United States District Court, District of Columbia
DEBORAH A. TRUDEL, et al., Plaintiffs,
SUNTRUST BANK, et al., Defendants.
E. BOASBERG United States District Judge
case revolves around a decades-old family saga that, as this
Court observed in a previous Opinion, reads like the plot of
one of John le Carré's Cold War novels. It opens
in 1996 with the airport assassinations of Yevgenyi Scherban,
a Ukrainian politician and businessman, and Nadejda Nikitina,
his wife. Scherban left more than $100 million behind, along
with three sons - Evgenyi, Ruslan, and Yevgen - who have
since engaged in a global hunt for their missing inheritance.
latest chapter concerns but a small sliver of the family
fortune - namely, one savings account held with Defendant
SunTrust Bank at its Boca Raton, Florida, branch. Scherban
opened this account around 1994 and deposited more than a
million dollars into it. In 2003, the account was apparently
closed with no funds remaining, but SunTrust has little
explanation for what happened to its balance. More than
twelve years later, Plaintiffs brought a twelve-count
Complaint, alleging foul play. The Court has since dismissed
all but two of those counts, leaving one claim for accounting
and one for fraudulent concealment. After protracted
discovery, both parties now moves for summary judgment. The
Court will grant SunTrust's Motion, thereby closing the
book on the Bank's role in this unfortunate tale.
Court outlined the Scherban family history in detail in its
previous Opinion. See Trudel v. SunTrust Bank, 223
F.Supp.3d 71, 76-81 (D.D.C. 2016). It therefore limits the
discussion here to the aforementioned savings account (with
terminal digits 5216) and its often puzzling transactions. As
SunTrust ultimately prevails, the Court recounts these facts
in the light most favorable to Plaintiffs, except to note
disputes where relevant.
outset, the parties debate when exactly Scherban opened this
joint savings account. Plaintiffs plead that he did so around
1994, while SunTrust suggests it was opened on March 1, 1995.
Compare Second Amended Complaint (SAC), ¶ 38
with ECF No. 79 (Def. MSJ), Exh. 3 (Affidavit of
John A. Barry), ¶ 5. The ownership of that account is
also somewhat murky, but the Court has assumed (to
Plaintiffs' benefit) that Scherban designated two direct
beneficiaries on the account: Nikitina and Ruslan. See
Trudel, 223 F.Supp.3d at 78.
of Ruslan's ownership status, he alleges that he
“was not involved in managing” the account,
“did not get any copies of any statements from
SunTrust, ” and did not review any such statements.
See ECF No. 31-9 (First Affidavit of Ruslan E.
Scherban), ¶¶ 4-5, 10. He lacked this knowledge
because Scherban's assistant, Alexei Alexeenko, was
tasked with keeping tabs on the family's American
financial interests. Id., ¶¶ 4, 10
(identifying Alexeenko as the “manager” of the
account and speculating that copies of statements from
SunTrust were “withheld by Alexeenko, who . . .
concealed various documentation from [Ruslan] and from the
two other heirs”).
Ruslan left in the dark, the account's balance slowly
dwindled. Before Scherban's and Nikitina's deaths on
November 3, 1996, Plaintiffs pled that the 5216 account
contained over one million dollars. See SAC, ¶
41. On December 17 of that year, SunTrust received a fax
signed “N. Nikitina” requesting that the Bank
transfer via wire $282, 000 from Account 5216 to a Czech
Republic bank account held by a corporation, Gwynfe Holding
Limited. See SAC, ¶¶ 45-46. Among other
suspicious circumstances (e.g., Nikitina was
deceased), the fax misspelled the name of the Czech bank and
did not use SunTrust's wire-transfer form. Id.,
¶¶ 52-53. Yet SunTrust employees approved the
transfer anyway. Id., ¶¶ 48-51. The family
discovered in 2014 or 2015 that Gwynfe was incorporated in
the British Virgin Islands until its dissolution sometime
after 1999. Id., ¶¶ 57-58. In addition to
suing SunTrust here, Plaintiffs named Gwynfe as a Defendant,
and the Clerk of Court recently entered default against it.
See ECF No. 99. That transfer and Gwynfe's
culpability, however, are not before the Court now.
the counts that remain, the current controversy instead
centers on one question: what happened to the remaining $812,
215.93 in the account? The answer is elusive. According to
SunTrust, any records related to the 5216 account are long
gone, as it retained such information for only seven years
after closing the account. Plaintiffs have pieced together
several old bank statements, but those records paint only an
incomplete picture of the account's activity. A June 30,
1997, statement, for example, shows an unexplained $50, 000
debit, leaving a balance (after accrual of interest) of
approximately $771, 000. See ECF No. 46-5 (Pl. Opp.
to MTD), Exh. A. Then, a statement dated March 31, 2001,
shows $3, 773.04 remaining. See ECF No. 71-2 (Pl.
Reply to Mot. to Reopen Discovery), Exh. 5. SunTrust has
little explanation of how roughly $767, 000 went missing over
those nearly four years, other than casually pinning the
blame on Alexeenko. See Def. MSJ at 5. For their
part, Plaintiffs seem to allege that the Bank has squirreled
away the cash. See SAC, ¶¶ 62-65. Finally,
SunTrust reports that the account “was closed” in
January 22, 2003, apparently with no money remaining.
