previously finding myself precluded from reconsidering validity of the 1999 Assignment
How later courts described this case
- previously finding myself precluded from reconsidering validity of the 1999 Assignment
- “[A]llegations of a merely speculative or conclusory nature are rightly disregarded . . . .”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNIVERSAL TRADING & INVESTMENT )
COMPANY, INC.,1 )
)
Plaintiff, ) CIVIL ACTION NO.
) 10-12015-DPW
v. )
)
BUREAU FOR REPRESENTING UKRAINIAN )
INTERESTS IN INTERNATIONAL AND )
FOREIGN COURTS; UKRAINIAN )
PROSECUTOR GENERAL’S OFFICE; and )
THE REPUBLIC OF UKRAINE, )
)
Defendants. )
MEMORANDUM AND ORDER
REGARDING SUMMARY JUDGMENT
June 1, 2022
1 The Complaint originally listed Foundation Honesty
International, Inc. as a Plaintiff, but its claims were
dismissed at the motion to dismiss stage of the case and it has
not subsequently been involved in the litigation. See Universal
Trading & Inv. Co. v. Bureau for Representing Ukrainian
Interests in Int’l & Foreign Courts, 898 F. Supp. 2d 301, 326
(D. Mass. 2012) (UTICo I), aff’d, 727 F.3d 10 (1st Cir.
2013)(UTICo II).
Table of Contents
I. BACKGROUND................................................. 5
A. Factual Background ...................................... 5
1. The Contractual Relationship Between the Parties ....... 5
2. UTICo’s Actions Under the May 1998 Agreement ........... 8
3. The California Assets .................................. 8
4. The Swiss Assets ...................................... 11
B. Procedural Background .................................. 15
II. PRELIMINARY MATTERS....................................... 18
A. Motion for Sanctions ................................... 18
B. Motion to Amend Complaint .............................. 19
C. Motion to Compel ....................................... 21
D. Motion to Amend Discovery Schedule ..................... 21
E. Rule 56(d) Motion ...................................... 22
III. UKRAINE’S MOTION FOR SUMMARY JUDGMENT.................... 23
A. Standard of Review ..................................... 23
B. Ukraine’s Substantive Contentions ...................... 25
1. Prior Adjudications ................................... 26
a. Collateral Estoppel ................................. 26
b. Law of the Case ..................................... 28
2. Statute of Limitations ................................ 30
a. Accrual ............................................. 32
b. Tolling ............................................. 36
i. Inherent Knowability ............................... 37
ii. Duty to Disclose ................................... 39
iii. Fraudulent Concealment ........................... 40
3. Performance Under the Contract ........................ 41
a. Interpreting the Agreement .......................... 41
b. Evidence that UTICo Assisted in Recovery ............ 43
i. Vagueness in UTICO’s Argumentation ................. 43
ii. Documents Flagged by UTICo ......................... 44
iii. Lambert Declaration .............................. 45
iv. Letter to the President of Ukraine ................. 47
v. Analysis ........................................... 47
c. Role in Recovery of Swiss Assets .................... 48
IV. UTICo’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT......... 50
A. Ukraine’s Motion to Strike ............................. 50
B. Cross-Motion Merits .................................... 51
1. Scope of the Cross-Motion ............................. 52
2. Standard of Review .................................... 52
3. UTICo’s Arguments ..................................... 53
a. Existence of Agreement .............................. 53
b. Alleged Admission ................................... 54
c. Ukrainian Supreme Court Ruling ...................... 57
V. CONCLUSION................................................. 59
In the late 1990s, the Ukrainian Prosecutor General’s
Office authorized Universal Trading & Investment Company, Inc.
(“UTICo”) to assist it in recovering assets that Ukrainian
officials, including Peter Kiritchenko and Pavlo Lazarenko, were
alleged to have stolen from Ukraine. Their agreement provided
that the Ukrainian Prosecutor General’s Office would give UTICo
a commission of 12% on certain assets returned to Ukraine “in
connection with” this agreement. Some assets have been returned
to Ukraine, and UTICo seeks a 12% commission. In the motion for
summary judgment now before me, Ukraine2 contends that UTICo did
not assist in recovering those assets, so it is not owed any
commission. In any event, Ukraine argues, the statute of
limitations for bringing these claims ran before suit was filed.
During motion to dismiss practice, I determined that the
exercise of jurisdiction over Ukraine in this context was proper
and allowed UTICo’s claim for breach of contract to move
forward. See Universal Trading & Inv. Co. v. Bureau for
Representing Ukrainian Interests in Int’l & Foreign Courts, 898
F. Supp. 2d 301, 316-17, 321 (D. Mass. 2012) (UTICo I). The
2 While I will use “Ukraine” to refer collectively to the three
defendants, the three are, however, distinguishable. The
Republic of Ukraine is a country in Eastern Europe. The
Ukrainian Prosecutor General’s Office is a prosecutorial agency
in the Republic of Ukraine. The Bureau for Representing
Ukrainian Interests in International Courts is an affiliate of
the Ukrainian Ministry of Justice.
Court of Appeals affirmed. Universal Trading & Inv. Co. v.
Bureau for Representing Ukrainian Interests in Int’l & Foreign
Courts, 727 F.3d 10, 12 (1st Cir. 2013) (UTICo II).
Successive summary judgment practice determined that the
breach-of-contract claim was only ripe for adjudication as to
$15 million in assets (“the Swiss assets”) that had actually
been repatriated from Switzerland to Ukraine.
Ukraine has moved for summary judgment with respect to that
breach-of-contract claim. UTICo opposes Ukraine’s motion and
has filed a motion under Federal Rule of Civil Procedure 56(d),
saying it lacks sufficient discovery to litigate summary
judgment and consequently summary judgment should be denied.
UTICo then belatedly filed its own cross-motion for partial
summary judgment. UTICo also presses motions to amend its
complaint to compel additional document production, and to amend
the discovery schedule. Meanwhile, I have pending before me as
well a motion for sanctions that Ukraine has brought against
UTICo.
Ultimately, because UTICo’s claims are a combination of the
untimely and the unsubstantiated, I will grant Ukraine’s motion
for summary judgment and deny the summary judgment motion of
UTICo. I will deny UTICo’s several motions variously to amend
the complaint, to compel additional discovery, and to amend the
discovery schedule, all of which seek to revisit matters that
have already been decided in this lengthy litigation. I will
thereupon deny UTICo’s Rule 56(d) motion for relief. Finally, I
will deny Ukraine’s motion for sanctions as moot.
I. BACKGROUND
A. Factual Background3
The factual context for this case is set forth extensively
both in my prior Memorandum and Opinion addressing the motion to
dismiss, UTICo I, 898 F. Supp. 2d at 304-308, and in the First
Circuit’s opinion affirming that decision, UTICo II, 727 F.3d at
12-15. I will recount the pertinent background here, focusing
on the facts relevant to the disposition of the breach-of-
contract claim now ripe for determination.
1. The Contractual Relationship Between the Parties
The plaintiff, UTICo, is a Massachusetts corporation
founded in 1993. The defendants do not dispute that in the
1990s a Ukrainian corporation that eventually became known as
United Energy Systems of Ukraine hired UTICo to recover assets
3 On the record before me, the facts material to the motions for
summary judgment are not essentially in dispute. To be sure,
UTICo has reflexively objected to every paragraph of Ukraine’s
statement of undisputed material facts in connection with
Ukraine’s motion, but its objections are focused almost
exclusively on advancing legal arguments relating to the motion
for summary judgment, rather than to the facts themselves. This
is a failure to comply with Local Rule 7.1. Consequently, I
have, for the most part, drawn the factual background from
Ukraine’s statement of material facts, and, where appropriate,
from the documents of record.
from various jurisdictions around the world. While working with
United Energy Systems, UTICo discovered that Pavlo Lazarenko,
then the First Deputy Prime Minister and eventually the Prime
Minister of Ukraine, was using the company to siphon money owed
to the Ukrainian government and transfer it to his personal
offshore accounts. With a view toward helping the Ukrainian
government recover these stolen assets, UTICo informed the
Ukrainian Prosecutor General’s Office and other Ukrainian
agencies of Mr. Lazarenko’s actions.
As a result of that interaction, on May 15, 1998, the
Acting Prosecutor General of Ukraine hired UTICo to help the
Ukrainian Prosecutor General’s Office recover assets related to
United Energy Systems and its parent company, United Energy
International, Ltd. The Agreement and an accompanying Power of
Attorney4 regarding particular assets - memorialized in a May 15,
1998 letter sent from the Acting Prosecutor General of Ukraine
to George Lambert, the president of UTICo - stated that UTICo
“will be attributed a commission of 12 (twelve) percent on all
and any above assets to be returned to Ukraine, in connection
with the Power of Attorney of the Prosecutor General’s Office”
that was executed along with the Agreement. The May 1998
Agreement also stated that “remuneration is not payable from the
4 The Power of Attorney was executed the day before, on May 14,
1998.
State budget of Ukraine but from the assets to be repatriated to
Ukraine from outside of Ukraine.”
In August and September of 1998, the Ukrainian Prosecutor
General’s Office executed two additional agreements related to
the May 1998 Agreement giving Powers of Attorney to UTICo with
respect to the assets of several corporations through which
Ukraine believed Mr. Lazarenko and others had laundered
Ukrainian assets.
On October 2, 1998, M.A. Potebenko, then the Prosecutor
General of Ukraine, sent a letter to Mr. Lambert to “certify the
previously agreed terms in regard to the unlawful assets outside
of Ukraine.” In the two years following that letter, the
Ukrainian Prosecutor General’s Office executed additional Powers
of Attorney to UTICo. All of the powers of attorney between the
parties provided that they were valid for one year from the date
issued, but that validity would be prolonged for the duration of
any judicial procedures initiated outside of Ukraine with
respect to the assets encompassed by that power of attorney.
