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Shvartser v. Lekser

United States District Court, District of Columbia

February 26, 2018

KONSTANTIN SHVARTSER, Plaintiff,
v.
EVELINA LEKSER, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES UNITED STATES DISTRICT JUDGE.

         Currently before the Court are two motions filed by the defendant, Evelina Lekser, who is once again proceeding pro se. In her first motion, Lekser seeks leave to assert new claims against plaintiff's counsel and against two entities, Snowpoint Capital LLC (“Snowpoint”) and SP Funding 452 LLC (“SP Funding”), both of which loaned Lekser money in 2015 to refinance the mortgage on the property that is the subject of this lawsuit. See Mot. for Leave to Amend the Verified Am. Compl. [ECF No. 149] (“Mot. for Leave to Amend”). In her second motion, Lekser asks the Court to enjoin SP Funding from foreclosing on the property. See Emergency Mot. Asking Court to Stay Foreclosure Sale of Property [ECF No. 163] (“Emergency Stay Mot.”); Notice of Intent to Foreclose [ECF No. 163-2] at 2.

         These motions represent neither the first time that Lekser has accused plaintiff's counsel of misconduct, see Def.'s Mot. to Disqualify Counsel [ECF No. 23]; February 2, 2015 Order [ECF No. 30] (denying the motion), nor the first time that she has attempted to impede the sale of the property, see Opp'n to Pl.'s Mot. for Summ. J. [ECF No. 57] (opposing plaintiff's motion for partial summary judgment on his claim for partition by sale); Def.'s Mot. for Reconsideration [ECF No. 102] (seeking reconsideration of the Court's order granting the request for partition). For the reasons that follow, both these motions will be denied.

         I. Background

         Because the Court's prior opinions describe the factual background of this lawsuit in some detail, see, e.g., July 5, 2017 Mem. Op. [ECF No. 88] at 1-4, the Court will only briefly summarize that background here. In 2008, Lekser and her father, plaintiff Konstantin Shvartser, jointly purchased a property located in Washington, D.C. Lekser and Shvartser both allege that at some point thereafter, each party began a campaign of fraudulent conduct to deprive the other of his or her interest in the property. Shvartser claims that in 2015, Lekser executed a fraudulent power of attorney, used that document to refinance the mortgage on the property, and pocketed a portion of the loan proceeds. See Am. Compl. [ECF No. 44] ¶ 28. Lekser claims that Shvartser engaged in a “pattern of prolonged abuse and harassment” to force her to relinquish her claim to the property, Answer [ECF No. 53] ¶ 129, which included hiring a third party to harass her, see id. ¶ 131, and failing to make agreed-upon renovations, see id. ¶ 133. Lekser does not deny, however, that she borrowed $800, 000 from SP Funding or that the loan was secured by a mortgage on the property.

         Shvartser filed this action against Lekser in 2016, and he later moved for partial summary judgment on his claim for partition of the property by sale. See Pl.'s Mot. for Partial Summ. J. [ECF No. 47]. In July 2017, the Court granted the motion and directed “Shvartser or his agent” to oversee the sale of the property and to “conduct any necessary repairs and renovations in preparation for sale.” See July 5, 2017 Order [ECF No. 87] (“Partition Order”). Since the date of the Court's order, however, the property has not been sold. See Lekser Decl. [ECF No. 149-1] ¶¶ 10-12. Instead, SP Funding has initiated foreclosure proceedings due to Lekser's failure to make payments on the $800, 000 loan. See Notice of Intent to Foreclose at 1. The foreclosure sale is scheduled to take place on Thursday, March 1, 2018. See id.

         In the motions currently before the Court, Lekser seeks leave to assert claims against Shvartser's counsel, Fox Rothschild LLP, for its alleged failure to comply with the Court's Partition Order, see Mot. for Leave to Amend at 8-18, and against SP Funding for alleged statutory violations stemming from the issuance of the 2015 loan, see id. at 19. She also seeks a stay of the foreclosure sale. See Reply in Supp. of Def.'s Mot. for Leave to Amend [ECF No. 153] (“Def.'s Reply”) at 4-5; Emergency Stay Mot. at 5-9. Both motions will be denied.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 15(a), leave to file an amended a pleading “shall be freely given when justice so requires.” However, the Court may deny such leave “when [it] finds ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment.'” Ellis v. Georgetown U. Hosp., 631 F.Supp.2d 71, 79 (D.D.C. 2009) (citations, alterations, and internal quotation marks omitted) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         III. Discussion

         A. Claims Against Fox Rothschild

         The bulk of Lekser's motion seeks leave to assert various claims against Shvartser's counsel, Fox Rothschild, for its alleged failure to renovate and sell the property pursuant to the July 2017 Partition Order. She asserts claims for misrepresentation, breach of fiduciary duty, injurious falsehood (a tort similar to defamation), [1] “breach of judicial orders, ” and “mismanagement of assets.” Proposed Second Am. Compl. [ECF No. 149-2] at 8-10.

         Drawing on an analogy to corporate law, Lekser seeks to assert these claims against Fox Rothschild derivatively-that is, on behalf of both parties and the property itself-and as a result, her motion seeks leave to amend Shvartser's amended complaint. See Mot. for Leave to Amend at 8-10. She likens herself and Shvartser to shareholders in a corporation and, just as shareholders may sometimes assert derivative fiduciary claims against the corporation's officers on the corporation's behalf, seeks to assert claims against Fox Rothschild for breaching the Partition Order on the property's behalf. Lesker cites no authority for this novel legal theory, however. Unlike a parcel of real estate, a corporation is a legal person, [2] and the Court is unaware of any authority holding that a physical property may assert claims at all, much less that one of the property's several joint owners may assert claims on the property's behalf. Thus, Lekser's derivative claims against Fox Rothschild would not survive a motion to dismiss, and the filing of any amended or supplemental pleading to assert them would be futile.

         Nevertheless, because documents filed pro se are to be liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court will treat Lekser's motion for leave to amend as what it is: a motion to assert claims on her own behalf against Fox Rothschild for its alleged failure to comply with the Partition Order. See Fed.R.Civ.P. 13(e) (“The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or ...


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