See Def. MSJ at 3; see also id., Exh. 3. It
again offers no explanation of where the $3, 733 balance
went, other than speculating that the funds “were
withdrawn, ” perhaps by Ruslan. See ECF No. 87
(Def. Opp. to Pl. MSJ) at 8-9.
to the intrigue, Plaintiffs have also discovered a June 2002
letter, purportedly from SunTrust, sent to lawyers for
Nikitina's estate. See ECF No. 81-5 (Pl. MSJ),
Exh. B. The letter reports that there has been no
“client-initiated” activity in the account since
March 1, 1995 (i.e., the day SunTrust says that
Scherban opened the account), and that the Bank's
statements were repeatedly returned in the mail. Id.
Defendant has no record of sending this letter, which
contradicts Plaintiffs' own evidence showing withdrawals
from the account between 1997 and 2001.
November 6, 2015, the three sons and Scherban's and
Nikitina's estates filed the present lawsuit against
Defendants SunTrust, Alexeenko, Gwynfe, and Does 1 through 10
(ten unnamed individuals, including Gwynfe employees, who had
facilitated the allegedly fraudulent transfer). See
ECF No. 1. Since then, this suit has undergone several
month after filing, Plaintiffs apparently feared that the
Court lacked personal jurisdiction over Alexeenko, and so
they stipulated to dismissing him without prejudice.
See ECF No. 11 (Notice of Voluntary Dismissal).
Then, following SunTrust's first motion to dismiss, the
Court issued an Opinion instructing Plaintiffs to remove the
estates as parties, as estates cannot bring a direct suit,
and to designate instead the proper personal representative.
See Estate of Scherban v. SunTrust Bank, 2016 WL
777913, at *2 (D.D.C. Feb. 26, 2016). The Second Amended
Complaint, which is operative here, named Deborah Trudel (the
estate representative), Ruslan, Evgenyi, and Yevgen as
Plaintiffs. The Court subsequently dismissed these latter two
sons, as there was no allegation that either shared a legal
interest in the 5216 account. See Trudel, 223
F.Supp.3d at 81-82.
remaining two Plaintiffs (Trudel and Ruslan) brought twelve
counts in tow, each largely related to the Bank's
handling of the account between 1996 and 2003. While Tolstoy
once observed that “the two most powerful warriors are
patience and time, ” neither served Plaintiffs terribly
well here. On December 12, 2016, this Court dismissed the
lion's share of their Complaint, holding that Counts
I-VII and XII were all untimely. Id. at 90. These
claims - including conversion or confiscation, breach of
contract, negligence, breach of fiduciary duty, fraud, unjust
enrichment, money had and received, and constructive trust -
thus all fell by the wayside. Id. The Court also
dismissed counts for declaratory relief (Count IX) and civil
conspiracy (Count XI) for failure to state a claim.
Id. at 90-91, 94-95.
left only two counts standing: one for accounting (Count
VIII) and one for fraudulent concealment (Count X). Both
sides have now moved for summary judgment on the
whittled-down claims but not before fighting myriad battles
over discovery. The Court describes those disputes in more
detail below, but given that history, it is not surprising
that Plaintiffs have alternatively moved under Rule 56(d) to
forestall summary judgment until they can conduct even more
faced with cross-motions for summary judgment, the [C]ourt
must review each motion separately on its own merits
‘to determine whether either of the parties deserves
judgment as a matter of law.'” Family Trust of
Mass., Inc. v. United States, 892 F.Supp.2d 149, 154
(D.D.C. 2012) (quoting Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003)). If the Court determines that
one party is not entitled to summary judgment, it
“changes tack on the cross motion and gives the
unsuccessful movant ‘all of the favorable factual
inferences that it has just given to the movant's
opponent.'” Nucap Indus., Inc. v. Robert Bosch
LLC, No. 15-2207, 2017 WL 1197104, at *6 (N.D. Ill. Mar.
31, 2017) (quoting R.J. Corman Derailment Servs., LLC v.
Int'l Union of Operating Engrs., Local Union 150,
335 F.3d 643, 647-48 (7th Cir. 2003)). It is nonetheless
still possible for a court to deny summary judgment to both
judgment is appropriate “only if one of the moving
parties is entitled to judgment as a matter of law upon
material facts that are not genuinely disputed.”
Airlie Foundation v. IRS, 283 F.Supp.2d 58, 61
(D.D.C. 2003) (citing Rhoads v. McFerran, 517 F.2d
66, 67 (2d Cir. 1975)); see also Fed.R.Civ.P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986); CEI Wash. Bureau, Inc. v. DOJ, 469
F.3d 126, 129 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb v. Powell, 433
F.3d 889, 895 (D.C. Cir. 2006). A dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. See Scott v. Harris, 550 U.S. 372, 380
(2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
considering a motion for summary judgment, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [its] favor.”
Liberty Lobby, 477 U.S. at 255; see also Mastro
v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998)
(en banc). The Court must “eschew making
credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007). To defeat summary judgment, however, an opposition
must consist of more than mere unsupported allegations or
denials and must be supported by affidavits, declarations, or
other competent evidence, setting forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). The non-movant is required to provide
evidence that would permit a reasonable jury to find in its
favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C.
Cir. 1987). If the non-movant's evidence is “merely
colorable” or “not significantly probative,
” summary judgment may be granted. Liberty
Lobby, 477 U.S. at 249-50.
considerably narrowed the field, the Court now examines
whether Plaintiffs' remaining two counts can survive
another round. Applying Florida law, see Trudel, 223
F.Supp.3d at 82, the Court first assesses Plaintiffs'
claim for an accounting before untangling their various
theories of ...