition. It found that each of Chugh’s allegations was supported by evidence, and that these allegations taken together supported a finding that it was just and equitable to wind up TAL. It also rejected each of KaIra’s affirmative defenses, concluding that there was no merit whatsoever in the allegations made against Mr. Chugh. Kalra appealed from this judgment, first to the Court of Appeal of the Cayman Islands, and then to the Judicial Committee of the Privy Council in London. Both tribunals affirmed the judgment." (Citations omitted; internal quotation marks omitted.) ARC Capital, LLC v. Asia Pacific Ltd., 180 Conn.App. 38, 39-40, 182 A.3d 95, cert. denied, 328 Conn. 929, 182 A.3d 638 (2018) (quoting Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 26-28 (2d Cir. 2017)).
The reference is to the Grand Court of the Cayman Islands. See ARC Capital, LLC v. Asia Pacific Ltd., 180 Conn.App. 38, 39, 182 A.3d 95, cert. denied, 328 Conn. 929, 182 A.3d 638 (2018).
In the primary case here, Chugh and his business entities sue Kalra and TAL for breach of an agreement designed-very unsuccessfully-to settle grievances between them, for breach of various duties Kalra allegedly owed Chugh in their business relationships, and for libel as a result of a letter and press release authorized or issued by Kalra. In the domestication action, the Appellate Court has already heard an interlocutory appeal and, in its decision, provided the following factual summary: "The plaintiff brought the present action against Asia Pacific and Kalra, seeking to domesticate and enforce a subsequent costs order of the Cayman court. According to the complaint and accompanying exhibits, on February 7, 2013, the plaintiff and Haida applied to the Cayman court for attorneys fees and litigation expenses incurred as petitioners in the winding up proceedings of TAL. On February 14, 2013, the Cayman court issued a costs order requiring that Asia Pacific reimburse the plaintiff and Haida for their litigation expenses. On May 15, 2013, the Cayman court issued a ‘default costs certificate’ setting the final amount payable to the plaintiff and Haida at $760,067.65. In this action, the plaintiff sought to domesticate and enforce this order.
"On August 24, 2015, the court, Hon. Richard P. Gilardi, judge trial referee, granted the plaintiff’s application for a prejudgment remedy and ordered a disclosure of assets within two weeks of the date of the order. On August 27, 2015, the defendants filed an application to refer this case to the Complex Litigation Docket. The plaintiff consented to this referral and, on September 3, 2015, the court transferred the case to the Complex Litigation Docket.
"On September 10, 2015, the defendants filed a motion to dissolve and/or modify the ex parte prejudgment remedy entered by Judge Gilardi and to dismiss the action in its entirety for lack of subject matter jurisdiction. On September 24, 2015, the court, Miller, J., dissolved the prejudgment remedy. On May 31, 2016, the court, Miller, J., granted the defendants’ motion to dismiss the action in its entirety for lack of subject matter jurisdiction, concluding that [t]he foreign "judgment" which the plaintiff seeks to enforce can only be enforced through chapter 15 of the United States Bankruptcy Act. Moreover, the Cayman "Winding-Up" proceeding could never qualify, under chapter 15, as a type of proceeding (main or nonmain) subject to judicial review.’ The plaintiff then filed the present appeal, in which it argues that the court erred in dismissing this action for lack of subject matter jurisdiction." (Footnotes omitted.) ARC Capital, LLC v. Asia Pacific Ltd., supra, 180 Conn.App. 40-42. The Appellate Court agreed with the plaintiff, reversed the dismissal, and remanded the matter to this court for further proceedings on the plaintiff’s application for a prejudgment remedy.
I. THE DEFENDANTS’ MOTION TO DISMISS IN THE PRIMARY CASE
The defendants in the primary case move for dismissal from allegations by ARC and Peak in count two (breach of partnership agreement), count three (breach of implied contract or joint venture), and count five (breach of the implied covenant of good faith and fair dealing) for lack of standing. The defendants contend that ARC and Peak fail to allege that they are parties to the claimed oral partnership agreement concerning business operations that the defendants purportedly breached.
