Starmark Financial, LLC v. Nanavati

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO. 25-60551-CIV-DIMITROULEAS/HUNT
STARMARK FINANCIAL, LLC,
Plaintiff,
vs.
VASANT NANAVATI,
Defendant.
_______________________________________/
REPORT AND RECOMMENDATION
THIS CAUSE is before this Court on Defendant’s Motion to Dismiss (“Motion”).
ECF No. 32. 	The Honorable William P. Dimitrouleas, United States District Judge,
referred the Motion to the undersigned United States Magistrate Judge for appropriate
rulings. 	ECF No. 36; see also 28 U.S.C. § 636(b); S.D. Fla. L.R., Mag. R. 1. 	Upon
thorough and careful review of the Motion, the Response, ECF No. 34, the Reply, ECF
No. 35, and being otherwise fully advised in the premises, the undersigned respectfully
RECOMMENDS that the Motion be GRANTED for the reasons below.
BACKGROUND
The following facts are based on the allegations set forth in the Complaint. 	ECF
No. 1. Plaintiff Starmark Financial, LLC (“Starmark”) is a Florida limited liability company
based in Deerfield Beach, Florida. Id. at 1. Starmark’s Chief Executive Officer (“CEO”)
is Brett Silver, who lives in Florida. 	Id. 	Non-party Luther Appliance & Furniture Sales
Acquisition LLC (“Luther”) is a retail seller of merchandise. 	Id. at 2. 	Luther’s business
model required loans from a third-party creditor to fulfill sales orders. Id.
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In December 2022, Starmark entered into a contract with Luther for the purchase
of the majority of Luther’s accounts. Id. at 2. At this time, non-party First Avenue Funding
(“First Avenue”) was the creditor that provided funds to Luther in support of its sales
orders. Id. As a result, First Avenue held liens on Luther’s accounts. Id.
In March 2023, Prosperitas Partners LLC (“Prosperitas”) acquired Luther. 	Id. at
3–4. Prosperitas was owned in part by another company, 9th Planet Partners LLC (“9th
Planet”), which was wholly owned by Defendant Vasant Nanavati (“Defendant”), who is
an individual and nonresident of Florida.1 Id. at 4. Through Defendant’s ownership of 9th
Planet, Defendant held a 12.63% membership interest in Prosperitas. 	Id. 	Shortly after
Prosperitas’s acquisition of Luther, Prosperitas appointed one of its members, Brad
Powers, to serve as Luther’s CEO. Id. Powers was the initial manager of the relationship
between Starmark and Luther. Id.
On or about October 20, 2023, Powers delegated management of the Luther-
Starmark relationship to Defendant. 	Id. 	From that point on, Defendant “was directly
involved in all aspects of the Luther-Starmark relationship.” 	Id. 	Starmark continued
purchasing accounts from Luther. Id. Unbeknownst to Starmark at the time, Luther began
running a “double-pledging” scheme. 	Id. 	Essentially, ownership of the accounts was
pledged both to First Avenue and to Starmark. 	Id. 	Defendant knew about this double-
pledging scheme as early as October 2023 and also knew that Luther was experiencing
“financial challenges.” Id. at 7.
1 Starmark alleges that Defendant is a citizen of New York. ECF No. 1 at 1. However,
Defendant asserts in his Motion that he is a resident of Rhode Island. ECF No. 32 at 1.
For the purposes of this analysis, it suffices that Defendant is not a resident of Florida.
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On January 12, 2024, Defendant emailed Starmark, stating that “Starmark would
fund Luther’s receivables moving forward.” 	Id. at 4. 	On January 17, 2024, Defendant
met in person with Powers (CEO of Luther), Silver (CEO of Starmark), and Ken Annarelli
(Chief Financial Officer [“CFO”] of Starmark) to discuss the purchasing and funding of
Luther’s accounts. Id. The meeting took place in Florida.2 Defendant said to Silver and
Annarelli that First Avenue was “no longer in the picture.” Id. at 5.
Following that meeting, Defendant emailed Starmark with instructions for wiring
funds to a Luther bank account. 	Based on Defendant’s representations, Starmark sent
approximately $824,706.97 between January and February 2024 to fund Luther’s
accounts. Shortly after, Defendant stopped communicating with Starmark.
On or about October 9, 2024, Starmark was informed that Powers had died. Id. at
5. Fred Larcombe, the CFO of Luther, held a series of calls with Defendant and Starmark
over the next two weeks. Id. These calls took place on a daily basis. Id. at 4. Larcombe
informed Starmark about Luther’s insolvency, explained that Luther was unable to
operate, and “admitted there was fraud in Luther’s business dealings.” Id. at 6.
