UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEBORAH A. TRUDEL, et al.,

Plaintiffs, v. Civil Action No. 15-1966 (JEB) SUNTRUST BANK, et al.,

Defendants.

MEMORANDUM OPINION

This case revolves around a decades-old family saga that, as this Court observed in a

previous Opinion, reads like the plot of one of John le Carré’s Cold War novels. It opens in 1996

with the airport assassinations of Yevgenyi Scherban, a Ukrainian politician and businessman,

and Nadejda Nikitina, his wife. Scherban left more than $100 million behind, along with three

sons — Evgenyi, Ruslan, and Yevgen — who have since engaged in a global hunt for their

missing inheritance.

This latest chapter concerns but a small sliver of the family fortune — namely, one

savings account held with Defendant SunTrust Bank at its Boca Raton, Florida, branch.

Scherban opened this account around 1994 and deposited more than a million dollars into it. In

2003, the account was apparently closed with no funds remaining, but SunTrust has little

explanation for what happened to its balance. More than twelve years later, Plaintiffs brought a

twelve-count Complaint, alleging foul play. The Court has since dismissed all but two of those

counts, leaving one claim for accounting and one for fraudulent concealment. After protracted

discovery, both parties now moves for summary judgment. The Court will grant SunTrust’s

Motion, thereby closing the book on the Bank’s role in this unfortunate tale.

1 I. Background

A. Factual Background

The Court outlined the Scherban family history in detail in its previous Opinion. See

Trudel v. SunTrust Bank,

(D.D.C. 2016). It therefore limits the

discussion here to the aforementioned savings account (with terminal digits 5216) and its often

puzzling transactions. As SunTrust ultimately prevails, the Court recounts these facts in the light

most favorable to Plaintiffs, except to note disputes where relevant.

At the outset, the parties debate when exactly Scherban opened this joint savings account.

Plaintiffs plead that he did so around 1994, while SunTrust suggests it was opened on March 1,

1995. Compare Second Amended Complaint (SAC), ¶ 38 with ECF No. 79 (Def. MSJ), Exh. 3

(Affidavit of John A. Barry), ¶ 5. The ownership of that account is also somewhat murky, but

the Court has assumed (to Plaintiffs’ benefit) that Scherban designated two direct beneficiaries

on the account: Nikitina and Ruslan. See Trudel,

.

Regardless of Ruslan’s ownership status, he alleges that he “was not involved in

managing” the account, “did not get any copies of any statements from SunTrust,” and did not

review any such statements. See ECF No. 31-9 (First Affidavit of Ruslan E. Scherban), ¶¶ 4-5,

10. He lacked this knowledge because Scherban’s assistant, Alexei Alexeenko, was tasked with

keeping tabs on the family’s American financial interests. Id., ¶¶ 4, 10 (identifying Alexeenko as

the “manager” of the account and speculating that copies of statements from SunTrust were

“withheld by Alexeenko, who . . . concealed various documentation from [Ruslan] and from the

two other heirs”).

With Ruslan left in the dark, the account’s balance slowly dwindled. Before Scherban’s

and Nikitina’s deaths on November 3, 1996, Plaintiffs pled that the 5216 account contained over

one million dollars. See SAC, ¶ 41. On December 17 of that year, SunTrust received a fax 2 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, 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. 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. In addition to suing SunTrust here, Plaintiffs named

Gwynfe as a Defendant, and the Clerk of Court recently entered default against it. See ECF No.

99. That transfer and Gwynfe’s culpability, however, are not before the Court now.

Given the counts that remain, the current controversy instead centers on one question:

what happened to the remaining $812,215.93 in the account? The answer is elusive. According

to SunTrust, any records related to the 5216 account are long gone, as it retained such

information for only seven years after closing the account. Plaintiffs have pieced together

several old bank statements, but those records paint only an incomplete picture of the account’s

activity. A June 30, 1997, statement, for example, shows an unexplained $50,000 debit, leaving

a balance (after accrual of interest) of approximately $771,000. See ECF No. 46-5 (Pl. Opp. to