The court applies the well-accepted standards for resolving motions to dismiss and reviews the allegations in the complaint in a light most favorable to the pleader. See Conboy v. State, 292 Conn. 642, 650-54, 974 A.2d 669 (2009). The plaintiffs argue that ARC and Peak have standing to establish violations of the purported partnership agreement between Chugh and Kalra as third party beneficiaries of that agreement. However, it is "well settled that [i]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014) "A plaintiff must allege and prove that he has the requisite standing in order for the trial court to have subject matter jurisdiction over his claims." (Emphasis in original.) Emerick v. Glastonbury, 145 Conn.App. 122, 131 n.8, 74 A.3d 512 (2013), cert. denied, 311 Conn. 901, 83 A.3d 348 (2014). In this case, the plaintiffs nowhere allege that ARC and Peak are third party beneficiaries of the purported agreement. In fact, the substantive counts of the complaint mention ARC and Peak only in passing. Accordingly, the plaintiffs have failed to allege standing. The court grants the motion to dismiss the defendants from liability to plaintiff’s ARC and Peak in counts two, three, and five.
ARC is not a plaintiff in any other count. Therefore, this decision effectively dismisses ARC from the case. Peak remains in the case as a plaintiff in count six, alleging libel.
II. THE DEFENDANTS’ MOTION TO STRIKE IN THE PRIMARY CASE
The defendants move to strike the complaint in the primary case on various legal grounds. The court applies the well-settled standards for deciding a motion to strike and reviews the pleadings in a light most favorable to the plaintiff. See Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendants’ brief relies heavily on a 2015 affidavit filed by Chugh in this case along with various other exhibits from outside the pleadings. The brief does not analyze the allegations of the complaint. It follows that the defendants’ motion constitutes a speaking motion to strike, which our state does not allow. See Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents, such as the agreement between the parties." Zirinsky v. Zirinksy, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). "Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff’s pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). Therefore, the court denies the motion to strike.
The parties shall not file any additional motions to strike in this case without filing an affidavit confirming that counsel have spoken and exhausted all good faith efforts to remedy the problem by amendment of the pleading in question. The court denies the motion to strike count six, alleging libel, on the additional ground that the defendants fail to brief any substantive basis for striking it from the complaint.
III. THE PLAINTIFFS’ APPLICATION FOR A PREJUDGMENT REMEDY IN THE PRIMARY CASE
The plaintiffs apply for a prejudgment remedy of $15 million in the primary case. The court must determine whether there is "probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ..." General Statutes § 52-278d(a). The plaintiffs’ claims fall into three groups: violation of the settlement agreement, breach of duty with regard to the partnership and joint venture claims, and the libel claims. The court examines these claims in turn.
A. The Settlement Claims
Count one alleges that the defendants breached a February 14, 2011 agreement entitled the Ancillary Settlement Agreement (ASA) by filing suit against the plaintiffs in federal district court in Connecticut and in this court. The plaintiffs allege that the ASA arose as a result of the arbitration of a dispute between TAL and various TAL investors. (Complaint, paragraphs (paras.) 17-18.)
The parties to the ASA included Chugh, Kalra, and TAL. (Plaintiffs’ Exhibit (Pl. Ex.) 2, p. 2.) The ASA contains two broadly-worded settlement clauses, one of which states that "each Party agrees not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any other. Party any action, suit or other proceeding concerning the Settled Claims in this jurisdiction or any other ..." (Pl. Ex. 2, para. 2.2.1.) The ASA also has a clause providing that "[a]ny dispute arising out of or in connection with this agreement ... shall be referred to and finally resolved by arbitration under the LCIA Rules ... The seat or place of arbitration shall be London, England." (Pl. Ex. 2, para. 8.14.)
The other clause provides that each party waives any claims it has against each other "arising out of, or in connection with, or related (directly or indirectly) to" a list of seven items including "the Arbitration Proceedings." (Pl. Ex. 2, para. 2.1.)
"LCIA" apparently refers to the London Court of International Arbitration.
