OPINION & ORDER Plaintiff Paul Iacovacci moves to dismiss the Amended Counterclaims of Defendants Brevet Holdings, LLC (“BH”), Brevet Capital Management, LLC (“BCM”), Brevet Short Duration Partners, LLC (“BSDP”), Brevet Short Duration Holdings, LLC (“BSDH”), Douglas Monticciolo, and Mark Callahan (collectively “Defendants”)1 pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. First, Iacovacci contends that this Court should abstain from exercising jurisdiction over Defendants’ counterclaims pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Second, if abstention is unwarranted, Iacovacci avers that Defendants’ counterclaims for misappropriation of trade secrets under New York law and the Defend Trade Secrets Act (“DTSA”) fail as a matter of law. For the following reasons, Iacovacci’s motion is denied. BACKGROUND I. The State Action In October 2016, Iacovacci commenced an action in New York Supreme Court (the “State Action”) asserting state law claims arising out of his termination by Brevet. In the State Action, Iacovacci alleges that after he announced his retirement, Brevet engaged in a fraudulent scheme to deprive him of payments under certain agreements and prevent him from obtaining future business opportunities in the financial industry. (Weiss Decl., ECF No. 116, Ex. 1 (“State Action Compl.”), at 3.) He also alleges that Brevet impermissibly accessed his personal home computer, external hard drives, and Yahoo! email account. (State Action Compl., at 4.) Brevet then terminated Iacovacci and took possession of his interests in BSDP and BSDH. (State Action Compl., at 5.) Initially, Iacovacci brought the State Action against BH, BSDP, and BSDH. Later, he amended the State Action complaint to add two additional defendants: Brevet Capital Partners, LLC and Brevet Capital Holdings, LLC. In response, the State Action defendants asserted sixteen counterclaims against Iacovacci, twelve of which remain: (1) breach of contract; (2) breach of covenant not to compete; (3) breach of covenant of confidentiality; (4) breach of fiduciary duty; (5) breach of duty of loyalty; (6) unfair competition; (7) tortious interference with business relations; (8) tortious interference with prospective business relations; (9) misappropriation of trade secrets; (10) conversion; (11) trespass to chattels; and (12) unjust enrichment. (See generally Weiss Decl., Exs. 2, 3.) Not to be outflanked, in October 2019, Iacovacci moved to amend the State Action complaint to add — among others — Monticciolo and Callahan as defendants. The state court granted the motion in part, permitting Iacovacci to bring claims against Monticciolo and Callahan for breach of loyalty and breach of fiduciary duty. (ECF No. 127, Ex. 2.) II. The Federal Action Iacovacci filed this action on September 4, 2018, alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. §1030(a)(2)(C), the Federal Wiretap Act, 18 U.S.C. §2511(1)(a), and the Stored Communications Act, 18 U.S.C. §2701. He also asserts claims for conversion and trespass to chattels under New York common law. Defendants moved to dismiss, arguing that this action is duplicative of the State Action under the Colorado River abstention doctrine. Judge Keenan denied that motion, finding that the two actions are not parallel. Indeed, while the State Action primarily involves Iacovacci’s termination, Iacovacci’s claims in this case are rooted in Defendants’ hacking of his computer, hard drives, and email. See Iacovacci v. Brevet Holdings, LLC, 2019 WL 2085989, at *5 (S.D.N.Y. May 13, 2019) (“[T]he state court may not resolve the main issues in this case, which precludes a holding that the two actions are parallel.”). Defendants moved for reconsideration and reargument, which this Court denied.2 Iacovacci v. Brevet Holdings, LLC, 2019 WL 2992165, at *4 (S.D.N.Y. July 9, 2019). Defendants assert ten counterclaims against Iacovacci: (1) breach of contract; (2) breach of covenant not to compete; (3) breach of covenant of confidentiality; (4) breach of fiduciary duty; (5) breach of duty of loyalty; (6) unfair competition; (7) tortious interference with business relations; (8) tortious interference with prospective business relations; (9) misappropriation of trade secrets; and (10) violation of the DTSA. Of those ten counterclaims, seven are brought exclusively by BCM, two are brought by BCM, Monticciolo, and Callahan, and one is brought by all Brevet-affiliated entities named in the complaint. DISCUSSION I. Legal Standard “A motion to abstain is considered as a motion to dismiss for lack of subject matter jurisdiction pursuant to [Federal] Rule [of Civil Procedure] 12(b)(1).” Wilmington Tr., Nat’l Ass’n v. Estate of McClendon, 287 F. Supp. 3d 353, 360 (S.D.N.Y. 2018) (quotation marks omitted). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the [pleading]…as true[] and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). A court may “refer[] to evidence outside of the pleadings.” Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). On a motion to dismiss under Rule 12(b)(6), a court accepts all facts alleged in a counterclaim as true and construes all reasonable inferences in the counterclaim-plaintiff’s favor. ECA, Local 134 IBEW Joint Pension Tr. of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009). The counterclaim 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) (quotation marks omitted). To survive a motion to dismiss, the court must find the counterclaim rests on factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” (quotation marks omitted)). “A court presented with a motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.” Encarnacion v. RMS Asset Mgmt. LLC, 2018 WL 4572240, at *2 (S.D.N.Y. Sept. 24, 2018) (quotation marks omitted); see also Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990). II. Colorado River Abstention Iacovacci contends that this Court should abstain from exercising jurisdiction over Defendants’ counterclaims under Colorado River because they mirror those asserted in the State Action. As a general principle, “federal courts have a ‘virtually unflagging obligation’ to exercise their jurisdiction.