MTD), Exh. A. Then, a statement dated March 31, 2001, shows $3,773.04 remaining. See ECF

No. 71-2 (Pl. Reply to Mot. to Reopen Discovery), Exh. 5. SunTrust has little explanation of

how roughly $767,000 went missing over those nearly four years, other than casually pinning the

blame on Alexeenko. See Def. MSJ at 5. For their part, Plaintiffs seem to allege that the Bank

has squirreled away the cash. See SAC, ¶¶ 62-65. Finally, SunTrust reports that the account

“was closed” in January 22, 2003, apparently with no money remaining. See Def. MSJ at 3; see

also id., Exh. 3. It again offers no explanation of where the $3,733 balance went, other than

3 speculating that the funds “were withdrawn,” perhaps by Ruslan. See ECF No. 87 (Def. Opp. to

Pl. MSJ) at 8-9.

Adding to the intrigue, Plaintiffs have also discovered a June 2002 letter, purportedly

from SunTrust, sent to lawyers for Nikitina’s estate. See ECF No. 81-5 (Pl. MSJ), Exh. B. The

letter reports that there has been no “client-initiated” activity in the account since March 1, 1995

(i.e., the day SunTrust says that Scherban opened the account), and that the Bank’s statements

were repeatedly returned in the mail. Id. Defendant has no record of sending this letter, which

contradicts Plaintiffs’ own evidence showing withdrawals from the account between 1997 and

2001.

B. Procedural History

On November 6, 2015, the three sons and Scherban’s and Nikitina’s estates filed the

present lawsuit against Defendants SunTrust, Alexeenko, Gwynfe, and Does 1 through 10 (ten

unnamed individuals, including Gwynfe employees, who had facilitated the allegedly fraudulent

transfer). See ECF No. 1. Since then, this suit has undergone several metamorphoses.

One month after filing, Plaintiffs apparently feared that the Court lacked personal

jurisdiction over Alexeenko, and so they stipulated to dismissing him without prejudice. See

ECF No. 11 (Notice of Voluntary Dismissal). Then, following SunTrust’s first motion to

dismiss, the Court issued an Opinion instructing Plaintiffs to remove the estates as parties, as

estates cannot bring a direct suit, and to designate instead the proper personal representative. See

Estate of Scherban v. SunTrust Bank,

, at *2 (D.D.C. Feb. 26, 2016). The

Second Amended Complaint, which is operative here, named Deborah Trudel (the estate

representative), Ruslan, Evgenyi, and Yevgen as Plaintiffs. The Court subsequently dismissed

4 these latter two sons, as there was no allegation that either shared a legal interest in the 5216

account. See Trudel,

.

The remaining two Plaintiffs (Trudel and Ruslan) brought twelve counts in tow, each

largely related to the Bank’s handling of the account between 1996 and 2003. While Tolstoy

once observed that “the two most powerful warriors are patience and time,” neither served

Plaintiffs terribly well here. On December 12, 2016, this Court dismissed the lion’s share of

their Complaint, holding that Counts I-VII and XII were all untimely.

. These claims —

including conversion or confiscation, breach of contract, negligence, breach of fiduciary duty,

fraud, unjust enrichment, money had and received, and constructive trust — thus all fell by the

wayside.

The Court also dismissed counts for declaratory relief (Count IX) and civil

conspiracy (Count XI) for failure to state a claim.

.

That left only two counts standing: one for accounting (Count VIII) and one for

fraudulent concealment (Count X). Both sides have now moved for summary judgment on the

whittled-down claims but not before fighting myriad battles over discovery. The Court describes

those disputes in more detail below, but given that history, it is not surprising that Plaintiffs have

alternatively moved under Rule 56(d) to forestall summary judgment until they can conduct even

more discovery.

