UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BARBARA SOPKIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 24-0743 (TSC) ) ) JOHN LOPATTO, ) ) Defendant. )

MEMORANDUM OPINION

This action, filed by Plaintiff Barbara Sopkin, see generally Compl., ECF No. 1-1 at 3–

35, proceeding pro se and in forma pauperis (“IFP”), was removed to this District from the

Superior Court of the District of Columbia, by Defendant John Lopatto, see Def.’s Not. of

Removal (“NOR”), ECF No. 1. Lopatto then filed a Motion to Dismiss (“MTD”), ECF No. 8,

and supporting Memorandum (“MTD Mem.”), ECF No. 8-1, which Sopkin opposes, see Pl.’s

Opposition to MTD (“Opp’n to MTD”), ECF No. 12, and moves to strike, see Pl.’s Mot. to

Strike (“MTS”), ECF No. 14. Sopkin has also filed a Motion for Partial Summary Judgment

(“MPSJ”), ECF No. 16, and a Motion to Remand to Superior Court (“MTR”), ECF No. 17, both

of which are opposed by Lopatto, see Def.’s Opposition to MPSJ, ECF No. 19; Def.’s

Opposition to MTR, ECF No. 20. For the reasons explained below, Sopkin’s Motion to Remand

is granted. The remaining motions are all held in abeyance for resolution by the Superior Court.

BACKGROUND

1 This is not the first matter involving these parties; this case is the fifth action overall, and

now the second lawsuit by Sopkin against Lopatto in this District. 1

Lopatto is a citizen of Virginia who maintains a law firm in the District of Columbia, and

previously represented Sopkin, an Israeli citizen, as an assignee of Interlase, L.P., in three

separate lawsuits. See id.; NOR ¶¶ 13–14; Compl. at caption, ¶¶ 1, 15, 67; Compl. Ex. 20, ECF

No. 1-1, at 81–38 (Fee Agreement, dated Dec. 15, 2016) (“FA I”); Compl. Ex. 21, ECF No. 1-1,

at 84–86 (Fee Agreement, Dated Aug. 27, 2021) (“FA II”). In Sopkin I, II, and III, Sopkin

challenged the management of Interlase, a Georgia limited partnership that once held a corporate

license agreement for specialized catheter patents in exchange for royalties. See Sopkin,

, at *1–4. Sopkin purports to have long maintained an ownership interest in

Interlase, originally conveyed to her by Lucre Investments, Ltd. See Sopkin,

,

at *1–4. In those three lawsuits, Sopkin alleged that Interlase’s former receiver, Richard

Mendelson, failed to extend Interlase’s patents, negligently under-collected royalty payments,

and permitted licensees to under-report the sales upon which those royalties were calculated,

costing Interlase millions of dollars. See

None of those lawsuits were decided in Sopkin’s favor, and on October 27, 2022, she

filed Sopkin IV against Lopatto in this District, raising claims for legal malpractice based on

diversity jurisdiction, and alleging that, due to ineffective legal strategy, namely, failure to raise a

1 See Sopkin v. Lopatto, No. 22-cv-03300,

, at *2–5 (D.D.C. Sept. 8, 2023) (“Sopkin IV”) (memorializing litigation history); see also Sopkin v. Mendelson, et al., No. 16-cv- 01146,

(E.D. Va. Apr. 27, 2017) (“Sopkin I”), aff’d,

(4th Cir. 2018) (per curiam); Sopkin v. Mendelson, et al., No. 19-cv-58,

(E.D. Va. May 2, 2019) (“Sopkin II”), aff’d,

(4th Cir. 2021) (per curiam); see Sopkin v. Mendelson, et al., No. CL-20004925-00 (Arlington Co. Cir. Ct. filed Dec. 1, 2020) (“Sopkin III”). 2 “surcharge theory” under Virginia law, Lopatto was responsible for her inability to recover

Interlase’s $11,963,416 in lost patent-royalty payments. See id. at *5. She also claimed that

Lopatto owed her for sanctions totaling $62,854.24, entered against her by the United States

District Court for the Eastern District of Virginia in Sopkin I, because of allegedly frivolous

claims he advanced on her behalf. See id.; see also Sopkin,

(E.D. Va. Sept. 1,

2022) (entering sanctions), aff’d, No. 22-1992,

(4th Cir. Mar. 14, 2024).

On September 8, 2023, this court entered a Memorandum Opinion and Order granting

Lopatto’s Motion to Dismiss, dismissing the matter in full for want of subject matter jurisdiction.

See id. at *11. In its Memorandum Opinion, the court detailed the relevant factual and

procedural history, see id. at *1–4, and that Opinion is incorporated in full by reference herein, 2

see id. at *1–11.

