ORDER
JOHN
D. BATES, UNITED STATES DISTRICT JUDGE.
Currently
before the court are [169] plaintiff Konstantin
Shvartser's motion for summary judgment and [170] and
[174] defendant Evelina Lekser's cross-motions for
summary judgment. For the reasons explained below, the Court
will deny these motions without prejudice until: (1) the
property that is the subject of this lawsuit (the
“property”) is sold pursuant to the Court's
July 5, 2017 partition order, see July 5, 2017 Order
[ECF No. 87], and (2) the claims in a related case- which
involves the same two parties and the property at issue
here-are resolved, see Shvartser v. Lekser, Civil
Action No. 18-473 (JDB) (D.D.C. filed Feb. 28, 2018)
(“Shvartser II”).
In this
case, Shvartser seeks summary judgment on his claims against
Lekser for breach of fiduciary duty (Count I), fraud (Count
II), conversion (Count III), unjust enrichment (Count IV),
and breach of contract (Count VII). See Statement of
P. & A. in Supp. of Pl.'s Mot. for Summ. J.
(“Pl.'s MSJ”) [ECF No. 169-1] at
14-23.[1] As a remedy, he seeks (1) “the
difference between the balance on the original mortgage [on
the property] at the time of [Lekser's allegedly
unlawful] refinance and the balance of the new refinanced
mortgage, ” which he calculates to be $658, 237.27,
id. at 28; and (2) approximately $500, 000 that
Shvarster claims he transferred to Lekser for renovations on
the property that were never completed, see id.
Shvartser also seeks summary judgment on Lekser's
counterclaims for breach of contract (Count 1),
misrepresentation (Count 2), “emotional pain and
suffering, ” which Shvartser correctly notes resembles
a counterclaim for intentional infliction of emotional
distress (Count 3), and tortious interference (Count 4).
See Id. at 24-28.
Defendant,
proceeding pro se, cross-moves for summary judgment both as
to plaintiff's claims, see Statement of P. &
A. in Supp. of Def.'s Mot. for Summ. J.
(“Def.'s MSJ as to Pl.'s Claims”) [ECF
No. 170-1] at 6-10, and as to her own, see
Def.'s Cross-Mot. for Summ. J. as Against Pl. on All
Counterclaims (“Def.'s MSJ as to Def.'s
Countercls.”) [ECF No. 174] at 1. Although
defendant's motions do not state the relief she seeks,
her counterclaim seeks $6 million in damages. See
Def. Pro Se's Verified Answer and Affirmative
Defenses and Countercls. to Verified Am. Compl. [ECF No. 53]
at 21.
Shortly
before the parties' summary judgment motions were filed
in this case, the Court entered a temporary restraining order
(and later a preliminary injunction) in Shvartser
II. See Shvartser v. Lekser, 308 F.Supp.3d 260,
269 (D.D.C. 2018). That injunction prevented two lenders (the
“lender defendants”) with whom Lekser had
refinanced the property in 2015 from foreclosing on the
resulting mortgage. See id. Shvartser's
complaint in Shvartser II asserts a claim to quiet
title to the property, alleging that the mortgage held by the
lender defendants is void because it was procured using a
fraudulent power of attorney. See id. at 265. The
lender defendants responded “primarily that they were
entitled to foreclose on the entire property”- either
because the mortgage was valid or, if it was invalid, through
equitable subrogation-but “also argued in the
alternative that, at a minimum, they were entitled to a lien
against Ms. Lekser's one half interest in the
property.” See Mem. Op., Shvartser v.
Lekser, Civil Action No. 18-473 (JDB) (D.D.C. Sept. 13,
2018) (“Sept. 13, 2018 Mem. Op.”) [ECF No. 82] at
7-8. Although the Court found a likelihood of success on the
merits of Shvartser's quiet title claim, see
Shvartser, 308 F.Supp.3d at 265, and has since declined
to reconsider that determination, see Sept. 13, 2018
Mem. Op. at 9, the Court has not yet adjudicated the
underlying quiet title claim.
The
outcome of that claim is likely to affect the issues in this
case significantly. For example, if the Court were to
determine in Shvartser II that Shvartser's
one-half interest in the property is unencumbered by the 2015
mortgage, then it is unclear why Shvartser would be entitled
to recover the alleged $658, 237 differential between the
value of that mortgage and the property's prior mortgage.
And although Shvarster's claims for approximately $500,
000 in allegedly misappropriated renovation funds depend less
directly on the outcome of the quiet title claim in
Shvartser II, it nonetheless involves the same
facts. Moreover, the two parties in this case are currently
engaged in mediation, see Sept. 12, 2018 Min. Entry,
which further counsels against the resolution of the
parties' summary judgment motions at this time.
The
Court also notes-again-that despite the Court having ordered
a partition and sale over a year ago, Shvartser still has not
yet sold the property in compliance with the Court's
order. Because the damages flowing from any meritorious
claims asserted by Shvartser against Lekser (or vice versa)
would most easily be satisfied using the proceeds of that
sale, it is logical to defer ruling on these claims until
after the property has been sold and the various parties'
interests in that property have been determined in
Shvartser II or through mediation. See,
e.g., July 5, 2017 Order ¶ 8 (directing that
“all net proceeds of the sale [of the property] . . .
shall be deposited with the Clerk of Court pending the
outcome of this litigation”). Then, and only then, can
the Court sufficiently address the various underlying
contract and tort claims asserted in this action.
See United States v. W. Elec. Co., 46 F.3d
1198, 1207 n.7 (D.C. Cir. 1995) (noting that “a trial
court has inherent power to control the sequence in which it
hears matters on its calendar”).
Accordingly,
it is hereby
ORDERED
that [169], [170], and [174] the parties' cross-motions
for summary judgment are DENIED without
prejudice to renewal consistent with this order.
SO
ORDERED.
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Notes:
[1] As plaintiff notes in his motion, the
remaining counts of the complaint-which seek a constructive
trust (Count V), a permanent injunction (Count VI), and
request for accounting (Count IX)-are “more accurately
described as remedies.” See Pl.'s MSJ at
13 n.3. The Court has already entered judgment in
plaintiff's favor on Count VIII and ordered that the
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