On or about October 30, 2024, Luther began winding down their operations.3
Following instructions from Defendant and other members of Prosperitas, Luther “refused
to turn over payments from the accounts owned by Starmark or provide the corresponding
2 	“[A] court must accept the plaintiff’s allegations as true and evaluate all plausible
inferences derived from those facts in favor of the plaintiff.” 	Whitwam v. JetCard Plus,
Inc., 34 F. Supp. 3d 1257, 1259 (S.D. Fla. 2014). The Complaint does not specify where
this in-person meeting took place, but the undersigned infers in Starmark’s favor that it
was Florida. 	This is not disputed by Defendant. 	Indeed, Defendant concedes that
“Defendant’s only Florida contact was one dinner meeting.” ECF No. 32 at 2.
3 Luther underwent a bankruptcy proceeding. See In re Luther Appliance & Furniture
Sales Acquisition LLC, No. 25-10163 (Bankr. S.D. Fla. 2025).
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financial data.” Id. at 6. Defendant “directed this withholding of payments and data.” Id.
Additionally, Defendant “directly benefited financially,” evidenced by “questionable wire
transfers from Luther’s accounts to Prosperitas members.” Id. at 7.
Based on the foregoing, Starmark filed two lawsuits in this Court. The first lawsuit
was filed against Luther for breach of contract and conversion.4 See Starmark Fin., LLC
v. Luther Appliance, No. 24-62357-CIV-DIMITROULEAS/HUNT, 2025 WL 531932 (S.D.
Fla. Jan. 6, 2025). 	Starmark obtained a default judgment against Luther in that case.
See ECF No. 37.
Starmark brought the instant suit against Defendant while the suit against Luther
was still pending. 	See ECF No. 1. 	The Complaint alleges breach of fiduciary duty and
fraud. See id. at 8–12. The basis of these claims is that Defendant breached his fiduciary
duties of care, loyalty, good faith, and full disclosure by misrepresenting Luther’s financial
situation and that Defendant defrauded Starmark through false statements of material
facts about Luther’s finances. 	See id. 	As relief, Starmark seeks damages, equitable
restitution, a constructive trust, and attorney’s fees and costs. Id. at 13. Now before the
undersigned is Defendant’s Amended Motion to Dismiss. ECF No. 32.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“To meet this ‘plausibility standard,’ a plaintiff must ‘plead[] factual content that allows the
4 “A court may take judicial notice of its own records and the records of inferior courts.”
United States v. Rey, 811 F.2d 1453, 1457 (11th Cir. 1987).
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court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” 	Arias v. Integon Nat’l Ins. Co., No. 18-22508-CIV-ALTONAGA/GOODMAN,
2018 WL 4407624, at *2–3 (S.D. Fla. Sep. 17, 2018) (quoting Iqbal, 556 U.S. at 678). In
considering a motion to dismiss, “the complaint must be construed in a light most
favorable to the plaintiff and the factual allegations taken as true.” Brooks v. Blue Cross
& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Unsupported allegations
and conclusions of law, however, will not benefit from this favorable reading. See Iqbal,
556 U.S. at 679.
A. Pro se pleadings
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003) (citation omitted). Still, a pro se litigant must abide by “the relevant law
and rules of court, including the Federal Rules of Civil Procedure.” 	Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989); see also Peterson v. Atlanta Hous. Auth., 998 F.2d
904, 912 (11th Cir. 1993) (“[A] court’s duty to liberally construe a plaintiff’s complaint in
the face of a motion to dismiss is not the equivalent of a duty to re-write it.”).
DISCUSSION
Defendant argues that dismissal of the Complaint is warranted on multiple
grounds. The undersigned addresses each in turn. Construing the Complaint in the light
most favorable to Starmark, see Brooks, 116 F.3d at 1369, the undersigned agrees.
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A. Lack of Personal Jurisdiction
Defendant argues that the Court lacks personal jurisdiction over him because he
is a nonresident of Florida. ECF No. 32 at 1. Federal courts generally consider two steps
to determine if there is specific personal jurisdiction over a nonresident defendant:
First, the court must determine whether the plaintiff has alleged sufficient
facts to subject the defendant to the forum state’s long-arm statute.
Second, if the court determines that the forum state’s long-arm statute has
been satisfied, it must then decide whether the exercise of jurisdiction
comports with the Due Process Clause of the Fourteenth Amendment.