In short, the court held that, despite holding herself out as the sole owner of Interlase,

Sopkin could not recover the $11,963,416 in lost patent-royalty payments because, if they were

owed, they belonged entirely to the entity. See id. at *6–9. First, the court found that Sopkin

was prohibited from bringing any claims on behalf of Interlase. See id. at *7, *9. Three previous

courts––the United States Court of Appeals for the Fourth Circuit, the Eastern District of

Virginia, and the Arlington County Circuit Court––all previously ruled that Sopkin lacked

standing to raise claims for Interlase. See id. at *7. More specifically, those courts found that

2 A court may “take judicial notice of related proceedings and records in cases before the same court.” Valore v. Islamic Republic of Iran,

(D.D.C. 2010) (quoting Brewer v. Islamic Rep. of Iran,

, 50–51 (D.D.C. 2009); Heiser v. Islamic Republic of Iran,

(D.D.C. 2006); citing Fed. R. Evid. 201(b); Booth v. Fletcher,

, 679 n.2 (D.C. Cir. 1938) (“A court may take judicial notice of, and give effect to, its own records in another but interrelated proceeding[.]”) (other citation omitted)), cert. denied sub nom. Fletcher v. Booth,

(1939). 3 Sopkin was so prohibited due to an injunction entered by the Arlington County Circuit Court on

December 18, 1998, declaring Lucre a sham entity, and enjoining Lucre, its officers, managers,

directors, and agents, from claiming to be Interlase’s partner, or taking any actions on its behalf.

See id. at *1, *3. There was also no evidence to suggest that later conveyances (including those

executed by the inventor and founding partner, Dr. Fox) afforded Sopkin any legal or beneficial

interest in Interlase, or that she was otherwise qualified to bring a derivative suit. See id. at *3.

Because the issue of Sopkin’s standing had been repeatedly previously litigated, this court found

that Sopkin was collaterally estopped from relitigating the issue. See id. at *7.

Second, and notwithstanding the hurdle of collateral estoppel, this court found that

Sopkin could not sue on behalf of Interlase due to the “shareholder standing rule.” See id. The

court noted that no shareholder, not even a sole shareholder, has standing to sue in an individual

capacity on a claim that belongs to the entity, and that prohibition extends to sole owners of

limited partnerships. See id. at *6–7. Because the $11,963,416 in damages claimed by Sopkin

arose “directly from injuries sustained by Interlase—in fact, they were sustained entirely by the

entity—they d[id] not fall within any exception of the shareholder standing rule and . . . . [could

not] survive as pleaded, regardless of whether they [were] brought as a direct or derivative suit

against Mendelson, or whether they [were] brought as a derivative or direct legal malpractice suit

against Lopatto.” Id. at *7.

Third, the court found that Sopkin could neither join nor substitute Interlase as a plaintiff.

See id. at *8. Because Sopkin was proceeding pro se, she was ineligible to sue on behalf of

Interlase, and Interlase itself, as an artificial entity, could neither proceed pro se, nor apply to

proceed IFP. Id. at *9.

4 Finally, the court found that Sopkin appeared to have standing to bring her last remaining

claim for the sanctions-related damages because they were entered against her individually. Id.

at *9. But those damages fell $12,000 short of the $75,000 threshold required to establish

diversity jurisdiction. Id. For all these reasons, 3 Sopkin IV was dismissed pursuant to Federal

Rule 12(b)(1). Id. at *11.

Sopkin appealed, and on January 23, 2024, the United States Court of Appeals for the

District of Columbia Circuit affirmed. See Sopkin, No. 23-7115,

(D.C. Cir.

Jan. 23, 2024) (per curiam) (“Mandate”). About two weeks later, on February 9, 2024, Sopkin

filed the instant matter against Lopatto in Superior Court, raising substantially similar claims to

those raised in Sopkin IV. See generally Compl. Sopkin again alleges that Lopatto committed

legal malpractice, demanding both the lost royalty payment damages––totaling $11,963,416, and

an award for the sanctions entered in Sopkin I––totaling $62,854.24. See

¶¶ 1–4, 14–15, 31–

37, 40–44, 54–55, 57–72, 75–80, 83–84.

New, however, are Sopkin’s claims that Lopatto allegedly breached their fee agreements

and committed fraud, in failing to pay (1) $30,000 in fees owed to Megan Nelson, CPA, an

accounting expert retained in 2021 in Sopkin III, see id. ¶¶ 54, 66, 81; Compl. Ex. 10, ECF No.

