MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff Elizabeth S. Berardi brings this diversity action against Defendant Eugene J. Berardi, Jr. (Dkt. No. 1). The Complaint alleges that Defendant expressed an intent to breach the Shareholder Agreements pertaining to his shares in “three New York corporations,” in which Defendant is the majority (51 percent) shareholder and Plaintiff is the minority (49 percent) shareholder. (Id.). The Complaint alleges four causes of action: (1) “Declaratory Judgment” under 28 U.S.C. §2201, seeking a declaration “that the Shareholder Agreements, including the rights of first refusal” are valid, binding, and applicable to the parties; (2) “Injunctive Relief” “prohibiting Defendant from transferring the Shares”; (3) “Damages for Breach of Contract” “[i]f and to the extent Defendant has already transferred shares”; and (4) “Anticipatory Breach.” (Id. at 6-9). Presently before the Court is Defendant’s motion to dismiss the Plaintiff’s declaratory judgment claim for lack of ripeness under Federal Rule of Civil Procedure 12(b)(1) and to dismiss the remaining claims for failure to state a claim under Rule 12(b)(6). (Dkt. No. 13). The parties have filed responsive papers. (Dkt. Nos. 16, 20). For the reasons that follow, Defendant’s motions are granted. II. FACTS1 A. Postnuptial Agreement and Divorce Plaintiff and Defendant were married for approximately thirty years. (Dkt. No. 1, 6). In 2000, Plaintiff and Defendant entered into a post-nuptial agreement regarding “the ownership of certain assets, and the distribution of those assets in dissolution of the marriage by divorce or death.” (Id.; Dkt. No. 20-1, at 37-50 (Postnuptial Agreement)). The agreement stated that, in the event of dissolution of the marriage, “Plaintiff would own 49 percent of the equity of certain businesses owned and operated by Defendant,…whereas Defendant would [] own 51 percent.” (Dkt. No. 1, 6). In 2005, Plaintiff commenced a divorce proceeding against Defendant in New York Supreme Court. (Id. 7). At that time, Defendant substantially owned six companies and their affiliated interests and entities: Adirondack Transit Lines, Inc. (“ATL”), Pine Hill-Kingston Bus Corp. (“Pine Hill”), Passenger Bus Corp. (“PBC”), Coach Service America (“Coach”), Hurley Properties, LLC (“Hurley”), and Winslow Properties, LLC (“Winslow”) (collectively “the Companies”). (Id. 8; Dkt. No. 17-1). “The Companies, and particularly ATL, Pine Hill and PBC (the ‘Operating Companies’), provide public transportation services throughout New York State and certain surrounding areas, under various trade names, including Trailways.” (Dkt. No. 1, 8). In March 2009, following a trial, the court in the divorce proceeding issued a decision on, among other things, the issue of equitable distribution. (Dkt. No. 18-4, at 2). The court “[a]dher[ed] to the [post-nuptial agreement]” and “ allocated to Plaintiff shares in the Companies equal to a 49 percent interest of Defendant’s holdings in each of them.” (Dkt. No. 1, 9; Dkt. No. 18-4). The allocation of equity in the Companies was “by far the largest portion of the equitable distribution” of the marital assets. (Dkt. No. 1, 10). However, “[o]ther than a single instance where [Coach] sold real property, Plaintiff has not received any benefits as a result of her ownership of the [s]tock.”2 (Id. 11). B. The Shareholder Agreements The shareholder agreements for each of the Operating Companies set forth the “rights associated with shares of the Companies” and “include certain purchase rights that have at all relevant times governed the transfer of any shares in the Operating Companies” (collectively “the Shareholder Agreements”). (Id. 12). These rights “include rights of first refusal” and “govern all future transfers.” (Id.). Specifically, according to the complaint, each of the Shareholder Agreements “provides that…no shares of the Operating Companies may be sold, disposed of, bequeathed or otherwise transferred without (a) the Companies themselves…having a right of first refusal to purchase those shares, and (b) if the Companies decline to exercise that right, then the other shareholders shall have a right of first