Del Valle v. Trivago GmbH, 56 F.4th 1265, 1272 (11th Cir. 2022) (citations omitted).
Starmark 	relies 	on 	§ 48.193(1)(a)(2) 	of 	the 	Florida 	long-arm 	statute, 	which
“provides that a nonresident defendant is subject to personal jurisdiction in Florida for any
cause of action arising from committing a tortious act within Florida.” 	Louis Vuitton
Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013) (cleaned up). The Florida
Supreme Court “held that a defendant’s physical presence is not necessary to commit a
tortious act in Florida.” Internet Sols. Corp. v. Marshall, 39 So. 3d 1201, 1208 (Fla. 2010).
Defendant asserts that his only alleged act in Florida was “attending a single dinner
meeting with [Starmark] executives” and “[a] single, isolated dinner is insufficient to
establish purposeful availment.” ECF No. 32 at 1. Yet “[a] significant single act or meeting
in the forum state has been held sufficient for personal jurisdiction there.” 	Cable/Home
Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 858 (11th Cir. 1990);
see Ileyac Shipping, Ltd. v. Riera-Gomez, 899 So. 2d 1230, 1232 (Fla. 3d DCA 2005)
(“[T]he commission of the tortious conduct alleged in this action, although only a single
act, constitutes sufficient minimum contacts.”). Significant acts underlying the Complaint
took place at this meeting, so this is a sufficient basis for personal jurisdiction.
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In addition, the Complaint alleges that Defendant communicated regularly with
Starmark by phone and email between October 2023 and February 2024. 	These
communications were substantive business discussions about the Luther-Starmark deal,
and they include the material misrepresentations forming the basis of the suit. 	Though
Defendant 	was 	not 	physically 	present 	in 	Florida, 	these 	communications 	were
“purposefully directed” toward Florida residents running a Florida company. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). These remote communications may also
serve as a basis for jurisdiction. See Arona v. 3RD Home Ltd., No: 8:20-cv-1647-CEH-
JSS, 2021 WL 825047, at *6 (M.D. Fla. Mar. 4, 2021) (finding that Tennessee defendant
was subject to personal jurisdiction in Florida because defendant solicited Florida plaintiff
to invest in Cayman Islands company “through telephonic and email communications”).
As to the due process inquiry, Defendant makes no argument to show that the
exercise of jurisdiction does not comport with "traditional notions of fair play and
substantial justice.” 	Louis Vuitton, 736 F.3d at 1355. 	The undersigned concludes that
this Court has personal jurisdiction over Defendant.
B. Improper Venue
Defendant argues that venue in the Southern District of Florida is improper. ECF
No. 32 at 2. Starmark responds that venue is proper because “a substantial part of the
events or omissions giving rise to the claim occurred” in this District. 	28 U.S.C. §
1391(b)(2). 	Though Starmark cites to the federal venue statute, Starmark’s argument
appears to be based on the legal standard under Fla. Stat. § 47.051, which is not at issue
here. 	Kennedy v. Fla., No. 22-21827-CIV-WILLIAMS, 2022 WL 22826592, at *2 (S.D.
Fla. Dec. 30, 2022) (“[F]ederal law controls the question of proper venue.”).
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Under federal law, the plaintiff bears the burden of showing that venue in the forum
is proper. See Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004).
In considering Defendant’s motion to dismiss,
[t]he court must accept all allegations of the complaint as true, unless
contradicted by the defendants’ affidavits, and when an allegation is so
challenged the court may examine facts outside of the complaint to
determine whether venue is proper. 	The court must draw all reasonable
inferences and resolve all factual conflicts in favor of the plaintiff.
Id. (citations omitted). Additionally, “the Eleventh Circuit has stated that ‘only the events
that directly give rise to a claim are relevant’ and that ‘of the places where the events
have taken place, only those locations hosting a “substantial part” of the events are to be
considered.’” Greiser v. Drinkard, No. 17-60975-CIV-DIMITROULEAS/SNOW, 2017 WL
7788165, at *1 (S.D. Fla. Dec. 8, 2017) (citation omitted).
Under that standard, it becomes apparent that Defendant made “acts or omissions”
in this District. See Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1372 (11th Cir. 2003).