1-1, at 124–39 (Report of Megan Nelson, dated Nov. 5, 2021) (“Nelson Rep.”), and (2) $15,000

owed to Interlase, somehow relating to arbitration proceedings it initiated against Lopatto in the

London Court of International Arbitration (“LCIA”) in early 2022, see Compl. ¶¶ 38, 40, 82.

3 The court also alternatively found that, even if Sopkin had established subject matter jurisdiction, Sopkin IV should have been filed in the Eastern District of Virginia. See id. at *10– 11. 5 Finally, Sopkin presents a new legal theory, based on some new facts. See id. ¶¶ 2–6;

Opp’n to MTD at 2–5, 11–13. She contends that from October 25, 2022 to January 24, 2024, she

was the legal owner of Interlase’s patent rights and assumed the right to sue for any of the

entity’s losses, as a result of a deed of gift executed between them on October 25, 2022. See id.;

Compl. Ex. 23, ECF No. 1-1, at 76–77 (Oct. 25, 2022 Deed of Gift) (“Deed I”). Then, on

January 24, 2024, Sopkin conveyed those rights back to Interlase through a second deed of gift,

see Compl. ¶¶ 2–6; Compl. Ex. 25, ECF No. 1-1, at 69–70 (Jan. 24, 2024 Deed of Gift) (“Deed

II”), only for Interlase to then convey them right back to Sopkin on January 27, 2024, by a third

deed of gift, see Compl. ¶¶ 2–6; Compl. Ex. 27, ECF No. 1-1, at 64–68 (Jan. 27, 2024 Deed of

Gift) (“Deed III”); Opp’n to MTD at 2–5, 11–13. Sopkin argues that, while active, the first deed

of gift allowed her to sue on behalf of Interlase, and the second and third deeds of gift now allow

her to bring both direct and derivative suit on its behalf. See Compl. ¶¶ 2–6; Opp’n to MTD at

2–5, 12–13.

On March 14, 2024, Lopatto removed this matter to this District based on diversity

jurisdiction,

(a)(2), 1441(b), 1446(c); see NOR ¶¶ 3, 9, 11–18, then promptly

moved to dismiss for lack of subject matter jurisdiction, see MTD Mem. at 10–18, and failure to

state a claim, see

at 11–12, 18–28. In response, Sopkin moves to remand, arguing that this

court is without subject matter jurisdiction because, inter alia, the amount in controversy once

again falls short of $75,000. See MTR at 2–3; MTS at 3. Despite this contention, Sopkin also

moves for partial summary judgment on her sanctions-related claim, seeking an award for

$62,854.24. See MPSJ at 2–4.

LEGAL STANDARDS

6 Subject Matter Jurisdiction 4

“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited

subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which

Congress grants jurisdiction.’” Bronner v. Duggan,

(D.C. Cir. 2020)

(alterations in original) (quoting Al-Zahrani v. Rodriguez,

(D.C. Cir. 2012));

see Gunn v. Minton,

(2013) (“‘Federal courts are courts of limited

jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’”) (quoting

Kokkonen v. Guard. Life Ins. Co. of Am.,

(1994)).

A defect in “standing is a defect in subject matter jurisdiction.” Haase v. Sessions,

(D.C. Cir. 1987); see Lujan v. Defenders of Wildlife,

(1992)

(noting that “the core component of standing is an essential and unchanging part of the case-or-

controversy requirement of Article III”). Furthermore, “[t]he defense of res judicata is [also]

jurisdictional in character.” Rizvi v. McClure,

(D.D.C. 2009) (citing

Stanton v. D.C. Ct. of Appeals,

(D.C. Cir. 1997)). Therefore, “a motion for

dismissal based on res judicata properly falls under Federal Rule of Civil Procedure 12(b)(1).”

To survive a challenge to subject matter jurisdiction, the plaintiff bears the burden of

demonstrating a court’s subject-matter jurisdiction. Arpaio v. Obama,

(D.C. Cir.

2015), cert. denied,

(2016); see also Hertz Corp. v. Friend,

, 96–97

(2010); Thomson v. Gaskill,

(1942). When considering a motion to dismiss

4 Because the court finds that it lacks subject matter jurisdiction over this matter, it does not reach Lopatto’s arguments for failure to state a claim. See U.S. ex rel. Settlemire v. Dist. of Columbia,

, 920–21 (D.C. Cir. 1999).

7 under Rule 12(b)(1), a court must accept as true all uncontroverted material factual allegations

contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of

all inferences that can be derived from the facts alleged’ and upon such facts determine

jurisdictional questions.” Am. Nat'l Ins. Co. v. FDIC,

(D.C. Cir. 2011)

(quoting Thomas v. Principi,

(D.C. Cir. 2005); Barr v. Clinton,

(D.C. Cir. 2004)). A court need not accept inferences drawn by the plaintiff,

however, if those inferences are unsupported by facts alleged in the complaint or amount to legal

conclusions. See Browning v. Clinton,

(D.C. Cir. 2002).

