Trudel v. SunTrust Bank, Civil Action No. 15–1966 (JEB)

• Decision Date: 12 December 2016
• Docket Number: Civil Action No. 15–1966 (JEB)
• Citation: 223 F.Supp.3d 71
• Parties: Deborah A. TRUDEL, et al., Plaintiffs, v. SUNTRUST BANK, et al., Defendants.
• Court: U.S. District Court — District of Columbia

223 F.Supp.3d 71

Deborah A. TRUDEL, et al., Plaintiffs,

v.SUNTRUST BANK, et al., Defendants.

Civil Action No. 15–1966 (JEB)

United States District Court, District of Columbia.

Signed December 12, 2016

George Alex Lambert, Law Offices G.A. Lambert and Associates, Washington, DC, for Plaintiffs.

Bradford Scott Bernstein, Miles & Stockbridge, Rockville, MD, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Reading like the plot of one of John le Carré's Cold War novels, the Complaint in this case opens with the assassinations of Yevgenyi Scherban, a Ukrainian politician and businessman, and Nadejda Nikitina, his wife. In 1996, both were gunned down on the tarmac of an airport in Donetsk, Ukraine, by contract killers dressed as police officers and a flight technician. Although those gunmen were prosecuted, Scherban's three sons were left to hunt globally for their father's overseas cash reserves. Some assets had been stashed in the United States with Defendant SunTrust Bank, but to the sons' chagrin, those accounts are now closed, emptied, or still unidentified. The children and the estates' personal representative hope that this lawsuit against SunTrust and others, brought almost two decades later, will help them reclaim some of those long-lost fortunes.

SunTrust now moves to dismiss the counts against it, positing that too much time has passed for such a suit and that the claims as pled are implausible. As the Second Amended Complaint is, in large part, a historical tale, the Court will grant the lion's share of Defendant's Motion.

I. Background

In narrating this decades-old Scherban family saga, the Court primarily draws from the facts in the Second Amended Complaint (which the Court will, for brevity, refer to as the Complaint) and supplements with other submissions that Plaintiffs provide. See ECF No. 43. The events recounted there can at times seem fantastical.

The Court, however, suspends any disbelief, reminding itself of Mark Twain's adage: "Fiction is obliged to stick to possibilities; Truth isn't."

A. Scherban Family History

Scherban, the family patriarch, was born in Ukraine following the end of the Second World War. Id. , ¶ 16. In apparent filial symmetry, he had three wives and also three sons. From his first marriage, he gained his eldest son, Evgenyi Scherban (Evgenyi). Id. , ¶ 2. One marriage later, a second son was born, Ruslan Scherban (Ruslan). Id. , ¶ 3. Finally, Scherban's third marriage, to Nikitina, completed the trifecta when it produced Yevgen Scherban (Yevgen). Id. , ¶ 4. Those three half-brothers—Evgenyi, Ruslan, and Yevgen—were the original Plaintiffs in this action.

Scherban amassed more than potential heirs. In the early 1990s, he made his bed in Ukraine's emerging free-market economy. Id. , ¶¶ 15–16. Harnessing his capitalist instinct, he started up several notable business enterprises and eventually came to control a network of gas stations throughout the newly independent country. Id. , ¶ 16. As the Complaint tells it, "[T]he assets under Scherban's control surpassed $100 million," making him one of the richest businessmen in the former Soviet republic. Id. , ¶ 18.

Scherban gained fame not only for his financial success but also for his political rise. When Ukraine hosted its first legislative elections as an independent country in March 1994, voters elected him to be a legislator to the Rada, Ukraine's national parliament. Id. , ¶ 17. These feats did not go unnoticed. As a prominent public figure and businessman, he often found himself the target of criminal enterprises who eyed his businesses and his wealth. Id. , ¶ 19. Eventually, in 1996, a criminal gang was contracted to assassinate Scherban as a way to eliminate competition in Ukraine's natural-gas industry. Id. , ¶¶ 24, 26. It was promised roughly three million dollars to carry out the plot. Id. , ¶ 24.

The murderous scheme came to fruition on November 3, 1996. Id. , ¶ 20. That day, Scherban, Nikitina, and Ruslan (the second son) flew in by private plane to an airport in Donetsk, Ukraine. Id. , ¶ 22. Three men met them on the tarmac—two posing as police officers with firearms and a third dressed as a flight technician. Id. Once the Scherban family disembarked, the conspirators sprayed them with bullets, killing Scherban and Nikitina, as well as two others in their entourage. Id. , ¶¶ 22–23. Ruslan, then only nineteen years old, survived the incident. Id. , ¶¶ 3, 22–23.