In August 1999, M.S. Obykhod, as Deputy Prosecutor General
of Ukraine, wrote to Mr. Lambert to recognize “the work
accomplished by, and the assistance from, your company.” Among
other things, the letter confirmed that UTICo would be entitled
to “12% of all funds returned to Ukraine from outside of its
borders with the assistance of UTICo.” Enclosed with the letter
was a document purportedly assigning to UTICo Ukraine’s claims
against certain real property in the United States that
“possibly belong[ed] to Ukrainian citizens P.M. Kiritchenko,
members of his family, P.I. Lazarenko, and 4 Californian
companies controlled by the above persons.”
2. UTICo’s Actions Under the May 1998 Agreement
Ukraine does not contest that between 1998 and 1999, UTICo
was investigating and freezing millions of dollars around the
world that had been expatriated from Ukraine.
3. The California Assets
During its investigation on behalf of Ukraine in 1999,
UTICo learned that certain of the expatriated assets had been
used to purchase real estate in California. On April 13, 1999,
the Ukrainian Prosecutor General’s Office sent a letter as
amicus curiae on UTICO’s behalf to the United States District
Court for the Northern District of California explaining that
Mr. Kiritchenko was being prosecuted in Ukraine and that the
assets held by Mr. Kiritchenko in the United States were the
proceeds of expatriated assets. The letter stated that “the
Prosecutor General Office of Ukraine supports suit of UTICo to
attach all realty of Petro M. Kiritchenko on the territory of
the USA, which was acquired by him for proceeds from crime.”
The Ukrainian Prosecutor General’s Office also gave UTICo Power
of Attorney to pursue these assets in the United States.
UTICo had filed suit against Mr. Kiritchenko and Mr.
Lazarenko, among others, in the Northern District to attach
property that represented the proceeds of those assets. In
response to the Court’s concern that UTICo lacked standing to
bring suit on behalf of the Ukrainian Prosecutor General’s
Office, Mr. Obykhod, as Deputy Prosecutor General of Ukraine,
sent UTICo a letter dated August 11, 1999, that purported to
assign “the material claims upon the real estate property” in
the United States to allow UTICo to “be able to prove the
unlawful ownership thereof in your U.S. District Court.”
In response, Mr. Kiritchenko filed suit in Ukraine against
the Ukrainian Prosecutor General’s Office, arguing that the
Assignment and Power of Attorney were invalid under Ukrainian
law. See Universal Trading & Inv. Co. v. Kiritchenko
(Kiritchenko I), No. C-99-3073-MMC, 2007 WL 2669841, at *2 (N.D.
Cal. Sept. 7, 2007), aff’d sub nom. Universal Trading & Inv. Co.
v. Kiritchenko (Kiritchenko II), 346 F. App’x 232 (9th Cir.
2009) (describing the litigation in Ukraine).5 The Pechersk
court6 in Kiev invalidated the Assignment under Ukrainian law but
5 Because I ultimately rely on the judgment entered in the
Northern District of California, I have cited to Judge Chesney’s
opinion for details regarding the Kiritchenko litigation in the
Ukrainian courts.
6 The Pechersk court is variously referred to as a “Regional,”
“District,” or “Municipal” court in the record before me. For
example, the Ukraine Supreme Court refers to the Pechersk
District Court for the City of Kyiv as the “Pechersk municipal
rejected Mr. Kiritchenko’s claim as time-barred. Id.
Subsequently, both parties sought to appeal this judgment, but
the intermediate appellate court affirmed, and neither party
pursued an appeal to the Ukraine Supreme Court.7 Id.
Mr. Lazarenko also filed suit in the Pechersk court against
the Ukrainian Prosecutor General’s Office to invalidate the
Assignment and Power of Attorney. Id. at *4. On September 3,
2003, the Pechersk court again invalidated the Assignment and
Power of Attorney under Ukrainian law, holding that the
Ukrainian Prosecutor General’s Office did not have the authority
to assign claims or issue powers of attorney to anyone. Id. On
June 14, 2006, the Supreme Court of Ukraine annulled the
decision of the Pechersk court and remanded the case for further
proceedings because, in the words of the Ukrainian Supreme
Court, the municipal court “disregarded the respective legal
status of [UTICo]” and “the court failed to provide for bringing
in that proceeding [UTICo] giving it the capacity of a
respondent.” [Dkt. No. 104-9 at 33] The Pechersk court refused
to consider the case on remand “because the properly informed
court.” In the California litigation, Judge Chesney refers to
the court as the “Pechersk court.” For the sake of uniformity,
I adopt that usage.
7 Mr. Kiritchenko did file an appeal with the Ukraine Supreme
Court but later withdrew it. Kiritchenko, 2007 WL 2669841 at
*2.
representative [of Mr. Lazarenko] repeatedly did not come to the
court session.”
In any event, on September 7, 2007, in UTICo’s suit against
Mr. Kiritchenko in the Northern District of California, Judge
Chesney held that UTICo lacked standing and granted summary
judgment for Mr. Kiritchenko. Kiritchenko I, 2007 WL 2669841 at
*20-21. Judge Chesney found that UTICo lacked standing under
the August 11, 1999 letter because that letter was not a valid
assignment. Id. at 20. She also found that UTICo did not have
standing under the other powers of attorney - including the May
14, 1998 power of attorney, or under the May 15, 1998 Agreement
- to bring suit on Ukraine’s behalf, because a power of attorney
is not an assignment of ownership “enabl[ing] the grantee to
bring suit in his own name.” Id. at 21. The Ninth Circuit
affirmed the decision, holding that “[UTICo] failed to prove a
deputy prosecutor general had the authority to assign the rights
of the Ukrainian government against Kiritchenko and Lazarenko to
[UTICo].” Kiritchenko II, 346 F. App’x at 232-33.
4. The Swiss Assets
During the course of UTICo’s investigations, it developed
evidence that both Mr. Kiritchenko and Mr. Lazarenko held assets
at various Swiss banks in Geneva, including Credit Suisse and
Banque Populaire Suisse (which later merged with Credit Suisse).
Meanwhile, on December 12, 1998, the Ukrainian Prosecutor
General’s Office sent letters rogatory seeking the assistance of
Swiss authorities in the criminal prosecutions of Mr.
Kiritchenko and Mr. Lazarenko. In particular, the Ukrainian
Prosecutor General’s Office sought documents relating to various
corporations created and owned by Mr. Kiritchenko and Mr.
Lazarenko that held assets in Swiss banks. On May 7, 1999, the
Ukrainian Prosecutor General’s Office sent another letter
rogatory to the Federal Police Office in Geneva “express[ing]
[its] gratitude for the provision of mutual legal assistance,”
verifying that the Ukrainian prosecution “has no political
purpose,” and seeking more documents concerning bank accounts in
Swiss banks.
The Swiss government had earlier started its own
investigation into assets held by Mr. Kiritchenko and Mr.
Lazarenko in Switzerland. There is no evidence of record that
UTICo participated directly in the Swiss investigation by
providing documents or information to the Swiss authorities, or
that UTICo filed anything in Swiss courts. There is also no
evidence in the record before me to suggest that the Ukrainian
Prosecutor General’s Office helped the Swiss authorities during
the course of the investigation.
On June 25, 1999, the Swiss Federal Tribunal denied a
request by various entities controlled by Mr. Kiritchenko and
Mr. Lazarenko to lift an administrative freeze of their assets
held in Switzerland. The opinion detailed the evidence
transmitted from the Ukrainian Prosecutor General’s Office to
the Swiss authorities along with the letters rogatory. It also
detailed the investigation carried out by the Swiss
investigating judge in Switzerland.
On June 28, 2000, the Court of Police in Geneva found Mr.
Lazarenko guilty of money laundering and ordered him to pay
approximately 10,700,000 Swiss francs to the State of Geneva
(“June 2000 Swiss Court Judgment”). The opinion regarding the
June 2000 Swiss Court Judgment specifically referenced a
deposition conducted by the Swiss Investigating Judge in the
United States on May 15, 2000. The opinion also reported that
Mr. Lazarenko had admitted “the facts for which he has been
charged” in open court in Geneva on June 9, 2000.
On August 30, 2000, the Attorney General of Geneva issued a
Condemnation Ruling against Mr. Kiritchenko, finding him guilty
of committing acts “aimed at preventing the identification of
the source, discovery, or confiscation of assets coming from a
crime.” The order required Mr. Kiritchenko to pay a fine of 1
million Swiss francs and ordered the transfer of his assets held
at Credit Suisse and Banque CSC Alliance in Geneva to Ukraine.8
8 The order listed the account numbers of the specific accounts
in which these assets were held. At least some of these
accounts were identified and subpoenaed as part of an
investigation by the Attorney General of Geneva into crimes of
As a result of these two proceedings in Geneva, roughly 15
million in 2019 dollars was seized by Swiss authorities and
returned to Ukraine. In particular:
•
Approximately 10,500,000 Swiss francs seized as a
result of the June 2000 Swiss Court judgment was
transferred to Ukraine in October 2000. This money
was transferred to the Ukrainian Treasury in March
2001.
•
Approximately $4,058,000 seized by Swiss authorities
as a result of the August 2000 Swiss Court judgment
was transferred to Ukraine in October 2000. This
money was transferred to the Ukrainian Treasury on
March 18, 2009.
•
Approximately $1,744,980 was transferred to Ukraine
from a Swiss account; the parties disagree as to
whether this money was voluntarily returned or
returned as a result of the August 2000 Swiss Court
Judgment. In any event, this money was transmitted to
the Ukrainian Treasury in April 2002.
money laundering. Only two account numbers, no. 5452 and no.
5383, were specifically mentioned as having been transmitted
from the Ukrainian Prosecutor General’s Office to the Swiss
authorities along with the letters rogatory.