Defendant met here with Starmark representatives for business. ECF No. 1 at 5. At that
meeting, Defendant “expressly represented to Starmark that First Avenue was ‘no longer
in the picture.’” Id. That representation was ultimately what led Starmark to begin wiring
money directly to Luther, so it was an action with “a close nexus to the wrongs claimed
by Plaintiff.” 	Watson v. Cmty. Educ. Ctrs., Inc., No. 2:10-cv-00778-36SPC, 2011 WL
3516150, at *4 (M.D. Fla. 2011). In addition, nothing in the Complaint suggests that any
other District would be a more appropriate venue. 	Compare LLW Enter., LLC v. Ryan,
No. 8:19-CV-1641-T-35AAS, 2020 WL 2630859, at *14 (M.D. Fla. May 4, 2020) (denying
motion 	to 	dismiss 	for 	improper 	venue 	where 	plaintiffs 	alleged 	“that 	[d]efendants
committed torts here; attended a meeting in Florida, engaged in communications through
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email and telephone with . . . a Florida resident; and interfered with contracts containing
Florida venue clauses”) with Watson, 2011 WL 3516150, at *4 (finding that venue was in
New Jersey because in-person contract negotiations occurred twice in New Jersey and
once in Florida and telephone calls and e-mails originated from New Jersey). 	The
undersigned concludes that venue is proper.
C. Insufficient Service of Process
Defendant argues that Starmark did not properly serve him with the Complaint.5
ECF No. 32 at 2. The relevant facts are as follows. On March 25, 2025, a summons was
issued against Defendant at a New York address. 	ECF No. 7. 	On April 8, 2025, an
affidavit from the process server was filed stating that the service was attempted but
unsuccessful. 	ECF No. 9. 	On May 13, 2025, another summons issued against
Defendant. ECF No. 11. This time, substituted service was attempted through Florida’s
Secretary of State. Id.
On June 24, 2025, this Court issued an Order requiring that Starmark file “proof of
service or show cause why this action should not be dismissed for failure to perfect
service of process.” ECF No. 12 at 1. In response, Starmark submitted a Notice of Filing.
ECF No. 13. 	Attached to that Notice of Filing was a letter from Starmark’s counsel to
Defendant dated June 3, 2025. ECF No. 13-1.
On July 3, 2025, Defendant filed his first Motion to Dismiss. ECF No. 14. He did
not raise insufficient service of process as a ground of dismissal in that filing, but he
5 In support of his argument, Defendant cites to “Abraham v. Universal Ins. Co. of N. Am.,
614 So.2d 767, 769 (Fla. 4th DCA 1993).” The undersigned is unable to find this authority.
Indeed, the citation appears to be associated with Beckham v. St. Paul Fire & Marine Ins.
Co., 614 So.2d 760, 767 (La. Ct. App. 1993), which does not include relevant discussion.
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quickly sought leave to amend his motion. ECF No. 17. The Court granted the requested
leave, finding that Starmark would not be prejudiced by that relief. See ECF No. 31 at 2.
Defendant filed the instant Motion on July 28, 2025. ECF No. 32.
“Service of process is a jurisdictional requirement: a court lacks jurisdiction over
the person of a defendant when that defendant has not been served.” Pardazi v. Cullman
Medical Center, 896 F.2d 1313, 1317 (11th Cir. 1990). Federal Rule of Civil Procedure 4
sets forth the means for accomplishing proper service of process, including “that a plaintiff
may use any method of service allowed in the state where the district court is located.”
Orient 	Holding 	v. 	Assicurazioni 	Generali 	SpA, 	No. 	18-80899-CIV-
ROSENBERG/REINHART, 2018 WL 5098855, at *1 (S.D. Fla. Aug. 17, 2018). “Once a
defendant challenges the sufficiency of process, the plaintiff has the burden to establish
proper service of process.” Id. (citation omitted).
Starmark contends that it effectuated service under Fla. Stat. § 48.161 (2023),6
which permits “substituted service of process on a nonresident individual . . . by sending
a copy of the process to the office of the Secretary of State.” Fla. Stat. § 48.161(1). The
statute requires, among other things, notice to the party being served, filing of “proof of
service or return receipts showing delivery to the other party by mail or courier . . . unless
the party is actively refusing or rejecting the delivery of the notice,” and “[a]n affidavit of
compliance of the party effectuating service or such party’s attorney . . . filed within 40
days after the date of service on the Secretary of State or within such additional time as
6 	The version of Fla. Stat. § 48.161 that was “in effect when [the] cause of action
accrue[d]” was the 2023 version. 	Angarita v. Hypertoyz, Inc., No. 23-20695-CIV-
SCOLA/GOODMAN, 2023 WL 5289260, at *2 (S.D. Fla. Aug. 16, 2023). The statute has
since been amended.