II. Legal Standard

“When faced with cross-motions for summary judgment, the [C]ourt must review each

motion separately on its own merits ‘to determine whether either of the parties deserves

judgment as a matter of law.’” Family Trust of Mass., Inc. v. United States,

(D.D.C. 2012) (quoting Rossignol v. Voorhaar,

(4th Cir. 2003)). If

the Court determines that one party is not entitled to summary judgment, it “changes tack on the

cross motion and gives the unsuccessful movant ‘all of the favorable factual inferences that it has 5 just given to the movant’s opponent.’” Nucap Indus., Inc. v. Robert Bosch LLC, No. 15-2207,

, at *6 (N.D. Ill. Mar. 31, 2017) (quoting R.J. Corman Derailment Servs., LLC

v. Int’l Union of Operating Engrs., Local Union 150,

(7th Cir. 2003)). It is

nonetheless still possible for a court to deny summary judgment to both sides.

Summary judgment is appropriate “only if one of the moving parties is entitled to

judgment as a matter of law upon material facts that are not genuinely disputed.” Airlie

Foundation v. IRS,

(D.D.C. 2003) (citing Rhoads v. McFerran,

(2d Cir. 1975)); see also Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc.,

(1986); CEI Wash. Bureau, Inc. v. DOJ,

(D.C. Cir. 2006). A fact

is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty

Lobby,

; Holcomb v. Powell,

(D.C. Cir. 2006). A dispute is

“genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving

party. See Scott v. Harris,

(2007); Liberty Lobby,

; Holcomb,

. “A party asserting that a fact cannot be or is genuinely disputed must support

the assertion” by “citing to particular parts of materials in the record” or “showing that the

materials cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

In considering a motion for summary judgment, “[t]he evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn in [its] favor.” Liberty Lobby,

; see also Mastro v. PEPCO,

(D.C. Cir. 2006); Aka v. Wash. Hosp.

Ctr.,

(D.C. Cir. 1998) (en banc). The Court must “eschew making

credibility determinations or weighing the evidence.” Czekalski v. Peters,

(D.C. Cir. 2007). To defeat summary judgment, however, an opposition must consist of more

6 than mere unsupported allegations or denials and must be supported by affidavits, declarations,

or other competent evidence, setting forth specific facts showing that there is a genuine issue for

trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett,

(1986). The non-

movant is required to provide evidence that would permit a reasonable jury to find in its favor.

Laningham v. Navy,

(D.C. Cir. 1987). If the non-movant’s evidence is

“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty

Lobby,

.

III. Analysis

Having considerably narrowed the field, the Court now examines whether Plaintiffs’

remaining two counts can survive another round. Applying Florida law, see Trudel,

, the Court first assesses Plaintiffs’ claim for an accounting before untangling their

various theories of fraudulent concealment. It then tackles Trudel and Ruslan’s discovery-related

Motions.

A. Accounting

In an action for an accounting, a plaintiff broadly seeks from a defendant “a general

investigation of all of the transactions between the parties.” 1 Florida Jurisprudence 2d:

Accounts & Accounting § 32 (2016). Here, Plaintiffs essentially contend that Scherban opened

numerous bank accounts at SunTrust (some unknown and with unknown sums) and ask, as relief,

that the Bank reveal what (if anything) is left of those accounts and who has drawn money from

them. See SAC, ¶¶ 154-58; see also id., ¶ 186(E) (requesting the Court “[t]o order SunTrust to

release to Plaintiffs herein all documentation associated with the above identified accounts, as

well as any other accounts or assets held for the deceased or Plaintiffs in their own names or for

their benefit, without limitation”).

7 “Under Florida law, a party that seeks an equitable accounting must show that: 1) the

parties share a fiduciary relationship or that the questioned transactions are complex, and 2) a

remedy at law is inadequate.” Am. United Life Ins. Co. v. Martinez,

(11th

Cir. 2007). At the motion-to-dismiss stage, this Court could not ascertain whether a fiduciary

relationship existed between SunTrust and Plaintiffs, given Defendant’s “minimalist briefing” on

the issue. See Trudel,

. It therefore allowed the claim to proceed while

reserving the possibility that it “may . . . be the case that SunTrust owes no [such] duty.”

In

moving for summary judgment, Defendant takes the hint and disclaims any fiduciary duty with

Plaintiffs. See Def. MSJ at 6-7. The Court agrees.