To that end, in assessing a challenge to subject matter jurisdiction under Rule 12(b0(1), a

court may consider documents outside the pleadings. See Land v. Dollar,

, 735 n.4

(1947); Haase,

. In doing so, a court does not convert the motion into one for

summary judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be

converted into a motion for summary judgment” when a court considers documents extraneous

to the pleadings. Haase,

.

Remand

State court civil actions may be removed to a United States district court by the

defendant, provided the case could have originally been filed in federal court. See

(a). A defendant may remove an action to federal court when original subject matter

jurisdiction exists in diversity. See

§ 1441(b); Caterpillar, Inc. v. Williams,

(1987). Diversity jurisdiction exists when the action involves parties from different states,

and the amount in controversy exceeds $75,000.00 per plaintiff, exclusive of interest and costs.

See

(a); Carden v. Arkoma Assocs.,

(1990).

8 Court are obligated to construe federal removal statutes strictly to avoid federalism

concerns, see Shamrock Oil & Gas Corp. v. Sheets,

, 107–09 (1941), and any

ambiguities concerning the propriety of removal must be resolved in favor of remand, Hood v. F.

Hoffman–La Roche, Ltd.,

(D.D.C. 2009) (citing Gasch v. Hartford

Accident & Indem. Co.,

, 281–82 (5th Cir. 2007)). “If at any time before final

judgment it appears that the district court lacks subject matter jurisdiction, the case shall be

remanded.”

(c).

A challenge to subject matter jurisdiction may be raised on a motion to remand. See

A “party opposing a motion to remand bears the burden of establishing that subject matter

jurisdiction exists in federal court.” Int’l Union of Bricklayers & Allied Craftworkers v. Ins. Co.

of The West,

(D.D.C. 2005) (citation omitted); see also Wilson v.

Republic Iron & Steel Co.,

, 97–98 (1921).

DISCUSSION

Once again, as explained below, this court is without jurisdiction over any of Sopkin’s

claims.

I. Lost Patent-Royalty Payments

As discussed in Sopkin IV, Sopkin cannot pursue the $11,963,416 in patent royalty

payments, allegedly lost due to Lopatto’s failure to timely raise the surcharge theory. See

Sopkin,

, at *6–8. It is uncontroverted that, if owed, those payments belong

entirely to Interlase, see Compl. ¶¶ 3, 64; Opp’n to MTD at 5–6, 8–11, and Sopkin has no

standing to bring claims on its behalf, see Sopkin,

, at *6–8. The shareholder

standing rule bars Sopkin’s direct claims, and the clear precedent recognizing her overall lack of

standing bars claims of any kind by Sopkin for Interlase. See

9 II. Arbitration-Related Damages

Likewise, Sopkin has no standing to raise her claim for the $15,000 in arbitration-related

damages. She broadly alleges that Lopatto “cost Interlase at least $15k” arising from Lopatto’s

alleged refusal to participate in LCIA proceedings. See Compl. ¶ 38 (emphasis added); see also

Opp’n to MTD at 9 (insisting that the fee agreements were executed strictly for Interlase). In

other words, Sopkin does not allege that she personally expended $15,000; instead, she contends

that the entity is owed that amount. See

Compl. ¶¶ 38, 40; see also Opp’n to MTD at 9.

Thus, for the same reasons Sopkin is without standing to pursue the lost patent royalty payments,

she is also without standing to pursue the arbitration-related damages on Interlase’s behalf. See

Sopkin,

, at *6–8.

In addition, the arbitration-related damages are barred by collateral estoppel. See Taylor

v. Sturgell,

(2008) (collateral estoppel bars “successive litigation of an issue of

fact or law actually litigated and resolved in a valid court determination essential to the prior

judgment, even if the issue recurs in the context of a different claim.”). Although under the

“curable defect” exception to collateral estoppel, a litigant “whose claim[ ] [was] dismissed on

jurisdictional grounds” is not precluded from re-litigating that dismissal “if a material change

following dismissal cured the original jurisdictional deficiency[,]” Nat’l Ass'n of Home Builders

v. EPA,

(D.C. Cir. 2015), the alleged financial injuries arising from the LCIA

proceedings occurred prior to the dismissal in Sopkin IV, see, e.g., Sopkin, No. 22-cv-03300, at

Compl. (“Sopkin IV Compl.”), ECF No. 1, ¶ 57 (noting that Interlase raised legal malpractice

claims against Lopatto in the LCIA six months before filing Sopkin IV, “but Lopatto reneged on

his legal obligations to pay for parts of that arbitration” and those proceedings would be

imminently dismissed without prejudice).