B. Procedural Background
On November 26, 2010, UTICo filed this suit against the
Ukrainian Prosecutor General’s Office, the Bureau for
Representing Ukrainian Interests in International and Foreign
Courts, and the Republic of Ukraine (collectively “Ukraine,” see
supra note 2). Foundation Honesty International, Inc. also sued
alongside UTICo. The original complaint sought damages for
breach of contract under the 1999 California Assignment, breach
of contract under the original May 1998 Agreement, unjust
enrichment, breach of fiduciary duty, misrepresentation, and
negligence. Ukraine filed a motion to dismiss the complaint in
its entirety on August 19, 2011.
After a significant back-and-forth, including a motion for
partial summary judgment by Foundation Honesty International,
Inc., on September 19, 2012, I granted in part and denied in
part Ukraine’s motion to dismiss. See UTICo I, 898 F. Supp. 2d
at 301. Specifically, I held that I had jurisdiction to hear
UTICo’s claims against Ukraine under the commercial activity
exception to sovereign immunity under the Foreign Sovereign
Immunities Act, id. at 316-17, but I dismissed the majority of
the Counts in the Complaint for failure to state a claim. Id.
at 326. I also dismissed Foundation Honesty International as a
plaintiff. See supra note 1.
Ukraine appealed my judgment, and I stayed discovery in
this court pending the outcome of that appeal. On August 12,
2013, the First Circuit affirmed. UTICo II, 727 F.3d at 10.
Consequently, the only claims remaining in the case are those
for breach of contract under the original May 1998 Agreement and
for declaratory judgment. To date, UTICo has not pursued the
declaratory judgment count, choosing instead to focus on its
claim for damages under a breach-of-contract theory.
On October 4, 2013, I held a status conference to set a
schedule for further proceedings. At the conference, I limited
discovery to the question whether the statute of limitations had
run on the breach-of-contract claim, and I delayed any further
discovery and motion practice until that question had been
resolved. On May 2, 2014, both parties filed motions for
summary judgment. On February 18, 2015, after hearing arguments
on the cross-motions for summary judgment, I denied UTICo’s
motion because it did not directly address the statute-of-
limitations question. I took Ukraine’s motion under advisement.
During the hearing, I also found that, apart from the
litigation in the Northern District of California, UTICo had not
taken any action under the May 1998 Agreement after 2000. In
addition, I explained that I would follow the First Circuit’s
determination that Ukraine was not required under the May 1998
Agreement to reappropriate assets once they had been frozen.
Following that hearing, on March 4, 2015, UTICo filed a motion
to amend its complaint, purportedly to include allegations for
breach of good faith and fair dealing. The parties also
continued to conduct discovery on the statute-of-limitations
question and submitted supplemental briefing on the issue.
On May 16, 2018, I again conducted a hearing on the motion
for summary judgment with respect to the statute-of-limitations
defense. During the hearing, I denied Ukraine’s pending motion
for summary judgment. I also denied the motion to amend the
complaint, because that motion was presented over four years
after initiation of this litigation and did not meaningfully
explain the theory of good faith and fair dealing or even attach
a proposed complaint. I concluded that any claim for breach of
contract under the May 1998 Agreement only became ripe when the
assets located and frozen by UTICo were actually repatriated to
Ukraine. Consequently, I limited the breach-of-contract claim
to the roughly $15,000,000 seized and returned to Ukraine by
Switzerland as a result of the June and August 2000 Swiss
judgments.
On February 8, 2019, Ukraine submitted the motion for
summary judgment now before me on both the statute-of-
limitations issue and on the merits of the breach-of-contract
claim. On February 28, 2019, UTICo filed both an opposition to
the motion for summary judgment and a motion for relief under
Fed. R. Civ. P. 56(d), arguing that it lacked sufficient
evidence to defend against Ukraine’s motion for summary
judgement.
Once briefing for the Ukraine summary judgment motion
practice concluded, on a parallel track, the parties filed their
proposed findings of fact and conclusions of law in anticipation
of proceeding to trial. The parties also filed trial memoranda.
To the degree these pre-trial materials provide or refer to
record evidence, I have considered their material in connection
with summary judgment practice. Nothing submitted in connection
with UTICo’s own belated cross-motion for summary judgment has
materially developed the factual record further.
II. PRELIMINARY MATTERS
Before turning to the motions for summary judgment from
both parties, I must address several preliminary matters:
Ukraine’s motion for sanctions and UTICo’s motions to amend its
complaint, to compel further document production, to amend the
discovery schedule, and for protection under Rule 56(d).
A. Motion for Sanctions
On January 25, 2019, Ukraine moved for sanctions against
UTICo for various failures to comply with Magistrate Judge
Boal’s discovery orders. Magistrate Judge Boal produced a
Report and Order on this matter. Because I will grant summary
judgment to Ukraine without imposing any of the proposed
sanctions, the sanctions Ukraine seeks are effectively moot and
UTICo’s objections will be denied. See infra Section III.
B. Motion to Amend Complaint
On June 17, 2019, UTICo moved to amend its complaint, its
third such motion.9 Although Federal Rule of Civil Procedure
15(a) instructs that I should “freely give leave [to amend] when
justice so requires,” Fed. R. Civ. P. 15(a)(2), this decision is
within my discretion, Momenta Pharm., Inc. v. Amphastar Pharm.,
Inc., No. 11–cv–11681–NMG, 2014 WL 298035, at *2 (D. Mass. Jan.
24, 2014) (citing Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 330 (1971)). “[A]mendments may be denied
for several reasons, including ‘undue delay, bad faith, dilatory
motive of the requesting party, repeated failure to cure
deficiencies, and futility of amendment.’” Hagerty ex rel.
United States v. Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir.
2016) (quoting United States ex rel. Rost v. Pfizer, Inc., 507
F.3d 720, 733-34 (1st Cir. 2007), overruled on other grounds by
Allison Engine v. United States ex rel. Sanders, 553 U.S. 662
(2008)). I find that UTICo’s complaint would be futile – and I
am hardly prepared in any event to allow for an amended
9 I previously, on April 4, 2013, denied a motion to amend from
UTICo, in order to await a decision by the First Circuit
regarding UTICo’s appeal. [Dkt. No. 75.] I denied another
motion to amend from UTICo on May 16, 2018; I treated that
motion as moot because it related to pursuit of an unsuccessful
motion for summary judgment. [Dkt. No. 163.]
complaint at such a late stage of litigation that has been drawn
out over many years.
First, UTICo’s new claim for breach of the implied covenant
of good faith and fair dealing [Dkt. No. 259-1 at ¶¶ 152-161]
must fail in light of previous rulings by me and the First
Circuit. This claim rests on the theory that Ukraine has failed
to repatriate assets that UTICo tracked down, and that by not
repatriating these funds, Ukraine is denying UTICo a commission.
The First Circuit already addressed this issue in its
interlocutory order, determining that Ukraine could choose not
to repatriate funds. UTICo II, 727 F.3d at 22. And I explained
at the May 16, 2018 hearing that I am bound by this holding.
[Dkt. No. 168, 25:7-12.]
Second, UTICo makes claims under the alleged assignment
involved with the California assets. See supra Section I.A.3.
I have previously explained that the Northern District of
California and the Ninth Circuit found this assignment invalid,
and so UTICo cannot be entitled to any funds pursuant to it.
Third, the addition of a “fraudulent concealment” claim and
a declaration from a purported expert [Dkt. No. 259-1 at ¶¶ 184-
190] serves to do nothing but revisit previous discovery
disputes. With this addition, UTICo suggests Ukraine withheld
Ukrainian court documents. As I address next, Magistrate Judge
Boal has already addressed similar arguments in relation to
UTICO’s motion to compel and found Ukraine cooperative.
C. Motion to Compel
On December 18, 2018, UTICo filed a motion to compel
Ukraine to produce additional documents, claiming Ukraine did
not produce all documents responsive to its discovery requests.
Magistrate Judge Boal denied UTICo’s motion in an order dated
January 15, 2019. UTICo objected to the order and I
subsequently accepted further briefing from the parties.
When reviewing an order by a magistrate judge on a
nondispositive matter, I should “modify or set aside any part of
the order that is clearly erroneous or is contrary to law.”
Fed. R. Civ. P. 72(a). UTICo points me to no clear error or
anything contrary to law in Magistrate Judge Boal’s order – nor
do I see any such issues. I thus leave Magistrate Judge Boal’s
order in place and compel no further discovery.
D. Motion to Amend Discovery Schedule
On December 28, 2018, UTICo filed a motion for extension of
discovery and the discovery schedule, arguing again that Ukraine
had failed to produce all documents responsive to UTICo’s
discovery requests. On January 15, 2019, Magistrate Judge Boal
issued an electronic order denying this motion, given that it
was “largely based on” the same argument presented in UTICo’s
motion to compel, which Magistrate Judge Boal denied in the
written order described above. UTICo objected to this
order as well, and I accepted further briefing from the parties.
Once again, having found no legal error in the motion-to-compel
order, I likewise I find no error here and leave Judge Boal’s
order in place and do not extend discovery. See Fed. R. Civ. P.
72(a).
E. Rule 56(d) Motion
On February 28, 2019 – following Ukraine’s motion for
summary judgment - UTICo filed a motion for relief under Federal
Rule of Civil Procedure 56(d). Under this rule, “[i]f a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition,” I may issue an appropriate order, such as an
extension of time for discovery. UTICo’s motion fails out of
the gate because UTICo does not include an affidavit or
declaration, as explicitly required by Rule 56(d). And even if
the motion fulfilled this requirement, I would still deny it.
First, looking beyond the abject failure to include a
declaration of affidavit, most of evidence that UTICo says it
needs was the subject of motions to compel that Magistrate Judge
Boal denied. A Rule 56(d) affidavit “is not the appropriate
vehicle for relitigating discovery disputes.” Gordon v.
EarthLink, Inc., No. CV 14-14145-FDS, 2017 WL 3203385, at *7 (D.