“A bank and its customers generally deal at arm’s-length as creditor and debtor, and a

fiduciary relationship is not presumed.” Bldg Educ. Corp. v. Ocean Bank,

(Fla. Dist. Ct. App. 2008); see also Lamm v. St. Street Bank & Trust Co.,

(S.D. Fla. 2012) (“Under Florida law, banks ordinarily do not owe fiduciary duties to their

customers.”). That rule governs, as relevant here, the “relationship between a bank and its

depositor.” Barnett Bank of W. Fla. v. Hooper,

, 925 (Fla. 1985) (citing Vassar v.

Smith,

(Fla. 1938)). In such a scenario, the Bank’s obligations ordinarily “consist[]

of the return of the sum deposited upon proper demand” and nothing more. See Lanz v.

Resolution Tr. Corp.,

(S.D. Fla. 1991) (interpreting Florida law); see also

Barnett Bank, 498 So. 2d at 927 (“In an arms-length transaction, there is no duty on either party

to act for the benefit or protection of the other party nor to disclose facts that the other party

could by its own due diligence have discovered.”).

Plaintiffs do not dispute this general framework, nor do they argue that this case involves

an especially complex transaction. Instead, they maintain that “special circumstances” here

8 justify departing from the default rule. See ECF No. 89 (Pl. Opp. to MSJ) at 8. It is true that

“the Florida Supreme Court has determined that a fiduciary relationship can arise between a bank

and its customer from the parties’ established relationship of trust and confidence.” Arbitrajes

Financieros, S.A. v. Bank of America, N.A.,

, at *5 (S.D. Fla. Feb. 5, 2014)

(citing Barnett Bank, 498 So. 2d at 518). Such a duty may appear where the bank “takes on extra

services for a customer, receives any greater economic benefit than from a typical transaction, or

exercises extensive control.” Bldg. Educ. Corp.,

(quoting Susan Fixel, Inc. v.

Rosenthal & Rosenthal, Inc., 842 S0. 2d 204, 208 (Fla. Dist. Ct. App 2003)). Florida courts have

imposed fiduciary duties when, for instance, a bank’s loan officer “urged [the plaintiff] to trust

him” and promised a “benefit” from the loan, see Capital Bank v. MVB, Inc.,

(Fla. Dist. Ct. App. 1994), or where a bank voluntarily assumed extra check-verification

services for a depositor. See Breig v. Wells Fargo Bank, N.A.,

(S.D. Fla. Feb.

28, 2014); see also First Nat’l Bank and Tr. Co. of Treasurer Coast v. Pack,

(Fla. Dist. Ct. App. 2001) (finding fiduciary duty where bank had lent money for mortgage,

helped customers find a “builder to go forward with the construction,” and assured them that a

bank “representative would be present” before closing to detect any defects).

The plaintiff, however, has the burden of demonstrating like circumstances, see Orlinsky

v. Patraka,

(Fla. Dist. Ct. App. 2007), and Trudel and Ruslan proffer no

evidence to that effect here. The closest they come is their allegation that SunTrust “knew that

both account holders were foreigners, with next to no knowledge of English.” Pl. Opp. to MSJ at

8. Under that theory, as soon as SunTrust opened an account for non-local, non-English-

speaking customers, it necessarily assumed a fiduciary relationship. Plaintiffs cite no authority

for that proposition, however, and the caselaw belies it. To establish a fiduciary relationship,

9 Plaintiffs must submit “substantial evidence showing some dependency by one party and some

undertaking by the other party to advise, counsel, and protect the weaker party.” Lanz,

(emphasis added). At most, Plaintiffs have claimed (without evidence) that

SunTrust knew that they were dependent on the Bank, but they offer no allegation (much less

evidence) that it agreed to advise, counsel, or protect them. Instead, their relationship with

Defendant appears typical of any bank with its customer: Scherban opened a savings account,

deposited money, and could have withdrawn sums as needed; there is no evidence that he

contracted for any special treatment or extra services.