10 Accordingly, because the arbitration-related damages preceded the dismissal of Sopkin

IV, they fail to qualify under the curable defect exception, and do not confer standing. See

Swanson Grp. Mfg. LLC v. Jewel,

(D.D.C. 2016) (finding that “pre-

existing” or “ongoing” injuries “do not satisfy the requirements for the curable defect exception”

to remedy standing); Ricks v. Simons,

, 921 n.4 (D.D.C. 1991) (finding that the

plaintiff “could have foreseen that [an] issue would arise in later litigation[;]” therefore,

collateral estoppel barred its subsequent litigation) (citing Kremer v. Chemical Constr. Corp.,

(1982)).

Moreover, Sopkin’s mere mention of the arbitration-related damages in Sopkin IV,

without having formally raised them as a claim, does not suffice to salvage them. See Nat’l

Ass’n of Home Builders,

(holding that a court’s previous decision “cannot be

used as a mere instruction manual on how [a plaintiff] might correct defects in its claim of

standing by doing a better job of pleading preexisting facts and arguing the law more forcefully

in a new case.”); Newdow v. Bush,

(D.D.C. 2005) (finding that “a mere

‘defect in pleading’ in the original complaint cannot be remedied through the ‘curable defect’

doctrine.”) (quoting Dozier v. Ford Motor Co.,

(D.C. Cir. 1983)).

For all these reasons, Sopkin lacks standing to raise a claim for the arbitration-related

damages.

III. Expert-Related Damages

Sopkin asserts that Lopatto owes her $30,000 in fees purportedly due to expert witness,

Nelson. See Compl. ¶¶ 54, 66, 81. Nelson was retained in 2021 in Sopkin III, see id. ¶¶ 54, 66,

81, and her report was complete by November 5, 2021, see Nelson Rep. Once again, for the

same reasons expressed above, the expert-related damages fail to qualify under the curable defect

11 exception, because the fees owed to Nelson, if any, were known prior to Sopkin IV, which was

filed nearly a year later, see Sopkin IV Compl.

Furthermore, assuming Sopkin could overcome collateral estoppel, and that she is even a

party to the relevant fee agreements, compare Opp’n to MTD at 9 (Sopkin arguing that the fee

agreements were executed only for Interlase), with MTD Mem. at 4 n.3 (Lopatto arguing that the

fee agreements were executed for Sopkin), she has also nonetheless failed to allege any injury

arising from this claim and therefore lacks standing to raise it.

Federal courts have subject matter jurisdiction only if there exists a “case” or

“controversy,” and in the absence of any actual or threatened injury, no case or controversy

exists. See U.S. Const. Art. III, § 2. The alleged “injury must be ‘concrete, particularized, and

actual or imminent; fairly traceable to the challenged action; and redressable by a favorable

ruling.’” Clapper v. Amnesty Int'l USA,

(2013) (quoting Monsanto Co. v.

Geertson Seed Farms,

, 149–50 (2010)). Moreover, standing cannot be “based on .

. . fears of hypothetical future harm that is not certainly impending.”

at 417 (citing

Pennsylvania v. New Jersey,

(1976) (per curiam); Nat’l Fam. Planning &

Reprod. Health Assn., Inc.,

(D.C. Cir. 2006)).

Here, the fee agreements clearly state that “the client,” not Lopatto, is responsible for

payment of expert fees. See FA I ¶ 3; FA II ¶ 6. Lopatto attests that, despite that provision, he

advanced “Ms. Nelson’s expert witness fees in the amount of $20,000[,]” Decl. of John Lopatto

(“Lopatto Decl.”), ECF No. 8-25, ¶ 5, and that Sopkin has not reimbursed him, despite her

obligation, id. ¶ 6. In response, Sopkin speculates that Nelson may be owed additional payment,

and surmises that any outstanding fees “may cost money to Sopkin if Nelson’s testimony as it

concerns the damages is required in this case.” See Opp’n to MTD at 13 (emphasis added); see

12 also Compl. ¶¶ 54, 66. But Lopatto has attested that he has paid Nelson’s fees, see Lopatto Decl.

¶ 5, and there is no allegation that Nelson has demanded any payment from Sopkin. And, if

remaining fees are still owed to Nelson, or if her testimony should be later required––both

completely conjectural premises––either Sopkin or Interlase would be responsible for payment,

not Lopatto. See FA I ¶ 3; FA II ¶ 6.