The plaintiffs claim that the filing in December 2011 by TAL of the federal suit against them-a suit in which TAL alleges that the Chugh defendants breached their fiduciary duty to TAL in a wide variety of ways -and the filing of a similar suit in this court in 2012 against Chugh and Haida, a Chugh affiliate company, violated these provisions of the ASA. The parties, to be sure, disagree whether the settlement clauses of the ASA are broad enough to apply to these two law suits. It is unnecessary, however, to resolve this disagreement. As the defendants suggest, if the plaintiffs are correct that the ASA applied to the federal suit against them, when that suit broadly alleged that Chugh had breached his fiduciary duty with respect to TAL, then the ASA must also apply to the current suit, in which the plaintiffs make the similar claim that Kalra breached his fiduciary duty to Chugh. And if the ASA applies, then the plaintiffs must take their grievances to arbitration in the LCIA.
Trikona Advisors Limited v. Rakshitt Chugh, No. 3:11-cv-2015 (MRK) (D.Conn. 2011). (Pl. Ex. 6.) The District Court granted summary judgment to the defendants there (plaintiffs here) and the Second Circuit affirmed. Trikona Advisors Ltd. v. Chugh, 846 F.3d 22 (2d Cir. 2017). Ironically, the District Court found that TAL’s claims that Chugh had breached his fiduciary duty had been previously determined in Chugh’s favor in the Cayman Islands court and that TAL was collaterally estopped from relitigating them. Id., 26.
Trikona Advisors Limited v. Haida, Superior Court, judicial district of Hartford, Docket No. CV12-6030347S (filed February 24, 2012). The case resulted in an interlocutory appeal to our Supreme Court; Trikona Advisers Ltd. v. Haida Investments Ltd., supra, 318 Conn. 476; and then ended in a withdrawal on July 24, 2017.
It does not appear, however, that the plaintiffs ever argued in the federal district court suit that TAL’s action against them violated the ASA. Their failure to raise this claim during the extensive litigation of that suit casts doubt on the validity of their ASA claim in this court.
In reply to this suggestion, the plaintiffs make the surprising response that both parties, by filing repeated lawsuits against each other, have modified the ASA to eliminate the mandatory arbitration clause. See Torgerson v. Kenny, 97 Conn.App. 609, 616, 905 A.2d 715 (2006), cert. denied, 281 Conn. 913, 916 A.3d 54 (2007) ("Modification of a contract may be inferred from the attendant circumstances and conduct of the parties"). (Internal quotation marks omitted.) (Pl. Memorandum in Opposition to Defendants’ Motion to Strike, pp. 15-18.) The plaintiffs may be correct in that regard but they simply do not take their argument far enough. The parties have in fact made a mockery of the ASA by repeatedly suing each other. There is little reason to say that their conduct warrants modification of only the arbitration clause in the ASA. In fact, they have essentially abrogated the entire set of promises not to sue. Certainly, the plaintiffs conduct in violation of the ASA disentitles him from suing and collecting damages from the defendants based on their own violations. The court finds no probable cause to believe that the plaintiffs will prevail on their ASA claims.
The defendants represent that the plaintiffs have also filed two additional lawsuits against them in New York State Court. Although the plaintiffs at oral argument labeled these actions as "derivative suits," the plaintiffs admit that the defendants’ suits against them in Connecticut federal and state court were "shareholder litigations" or brought "derivatively." (Complaint, paras. 30, 43.) This inconsistent argument reveals that neither party can faithfully hide behind the curtain of derivative suits, since each controls his own corporations. Further, the plaintiffs admit without qualification that ARC has brought a vexatious litigation suit against the Kalra defendants in federal district court. (Pl. Memorandum in Opposition to Defendants’ Motion to Strike, pp. 17-18.) Thus, it appears that there have been a total of at least eight lawsuits filed against each other or the other’s entities in the United States and the Cayman Islands since the signing of the February 2011 ASA. This number does not includes the actions filed in India and Mauritius noted by our Supreme Court. See Trikona Advisers Ltd. v. Haida Investments Ltd., supra, 318 Conn. 480 n.5.