refusal, in either such case subject to a purchase price set forth in the Shareholder Agreements.” (Id. 13). These “[r]ights of [f]irst [r]efusal” “apply to any and all forms of transfer, and expressly prohibit any other transfers, including by inter-vivos trust or testamentary bequest.” (Id.). Plaintiff has submitted the Shareholder Agreements for ATL, Pine Hill, and PBC. The ATL “Shareholders’ Agreement” contains a “Restrictions on Sale or Transfer” provision stating that: “No Shareholder shall sell, transfer, assign, encumber, give, pledge or otherwise dispose of any or all of his shares in the Corporation including an inter-vivos trust or testamentary bequest except upon the terms and conditions and in the manner hereinafter described.” (Dkt. No. 17-1, at 2). However, Clause 1(b) exempts “any gift or testamentary bequest that any stockholder might hereinafter wish to make to any spouse, child or grandchild of said stockholder or niece or nephew,” but notes that “any subsequent disposition of said shares by the recipients of shares…shall be subject to the [aforementioned] provisions…and the other applicable provisions of this Agreement.” (Id. at 3). The ATL Shareholders’ Agreement’s “Disposition of Shares” provisions state: If a Shareholder (“Selling Shareholder”) wishes to dispose of any or all of their shares in the Corporation in any manner, otherwise than as specifically permitted by the provisions of Clause 1(b) hereof, he shall give written notice (“Shareholder’s Notice”) to the Corporation and to the other Shareholders of his desire to do so, specifying the number of shares of which he wishes to dispose. The Corporation shall then have a first option, exercisable by written notice to the Shareholders, to purchase any or all of such shares, at the price specified in the Schedule annexed hereto. If…the Corporation shall not have exercised its first option with respect to all or any of the shares covered by the Shareholders [sic] Notice, then the Shareholders other than the Selling Shareholder shall have a second option…to purchase any or all of the shares which the Corporation does not wish to purchase. (Id. at 3-4). The Pine-Hill “Shareholders’ Agreement” appears to be identical in all relevant respects to the ATL Shareholder’s Agreement. (See id. at 24-25 (Pine-Hill Shareholder’s Agreement “Restrictions on Sale and Transfer,” including “Clause 1(b),” and “Disposition of Shares” provisions and language)). The PBC “Stockholders’ Agreement” does not contain the ATL or Pine Hill Shareholders Agreements’ “Clause 1(b)” language regarding “any gift or testamentary bequest” to a “child,” but it similarly states that “No Shareholder shall sell, transfer, assign, encumber, give, pledge or otherwise dispose of any or all his shares in the Corporation except to each other and any testamentary bequest of these shares shall be accordance with the following provisions.” (Id. at 16). The PBC Stockholders’ Agreement’s “Disposition of Shares” provisions are identical to those in the ATL and Pine Hill Shareholders Agreements, set forth above. (Id. at 17 (PBC Stockholders’ Agreement’s “Disposition of Shares” provision)).3 C. Defendant’s Statements Regarding Right of First Refusal Provisions “Defendant has…stated, directly and through others, including his accountant,…that Plaintiff will never receive any financial benefits from her ownership interests in the Companies.” (Dkt. No. 1, 14). Defendant has also proposed to buy Plaintiff’s shares in the Companies, “at a price drastically lower than its value, thus using the threat of bypassing or violating the Rights of First Refusal as attempted leverage in obtaining a low-cost buyout of Plaintiff’s interests.” (Id.). In 2019, “Plaintiff, through counsel, attempted to enter into a dialog with Defendant” regarding “certain estate plans.” (Id. 15). In September 2019, “[a]fter Plaintiff repeated efforts at such dialog,” “Defendant advised Plaintiff, through counsel, that she could never invoke or benefit from the rights of first refusal,” because the Divorce Proceeding Decision rendered the Shareholder Agreements’ right of first refusal provisions “void,” and that the right of refusal