Mass. July 27, 2017). UTICo says that circumstances have
changed because it found a judgment by a Ukrainian court related
to this matter that was adverse to the Ukrainian Prosecutor
General’s Office and may have been reversed on appeal. UTICo
suggests this means that Ukraine has withheld court documents
subject to discovery, because no records regarding such a
reversal were provided. I reject this contorted argument as an
obvious last-ditch attempt to revisit issues that have been
resolved. Magistrate Judge Boal has already found Ukraine
compliant with UTICo’s discovery requests despite numerous
attempts by UTICo to portray Ukraine as uncooperative.
Second, I cannot take seriously UTICo’s only request that
was not denied in a prior discovery order. This request asks to
depose the defendants. But UTICo voluntarily chose to cancel
depositions it had scheduled with the defendants in January
2019. UTICo already had the opportunity to pursue these
depositions and chose not to do so.
Third, UTICo fails to show what further discovery would
accomplish. As noted, UTICo has previously accused Ukraine of
non-compliance in discovery, and yet Magistrate Judge Boal has
found Ukraine to have fulfilled its duties.
III. UKRAINE’S MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Under Federal Rule of Civil Procedure 56, “[t]he court
shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A factual dispute is material if it “might affect the
outcome of the suit under the governing law,” and a dispute is
genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Farmers Ins.
Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011).
As a general matter, “a party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those
portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Cartett, 477 U.S. 317, 323 (1986). Once the movant has made
such a showing, the burden of production shifts to the nonmovant
to “present definite, competent evidence to rebut the motion,”
Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)
(quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.
2006)), and show a “trialworthy issue persists,” id. (quoting
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)).
A party asserting that a fact is or is not genuinely in
dispute must support that assertion by “citing to particular
parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).
While I must draw all reasonable inferences in favor of the non-
moving party, I may not rely on “[u]nsupported allegations and
speculation,” which “do not demonstrate either entitlement to
summary judgment or the existence of a genuine issue of material
fact sufficient to defeat summary judgment.” Devine v. Woburn
Police Dep't, No. 14-cv-13179-MBB, 2016 WL 5746348, at *3 (D.
Mass. Sept. 30, 2016) (quoting Rivera-Colón v. Mills, 635 F.3d
9, 12 (1st Cir. 2011)); see also Serra v. Quantum Servicing,
Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) (“[A]llegations of a
merely speculative or conclusory nature are rightly disregarded
. . . .”).
B. Ukraine’s Substantive Contentions
Ukraine has moved for summary judgment on both the statute-
of-limitations defense and on the merits of UTICo’s underlying
breach-of-contract claim.
Ukraine argues that UTICo’s claim for compensation under
the May 1998 Agreement regarding the Swiss assets is time-barred
because the assets were returned from Switzerland to Ukraine in
2000. Accordingly, Ukraine contends that even if the assets
were not sent to the Ukrainian Treasury until a few years later,
this lawsuit is well outside the six-year limitations period.
Ukraine also argues that UTICo cannot toll the statute of
limitations under the discovery rule because it knew or should
have known that the Swiss assets had been returned to Ukraine at
some point prior to 2004.
On the merits, Ukraine argues that UTICo did not assist in
the recovery of the Swiss assets, and consequently it is not
entitled to compensation under the May 1998 Agreement.
Through the long travel of this case (and because the
parties have previously litigated similar issues in other
courts), the scope of the present summary judgment motion has
been narrowed. I will therefore briefly address at the outset
the impact of prior adjudications to explain issues that have
previously been resolved, before turning to the remaining issues
raised by the present motion for summary judgment.
1. Prior Adjudications
a. Collateral Estoppel
Collateral estoppel, or issue preclusion, can be deployed
by either party to prevent the other from re-litigating an issue
of fact or law that it argued and lost in an earlier proceeding.
Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 25 (1st Cir.
2017). Collateral estoppel “applies when ‘(1) the issue sought
to be precluded in the later action is the same as that involved
in the earlier action; (2) the issue was actually litigated;
(3) the issue was determined by a valid and binding final
judgment; and (4) the determination of the issue was essential
to the judgment.’” Mercado-Salinas v. Bart Enterprises Int’l,
Ltd., 671 F.3d 12, 21-22 (1st Cir. 2011) (quoting Rodríguez–
García v. Miranda–Marín, 610 F.3d 756, 770 (1st Cir. 2010)).
Collateral estoppel may apply even if only one of the
parties was part of the earlier proceeding, in which case the
doctrine is termed nonmutual collateral estoppel. Rodríguez–
García, 610 F.3d at 770-71. For nonmutual collateral estoppel,
the party against whom the doctrine is asserted must have had a
“full and fair opportunity for judicial resolution of the same
issue.” Id. (quoting Fiumara v. Fireman’s Fund Ins. Cos., 746
F.2d 87, 92 (1st Cir. 1984)).
UTICo argues that it did not have a full and fair
opportunity to litigate the August 11, 1999 assignment in the
California litigation because Ukraine “concealed the critically
important decisions of Ukraine’s Supreme Court of March 24 and
June 14, 2006 and the final decisions reversing the grant of
relief to Lazarenko.” Judge Chesney found this to be a poor
argument when she denied UTICo’s Motion for Relief from Judgment
on June 16, 2008. Universal Trading & Inv. Co. v. Kiritchenko,
No. C-99-3073 MMC (EDL), 2008 WL 2445073, at *2 (N.D. Cal. June
16, 2008). Judge Chesney found that UTICo “failed to show any
failure to disclose those [Ukrainian Supreme Court] decisions
affected, in any manner, [her] determination of the issues
addressed in the Summary Judgment Order.” Id. I concur.
I consider myself precluded from reconsidering the validity
of the 1999 Assignment by the decision of the Northern District
of California, as affirmed by the Ninth Circuit. See
Kiritchenko I, 2007 WL 2669841, at *20; Kiritchenko II, 346 F.
App’x at 232; see also UTICo I, 898 F. Supp. 2d at 319
(previously finding myself precluded from reconsidering validity
of the 1999 Assignment). The claims presented to the Northern
District of California were framed somewhat differently from the
ones before me here, but the question of the validity of the
Assignment was the focus of the California litigation and was
finally decided by a valid and binding judgment of an American
federal court adverse to UTICo. See Kiritchenko I, 2007 WL
2669841, at *20; Kiritchenko II, 346 F. App’x at 232.
Consequently, I am bound to give full effect to the judgment of
the Northern District of California and will treat the 1999
Assignment as invalid. See UTICo I, 898 F. Supp. 2d at 319.
b. Law of the Case
Issue preclusion is not the only doctrine involving prior
adjudication that limits the scope of my inquiry in connection
with the present motion. “The law of the case doctrine ‘posits
that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages
in the same case.’” United States v. Moran, 393 F.3d 1, 7 (1st
Cir. 2004) (quoting Arizona v. California, 460 U.S. 605, 618
(1983)).
There are two branches to the law of the case doctrine.
The first branch “prevents relitigation in the trial court of
matters that were explicitly or implicitly decided by an earlier
appellate decision in the same case.” Id. The second branch
“contemplates that a legal decision made at one stage” of a case
is the law for the remainder of the litigation, unless a higher
court modifies or overrules the decision. Id.
I have discretion not to apply prior decisions if the
application of the prior holding would be “clearly erroneous and
would work a manifest injustice.” Arizona v. California, 460
U.S. 605, 618 & n.8 (1983). For example, such circumstances may
arise where a prior ruling was made on an inadequate record or a
material change has occurred in controlling law. Ellis v.
United States, 313 F.3d 636, 647-48 (1st Cir. 2002).
During the motion to dismiss stage of this litigation, I
determined that UTICo’s breach-of-contract claim was governed by
Massachusetts law and consequently that it was subject to a six-
year limitations period. UTICo I, 898 F. Supp. 2d. at 318, 320.
The limitations period was not an issue on appeal to the First
Circuit. See UTICo II, 727 F.3d at 15. I also determined
during the initial summary judgment phase that any claim for
breach of contract under the May 1998 Agreement became ripe only
when assets that were located and frozen by UTICo were actually
repatriated to Ukraine and that the breach-of-contract claim was
therefore limited to the Swiss assets.10 In addition, I found
based on the factual record before me that apart from the
litigation in the Northern District of California, UTICo did not
perform under the May 1998 Agreement after 2000.
At this juncture, neither UTICo nor Ukraine has sought to
challenge my prior rulings; nor has either party indicated that
the application of these rulings is “clearly erroneous and would
work a manifest injustice.” See Arizona, 460 U.S. at 618.
Consequently, in accordance with the law of the case, I will not
reconsider my prior rulings here.
2. Statute of Limitations
Ukraine argues that UTICo’s breach-of-contract claim is
barred by the statute of limitations because it was brought more
than six years after the cause of action began to accrue. See
Mass. Gen. Laws ch. 260 § 2. UTICo filed suit on November 26,
2010. Thus, absent some exception to the Massachusetts statute
of limitations, any cause of action that accrued prior to
November 26, 2004, is time-barred.
10 As a consequence, any theory of anticipatory breach of
contract would not only be insufficient on its own to state a
claim, but it would also be ineffective against a defense of
lack of sufficient ripeness on which to mount a declaratory
judgment action.
The parties do not dispute that, for purposes of the
present motion, the relevant statute of limitations is six years
and that the cause of action began to accrue when the Swiss
assets were returned. Nor do they disagree about the underlying
facts regarding asset return. In this connection, the parties
agree that the approximately $15 million now at issue was
transferred in three tranches to escrow accounts in Ukraine in
October 2000:
1) Tranche 1: Approximately $10.5 million, which was
returned to the Ukrainian Treasury in March 2001.
2) Tranche 2: Approximately $4 million, which was returned
to the Ukrainian Treasury in March 2009.