The same result obtains even if Plaintiffs expected SunTrust to protect their interests, as

“[t]he fact that one party places trust or confidence in the other does not create a confidential

relationship in the absence of some recognition, acceptance or undertaking of the duties of a

fiduciary on the part of the other party.” Id.; see also Jaffe v. Bank of Am., N.A.,

(S.D. Fla. 2009) (“One may not . . . unilaterally impose a fiduciary relationship

[on a bank] without a conscious assumption of such duties by [that bank] to be held liable as a

fiduciary.”) (quoting Motorcity of Jacksonville, Ltd. v. Se. Bank N.A.,

(11th

Cir. 1996)). Indeed, a contrary rule would have absurd results: no bank could serve a foreign

customer — or one with limited English proficiency — without automatically assuming a host of

concomitant responsibilities. Florida’s fiduciary law does not reach so broadly. See, e.g., Lanz,

(finding no fiduciary duty between savings and loan and customers, despite

plaintiffs’ allegation that they were “not well versed in English”).

Ruslan and Trudel also suggest that SunTrust exercised “full control” over their assets, as

the account languished for years with no “client-initiated activities,” and “Nikitina’s death had

been published” pursuant to Florida probate law. See Pl. Opp. to MSJ at 8. This argument, too,

10 misses the mark. While Trudel and Ruslan may have, in fact, failed to exercise control over the

account, their entire suit is premised on the idea that they retained such a right. Indeed, they

vigorously dispute authorizing SunTrust (or any other person) to unilaterally disburse or transfer

funds from the account. See ECF No. 92-1 (Second Affidavit of Ruslan E. Scherban), ¶ 9

(stating Ruslan “remained the sole person with authority to withdraw funds from [the] joint

savings account”). Plaintiffs, accordingly, never entered into an “established relationship of trust

and confidence” in which SunTrust assumed “extensive control” over the assets. See Arbitrajes

Financieros, S.A.,

, at *5; Capital Bank,

(noting fiduciary

relationship exists only when one party actually “repose[s]” confidence in another) (citation

omitted).

All told, Florida law presumes that no fiduciary duty arises from a bank-customer

relationship, and Plaintiffs do nothing to overcome that presumption. With no fiduciary duty

(and no allegation that this case involves especially complex transactions), Trudel and Ruslan

have no ground for the equitable remedy of accounting. The Court therefore grants SunTrust’s

Motion on that count.

B. Fraudulent Concealment

Next up is fraudulent concealment. In its last Opinion, the Court allowed Plaintiffs to

pursue one count on that basis. See Trudel,

. At the time, they alleged

that SunTrust had, on at least six separate occasions since November 2015, made misleading

representations about whether it retained records of the 5216 account.

. Defendant now

moves for summary judgment, and Trudel and Ruslan offer no real response to that Motion (save

for some discovery complaints).

11 Instead, they pose a new theory of fraudulent concealment, one wholly unrelated to their

original briefing on that count. See Pl. MSJ at 7-15; Pl. Opp. to Def. MSJ at 7-15. Although

their Motion is somewhat opaque, Plaintiffs appear to seek “summary adjudication” on two

issues: 1) that SunTrust violated Florida’s escheat rules; and 2) that the Bank violated its own

internal policy of retaining records of abandoned or escheated accounts for twenty years. See Pl.

MSJ at 3. They believe legal determinations on those points would “simpli[fy] the issues on the

cause of action for fraudulent concealment.”

The Court thus begins there, before turning to

Plaintiffs’ original grounds for relief.

1. Failure to Escheat

Plaintiffs’ latest theory unfolds as follows: (1) Florida escheat laws require a bank to turn

over unclaimed property after 5 years, see

(a); (2) according to a June 2002

letter from SunTrust, there was no client-initiated activity in the account since March 1, 1995,

see Pl. MSJ, Exh. B; (3) the property thus became unclaimed on March 1, 2000; and (4)

SunTrust was obligated to report that unclaimed money to the state of Florida by no later than

May 1 of the following year (i.e., May 1, 2001). See

(1), (3). Plaintiffs argue

— without fully explaining why — that the Bank’s failure in this regard “automatically resulted

in fraudulent concealment from the beneficiaries of the claims here.” Pl. MSJ at 14. They

therefore ask the Court to hold, as a matter, of law, that SunTrust violated Chapter 717.