provisions therefore “no longer exist, and do not apply to the shares owned by the parties.” (Id.). In August 2020, “Defendant restated that position[] through counsel.” (Id.). “Defendant has now stated his intention to transfer the shares in violation of the shareholder agreements, and may have already done so.” (Id. 1). Further, “Defendant has made positive and unequivocal statements that he refuses, and will refuse, to honor [the Shareholder Agreements], and specifically that he intends to transfer his shares without adhering to the rights of first refusal set forth therein.” (Id. 34). D. Prior Litigation In or about 2012, Plaintiff filed an action against Defendant in Supreme Court, New York County alleging, inter alia, breach of fiduciary duty, accounting, and seeking a permanent injunction based on Defendant’s alleged attempt to prevent Plaintiff “from having any meaningful participation in the companies’ operation.” Berardi v. Berardi, 108 A.D.3d 406, 406 (N.Y. App. Div. 2013). According to the Complaint, in that case, Defendant took a position contrary to his present position, and argued “that the Shareholder Agreements are valid and binding.” (Dkt. No. 1, 17). Plaintiff further alleges that the New York Supreme Court and the Appellate Division, First Department “held that the Shareholder Agreements are valid and binding on the parties, including the buyout rights and the purchase price set forth therein.” (Id.). III. DISCUSSION A. Motion to Dismiss Declaratory Judgment Claim — Rule 12(b)(1) 1. Standard of Review “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) 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) (citation omitted). The Court may also “refer to evidence outside the pleadings” and “take judicial notice of documents in the public record.” Krajisnik Soccer Club, Inc. v. Krajisnik Football Club, Inc., No. 20-cv-1140, 2021 WL 2142924, at *2, 2021 U.S. Dist. LEXIS 99456, at *5 (N.D.N.Y. May 26, 2021) (citations omitted). “The party invoking federal jurisdiction bears the burden of establishing [jurisdiction].” Whalen v. Michael Stores Inc., 153 F. Supp. 3d 577, 580 (E.D.N.Y. 2015), aff’d, 689 F. App’x 89 (2d Cir. 2017) (quoting Lujan, 504 U.S. at 561). 2. Declarations4 Plaintiff and Defendant each submitted a declaration as did their attorneys in connection with Defendant’s motion to dismiss Plaintiff’s declaratory judgment claim on the ground that it is not ripe for adjudication. a. Plaintiff In her declaration, Plaintiff states that the “Operating Companies are the central entities owning the bus business that has been the family business for many decades.” (Dkt. No. 17, 2). Plaintiff states that she has provided “the three shareholder agreements…that are at issue in this case,” namely ATL, Pine Hill, and PBC. (Id.). During their marriage, Plaintiff and Defendant “had three sons, one of whom passed away in 2014.” (Id. 3). One of their remaining children, Alexander Berardi (“Alex”) remained “in the business” following the divorce. (Id.). Their other remaining child, Eugene Berardi, III, “became alienated from his father, and has remained supportive” of Plaintiff following the divorce. (Id.). Plaintiff “very much” wants to see both her sons “benefit from the business” she helped Defendant build. (Id.). Plaintiff’s “decision, in the divorce, [to] accept the 49 percent shareholder interest…in the Companies was based in large part on [her] desire to ensure that” both children would be “able to eventually obtain such benefit.” (Id.). The Companies are worth “tens of millions of dollars,” but the “contractual purchase price pursuant to which the Rights of First Refusal may be exercised [is] a fraction of that, approximately $2.4 million.”5 (Id.