Because Sopkin has failed to present a dispute “of sufficient immediacy and reality[,]”

Golden v. Zwickler,

(1969), and relies on a “hypothetical state of facts[,]”

Aetna Life Ins. Co. of Hartford, Conn. v. Haworth,

(1937) (collecting cases),

contradicted by the record, she has no standing to seek the expert-related damages, and for all of

the above-stated reasons, this court is without subject matter jurisdiction over that claim.

IV. Deeds of Gift

Sopkin’s new theory that the “deeds of gift” allow her to bring suit for Interlase is

without merit. As repeatedly discussed, multiple courts have determined that Sopkin has no

standing to bring claims on behalf of Interlase. See Sopkin,

, at *3–4, 9.

Because of her original association with Lucre, she was dispossessed of any legal interest in

Interlase, and her subsequent attempts to regain ownership were unavailing. See

Those

previous decisions continue to have preclusive effect. See id. at *7; see also U.S. Bank Nat’l

Ass’n v. Poblete, No. 15-312,

, at *7, *11–12, *11 n.12 (D.D.C. Mar. 18,

2016) (applying offensive collateral estoppel in fifth lawsuit, and holding that defendant, who

claimed ownership of real property as a trustee, could not oppose plaintiff’s action to quiet title

against that property despite having since registered a modified deed, because the D.C. Circuit

previously determined that the trust lacked valid title to the property and defendant thus lacked

standing).

13 Moreover, even if these deeds of gift could, on their own, defeat collateral estoppel, they

are defective for several reasons. The first deed of gift was purportedly conveyed to Sopkin on

October 25, 2022, just two days before she filed Sopkin IV in this court. Compare Deed I, with

Sopkin IV Compl., ECF No. 1. Despite the central issue of her standing, Sopkin never once

mentioned the first deed of gift in Sopkin IV, a fact she admits, see Compl. ¶ 2–3; Opp’n to MTD

at 2–5, 11–13; she raised it for the very first time with the D.C. Circuit while briefing her appeal

of Sopkin IV, see Sopkin,

, at *1 (noting that Sopkin “argue[d] for the first time

in her opening brief that she ha[d] standing . . . pursuant to a deed of gift purportedly executed

days before the underlying complaint was filed. This theory of standing was not raised in district

court and [was] therefore forfeited.”). It is unclear why Sopkin failed to introduce––or even

reference––the first deed of gift in Sopkin IV, particularly given its purported recency, and her

otherwise painstakingly detailed accounts of Interlase’s history and chain of ownership.

In any event, despite her arguments to the contrary, see Opp’n to MTD at 2–4, Sopkin’s

reliance on the first deed of gift post factum does not fall under the curable defect exception, see

Yamaha Corp of America v. U.S.,

, 254–55 (D.C. Cir. 1992) (“[Issue] [p]reclusion

cannot be avoided simply by offering evidence in the second proceeding that could have been

admitted, but was not, in the first.”) (citation omitted), cert. denied,

(1993); Sec.

Indus. Ass’n v. Bd. of Govs.,

(D.C. Cir. 1990) (a plaintiff may not raise new

argument in second proceeding if it was never made in first proceeding; so long as argument

could have been made, it is precluded)); Dozier,

(finding that plaintiff could not

overcome collateral estoppel to cure standing in diversity action by later changing his “sworn

recitation of past facts.”) (fn. omitted); Campaign Legal Ctr. v. Fed. Elec. Comm., No. 22-cv-

3319,

, at *11 (D.D.C. Sept. 26, 2023) (finding that the plaintiffs’ previous

14 “failure to highlight [] information” that could have plausibly cured their defect in standing was

“puzzling” and that the prohibition against introduction of that information in a subsequent

lawsuit “is the reason issue preclusion exists.”); see also UMC Develop., LLC v. Dist. of

Columbia,

, 156–57 (D.D.C. 2019) (finding that “only claim preclusion, not

issue preclusion, requires a ‘final, valid judgment on the merits[,]’ ”) (quoting Nat. Res. Def.

Council v. EPA,

(D.C. Cir. 2008); Nat’l Ass’n of Home Builders,

) (a “jurisdictional dismissal does not involve an adjudication on the merits,” but it still

“adjudicate[s] the court’s jurisdiction, and a second complaint cannot command a second

consideration of the same jurisdictional claims.”)).

Sopkin, appearing to recognize this obstacle, focuses largely on the third deed of gift.

See Compl. ¶ 6; Opp’n to MTD at 4–5, 11–13. The second deed of gift, conveying the rights

back to Interlase, was purportedly executed the day after the D.C. Circuit affirmed Sopkin IV,

compare Deed II, with Mandate, and then the third deed of gift was conveyed to Sopkin mere

days later, see Deed III. But the third deed of gift falls well short of overcoming the shareholder

standing rule and providing Sopkin derivative status. See Sopkin,

, at *6–7.