The Court has seen a variant of this argument before. At the motion-to-dismiss stage,

Plaintiffs similarly contended that “SunTrust closed [the 5216] account in January 2003,

apparently following years of inactivity.” Trudel,

. Rather than “giving

that unclaimed property to the State of Florida, where perhaps the sons could lawfully reclaim it,

SunTrust then kept the money for itself.”

At the time, however, Trudel and Ruslan did not

12 frame this conduct as fraudulent concealment; instead, they brought eight common-law counts

(Counts I–VII, XII) related to these acts: conversion or confiscation, breach of contract,

negligence, breach of fiduciary duty, fraud, unjust enrichment, money had and received, and

constructive trust.

The Court rejected each of those claims as time-barred under the applicable statute either

of limitations or repose.

. Undeterred, Plaintiffs now try to shoehorn the same theory

into their extant fraudulent-concealment count. That strategy, however, suffers from several

flaws, not the least of which is that these allegations are nowhere to be found in Count X of

Plaintiffs’ Second Amended Complaint or in its briefing at the motion-to-dismiss stage. Instead,

Count X mentioned only actions taken during litigation — i.e., after Plaintiffs filed suit in

November 2015. See SAC, ¶¶ 167-74. The new allegations, regarding behavior from 2000 to

2003, “amount[] to a fundamental change in the nature of” this count. See Teltschik v. Williams

& Jensen, PLLC,

(D.D.C. 2010). “It is well established that a party may

not amend its complaint or broaden its claims through summary judgment briefing.” District of

Columbia v. Barrie,

(D.D.C. 2010). The Court could toss the allegation

on that ground alone.

In any event, had Plaintiffs raised this theory originally, it would have met the same fate

as its peers. To wit, the Court would have held that the action was untimely, as it did for the

other eight counts brought on this basis. As the Court explained then, Florida’s statute of repose

provides that “an action for fraud . . . must be begun within 12 years after the date of the

commission of the alleged fraud, regardless of the date the fraud was or should have been

discovered.” Trudel,

(quoting

(2)(a)) (emphasis

omitted). “Trudel and Ruslan allege[d] that SunTrust closed the account in January 2003, yet the

13 sons did not initiate this lawsuit until November 2015, ten months past the twelve-year repose

period.”

Although SunTrust did not raise a time-bar defense this go-round, the Court properly

does so sua sponte. The Florida Supreme Court has distinguished between “jurisdictional

statutes of non-claim (repose) and statutes of limitations,” only the latter of which is “subject to

waiver.” Lutheran Bhd. Legal Reserve Fraternal Ben. Soc’y v. Estate of Petz,

(Fla. Dist. Ct. App. 1999) (citing Barnett Bank of Palm Beach Cty. v. Estate of Read,

(Fla. 1986)); see also Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P.,

(Fla. Dist. Ct. App. 1996) (“There is a fundamental difference between

ordinary statutes of limitations, on the one hand, and statutes of repose or jurisdictional nonclaim

statutes, on the other . . . . [The latter] operate to bar untimely claims without any action by the

opponent and deprive the court of the power to adjudicate them.”). Because a statute of repose

is an “absolute jurisdictional bar to a tardily filed claim,” this Court must once again consider

whether Plaintiffs’ claims are time-barred on that ground. Lutheran,

.

As before, the Court answers affirmatively, since Trudel and Ruslan essentially bring the

same claim by another name. The Florida Supreme Court has made clear that the 12-year statute

of repose applies to fraudulent-concealment claims, running as soon as “the defendant’s last act

or omission” occurs. See Hess v. Philip Morris USA, Inc.,

(Fla. 2015). So

when was the “last act or omission” here? Under Plaintiffs’ theory, SunTrust’s last omission

giving rise to its fraudulent-concealment claim occurred on May 1, 2001 — the date by which

the Bank should have notified Florida of any funds left in the 5216 account. See Pl. MSJ at 13.