4, 7). Plaintiff avers that she is “and will remain at all times, ready, willing and able to make any such purchase” of Defendant’s stock, “for cash.” (Id. 7). Plaintiff does “not communicate directly with” Defendant, but, “repeatedly over the last year, through others, including his attorney and accountant,” Defendant “has made clear…that he intends that [Plaintiff] will never receive any benefit from my ownership interest retained in the divorce.” (Id. 4). Specifically, Defendant has stated, “through others,” “that he intends to transfer all of his shares in the Companies to [their son,] Alex, and that he regards the Rights of First Refusal in the Shareholder Agreements of the Operating Companies as ‘invalid and unenforceable.’” (Id.). Plaintiff is concerned that given Defendant’s “stated view that he is not bound by the Shareholder Agreements,” Defendant may also be of the view that “he could transfer some or all of his shares to literally anyone, at any time, without even so much as telling [Plaintiff].” (Id.). Plaintiff is also concerned that if Defendant transfers his shares to Alex or to another individual, she “would be left with no choice but to pursue [Defendant] (and perhaps also the transferee, likely [Plaintiff's] own son) for damages equal to the value of [her] interests in the Companies.” (Id.). Plaintiff asserts that she believes it is “extremely unlikely” that Defendant would have money to pay the “value” of Plaintiff’s interests in the Companies, which are worth “tens of millions of dollars,” and therefore asserts that she “would be permanently and irreparably harmed by any such transfer.” (Id.). b. Defendant In Defendant’s declaration, he disputes Plaintiff’s assertion that he has repeatedly communicated his intent that Plaintiff will never receive any benefit from her ownership interest in the Operating Companies as “both factually incorrect and intentionally taken out of context.” (Dkt. No. 20-1, 4). Defendant explains that Plaintiff’s “inability to receive [] benefits from her shares is a reality of the limitation on minority shareholder rights in the Companies,” and that he has “no ‘intent’ whatsoever with respect to Plaintiff’s shares.” (Id. 9). Further, Defendant claims that “it was Plaintiff who reached the conclusion [that] she would not receive an economic benefit from her shares, based on the inherent limitations on minority shareholders rights in the Companies.” (Id. 7 (emphasis omitted)). “To the extent [Defendant] or anyone on [his] behalf has ever stated [this] to Plaintiff’s counsel,” it was only to “remind[] Plaintiff of the realities” of her minority ownership. (Id.). Regarding the Shareholder Agreements, Defendant “agree[s] that [he] may only sell or transfer [his] shares during [his] lifetime in compliance with the Shareholder Agreements and [he] ha[s] never had any intention of doing anything to the contrary.” (Id. 10). However, Defendant “believe[s] that as a result of the divorce proceedings” both he and Plaintiff “are precluded from enforcing the transfer restrictions to prevent the other’s testamentary bequest of the shares to [their] respective heirs.” (Id. 11). Defendant points to the postnuptial agreement’s “Binding on Estates” provision, which provides that the agreement “shall inure to the benefit of and shall be binding and obligatory upon the heirs, personal representatives, administrators, executors and assignees of the parties herein,” (Id. 11; Dkt. No. 20-1, at 46), and asserts that he “believe[s] that as a result, as between Plaintiff and [himself], [they] are permitted to leave our shares to our respective heirs.” (Dkt. No. 20-1, 11). Accordingly, Defendant “presently intend[s] to leave [his] shares to [his] son [Alex] by testamentary bequest, if such a bequest is determined to be valid at the time of [his] death.” (Id. 12). Defendant avers that Plaintiff’s belief that “she will have the right to purchase my shares upon my death,” “is entirely speculative” as he is “65 years old and in good health” and “may very well outlive Plaintiff, in which case, under Plaintiff’s line of reasoning, [he] would have the right to purchase [Plaintiff's] shares.” (Id. 14). Defendant also observes that the “Companies could also be sold, which case [he and Plaintiff] would each receive [their] respective shares of any distributions of sale proceeds.” (Id.). c. Attorney J. Mark Lane Plaintiff has also submitted a declaration by J. Mark Lane, who is co-counsel for Plaintiff in this action. (Dkt. No. 18). In his declaration, Lane recounts “several conversations” he had with Justin A. Heller, counsel for Defendant in this action. (Id.