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 100 (2d Cir. 2012) (quoting Colo. River, 424 U.S. at 817). Accordingly, “as between state and federal courts, the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the [f]ederal court having jurisdiction.” Colo. River, 424 U.S. at 817 (quotation marks omitted). Nevertheless, a federal court may in “exceptional circumstances” abstain from exercising jurisdiction “when parallel state-court litigation could result in ‘comprehensive disposition of litigation’ and abstention would conserve judicial resources.” Niagara Mohawk Power Corp., 673 F.3d at 100 (quoting Colo. River, 424 U.S. at 813, 817-18). The doctrine is to be applied “in a pragmatic, flexible manner with a view to the realities of the case at hand.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 21 (1983). Further, the “burden of persuasion rest[s] on the party opposing the exercise of federal jurisdiction.” Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 210 (2d Cir. 1985). In determining whether to abstain under Colorado River, courts weigh the following six factors: (1) whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiff’s federal rights. Niagara Mohawk Power Corp., 673 F.3d at 100-01 (quoting Woodford v. Cmty. Action Agency of Greene Cty., Inc., 239 F.3d 517, 522 (2d Cir. 2001)). “The weight to be given to any one factor may vary greatly from case to case.” Moses H. Cone Mem’l Hosp., 460 U.S. at 16; see also Niagara Mohawk Power Corp., 673 F.3d at 101 (noting that “none of the[] factors alone is necessarily determinative” of the abstention analysis (quotation marks omitted)). When applying the factors, the “balance [must be] heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone Mem’l Hosp., 460 U.S. at 16. “[T]he facial neutrality of a factor is a basis for retaining jurisdiction, not for yielding it.” Woodford, 239 F.3d at 522. A. Whether the Counterclaims are Parallel Before engaging in the six-factor Colorado River analysis, a court must make the threshold determination “that the concurrent proceedings are ‘parallel.’” Dittmer v. Cty. of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998). Proceedings are parallel where “substantially the same parties are contemporaneously litigating substantially the same issue in another forum.” Niagara Mohawk Power Corp., 673 F.3d at 100 (quotation marks omitted). “Complete identity of parties and claims is not required; the parallel litigation requirement is satisfied when the main issue in the case is the subject of already pending litigation.” GBA Contracting Corp. v. Fid. & Deposit Co. of Md., 2001 WL 11060, at *1 (S.D.N.Y. Jan. 4, 2001); see also Shields v. Murdoch, 891 F. Supp. 2d 567, 577 (S.D.N.Y. 2012) (“Perfect symmetry of parties and issues is not required.” (quotation marks omitted)). “Any doubt regarding the parallel nature of a federal and state action should be resolved in favor of the exercise of federal jurisdiction.” Shields, 891 F. Supp. 2d at 577 (quotation marks omitted). Defendants’ counterclaims are parallel to the State Action counterclaims. Indeed, the actions involve “substantially the same parties.” Dittmer, 146 F.3d at 118. Five of the Defendants here are defendants in the State Action: BH, BSDP, BSDH, Monticciolo, and Callahan. While BCM is not a defendant in the State Action, it is wholly owned by BH, which is a State Action defendant. (See Am. Answer with Countercls., ECF No. 79 (“Am. Countercls.”), 14.) And courts within this circuit have concluded that parallelism can exist even where there is some asymmetry among parties to concurrent actions. See Cong. Talcott Corp. v. Roslin, 1996 WL 499337, at *3 (S.D.N.Y. Sept. 4, 1996) (staying action under Colorado River where “the defendants [were] not the same, [but] they [were] closely related”); see also Sitgraves v. Fed. Home Loan Mortg. Corp., 265 F. Supp. 3d 411, 413 (S.D.N.Y. 2017) (“Although [plaintiff] argues the actions are not parallel because Freddie Mac is a party here but not in the State Action, she cannot contest that BANA is substantially the same as Freddie Mac.”); Pabco Constr. Corp. v. Allegheny Millwork PBT, 2013 WL 1499402, at *2 (S.D.N.Y. Apr. 10, 2013) (finding parallelism even though parties in concurrent state and federal cases were not “strictly identical” because “complete identity of parties is not required”). Additionally, the counterclaims in both actions involve “substantially the same issue[s].” Dittmer, 146 F.3d at 118. Of Defendants’ ten live counterclaims, nine are asserted in the State Action, albeit by different parties. The counterclaims in both actions are predicated on Iacovacci’s alleged disloyal conduct as a Brevet employee and misappropriation of Brevet’s trade secrets. Notably, as Iacovacci observes, many of the factual allegations underlying Defendants’ counterclaims are lifted almost word-for-word from the State Action counterclaims. (Compare, e.g., Am. Countercls.
59-65, with Weiss Decl., Ex. 2