B. The Partnership and Joint Venture Claims
The plaintiffs’ next claim that "at the start of their relationship, Chugh and Kalra entered into a verbal agreement (‘the Partnership’), which governed how they would run the Trikona Group. The basis of the Partnership Agreement was a mutual understanding that Chugh and Kalra, or, in some instances, their respective families, would have mutual control over specific companies, including TAL, and would each maintain an effective veto over the other’s decisions in relation to those companies." (Complaint, para. 11.) The plaintiffs allege that, beginning in 2008, after the incorporation of TAL in the Cayman Islands in 2006, the relationship began to break down and, particularly since May 2010, Kalra "engaged in a simple scheme ... [to] push Chugh out of management of TAL" and usurp his authority in various other ways. (Complaint, paras. 5, 16, 21.) These claims form the basis for count two (breach of partnership agreement), count three (breach of implied contract or joint venture), count four (breach of fiduciary duty), and count five (breach of the implied covenant of good faith and fair dealing).
The plaintiffs’ allegation that Chugh and Kalra started as partners draws support from a statement in the prospectus of Trinity Capital, an investor in TAL, that "[p]rior to the formation of the Manager, Rak Chugh and Aashish Kalra operated as a partnership and have recently formed Trikona Capital Limited, another Cayman Islands Company part of the Trikona Capital Group." (Pl. Ex. 7, p. 6.) However, the only reasonable inference from this statement is that, after the formation of TAL, the partnership no longer existed. The plaintiff’s claim that the partnership or a joint venture continued or came into existence after the formation of TAL conflicts with the law and the facts. As a legal matter, Chugh and Kalra "cannot be partners inter sese and a corporation as to the rest of the world." (Internal quotation marks omitted.) Karanian v. Maulucci, 185 Conn. 320, 324, 440 A.2d 959 (1981). See also id., 323-24 ("Public policy does not permit a partnership to do business under the guise of a corporation as to the rest of the world while as between themselves the enterprise conducted in the corporate form is in fact a joint venture or partnership").
The prospectus defines "Manager" as TAL. (Pl. Ex. 7, p. 6.)
As a factual matter, the plaintiffs’ claims runs counter to the way that Chugh and Kalra have done business. Chugh and Kalra are sophisticated businessmen who have many lawyers and who have put their agreements in writing. It appears that all their other entities have a corporate form designed to protect them from personal liability. In view of these practices, it defies credibility to claim that Chugh and Kalra agreed to enter into a business venture without the protection of a corporate form, without a written memorialization, and without any specific terms, including the identity of the other participants from their respective families. There is, in fact, no mention or suggestion of a partnership or joint venture in the ASA, which identifies the relevant parties as of 2011, or in any of the government securities regulation filings that the parties made. For these reasons, the court finds that the plaintiffs’ partnership and joint venture claims lack probable cause.
The trial judge in the Cayman Islands court did make the following finding, based in part on admissions by Asia Pacific: "The evidence leads me to the conclusion that, for present purposes, Trikona should be characterized as a quasi partnership between Messrs. Chugh and Kalra." The court went on to cite the fact that Chugh and Kalra "founded the company jointly [and] ... managed it jointly ... [I]ts business was dependent upon the personal involvement of Messrs. Chugh and Kalra." (Pl. Ex. 3, p. 3.) While the historical facts found by the trial judge are consistent with the other facts in the case here, the legal significance of a "quasi partnership" remains unclear.
In view of this conclusion, the court does not reach the defendants’ additional arguments that the plaintiffs’ claims are barred by the statute of limitations and the federal compulsory counterclaim rule and that Kalra terminated any partnership in 2008-09.