B. Matters of Inheritance

For a family of serious political and business stature, Scherban and Nikitina surprisingly left no written will or otherwise catalogued their assets. Id. , ¶ 27. Their estates, surely complex, were instead broken up in accordance with Ukrainian intestacy laws. Id. , ¶¶ 27–30.

To exacerbate inheritance matters, Scherban also deposited significant sums of money in the United States, fearing that Ukrainian banks were unreliable. Id. , ¶ 32. More specifically, he opened at least three accounts with Defendant SunTrust Bank at its Boca Raton, Florida, branch and others with Merrill Lynch, which is a defendant in a separate lawsuit brought on behalf of his estate. Id. , ¶¶ 35–76; Opp. at 10; see Estate of Yevgenyi A. Scherban v. Merrill Lynch , No. 14–6312 (S.D.N.Y.).

For the most part, Scherban managed these American accounts with the help of his assistant, Alexei Alexeenko. One account was set up under the names of Nikitina and Alexeenko jointly. See SAC, ¶ 35. Although the latter was named on the account, he, in reality, acted only to facilitate Scherban's financial transactions in the United States. Id. , ¶ 36. A second account was set up, likely in the names of Scherban and Alexeenko, and held unknown sums of money. Id. , ¶¶ 66–67.

The third SunTrust account is the primary focus here. Scherban opened up this savings account (with terminal digits 5216) around 1994, id. , ¶ 38, but it is somewhat unclear who owned Account 5216, both before and after the assassinations. According to Plaintiffs, "Scherban set up, among other accounts, [this] savings account at SunTrust, designating two direct beneficiaries and the names on the account, namely Nikitina and Ruslan."Id. This could mean either that Scherban held the account (which would pass to the beneficiaries, Nikitina and Ruslan, if he died) or that Nikitina and Ruslan held it. See ECF No. 46–5, Exh. A (June 1997 Statement for Account 5216) (listing Nikitina and Ruslan as addressees); see also SAC, ¶ 3. To whom the funds would pass should Nikitina die is also unclear—either half to Nikitina's estate and half to Ruslan or entirely to Ruslan—as the individuals' ownership rights in the accounts are not specified.

These details matter not in the end, and so the Court will not fuss over them now. It will assume, to Plaintiffs' benefit, that both estates and Ruslan held some legal share of the third account. Prior to Scherban and Nikitina's deaths, that account contained over one million dollars. See SAC, ¶ 41. Regardless of Ruslan's ownership status, he alleges that he "was unaware of the existence of Account x5216" and "has no recollection that anyone told him about that account" when it was opened. Id. , ¶¶ 38–39. He lacked this knowledge because—in a fateful pattern for all of Scherban's holdings—Alexeenko was tasked with keeping tabs on the family's American financial interests. Id. , ¶¶ 37, 68–69, 82–86; see ECF No. 46–13 (Affidavit of Mikhail Serdiouk), ¶¶ 5–9 (alleging Alexeenko lived at address where Account 5216's statements were sent).

C. Emptying the Coffers

This shaky financial arrangement was stress-tested when Scherban and Nikitina died in November 1996—a test it flunked.

On December 17, 1996, 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, Defendant 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, 55–56. 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. (It has not yet been served in this suit.)

The remainder of the account—which amounted to $771,129.03 as of June 1997—was kept intact. Id. , ¶¶ 62–65. That account was closed following inactivity on January 22, 2003, however, and SunTrust allegedly then held onto the extant sums. Id. , ¶¶ 62–65, 97 (stating that SunTrust never transferred the money to State of Florida after five years, as required by statute). In other words, in one way or another, all of Account 5216's funds are gone.

Separately, within two days of the murders, Alexeenko and an associate of his opened a SunTrust checking account in the name of a company that they jointly owned. Id. , ¶¶ 70–71. Without the family's authorization, Alexeenko then transferred into that SunTrust account over two million dollars from one of Scherban's other corporate accounts. Id. , ¶¶ 72–73.

D. Later Discoveries

While the Complaint now recounts these misdeeds, Plaintiffs were not aware of them for some time. After Scherban and Nikitina's assassinations, the sons feared that they would also be targeted—indeed, on one occasion, an assailant shot at Evgenyi as he was traveling in a car, resulting in another passenger's death. Id. , ¶ 80.

Scherban's former associates also undermined the family. Alexeenko stole from Scherban's businesses and, between 1996 and 1997, withheld from the sons letters sent by an American attorney. Id. , ¶¶ 72–73, 81. These missives would have allowed two of them to seek refuge in the United States and investigate their father's financial matters. Id. , ¶ 81. Because they could not emigrate, Evgenyi and Ruslan lived an itinerant life for many years in other parts of Europe. Id. , ¶¶ 39, 44, 81.

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