3) Tranche 3: Approximately $1.7 million, which was returned
to the Ukrainian Treasury in April 2002.11
The parties do disagree, however, on the proper
interpretation of the word “return” in the Agreements. Ukraine
argues that the assets were “returned” to Ukraine in 2000, when
they were transferred from Switzerland to the Ukrainian
Prosecutor General’s Office. UTICo, by contrast, argues (albeit
circuitously) that the assets were not “returned” until they
11 The Supreme Judicial Court has held that, when a party is
contractually obligated to make separate payments, each failure
to pay an obligation when due is treated as a separate cause of
action for statute-of-limitations purposes. Flannery v.
Flannery, 705 N.E.2d 1140, 1143 (Mass. 1999). Consequently,
because each tranche of money could independently have triggered
an obligation for Ukraine to pay, I will treat them as giving
rise to separate claims for breach of contract.
were actually transferred to the Ukrainian Treasury. UTICo also
argues that, even if its breach-of-contract action began to
accrue before November 2004, the statute of limitations should
be tolled.
a. Accrual
As a general matter, in a breach-of-contract case, “a cause
of action accrues when the contract is breached.” Flannery v.
Flannery, 705 N.E.2d 1140, 1143 (Mass. 1999). In this case,
where wholesale repudiation of the May 1998 Agreement by Ukraine
has not been demonstrated, no actionable breach would occur
until Ukraine had declined to fulfill its side of the bargain
with respect to particular assets “returned to” Ukraine. The
parties disagree about the proper interpretation of the May 1998
Agreement and, consequently, when Ukraine’s obligation to pay is
triggered.12
12 Similarly, much of UTICo’s claim for declaratory relief that
might have survived the 2012 motion to dismiss now fails on
procedural grounds because it is not ripe. See UTICo I, 898 F.
Supp. 2d at 325. UTICo seeks a declaration that the April 30,
1999 Power of Attorney empowering UTICo to recover the
California real estate was in force until at least the denial of
UTICo’s petition for certiorari by the U.S. Supreme Court in
2010. However, such a declaration would be improper because
there is no immediate and real justiciable controversy on that
issue. In re Fin. Oversight & Mgmt. Bd. for Puerto Rico, 919
F.3d 638, 645 (1st Cir. 2019). Ukraine does not argue that it
is not obligated to pay because that Power of Attorney expired
before June 2010. The scope of that Power of Attorney does not
affect the outcome of this litigation. Indeed, more
fundamentally, I have concluded that the issue is substantively
precluded as a result of the application of nonmutual collateral
Under Massachusetts law, “[i]f a contract . . . is
unambiguous, its interpretation is a question of law that is
appropriate for a judge to decide on summary judgment.” Seaco
Ins. Co. v. Barbosa, 761 N.E.2d 946, 951 (Mass. 2002). If,
however, the contract “has terms that are ambiguous, uncertain,
or equivocal in meaning, the intent of the parties is a question
of fact to be determined at trial.” Id. Ambiguities in the
contract are to be resolved against the drafter, though this
“rule of construction ‘must give way to the primary and
inflexible rule that . . . contracts are to be construed so as
to ascertain . . . the true intention of the parties.’” Shea v.
Bay State Gas Co., 418 N.E.2d 597, 602 (Mass. 1981) (quoting
Teeples v. Tolson, 207 F. Supp. 212, 215 (D. Or. 1962)).
To determine whether a contract is ambiguous, I “first
examine the language of the contract itself, independent of
extrinsic evidence concerning the drafting history or the
intention of the parties.” Bank v. Thermo Elemental, Inc., 888
N.E.2d 897, 907 (Mass. 2008). “Contract language is ambiguous
‘where the phraseology can support a reasonable difference of
opinion as to the meaning of the words employed and the
obligations undertaken.’” Id. (quoting President & Fellows of
estoppel. See supra Section III.B.1.a. Accordingly, I deny
UTICo’s request for declaratory relief.
Harvard College v. PECO Energy Co., 787 N.E.2d 595, 601 (Mass.
App. Ct. 2003)).
The primary disagreement between the parties concerns the
proper interpretation of the phrase “returned to Ukraine” in the
May 1998 Agreement. Ukraine encourages me to read this phrase
to mean that UTICo’s claims would start to accrue in 2000, when
the Swiss assets were returned to Ukraine from Switzerland, even
though the assets had not yet been transferred to the Ukrainian
Treasury. By contrast, UTICo argues that the assets were
“returned” under the May 1998 Agreement only when they were
formally transferred to the Ukrainian Treasury. Under the
European Convention on Human Rights and Ukrainian law, UTICo
argues, when the Swiss assets were first transferred to Ukraine
from Switzerland, they necessarily had to be held in escrow
pending a formal adjudication in Ukrainian courts. Only when
the assets were transferred to the Ukrainian Treasury would
Ukraine be able to access and use the money.
UTICo’s reading of the May 1998 Agreement is persuasive and
consequently I do not confront a genuine dispute of fact about
the proper reading of the phrase “returned to Ukraine.” The May
1998 Agreement specifically states that any payment to UTICo’s
12% commission “is not payable from the State budget of Ukraine
but from the assets to be repatriated to Ukraine from outside of
Ukraine.” Given this condition, the only reasonable reading of
the May 1998 Agreement is that it requires Ukraine to be able to
use the recovered assets before its obligation to pay UTICo is
triggered. In other words, a reasonable factfinder would
necessarily read the May 1998 Agreement as requiring the assets
to be returned to the Ukrainian Treasury, in connection with
UTICo’s actions, before Ukraine is obligated to pay UTICo.13
This interpretation of the contract is material only with
respect to tranche 2, which was returned to the Ukrainian
Treasury in 2009. Though UTICo goes to great lengths to contend
that it frequently takes five to seven years for frozen assets
to be returned and has adduced evidence on that point, it does
not change the fact that tranche 1 and tranche 3 were actually
adjudicated and returned to the Ukrainian Treasury by 2003.
Accordingly, UTICo’s cause of action with respect to tranches 1
and 3 is barred unless UTICo can show that the statute of
limitations should be tolled, a question I will address in the
next section. However, I conclude UTICo is not statutorily
barred from litigating with respect to tranche 2, which was
returned to the Ukrainian Treasury in 2009.
13 In any event, even if there were a genuine question of
material fact about the meaning of the phrase “returned to
Ukraine,” I would view “returned to Ukraine” in the light most
favorable to the non-moving party, in this case, UTICo, and my
analysis on the merits would therefore be the same.
b. Tolling
With respect to tranche 1 and tranche 3 of the Swiss
assets, UTICo argues that the statute of limitations should be
tolled under the discovery rule. I do not find this argument
persuasive.
Massachusetts law allows for the statute of limitations in
both tort and contract cases to be tolled when “‘the facts,’ as
distinguished from the ‘legal theory for a cause of action,’
remain ‘inherently unknowable’ to the injured party.” Saenger
Org. v. Nationwide Ins. Licensing Assocs., 119 F.3d 55, 65 (1st
Cir. 1997) (quoting Catrone v. Thoroughbred Racing Ass’ns of N.
Am., Inc., 929 F.2d 881, 885 (1st Cir. 1991)) (emphasis in
original). The discovery “rule prescribes as crucial the date
when a plaintiff discovers, or any earlier date when she should
reasonably have discovered, that she has been harmed or may have
been harmed by the defendant’s conduct.” Bowen v. Eli Lilly &
Co., Inc., 557 N.E.2d 739, 741 (Mass. 1990).
The rule allows the statute of limitations to be tolled
when “an event or events have occurred that were reasonably
likely to put the plaintiff on notice that someone may have
caused her injury,” id., and continues to toll the limitations
period if the plaintiff “remained unaware of his claim even
after conducting reasonable inquiry.” Cambridge Plating Co.,
Inc. v. Napco, Inc., 991 F.2d 21, 26 (1st Cir. 1993). The
discovery rule applies to toll the statute of limitations in
contract disputes, though it is rarely applied when the parties
are on roughly equal footing and there is no evidence of
fraudulent concealment. See Melrose Hous. Auth. v. New
Hampshire Ins. Co., 520 N.E.2d 493, 497 n.5 (Mass. 1988).
Consequently, the discovery rule would only apply to toll
the statute of limitations here if one of the following were
present: (1) the accrual of the cause of action “concerns a fact
that was ‘inherently unknowable’ to the injured party”; (2) “a
wrongdoer breached some duty of disclosure”; or, (3) “a
wrongdoer concealed the existence of a cause of action through
some affirmative act done with the intent to deceive.” Patsos
v. First Albany Corp., 741 N.E.2d 841, 846 (Mass. 2001). None
of these three conditions is present here.
i. Inherent Knowability
There is no evidence of record to suggest that Ukraine
acted affirmatively to deceive UTICo and conceal the fact that
the Swiss assets had been repatriated. Nor does UTICo suggest
that Ukraine did anything more prior to the start of litigation
than fail to disclose the existence of ongoing proceedings in
both Switzerland and Ukraine with respect to the Swiss assets.
The record does not support UTICo’s contention that the
repatriation of assets to Ukraine was “inherently unknowable”
information that UTICo could not have discovered until sometime
after November 2004. See Patsos, 741 N.E.2d at 846. Even if I
credit UTICo’s argument that, under ordinary circumstances,
repatriation of assets takes five to seven years, there were
still sufficient facts to put UTICo on notice that the Swiss
assets had been repatriated. As UTICo itself acknowledges, it
was in frequent communication with the Ukrainian Prosecutor
General’s Office between 1998 and 2004, and at least some of its
conversations with the Ukrainian Prosecutor General’s Office
during this time touched on the Swiss assets, even if the assets
were not the focus of the communications. UTICo could have
asked about the status of the Swiss assets, but it failed to do
so.
There is also evidence that several news outlets were
reporting on the interaction between the Swiss authorities and
the Ukrainian Prosecutor General’s Office, and that this
information was publicly available. While UTICo argues that
those reports were inaccurate, they were still sufficient to put
UTICo on notice that something might be afoot and that inquiry
would be called for to protect whatever rights UTICo may have
had.