C. The Libel Claims
In count six, Chugh and Peak allege that the defendants committed libel based on a May 30, 2012 letter, and others that were similar, and a March 13, 2013 press release. The May 30 letter, written by a lawyer for Kalra and TAL, informs an apparent investor in TAL that TAL seeks information relating to the Connecticut federal lawsuit that TAL had filed against Chugh and the Peak entities. The letter then summarizes the allegations by stating that "TAL asserts that [Chugh and his entities] misappropriated and used an investor database containing intellectual property that belongs to TAL ..." and that "we are investigating Mr. Chugh’s and the Peak XV Entities’ alleged misappropriation and use of the database." (Emphasis added.) (Pl. Ex. 4.) Because the letter merely summarizes the allegations of a federal district court complaint; see Trikona Advisers Ltd. v. Chugh, supra, 846 F.3d 28; which is a public document, and carefully phrases the charges as assertions or allegations, the court does not find probable cause to conclude that it is defamatory.
The March 13 press release is another matter. The court finds that KaIra authorized it and bears responsibility for it. The press release begins with Kalra making disrespectful comments about Justice Andrew Jones, who presided over the winding up litigation in the Cayman Islands: "Judge Jones, in order to protect the Cayman tax shelter racket, and the fortunes of other Caymanian lawyers making money off of it, is now trying to batter down U.S. protections against extension of Cayman tax shelter rackets so as to interfere with U.S. sovereignty and U.S. courts." (Pl. Ex. 4.) It then refers to TAL’s federal suit against Chugh: "Judge Jones ... has now in the Cayman Islands appointed liquidators to interfere in law suits by a company, known as Trikona, in Connecticut against one of its directors for breach of fiduciary duty." Finally, it claims: "The Cayman liquidators, appointed by Judge Jones, are about to be funded by the defendant in the Connecticut litigation, namely, Mr. Rak Chugh. Mr. Chugh is about to or already has, through straw companies he controls, paid the liquidators $500,000 to interfere in the Connecticut litigation against him." (Pl. Ex. 4.)
Chugh, in his sworn affidavit and in his credible and undisputed testimony before the court, disputes the allegation that he paid someone to interfere in the federal litigation against him. (Pl. Ex. 1, paras. 35-36.) Such an allegation, of course, is tantamount to a claim of obstruction of justice. It is highly defamatory.
The difficulty for Chugh is with the element of damages. Chugh testified believably that, as an investment manager, his financial success depends on being found trustworthy and credible by investors. But, at best, Chugh could only testify that he could "imagine" that many investors would not invest in Peak because of the May 2012 letters sent to them. There was no testimony about the specific effect of the press release and no specific evidence of any loss of business because of it. Chugh’s proof of damages with regard to the press release is completely speculative. For that reason, and at this time, the court does not find probable cause to believe that he will prevail on this claim.
In view of this conclusion, the court does not reach the defendants’ argument that the libel claim of Peak, which Chugh added to the sixth count in the second amended complaint on or about July 27, 2018, is barred by the two year libel statute of limitations. General Statutes § 52-297. But see Austin-Casares v. Safeco Ins. Co., 310 Conn. 640, 655-60, 81 A.3d 200 (2013) (an amendment substituting a new plaintiff will relate back if the added plaintiff is the real party in interest).
III. THE PLAINTIFFS’ APPLICATION FOR A PREJUDGMENT REMEDY IN THE DOMESTICATION CASE
In the domestication case, the plaintiff seeks a prejudgment remedy in the amount of $760,067.65 plus interest against defendants Asia Pacific and Kalra. That amount (before interest) represents the costs awarded by the Cayman Island court in the winding up litigation. The plaintiff seeks to domesticate that judgment pursuant to the Uniform Foreign Money-Judgments Recognition Act. General Statutes § 50a-30 et seq. As stated, the Appellate Court held that the foreign judgment provisions of the Bankruptcy Code did not bar enforcement. ARC Capital, LLC v. Asia Pacific Ltd., supra, 180 Conn.App. 38.
It appears that the plaintiff has filed only a "Proposed Writ Summons and Complaint" and, despite the passage of over three years, has never actually filed the complaint in this case. (Dkt. # 100.33.) The court orders the plaintiff to file a complaint within fifteen days of this decision and the defendants to respond in accordance with our rules of practice.