The third deed of gift was executed well after Lopatto’s alleged wrongful acts; therefore, Sopkin

is barred by the contemporaneous ownership requirement of the shareholder standing rule, which

mandates that a plaintiff bringing a derivative suit must have been an owner at the time of the

challenged acts or omissions. See First Am. Corp. v. Al-Nahyan,

(D.D.C.

1998).

The contemporaneous ownership requirement “is designed to avoid so-called ‘strike

suits’ and other speculative litigation.”

It is recognized federally, see Fed. R. Civ. P.

23.1(a)–(b)(1), and in all three local jurisdictions relevant to this case––the District of Columbia,

15 Georgia, and Virginia, and extends to limited partnerships, see D.C. Code §§ 29–301.02(22), 29–

305.51(A)(1); D.C. Super. Ct. R. 23.1(a)–(b)(1); Trust Agreement of Steven M. Sushner v. C.A.

Harrison Comanies, LLC, No. 22-cv-2837,

, at *6, *11 (D.D.C. Sept. 28,

2023) (applying D.C. law); Levant v. Whitley,

, 1047 n.14 (D.C. 2000) (“[D.C.

Super. Ct.] Rule 23.1 is virtually identical to Fed. R. Civ. P. 23.1.”); Ga. Code §§ 14-2-140(11),

14-2-741(1); Hurt v. Cotton States Fertilizer Co.,

(5th Cir. 1944) (applying

federal and Georgia law), cert. denied sub nom. Cotton State Fertilizer Co v. Hurt,

(1945); Smith v. Coolidge Banking Co.,

(Ga. Sup. Ct. 1917); Va. Code §§ 13.1–

672.1(1), 50–73.62, 50-73.63; Milstead v. Bradshaw, No. C96–1498,

, at *2

(Va. Cir. 1997).

Here, Lopatto’s alleged wrongdoing occurred years before the third deed of gift. For

example: (1) Interlase attempted to arbitrate against Lopatto for legal malpractice in “early

2022,” see Compl. ¶ 32, (2) Sopkin III was dismissed on March 8, 2022, see Sopkin, No. CL-

20004925-00, at Final Order (entered Mar. 8, 2022); and (3) Lopatto withdrew his appearance in

Sopkin I on August 3, 2022, see Sopkin, No. 16-cv-01146, ECF No. 175 (Order Granting

Lopatto’s Motion to Withdraw as Attorney). Because Sopkin’s ownership was not

contemporaneous, 5 she cannot bring a derivative suit.

Furthermore, these deeds of gift did not transfer Interlase’s interests to Sopkin by

operation of law, because the conveyances were not made to Sopkin by an existing owner, see

Fed. R. Civ. P. 23.1(b)(1); D.C. Sup. Ct. R. 23.1(b)(1); D.C. Code 29–305.51(1); Ga. Code § 14-

2-741(1); Va. Code § 13.1-672.1(2)–(3). They were, for all intents and purposes, executed

5 To the extent Sopkin relies on the first deed of gift, its conveyance also occurred after Lopatto’s alleged acts and omissions. See Deed I. 16 between Sopkin and herself, without any exchange of consideration. See Deed I; Deed II; Deed

III. Moreover, Sopkin did not possess any ownership rights to convey. See Sopkin,

, at *3, *9; see also Compl. ¶¶ 2 (“There was a period of time between October 25,

2022, and January 25, 2024, that Sopkin owned [the patents] and rights to same, but she did not

own any of that property or rights to same, at the very least, prior to October 25, 2022, and

between January 25 and January 27, 2024.”), ¶ 3 (noting that she is not asserting the “theory of

her underlying ownership”). Simply put, these conveyances are null, and thus fail to establish

that Sopkin can fairly and adequately represent Interlase’s interests. See Fed. R. Civ. P. 23.1(a);

D.C. Sup. Ct. R. 23.1(a); D.C. Code 29–305.51(2); Ga. Code § 14-2-741(2); Va. Code § 13.1-

672.1(4).

Additionally, per Sopkin’s own admission, the deeds were executed specifically to cure

defects in her standing, see Compl. ¶¶ 2–3; Opp’n to MTD at 2–4, but a conveyance conducted

for the purpose of conferring jurisdiction when it is otherwise lacking is “collusive” and

untenable. See Fed. R. Civ. P. 23.1(b)(2); D.C. Sup. Ct. R. 23.1(b)(2); see also First Am. Corp.,

(finding that the court is obligated to “look beyond the corporate form to

examine the economic realities of a transfer of ownership so as to prevent an abuse of the legal

fiction that treats a corporation as a separate juridical entity.”).