In his Rule 30(b)(6) deposition on behalf of UTICo, Mr.
Lambert stated that UTICo was aware of the judgments of the
Swiss courts in 2000, though it did not have a copy of those
judgments. Mr. Lambert also stated that UTICo had heard that
some of the Swiss assets had been returned to Ukraine in 2002.
All of this information was more than sufficient to put UTICo on
notice that “someone may have caused [it] injury.” Bowen, 557
N.E.2d at 741. More fundamentally, these facts do not support
finding as a matter of law that the breach-of-contract claim
turned on facts that were “‘inherently unknowable’ to the
injured party” such that the statute of limitations should be
tolled. Patsos, 741 N.E.2d at 846.
ii. Duty to Disclose
There is no evidence of record to suggest that Ukraine was
under an affirmative obligation to disclose information.14
Neither the May 1998 Agreement nor the Powers of Attorney impose
any such duty on Ukraine. At most, the Powers of Attorney allow
14 Ukraine’s failure to disclose information and to pay UTICo
promptly could conceivably form the basis for a breach-of-
contract action under the theory that Ukraine breached an
implied duty of good faith and fair dealing, but that is not the
theory of the case before me, and I have explicitly rejected
UTICo’s attempt to introduce a good-faith-and-fair-dealing
argument at this stage of the litigation. In any event, the
covenant of good faith and fair dealing is limited in scope to
the breadth of the contract. T.W. Nickerson, Inc. v. Fleet Nat.
Bank, 924 N.E.2d 696, 704 (Mass. 2010). The covenant “cannot
‘create rights and duties not otherwise provided for in the
existing contractual relationship, as the purpose of the
covenant is to guarantee that the parties remain faithful to the
intended and agreed expectations of the parties in their
performance.’” Id. (quoting Uno Restaurants, Inc. v. Boston
Kenmore Realty Corp., 805 N.E.2d 957, 964 (Mass. 2004)).
Accordingly, even if I were to formally allow this argument, the
covenant of good faith and fair dealing would not impose on
Ukraine an affirmative obligation to disclose.
UTICo to act as Ukraine’s agent abroad. They do not impose on
Ukraine an affirmative obligation to disclose.15
iii. Fraudulent Concealment
UTICo has not explicitly argued that Ukraine fraudulently
concealed the cause of action, but it has hinted at such an
argument. In any event, there is no cognizable fraudulent
concealment to be found in the record here. Under Massachusetts
law, “mere silence is not fraudulent concealment.” Stetson v.
French, 72 N.E.2d 410, 412 (Mass. 1947). To toll the statute of
limitations, “there must be something in the nature of positive
acts with intent to deceive.” Id. UTICo has not provided any
factual basis from which a reasonable factfinder could conclude
that Ukraine intentionally concealed any cause of action arising
from the repatriation of the Swiss assets.
* * *
In view of the foregoing analysis, UTICo cannot take refuge
under the discovery rule to toll the statute of limitations for
its breach-of-contract claims with respect to tranche 1 and
15 Under the rules of agency, while an agent owes the principal
an affirmative duty to disclose “all relevant facts that [the
agent] ‘should realize would be likely to affect the judgment of
the principal,’” Gagnon v. Coombs, 654 N.E.2d 54, 62 (Mass. App.
Ct. 1995) (quoting Restatement 2d of Agency § 390 cmt. a)), the
principal owes no parallel duty to the agent unless specified by
contract, see Restatement 3d of Agency §§ 8.13-8.15. The May
1998 Agreement and the Powers of Attorney impose no such duty
here.
tranche 3 of the Swiss assets - the statute of limitations with
respect to these tranches has run. Because I find as a matter
of law that the statute of limitations has not run with respect
to tranche 2 of the Swiss assets, I now turn to consider summary
judgment for tranche 2 on the merits of the breach-of-contract
claim.
3. Performance Under the Contract
In order to defeat summary judgment for tranche 2, UTICo
must demonstrate that a reasonable factfinder could find not
only that the Swiss assets were “returned to Ukraine,” but also
that they were returned “in connection with” the Powers of
Attorney executed by the Ukrainian Prosecutor General’s Office.
For my analysis here, I proceed through the meaning of “in
connection with,” the evidence that UTICo assisted with the
return of assets, and the evidence specifically that UTICo aided
in the Swiss investigation. I am prepared to find that UTICo
fails immediately based on the meaning of “in connection with,”
though I also find UTICo fails even with this phrase interpreted
as it wishes.
a. Interpreting the Agreement
Key to my analysis is the meaning of the phrase “in
connection with.” I am thus again tasked with interpreting the
parties’ agreements and will follow Massachusetts contract law
principles.
The Agreements themselves do not define what it means for
assets to be returned “in connection with” the Powers of
Attorney, and the phrase itself is vague. It could mean that
UTICo must have directly recovered the assets, or it could mean
that UTICo provided information that helped in having those
assets recovered. If a contract’s terms are ambiguous, as is
the case here, “summary judgment is appropriate only if the
extrinsic evidence presented about the parties’ intended meaning
is so one-sided that no reasonable person could decide to the
contrary.” Farmers Ins. Exch. v. RNK, 632 F.3d 777, 784 (1st
Cir. 2011) (quoting Bank v. Int’l Bus. Machs. Corp., 145 F.3d
420, 424 (1st Cir. 1998)). I turn then to the extrinsic
evidence before me, specifically an admission by UTICo.
During the 1999 deposition of George Lambert16 in UTICo v.
Kiritchenko, No. C99-3073-CAL (Nov. 15, 1999) [Dkt. No. 226-14
at 138], the parties agreed that the 12% commission was for
assets that UTICo directly recovered. Of course, at later
points UTICo has sought through argument and contentions in
pleadings to suggest a different definition.17 However, I
16 George Lambert is referred to as Youry Lambert in the 1999
deposition.
17 At the summary judgment motion hearing in the instant case,
counsel for UTICo said that UTICo providing assistance would
conclude the admission during Mr. Lambert’s 1999 deposition
establishing that a commission would be due only for assets
UTICo directly recovered provides an adequate and independent
ground to dispose of UTICo’s claim of ambiguity.
Still, for the purposes of this summary judgment motion, I
will alternatively interpret “in connection with” in the light
most favorable to the non-moving party and construe the language
using UTICo’s current definition of “helpful” in recovering the
assets. With that, I next consider evidence that UTICo assisted
in the recovery of assets.
b. Evidence that UTICo Assisted in Recovery
I start my analysis here with a description of the
vagueness problems that suffuse UTICo’s argumentation. I then
walk through the evidence that might support UTICo’s claims.
i. Vagueness in UTICO’s Argumentation
UTICo is extremely vague about how it assisted in
recovering assets. In its briefing, UTICo points to the
“transcript of the January 24-25, 2019 deposition,” which
mean “[a]ny information . . . [t]hat would be helpful in
determining the ownership of those assets by Kyrytschenko and
Lazarenko.” Furthermore, in its complaint, UTICo states it was
to have a 12% interest in assets “frozen by UTICo” or that were
recovered because of UTICo’s “assisting [the Ukrainian
Prosecutor General’s Office] in the development of evidence of
the fraud.”
supposedly “contains many examples of the work accomplished.”
UTICo also points to the Lambert Declaration, which supposedly
“contains more than 100 exhibits showing the work product
transferred to the [Ukrainian Prosecutor General’s Office] and
used in the Swiss proceedings.” UTICo does not identify which
of its 228 exhibits is the “January 24-25, 2019 deposition” or
which pages of that deposition to consider.
During the summary judgment hearing on this motion, in an
effort to focus discussion, I asked counsel for UTICo to point
me to the two best exhibits it relies on in support of its
contention that UTICo assisted in recovering the assets.
Counsel identified seven exhibits. However, he could not point
me to the relevant parts of these exhibits. Instead, he
informed me that “all these exhibits taken together add a little
something” to the argument.
ii. Documents Flagged by UTICo
I have carefully reviewed the seven documents that UTICo
identified as its most helpful documents [Dkt. No. 226, Exs. 24,
36-38, 54, 64, and 65] and they neither individually nor
together constitute meaningful evidence on which a reasonable
jury could rely in finding for UTICo.
Exhibit 37 consists mostly of illegible photocopies of
passports. I fail to see how this document shows that UTICo
assisted in recovering assets.
Exhibit 54 is a 239-page document, the first page of which
is called “the British Virgin Islands’ International Business
Companies Act” and is related to Amazon Import and Export, Inc.
UTICo has not directed me to look at any particular part of this
document. Nor has UTICo explained the importance of the
document in any way aside from saying that it, along with their
other 227 exhibits, “add[s] a little something” to their
argument. I fail to see how this document shows that UTICo
assisted in recovering assets.
The other five exhibits UTICo specifically cited are
similarly inscrutable as evidence of UTICo’s assistance in the
recovery of the assets at issue in this motion.
iii. Lambert Declaration
UTICo has pointed me, in a very general way, to the Lambert
Declaration for evidence. I have reviewed all documents cited
in this declaration and found only a few of note.
Mr. Lambert references Exhibit 154-4(89). This exhibit
shows pages of screenshots of files that Mr. Lambert says UTICo
submitted to the Ukrainian Prosecutor General’s Office. Mr.
Lambert adds that, “On a number of occasions, General Zherbitsky
and Colonel Yakubovsky called me on the phone and discussed the
data and documents. I heard on the telephone from General
Zherbitsky and Colonel Yakubovsky an acknowledgement and
appreciation that the documentary evidence provided by UTICo was
of exceptional importance for the [Ukrainian Prosecutor
General’s Office].”
Mr. Lambert next references Exhibit 154-4(90), records of
UTICo’s phone bills, which purport to show that “UTICo’s
officers initiated international phone calls to the UPGO in
Kyiv, with a frequency from 11 to 18 calls per month, with the
last call on June 10, 2010.” Mr. Lambert also says that the
Ukrainian Prosecutor General’s Office called UTICo about as
often.
