United States v. All Funds on Deposit At

• Court: District Court, District of Columbia
• Decided: January 4, 2018
• Docket: Civil Action No. 2004-0798
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Civil Action No. 04-0798 (PLF) ) ALL ASSETS HELD AT BANK JULIUS, ) Baer & Company, Ltd., Guernsey ) Branch, account number 121128, in the ) Name of Pavlo Lazarenko et al., ) ) Defendants In Rem. ) ____________________________________)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motion [Dkt. No. 1000] of claimants Pavel

Lazarenko and the Lazarenko children for leave to add an undue delay defense. The Court has

carefully considered the motion and its exhibits, the opposition filed by the United States, and

the Lazarenkos’ reply. While captioned as a motion for leave to add a defense, it is in reality a

motion for reconsideration of this Court’s Opinion and Order of January 10, 2017, denying the

original motion to add an undue delay defense. See United States v. All Assets Held at Bank

Julius Baer & Co., Ltd., 229 F. Supp. 3d 62 (D.D.C. 2017). The Court previously has described

the factual and procedural history of this case in numerous prior opinions and will not repeat it

here. 1

1 See, e.g., United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 251 F. Supp. 3d 82, 85-87 (D.D.C. 2017); United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 307 F.R.D. 249, 250-51 (D.D.C. 2014); United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 959 F. Supp. 2d 81, 84-94 (D.D.C. 2013); United States v. All Assets Held at “Motions for reconsideration are not specifically addressed in the Federal Rules

of Civil Procedure. While the most analogous rule is Rule 60, which provides relief from a final

judgment or order, motions to reconsider interlocutory orders are not governed by Rule 60(b),

but rather, such determinations ‘are within the discretion of the trial court,’” Estate of Klieman v.

Palestinian Auth., 82 F. Supp. 3d 237, 241-42 (D.D.C. 2015) (quoting Keystone Tobacco Co. v.

U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)), and relief may be provided “as justice

requires.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir.

2011); Ali v. Carnegie Inst. of Washington, 309 F.R.D. 77, 80 (D.D.C. 2015); see also FED. R.

CIV. P. 54(b) (“. . . any order or other decision, however designated, that adjudicates fewer than

all the claims or the rights and liabilities of fewer than all the parties does not end the action as to

any of the claims or parties and may be revised at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and liabilities.”). “Notwithstanding the

broad discretion of a court to reconsider its own interlocutory decisions, however, and ‘in light of

the need for finality in judicial decision-making,’ district courts should only reconsider

interlocutory orders ‘when the movant demonstrates (1) an intervening change in the law; (2) the

discovery of new evidence not previously available; or (3) a clear error of law in the first order.’”

Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d at 242 (quoting In re Vitamins Antitrust

Litig., No. 99-1097, 2000 WL 34230081, at *1 (D.D.C. July 28, 2000)); see also Ali v. Carnegie

Inst. of Washington, 309 F.R.D. at 80-82.

The Lazarenkos’ motion lacks merit. It characterizes the Court’s prior futility

determination as simply a decision concerning a failure of pleading that can be corrected at any

Bank Julius Baer & Co., Ltd., 772 F. Supp. 2d 205, 207-08 (D.D.C. 2011); United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 571 F. Supp. 2d 1, 3-6 (D.D.C. 2008).

2 time: “[I]t appears that the Court was really stating that the allegation was deficient by not

providing sufficient factual or legal support.” Dkt. No. 1000 at 4. That is incorrect. Here is

what the Court concluded, in full:

Lazarenko’s undue delay affirmative defense fails as legally meritless because there are no facts that Lazarenko could add that would support a claim that the United States has engaged in undue delay in the filing of the complaint or in commencing discovery. The United States filed this in rem action on May 14, 2004, roughly one month before a jury in United States District Court for the Northern District of California found Lazarenko guilty of a variety of criminal offenses. See All Assets I, 571 F. Supp. 2d at 4. The United States then filed its amended complaint on June 30, 2005, see generally Am. Compl., more than a year before Judge Charles Breyer of the United States District Court for the Northern District of California sentenced Lazarenko for his crimes on August 25, 2006. See N.D. Cal. No. 00-cr-00284 [Dkt. 1054]. The United States therefore did not engage in undue delay in “the filing of the Amended Complaint,” as Lazarenko pleads in his proposed amended answer. Proposed First Am. Answer ¶ 163.

Lazarenko’s allegation that [ ] the United States has unduly delayed in “commencing discovery” also lacks merit. Lazarenko provides no supporting explanation for this claim, and the Court is not inclined to comb the record for itself to document how the United States has litigated discovery in this case. Suffice it to say that both parties have made strategic choices about how to litigate this case that delayed the commencement of discovery and lengthened the duration of discovery. Even if Lazarenko had pled more about how the United States delayed in commencing discovery, he has not alleged that the delay prejudiced him in any way. The Court therefore denies as futile Lazarenko’s motion for leave to amend his answer to assert the affirmative defense of undue delay.

United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 229 F. Supp. 3d at 72-73. In

other words, the United States did not delay this case, and, even if it did, Lazarenko failed to

even make any arguments about how he was prejudiced.

This new motion attempts to make the prejudice argument, but the argument

comes too late. Lazarenko had the chance to do so in briefing his original motion for leave to

3 add the undue delay defense and chose not to do so. He therefore has forfeited this argument.

Nor is the documentary evidence that Lazarenko includes in an appendix to the motion as

support for his prejudice argument in fact new. He could have made these arguments and

presented this evidence in the original briefing. Lazarenko has failed to satisfy the discretionary

standards governing motions to reconsider, and justice would not be served by granting his

motion. Accordingly, it is hereby

ORDERED that The Lazarenkos’ Motion for Leave to Add the “Undue Delay”

Affirmative Defense [Dkt. No. 1000] is DENIED.

SO ORDERED.

____________/s/__________________ PAUL L. FRIEDMAN United States District Judge DATE: January 4, 2018