Indeed, this is not the first time that Sopkin has unsuccessfully attempted this maneuver

to cure her standing problems. See Sopkin, 746 Fed. Appx. at 161 n.8. In affirming Sopkin I, the

Fourth Circuit found that Sopkin had not met the requirements of Federal Rule 23.1 because she

“obtained her interest in Interlase . . . solely for the purpose of litigation[,]” and the record

instead reflected that “Interlase’s assets had [already] been liquidated in the bankruptcy

proceedings by the time that Dr. Fox purportedly assigned his interest in Interlase to Sopkin.”

17 Id. Sopkin cannot now reattempt the same stratagem here. See Cohen v. Beneficial Indus. Loan

Corp.,

(1949) (holding that a court shall not “permit itself to be used to litigate

a purchased grievance or become a party to speculation in wrongs done to corporations[,]” and

requiring plaintiff to show, under Fed. R. Civ. P. 23.1, “that an action is not a collusive one to

confer jurisdiction and to set forth the facts showing that the plaintiff has endeavored to obtain

his remedy through the corporation itself.”); see Sopkin, 746 Fed. Appx. at 160–61 n.7 (same)

(collecting cases).

For all of these reasons, the deeds of gift, whether direct or derivative, fail to overcome

Sopkin’s defects in standing to bring suit for Interlase 6.

V. Sanctions-Related Damages & Remand

Once again, all that remains is Sopkin’s sanctions-related claim totaling $62,854.24. See

Compl. ¶¶ 1–4, 14–15, 31–37, 40–44, 54–55, 57–72, 75–80, 83–84. The court once more finds

that, while Sopkin still appears to have standing to bring that claim because the sanctions were

awarded against her individually, see Sopkin,

, at *1, *1 n.1, *3, those

damages are more than $12,000 short of the $75,000 requirement to satisfy the requirements for

diversity jurisdiction, see

(a); see also Sopkin,

, at *9

(finding same).

However, unlike Sopkin IV, this matter did not originate in this court. Lopatto removed

this matter to this court, but then challenged subject matter jurisdiction––an inquiry that cuts

both ways, particularly because Sopkin has also moved to remand. Once challenged, a removal

6 More generally, Sopkin, who is once again proceeding pro se, cannot sue on behalf of Interlase, and Interlase, as an artificial entity, can neither proceed pro se, nor can it apply to proceed IFP. See Sopkin,

, at *8 (citing cases). 18 based on diversity is only proper “‘if the district court finds, by the preponderance of the

evidence, that the amount in controversy exceeds’ the jurisdictional threshold.” Dart Cherokee

Basin Operating Co., LLC v. Owens,

, 88 (2014) (quoting

(c)(2)(B)).

Based on the evidence before it, and for all the reasons stated above, this court finds that

the amount in controversy is not satisfied for federal diversity jurisdiction. “When it appears that

a district court lacks subject matter jurisdiction over a case that has been removed from a state

court, the district court must remand the case.” Rep. of Venezuela v. Philip Morris Inc.,

(D.C. Cir. 2002) (emphasis added) (citing

(c)); see Randolph v. ING

Life Ins. and Annuity Co.,

(D.C. Cir. 2007) (holding that, in a removed

case where the plaintiff lacked standing, the matter had to be remanded, and not dismissed, given

the clear “command” and “plain text of

(c)[.]”)).

This court is “[c]ognizant of the fact that the Superior Court for the District of Columbia

may also conclude that [Sopkin] lack[s] the requisite standing to pursue” the bulk of her “claims

in that forum,” but neither the D.C. Circuit nor the Supreme Court have recognized a “futility

exception” associated with § 1447(c); therefore, this court must “leave such a decision to the

discretion of the Superior Court, and remand this case[,]” See Randolph, 486 F. Supp. 2d at 10–

11; see also Int’l Primate Protection League v. Admins. of Tulane Educ. Fund,

(1991) (highlighting the mandatory nature of § 1447(c) and expressing reluctance to create a

futility exception). This principle is particularly relevant here because, assuming arguendo the

Superior Court agrees with this court’s conclusions, Sopkin may still have standing in Superior

Court for her sanctions-related claim.

CONCLUSION

19 For the reasons set forth above, Sopkin’s Motion to Remand is GRANTED. Lopatto’s

Motion to Dismiss, Sopkin’s Motion to Strike the Motion to Dismiss, and Sopkin’s Motion for

Partial Summary Judgment, shall all be HELD IN ABEYANCE to be decided by the Superior

Court upon remand. A separate Order is issued contemporaneously.

Date: September 19, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

20