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the court allows.” Fla. Stat. § 48.161(2). That affidavit “must set forth the facts that justify
substituted service . . . and that show due diligence was exercised in attempting to locate
and effectuate personal service.” Id. “The technical requirements of substitute service .
. . must be ‘strictly compl[ied] with.’” 	GEICO Marine Ins. Co. v. Seaside Mobile Marine,
LLC, No. 8:21-CV-1972-CEH-TGW, 2024 WL 1580082, at *1 (M.D. Fla. Apr. 11, 2024)
(citation omitted).
Based on the letter attached to the Notice of Filing dated June 24, 2025, it appears
that Starmark complied with the notice requirement. 	See ECF No. 13-1 at 3. 	But
Starmark failed to file any “proof of service or return receipts showing delivery” to
Defendant. 	Fla. Stat. § 48.161(2); see HDI Glob. Ins. Co. v. Amerijet Int’l Inc., No. 22-
22235-CIV-ALTONAGA/TORRES, 2023 WL 3778241, at *4 (S.D. Fla. May 5, 2023)
(concluding that plaintiff was noncompliant with technical requirements of statute where
plaintiff “has not filed a postal return receipt”). A return receipt may not be required if the
defendant “is actively refusing or rejecting the delivery of the notice,” Fla. Stat. §
48.161(2), but Starmark has failed to demonstrate that Defendant “ma[de] it impossible
for the plaintiff to serve him by mail or otherwise.” Baxter v. Miscavige, No. 8:22-CV-986-
TPB-JSS, 2023 WL 1993969, at *9 (M.D. Fla. Feb. 14, 2023) (citation omitted).
Additionally, Defendant failed to file a timely affidavit of compliance. 	The affidavit of
compliance should have been filed by Monday, June 23, 2025. 	Here, Starmark did not
file an affidavit of compliance until August 4, 2025, which was after Defendant challenged
service. See ECF No. 34-1.7
7 	The undersigned does not consider the substantive contents of the affidavit because
“[a]n affidavit attached to a response to a Rule 12(b)(6) motion to dismiss, which was not
attached to, or incorporated by reference in the complaint, does not modify the complaint
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Based on the failure to follow the technical requirements for substituted service,
dismissal for improper service is warranted. The Motion should be granted on this ground.
D. Failure to State a Claim
Defendant argues that Starmark’s claims fail because the Complaint fails to plead
fraud with particularity, fails to allege personal participation, and fails to state a claim of
breach of fiduciary duty. 	ECF No. 32 at 2–3. 	Starmark’s allegations that it trusted
Defendant to facilitate its business relationship between Luther and Starmark plausibly
gave rise to a fiduciary duty relationship, and Defendant’s misrepresentations colorably
amount to a breach of that duty. See E. Coast Assemblers, Inc. v. Nunez, No. 24-80090-
CIV-DIMITROULEAS, 2025 WL 2723396, at *2 (S.D. Fla. Aug. 14, 2025) (stating
elements of breach of fiduciary duty). 	Also, Starmark has “alleged the ‘who,’ ‘what,’
‘when,’ ‘where,’ and ‘how,’ of the fraud,” including Plaintiff’s express statement that First
Avenue is “out of the picture,” so dismissal for failure to state a claim is not appropriate.
Quail Cruises Ship Mgmt., Ltd. v. Agencia de Viagens CVC Tur Limitada, 847 F. Supp.
2d 1333, 1342 (S.D. Fla. 2012). The Motion should not be granted on this ground.
E. Failure to Join Indispensable Parties
Lastly, 	Defendant 	argues 	that 	Luther 	and 	the 	estate 	of 	Brad 	Powers 	are
indispensable parties to this suit. 	To determine whether a party must be joined under
Fed. R. Civ. P. 19, the Court applies a two-step test:
First, under Rule 19(a), the court determines “whether the person in
question is one who should be joined if feasible.” 	Second, for all such
necessary parties, a court determines whether the Rule 19(b) factors permit
and cannot be considered in deciding the motion to dismiss.” Scottsdale Ins. Co. v. Ulgm,
Inc., No. 14-21084-CIV-LENARD/GOODMAN, 2014 WL 11906638, at *3 (S.D. Fla. July
14, 2014).
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the litigation to continue if the party cannot be joined, or instead whether
they are indispensable.
Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1039 (11th Cir. 2014)
(citations omitted). 	A party is required when “(1) the court cannot afford complete relief
among the existing parties; (2) prejudice would result to the absent party’s ability to protect
itself in the instant action; or (3) the nonparty’s absence would create a substantial risk
that the existing parties would incur inconsistent or duplicative obligations.” Anderson v.
AIG Prop. Cas. Co., No. 220CV774FTM38MRM, 2020 WL 6321867, at *1 (M.D. Fla. Oct.
28, 2020) (citation omitted). The moving party bears the burden of establishing that the
absent party is required. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330,
1347 (11th Cir. 2011).
Defendant has not shown that he is unable to pay damages or comply with other
relief requested, so it appears that complete relief is available among the present parties.
See Winn-Dixie, 746 F.3d at 1039 (“The district court could award all of the requested
relief without haling the landlords into court because Big Lots was fully able to pay
damages and comply with injunctions.”). 	Additionally, “[t]he fact that [Defendant] may
later have claims for indemnity or contribution against [the absent party] is of no
consequence.” Compania Chilena De Navegacion Interoceanic, S.A. v. D.H.C. Trucking,
Inc., No. 15-22494-CIV-GAYLES, 2016 WL 1722425, at *11–12 (S.D. Fla. 2016).
Defendant has also not shown that the absent parties would be unable to protect
their interests or be subjected to “inconsistent obligations.” 	It is undisputed that both
Luther and Powers are implicated in the facts of this case, but “[a] party is not necessary
simply because . . . two claims share common facts.” 	Raimbeault v. Accurate Mach. &
Tool, LLC, 302 F.R.D. 675, 682 (S.D. Fla. Oct. 2, 2014). “[W]here two suits arising from
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the same incident involve different causes of action, defendants are not faced with the
potential for double liability because separate suits have different consequences and
different measures of damages.”8 Winn-Dixie, 746 F.3d at 1040. This is not a situation
where a single defendant is “at risk of paying twice for the same liability” because Luther
is not named here and Defendant is not named in the first suit. Innotex Precision Ltd. v.
Horei Image Prods., 679 F. Supp. 2d 1356, 1362 (N.D. Ga. 2009).
At 	any 	rate, 	the 	“ultimate 	test” 	to 	determine 	whether 	a 	defendant 	is 	an
indispensable party is “whether in the absence of the [defendant], the Court can enter a
final judgment consistent with equity and good conscience which would not be in any way
unfair or inequitable to plaintiff.” 	Monroe v. Cont’l Tire the Ams., LLC, 807 F. Supp. 2d
1129, 1132 (M.D. Fla. 2011). 	The undersigned finds that neither equity nor good
conscience require joinder of Luther or the estate of Brad Powers.9
8 	If this action included a breach of contract claim, there would be greater concern of
Luther’s interests being implicated because Luther—not Defendant—is the contracting
party. See HDR Eng’g, Inc. v. R.C.T. Eng’g, Inc., No. 08-81040-CIV-MARRA, 2010 WL
2402908, at *2 (S.D. Fla. June 15, 2010) (“Parties to a contract are indispensable when
a suit concerns the rights and obligations afforded by the contract.” (collecting cases)).
9 Although Starmark argues that the absent parties need not be joined because “it is not
necessary for all joint tortfeasors to be named as defendants in a single lawsuit,” Temple
v. Synthes Corp., Ltd., 498 U.S. 5, 7 (1990), it is not clear that Luther and the estate are,
indeed, joint tortfeasors for breach of fiduciary duty and fraud.
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RECOMMENDATIONS
For the reasons set forth above, the undersigned hereby RECOMMENDS that
Defendant’s Motion to Dismiss, ECF No. 32, be GRANTED for insufficient service of
process. The Complaint, ECF No. 1, should be DISMISSED without prejudice.
Within fourteen (14) days after being served with a copy of this Report and
Recommendation, any party may serve and file written objections to any of the above
findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.
§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely
object waives the right to challenge on appeal the district court’s order based on
unobjected-to 	factual 	and 	legal 	conclusions 	contained 	in 	this 	Report 	and
Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).
DONE AND SUBMITTED at Fort Lauderdale, Florida this 26th day of January
2026.
_____________________________________
PATRICK M. HUNT
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All Counsel of Record
Vasant Nanavati
125 Providence Street
West Warwick, RI 02893
PRO SE
Case 0:25-cv-60551-WPD Document 42 Entered on FLSD Docket 01/26/2026 Page 15 of 15