United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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
Claims Against Fox Rothschild
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),  “breach of
judicial orders, ” and “mismanagement of
assets.” Proposed Second Am. Compl. [ECF No. 149-2] at
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,  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.
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