The defense now posed by the defendants is that the Cayman Island costs order names the wrong party. The defendants rely initially on a February 14, 2013 "Order for Costs" signed by Justice Jones stating that "costs of the proceedings ... shall be paid by the Respondent," which is identified in the caption as Asia Pacific Limited. (Pl. Ex. 9.) The defendants then point out that a "Default Costs Certificate" issued on May 13, 2013 by the Taxing Officer of the Grand Court appears to cross out the word "Limited" in "Asia Pacific Limited" in two places and in both cases substitute "Ventures Limited," so that the party liable for costs appears to be "Asia Pacific Ventures Limited." (Pl. Ex. 10.) The defendants then argue that "Asia Pacific Limited" ceased to exist in 2001 and had nothing to do with Kalra or TAL, and that "Asia Pacific Ventures Limited" was not a party to the Cayman Island proceedings.
The court finds this argument essentially an attempt to evade justice. Justice Jones found that the respondent "Asia Pacific Limited," which he abbreviated as "APL," was a 45% owner of TAL as of its formation (which was in 2006) and that "APL is now wholly owned by Mr. Kalra." (Pl. Ex. 3, pp. 2-3.) There is no mention in Justice Jones’s comprehensive seventeen page decision of any claim by the Asia Pacific respondent that the petitioners there (ARC Capital and Haida Investments) had named the wrong party or that APL had gone out of business. Although the defendants represent in their brief that the petitioners actually argued on appeal in that case that the respondents had no standing to appeal because Asia Pacific Limited ceased to exist in 2001, the defendants introduced no evidence to support this representation at the prejudgment remedy hearing.
In any case, if the petitioners did make that argument, it would be surprising if the respondents did not argue in response that Asia Pacific Limited was the correct party and did have standing to appeal.
It appears that the name of the company in question has metamorphosed over time. After acquiescing to the name "Asia Pacific Limited" in the Cayman Islands, the plaintiffs in the 2011 federal district court action identified the company with the new name of "Asia Pacific Investments, Ltd.," and alleged that it "now holds fifty per cent of all of the shares of TAL." (Pl. Ex. 6.) Then, on October 23, 2013, a petition to intervene in the state action was filed by "Asia Pacific Ventures Limited," which made the same allegation that it "owns 50% of the shares of TAL." Trikona Advisors Limited v. Haida, Superior Court, judicial district of Hartford, Docket No. CV12-6030347S, Dkt. # 197.00, pp. 1, 4.
As stated above, the Second Circuit also identified the company as "Asia Pacific Investments, Ltd." Trikona Advisers Ltd. v. Chugh, supra, 846 F.3d 26.
It remains unclear why the Cayman Island clerk changed the name of the respondent from Asia Pacific Limited to Asia Pacific Ventures Limited. It is clear, however, that the defendants here have used three names-Asia Pacific Limited, Asia Pacific Investments, Ltd., and Asia Pacific Ventures Limited-interchangeably. Their belated objection that the Cayman Islands court imposed costs on the wrong party rings hollow. The defendants cannot disobey a court order by changing their name in court pleadings. The court finds probable cause to believe that defendant Asia Pacific Limited is liable for court costs in the amount of $760,067.65.
In view of this conclusion, unless it becomes clear that Asia Pacific will not satisfy the prejudgment remedy order, there is no need to reach the plaintiff’s alternative argument that the court should impose the prejudgment order on Kalra as the alter ego of Asia Pacific.
The plaintiff also requests interest. The plaintiff does not cite a statutory basis for the request or suggest what interest rate should apply. The court will entertain a supplemental motion from the plaintiff on that matter. The defendants shall reply within fifteen days of the plaintiff’s submission.
IV
In the primary case, the court grants the defendants’ motion to be dismissed from allegations by ARC and Peak in counts two, three, and five. The court denies the motion to strike and denies the application for a prejudgment remedy. In the domestication case, the court grants the application for a prejudgment remedy against defendant Asia Pacific Limited in the amount of $760,067.65 and reserves the question of whether the plaintiff is entitled to interest. The court also grants the plaintiff’s motion in that case for disclosure of assets (Dkt. # 132.00) and orders defendant Asia Pacific to comply within fifteen days of this order.
It is so ordered.