Mr. Lambert references Exhibit 154-4(99), an email he sent
to the Ukrainian Prosecutor General’s Office’s Colonel
Yukobovsky, and a photograph of a package that Mr. Lambert sent
to Yukobovsky purportedly containing a CD. Mr. Lambert says
that General Zherbitsky called him to thank him for the
extraordinary value of the information on the CD and expressed
“gratitude on behalf of First Deputy Prosecutor General Renat
Kuzmin.”
Mr. Lambert refers to the recorder office’s records
regarding a piece of property that Lazarenko owned, which was
attached in a legal proceeding in 2000. He also says that:
UTICo was instrumental in locating, identifying and
investigating the sources of the acquisition of that
realty by Lazarekno (for $6,750,000) from an account
of Lady Lake Ltd., an Antiguan company, at SCS Bank in
the Bahamas. UTICo established through evidence that
Lady Lake was held through the bear[er] shares and was
under Lazarenko’s control. UTICo’s attachment was
taken over by a lien of the DOJ. On information and
belief, the sales proceeds for that property are among
the assets being now claimed by Ukraine.
Although this explanation could be (and perhaps should be) more
detailed, it constitutes admissible, if not necessarily
material, evidence.
iv. Letter to the President of Ukraine
UTICo also directs me to a letter from the Prosecutor
General of Ukraine to the President of Ukraine dated September
15, 2003. In this letter, the Prosecutor General says that,
“through the assistance of UTICo, money of Lazarenko P.I. was
located and blocked for the amount of more than $270 million in
the banks of Guernsey, Antigua, and of other countries.” This
was done “on the basis of the agreement” that UTICo formed with
the Ukrainian Prosecutor General’s Office.
v. Analysis
In sum, the evidence a reasonable jury could arguably
credit is as follows:
1. UTICo sent the Ukrainian Prosecutor General’s Office many
documents that the Ukrainian Prosecutor General’s Office
said were “of exceptional importance for the Ukrainian
Prosecutor General’s Office” and “extraordinar[il]y
valu[able]” to the Ukrainian Prosecutor General’s Office.
2. UTICo and the Ukrainian Prosecutor General’s Office called
each other frequently.
3. UTICo was instrumental in locating and investigating the
sources of the acquisition of an approximately 5-6.75-
million-dollar piece of property owned by Lazarenko.
4. The Prosecutor General said that, through UTICo’s
assistance, $270 million was located and blocked.
Based on this evidence, a reasonable jury could find that
UTICo assisted in locating and blocking assets.
c. Role in Recovery of Swiss Assets
Even if taken as fact that UTICo assisted in the recovery
of assets, this is not enough to establish that UTICo is
entitled to compensation. To fulfill the contract, any help
UTICo gave to Ukraine must be demonstrated to have been
connected to assets returned to the country.
UTICo argues circuitously that the Swiss assets were
recovered as a result of UTICo’s work in identifying and
freezing assets in Antigua, Panama, the British Virgin Islands,
the Bahamas, Barbados, the Isle of Man, Cyprus, and the Cayman
Islands. In particular, UTICo argues that Ukraine transmitted
at least some of this information to Swiss authorities along
with its letters rogatory, though it is not clear from the
record which documents were actually transmitted. UTICo argues
that this evidence served as the basis for subsequent action in
the Swiss courts and led to the return of the Swiss assets.
However, UTICo does not contest that it did not participate
directly in the Swiss investigation; nor does it argue that it
provided documents or information directly to Swiss authorities.
Instead, in arguing that the Swiss assets were returned “in
connection with” the Powers of Attorney executed between 1998
and 2000, UTICo points to a series of communications with the
Ukrainian Prosecutor General’s Office, including several that
took place after the Swiss assets had been returned to Ukraine,
in which UTICo asserts in a characteristically conclusory and
self-serving fashion that it provided the Ukrainian Prosecutor
General’s Office with information relevant to the Swiss
prosecutions.
By contrast, non-speculative evidence establishes as a
matter of law that the Swiss authorities conducted an
independent investigation into Mr. Lazarenko’s and Mr.
Kiritchenko’s holdings in Switzerland. The Swiss assets were
seized after a criminal prosecution in Switzerland, and there is
no evidence to suggest that either the Ukrainian Prosecutor
General’s Office or UTICo was directly involved in the
prosecution itself. There is also no evidence that UTICo had
any involvement in the return of the Swiss assets once they had
been seized pursuant to the Swiss judgments.
The assets that were recovered as a result of an
investigation and criminal prosecution by Swiss authorities and
then returned to Ukraine were returned as a result of what
appears to be diplomatic negotiations. They were not returned
because of UTICo’s assistance. UTICo was not “helpful” in any
cognizable sense with this asset return. This is true even if
UTICo did, in fact, provide some evidence to the Ukrainian
Prosecutor General’s Office concerning the ownership of the
Swiss assets.
Consequently, I find as a matter of law that the Swiss
assets were not returned to Ukraine “in connection with” the
Powers of Attorney. Thus, I will also grant summary judgment to
Ukraine on the tranche 2 dimension of the breach-of-contract
claim.
IV. UTICo’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
On July 22, 2019, five months after the summary judgment
filing deadline, UTICo submitted a Cross-Motion for Partial
Summary Judgment. Having granted summary judgment for Ukraine,
it may appear supererogatory for me to take up UTICo’s belated
cross-motion for “partial” summary judgment. Nevertheless, I
will do so to address fully the issues in this case, noting at
the outset that the lack of timeliness is sufficient independent
grounds, on which I rely, for denying UTICo’s cross-motion. I
conclude the cross-motion fails on the merits as well.
A. Ukraine’s Motion to Strike
UTICo’s cross-motion was submitted without reasonable
explanation over five months late. Accordingly, in its response
to UTICo’s cross-motion, Ukraine first brings a motion to strike
the cross-motion altogether, which I will grant. The Amended
Scheduling Order had required motions for summary judgment to be
submitted by February 8, 2019. UTICo filed its motion on July
22, 2019. It did so without requesting leave for a late filing
from the Court.
This belated cross-motion was not the first time UTICo
disregarded this Court’s rules; as I told the parties at a
hearing on May 6, 2019, UTICo’s pattern of disregard of
procedural regularity was itself a violation of court norms and
orders. UTICo’s justification for such disregard is formulated
in UTICo’s most recent filing. It asserts that on several
occasions, “Defendants ask[ed] leave to exceed the page limit,
[and] UTICo merely duplicat[ed] request[s] for the identical
relief, to avoid prejudice by less page volume.”
It is not “prejudice by less page volume” which has doomed
UTICo’s cross-motion. I deny UTICo’s cross-motion because of
its disregard, which I decline to ignore, of reasonable
deadlines, and because the lack of merit to its arguments is
manifest no matter how they are framed or reframed.
B. Cross-Motion Merits
I now turn to address in the alternative UTICo’s arguments
on the merits in order to ventilate the issues fully.
1. Scope of the Cross-Motion
The cross-motion was said to be “limited” to the issue of
“Defendants’ liability to provide remuneration for work and
expenditures undertaken by UTICo pursuant to its Agreements with
[the Ukrainian Prosecutor General’s Office].” It is not clear
what UTICo means by this, because in its cross-motion, UTICo
requests “a summary decision that Defendants disgorge 12% of the
assets factually obtained by their treasury in 2001-2009, ca.
$12,355,641, that Defendants confessed their Treasury had
recovered in three tranches, namely UTICo’s entitlement to, at
least, $1,482,676 plus interest.” UTICo is thus asking for
summary judgment on the issue of breach of contract and for an
award of damages.
In effect then, the cross-motion is not limited at all.
There is nothing more that a jury could determine. A jury would
not decide preclusion or the statute-of-limitations issues, both
of which need to be resolved before reaching the question on the
merits. This I have done in explaining my grant of Ukraine’s
motion for summary judgment. I thus treat UTICo’s motion as a
reframing of the issues resolved by the explanation of my grant
of Ukraine’s summary judgment motion.
2. Standard of Review
The standard for a cross-motion for summary judgment is the
same as the summary judgment standard. Adria Int'l Grp., Inc.
v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). I
“employ the same standard of review, but view each motion
separately, drawing all inferences in favor of the nonmoving
party.” Cooper, 881 F.3d at 249–50 (quoting Fadili v. Deutsche
Bank Nat'l. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014)). It
bears repeating that the party seeking summary judgment has the
burden of “identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323.
3. UTICo’s Arguments
UTICo’s main argument in its cross-motion is that Ukraine
admitted that it owed money (“remuneration”) to UTICo because it
acknowledged that UTICo had “already accomplished” work. In the
“Summary of Points” section of its cross-motion, UTICo contends
the following: the existence of an agreement, an admission by
the Ukrainian Prosecutor General’s Office that UTICo fulfilled
its duties, and a finding by the Ukrainian Supreme Court that
UTICo earned renumeration. I address these points in turn.
a. Existence of Agreement
First, UTICo contends “the parties agree that the Ukrainian
Prosecutor General’s Office initially entered into the Agreement
in May 1998.” I take this point as fact - the May 1998
Agreement was executed, and a number of Powers of Attorney
flowed from it.
b. Alleged Admission
Next, UTICo contends the Ukrainian Prosecutor General’s
Office “admitted” on “numerous occasions” that “there was a
‘commission agreement’ to accomplish works and that UTICo
‘accomplished those works,’” and in this connection UTICo has
independently shown that it has “implemented the Agreements and
the Powers of Attorney.”
I can dispense easily with the second half of this point.
It is irrelevant whether UTICo implemented the Agreements and
Powers of Attorney unless UTICo’s implementation was “in
connection with” a return of the stolen assets to Ukraine.
