Stephany Swart v. Surendra Pawar , 684 F. App'x 306 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2519
STEPHANY SWART, M.D.,
Plaintiff - Appellant,
v.
SURENDRA PAWAR, M.D.; MONONGALIA RADIOLOGY ASSOCIATES,
P.C.,
Defendants - Appellees,
and
MARK KRAULAND; JAMES BOLT; KLINE, KEPPEL & KORYAK, P.C.,
Defendants,
v.
WADE B. STOUGHTON; ERIC D. JOHNSON, M.D.; CYNTHIA JOHNSON,
Third Party Defendants.
No. 15-2555
STEPHANY SWART, M.D.,
Plaintiff - Appellee,
v.
MONONGALIA RADIOLOGY ASSOCIATES, P.C.,
Defendant - Appellant,
and
SURENDRA PAWAR, M.D.; MARK KRAULAND; JAMES BOLT; KLINE,
KEPPEL & KORYAK, P.C.,
Defendants,
v.
WADE B. STOUGHTON; ERIC D. JOHNSON, M.D.; CYNTHIA JOHNSON,
Third Party Defendants.
Appeals from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, District Judge. (1:14-cv-00010-IMK-MJA)
Argued: March 23, 2017 Decided: April 6, 2017
Before MOTZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul J. Harris, HARRIS LAW OFFICES, Wheeling, West Virginia, for
Appellant/Cross-Appellee. James Michael Baggett, MCCANN GARLAND RIDALL &
BURKE, Pittsburgh, Pennsylvania, for Appellees/Cross-Appellant. ON BRIEF: James
T. McClure, GOMPERS MCCARTHY & MCCLURE, Wheeling, West Virginia, for
Appellant/Cross-Appellee. William A. Kolibash, PHILLIPS GARDILL KAISER
KOLIBASH & ALTMEYER, PLLC, Wheeling, West Virginia, for Appellees/Cross-
Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Monongalia Radiology Associates (“MRA”) is a professional corporation
incorporated in Pennsylvania. Until it ceased doing business in December 2011, MRA
had its principal office in West Virginia and provided radiological services to two
hospitals in West Virginia. MRA has a board of directors composed of two directors:
Dr. Surendra Pawar, the president of the corporation, and Dr. Stephany Swart, the
secretary and treasurer. Pawar and Swart each hold 50% of the voting shares in MRA,
which employed both of them.
At some point in late 2010 or early 2011, the relationship between Swart and
Pawar soured and MRA became unable to function effectively. In December 2011, MRA
ceased providing radiology services and ceased doing business. MRA’s sole office is
now in Pennsylvania and its activities are limited to dissolving the corporation’s pension
plan and responding to litigation.
Swart filed suit in West Virginia state court against Pawar, MRA, and several
others; she asserted claims for fraud and breach of fiduciary duty against Pawar and
MRA, and conversion against Pawar. MRA counterclaimed against Swart for breach of
fiduciary duty, breach of contract, and contractual interference. Pawar also filed
counterclaims against Swart. After Swart filed her complaint, one of the other defendants
removed the case to federal court with the consent of all defendants. Swart moved to
remand, arguing that because she had not given her approval for MRA to consent to
removal, MRA had not actually consented and the unanimity requirement of 28 U.S.C.
§ 1446 had not been met. The district court denied the motion to remand.
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After over a year of discovery and the dismissal of the other defendants, in a
thorough written opinion, the district court dismissed with prejudice some of the parties’
claims and counterclaims. The court granted summary judgment to Swart on all of
MRA’s counterclaims, holding that Pawar did not have the authority as president of
MRA to bring claims in the name of the corporation against a co-equal owner and that
Pawar had not met the pleading requirements of Federal Rule of Civil Procedure 23.1 to
bring a derivative action. The district court also dismissed part of Swart’s conversion
claim against Pawar and one of Pawar’s counterclaims. Swart then voluntarily dismissed
with prejudice her conversion claim in its entirety. Several weeks later, the district court
dismissed the remainder of Swart’s claims and Pawar’s counterclaims, holding that their
claims were derivative of those of the corporation and that, therefore, neither Swart nor
Pawar had standing to bring their claims in a direct action. This appeal and cross-appeal
followed.
On appeal, Swart challenges the district court’s dismissal of her claims as
derivative of those of the corporation, the district court’s choice of law determination,
and the district court’s finding that Pawar had the authority to consent on the
corporation’s behalf to the removal of the case to federal court. MRA’s cross-appeal
challenges the district court’s determination that Pawar did not have authority to bring
counterclaims against a co-equal owner in the name of the corporation and that he had
not adequately pled a shareholder’s derivative action. Pawar does not appeal the
dismissal of his individual counterclaims.
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After careful consideration of the relevant legal authority and the parties’
extensive briefs and oral arguments, we can find no error in the district court’s lengthy,
detailed, and careful opinions. Accordingly, we affirm on the basis of the district court’s
excellent opinions.
AFFIRMED
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