The first half of this point is that the Ukrainian
Prosecutor’s Office “admitted” that UTICo fulfilled its
agreement with Ukraine. In that connection, UTICo references
Dkt. 226, Ex. 172, page 2. This is the Ukrainian Prosecutor
General’s Office’s October 17, 2003 application18 for
reconsideration of a Pechersk court decision invalidating the
August 11, 1999 assignment. The Ukrainian Prosecutor General’s
Office stated that it was submitting this application for
reconsideration in light of developing circumstances, namely
that the President and Prime Minister of Ukraine had given
authority to the Ukrainian Prosecutor General’s Office to
18 The document is called an “application” but is essentially
what United States courts would call a brief.
protect Ukraine’s interest in foreign judicial bodies. This new
authority, the Ukrainian Prosecutor General’s Office argued,
authorized that Office to assign Kiritchenko and Lazarenko’s
stolen assets to UTICo.
The application for reconsideration includes a statement
that has been translated differently by the parties in the
present litigation. Moreover, the Ukrainian Prosecutor
General’s Office had made what appears to be the same
characterization, translated differently, in an October 3, 2003
appellate statement in that same case. The three translations,
viewed side by side, are provided in an appendix to this
memorandum.
The differences in translation are instructive. As the
bolded language throughout these translations shows, the same
word can be translated “fulfill,” “act,” “have to be done,”
“undertake,” “execute,” and “consummate.” The way this word is
translated materially changes the meaning of the paragraph, and
the translation thus creates a dispute of material fact about
the accuracy of translation that I cannot resolve at the summary
judgment stage. For now, I must take disputed material facts
such as these in the light most favorable to the non-moving
party. Using the Ukrainian Prosecutor General’s Office’s
translation “executed,” I find no material admission. I find,
instead, that the Ukrainian Prosecutor General’s Office admitted
only that it had an agreement with UTICo which the latter was
working to accomplish.
Nor does the word “fulfilled” in the application for
reconsideration give me pause about the appropriateness of
awarding summary judgment to Ukraine. It is generally
understood that “fulfillment of contract” means fulfilling all
obligations under a contract. But UTICo did not have any
obligations under the Agreement. It was authorized to recover
assets, but it was not required to do so. The only party with
obligations under the Agreement was the Ukrainian Prosecutor
General’s Office, which was required to pay UTICo if UTICo
recovered assets and returned them to Ukraine. Thus, if the
Agreement was fulfilled in this context, that either means that
in connection with successful return of assets, UTICo was paid
by Ukraine, or that neither party did the necessary work because
neither was obligated to do so. The point is simply that saying
that the Ukrainian Prosecutor General’s Office admitted the
Agreement was “fulfilled” is essentially meaningless on the
facts in this contractual regime.
I have explored the meaning of the word “fulfilled” here
because UTICo has premised its entire argument on these sorts of
quotations, which it calls “admissions” and directs my attention
to in a series of lengthy charts without any corresponding
explanation. [Dkt. No. 263 at 11-16]. Each of these materials,
UTICo tells me repeatedly, “should be considered as admissions
in conjunction, complementing each other,” [Dkt. No. 263 at 11]
presumably because each one “adds a little something.”
My obligation here is to examine whether UTICo’s asserted
“admissions” add anything to their argument. I find that they
do not. To prevail on a motion for summary judgment — not to
mention provide something sufficient to defeat Ukraine’s motion
for summary judgment — UTICo must offer more than snippets from
out-of-context Ukrainian court documents whose relevance to this
case depends on who is translating them. The question is not
whether UTICo has proffered mistranslations of the words of
purported admissions by the Ukrainian Prosecutor General’s
Office. I am not in a position to determine as a factual matter
whether the particular words are properly translated in one or
another of the evidentiary proffers. Rather, the question is
whether UTICo did provide assistance in connection with the
actual recovery of the Swiss Assets, and whether such assistance
has been evidenced sufficiently, such that a different
translation of one word will not bring the entire argument
toppling to the ground.
c. Ukrainian Supreme Court Ruling
Third, UTICo says Ukraine’s “admissions culminated in the
ruling of Ukraine’s Supreme Court on June 14, 2006 (which
Defendants failed disclose to Plaintiffs), affirming that UTICo
had earned remuneration for the works ‘. . . already
accomplished.’” At best this point reflects a misunderstanding
of Massachusetts contract law – and at worst it deliberately
attempts to mislead.
The Ukraine Supreme Court said, with respect to the
California real estate assets that “[b]y virtue of the
Instrument of the Ukrainian Prosecutor General’s Office of
Ukraine, dated August 11, 1999, . . . compensation was granted
to the Firm for the works that had already been accomplished.”19
Thus, effectively, UTICo contends the Supreme Court of
Ukraine acknowledged that pursuant to the May 1998 Agreement
UTICo had already accomplished work that benefited Ukraine in
connection with the California real estate. Indeed, the August
11, 1999 Agreement regarding those assets begins: “Taking into
consideration the work accomplished by, and the assistance from,
your company . . . we confirm the consent that the Ukraine side
assigns the material claims upon the real estate property
mentioned above to the firm UTICo. . . .”
The apparent acknowledgement of UTICo’s work “already
accomplished” in this agreement is either an expression of
gratitude or an explanation about why Ukraine has assigned the
real estate to UTICo. However, I have found that the judgments
19 This language appears as translated by UTICo.
of the American federal courts in California preclude any
finding that assignment was valid.
With statements about what UTICo is owed for works that it
has already accomplished, UTICo seems to be hinting at either
some notion of compensatory fairness as a claim by which it
should be paid for work that it previously accomplished, or
suggesting that the Ukrainian Prosecutor General’s Office, in
acknowledging UTICo’s prior work, admitted that UTICo is owed
money for that work.
These arguments, to the extent they can be discerned, fail.
There is no “past consideration” recognized in Massachusetts
contract law. See, e.g., Greater Bos. Cable Corp. v. White
Mountain Cable Const. Corp., 604 N.E.2d 1315, 1317 (Mass. 1992);
Stroscio v. Jacobs, 310 N.E.2d 383, 384 (Mass. App. Ct. 1974).
And while UTICo may or may not have been fairly compensated for
its work prior to any of the Agreements, the Agreements
themselves do not entitle UTICo to any compensation for what
UTICo had “already accomplished” before the Agreements were
executed.
V. CONCLUSION
For the reasons set forth above, I GRANT Ukraine’s motion
[Dkt. No. 219] for summary judgment in its entirety and DENY
UTICo’s cross-motion [Dkt. No. 263] for partial summary
judgment. I DENY UTICo’s motion to amend its complaint [Dkt.
No. 259], and I affirm Magistrate Judge Boal’s Order [Dkt. No.
215] denying UTICo’s motion to compel further discovery [Dkt.
No. 206] and Magistrate Judge Boal’s Order [Dkt. No. 216]
denying UTICo’s motion [Dkt. No. 209] to amend the discovery
schedule. I thereupon DENY UTICo’s motion [Dkt. No. 225] for
relief under Rule 56(d). In addition, I note Magistrate Judge
Boal’s Report and Recommendation [Dkt. No. 218] but DENY
Ukraine’s motion [Dkt. No. 204] for sanctions as moot.
/s/ Douglas P. Woodlock_______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
Appendix
10/17/03 Ukrainian 10/17/03 Ukrainian 3/10/03 Ukrainian
Prosecutor General’s Prosecutor General’s Prosecutor General’s
Office Application Office Application Office Appellate
for Reconsideration for Reconsideration Statement
Ukraine’s UTICo’s translation UTICo’s translation
translation [Dkt. 226-12 Ex. [Dkt. 226-12 Ex.
[Dkt. No. 49-2 at 172] 170]
p.4]
In accordance with Between the Thus, in this case,
Articles 42, 387 of Ukrainian Prosecutor in accordance with
the Civil Code of General’s Office and Articles 42, 287 of
Ukraine, there was a the firm UTICo, the Civil Code of
commission agreement there has been, in Ukraine, there was a
between the accordance with commission
Ukrainian Prosecutor Article 42, 287 of agreement, in
General’s Office and the Civil Code of accordance with
UTICo under which Ukraine, the which one side (the
one side (agent by commission agent, the entrusted
appointment) shall agreement, by virtue party) undertakes to
undertake certain of which one side fulfill in the name
legal actions on (the entrusted and the expense of
behalf of and at the party) undertakes to the other side (the
expenses of the act in the name of principal, the
other side the other and at the entrusting party)
(principal). The expense of the other the certain legal
Power of Attorney side (the entrusting actions. The power
#12-11015/97, dated party) undertaking of attorney No. 12-
April 30, 1999, certain legal 11015/97 of April
determines the actions. The Power 30, 1999 determined
subject and scope of of Attorney No. 12- the matter and the
work which have to 11015.97 of April scope of the work
be done by the agent 30, 1999 determined for the entrusted
by appointment, the subject and the party, the firm
UTICo. The letter scope of works that UTICo, which it was
#06-11015/97, dated the entrusted party, necessary to
August 11, 1999, the firm UTICo was fulfill. The
determines the order to undertake. The document No. 06-
of payment with instrument No. 06- 11015/97 of August
UTICo for the work 11015/97 of August 11, 1999 determined
done. The firm 11, 1999 determined the method of
UTICo, by virtue of the order of the payment due to the
powers given to it, settlement for the firm UTICo for the
embarked on work by the firm work it had
accomplishing the UTICo. The firm implemented. Based
works, did them in a UTICo in accordance on the powers
certain amount, and with the powers granted to it, the
so, pursuant to given to it embarked firm started to
Article 42 of the on accomplishing implement those
Civil Code of those works; it works, carried those
Ukraine, the accomplished those out in the certain
agreement shall be works in the certain volume, therefore
deemed executed. volume, by virtue of pursuant to Article
which under Article 42 of the Civil Code
42 of the Civil Code of Ukraine, the
of Ukraine that agreement must be
agreement is deemed deemed consummated.
fulfilled.