At the latest, the Court might assume that Defendant’s last culpable act was in January 22, 2003,

when it allegedly closed the 5216 account without either a) escheating the money to Florida or b)

14 informing Plaintiffs that money remained. Even including that later act, however, the time limit

expired by January 22, 2015, ten months before the current lawsuit arrived.

True, Plaintiffs allege that Defendant committed further acts of fraudulent concealment

through its allegedly misleading disclosures during litigation in this case. The Florida Supreme

Court has held that “where there is evidence of the defendant’s wrongful conduct within the

repose period, the statute of repose will not bar a plaintiff’s fraudulent concealment claim.”

Hess,

. But none of SunTrust’s allegedly wrongful conduct occurred “within

the repose period.”

(emphasis added). A statute of repose “effect[s] a legislative judgment

that a defendant should be free from liability after the legislatively determined period of time.”

CTS Corp. v. Waldburger,

(2014) (internal quotation marks omitted). In

other words, once twelve years has passed since the last culpable act, the “statute of repose

extinguishes that cause of action altogether.” Nat’l Auto Serv. Ctrs., Inc. v. F/R 550, LLC,

(Fla. Dist. Ct. App. 2016). Here, Plaintiffs allege a wrongful act on January 22,

2003, and then offer no indication of any foul play during the ensuing twelve years. The statute

of repose thus kicked in on January 22, 2015, and Trudel and Ruslan cannot revive that claim

from the dead by tacking on allegations of misconduct that occurred after the clock had run out.

The Court must therefore reject their Motion for Partial Summary Judgment brought on that

basis, and it similarly determines that a rewriting of this count does not prevent summary

judgment being awarded to SunTrust.

2. Failure to Follow Internal Policy

Plaintiffs also suggest that SunTrust violated its own record-retention policies.

Specifically, they cite an internal policy of retaining “[r]ecords related to escheated/abandoned

property [for] 20 years.” Pl. MSJ at 16. Because the Bank kept records relating to the 5216

15 account for only seven years, Plaintiffs ask the Court to hold as a matter of law that it “failed

and/or refused to comply with its own” policy. Id. at 17. This is an odd request, and one that

need not detain the Court for long. As explained above, SunTrust never treated the property in

the account as abandoned or escheated, so it had no reason to retain the records for 20 years.

And, in any event, Plaintiffs supply no explanation for why SunTrust’s violation of its own

internal policy would give rise to any cause of action (much less one for fraudulent

concealment). The Court thus cannot provide any relief on that ground.

3. Failure to Disclose Third-Party Relationships

That brings the Court back to where it started: SunTrust’s allegedly misleading

disclosures during litigation. To refresh the reader, Plaintiffs previously alleged that they had

sought information about the various Scherban holdings from SunTrust. See SAC, ¶ 91.

Defendant repeatedly responded that it had “reviewed the records at SunTrust Bank to determine

if there were any accounts” and concluded that it “no longer has any records in its system.” ECF

No. 38-1 (Affidavit of John A. Barry), ¶¶ 3, 8; see SAC, ¶¶ 92-93 (quoting Barry Affidavit).

According to Ruslan and Trudel, these representations omitted the crucial fact that SunTrust

never held on to information for closed accounts in the first place. See SAC, ¶ 94. Old account

information would thus not be “at” the Bank or in “its system.” Instead, Plaintiffs alleged that

SunTrust outsourced its archiving services, first to Iron Mountain Information Management LLC

and, beginning in February 2002, to Viewpointe Archives Services LLC. Id., ¶¶ 95-96. Under

this theory, Defendant should have directed Plaintiffs to Iron Mountain or Viewpointe to search

for their account information. Id., ¶¶ 97-99. This omission, Plaintiffs said, crippled their

protracted search for their assets. Id., ¶¶ 166-74.

16 To proceed on that basis, Plaintiffs must show that (1) Defendant concealed or failed to

disclose a material fact, (2) it knew or should have known that fact should have been disclosed,

(3) it knew that its concealment or nondisclosure would induce Plaintiffs to act, (4) it had a duty

to disclose the fact, and (5) Plaintiffs detrimentally relied on the misinformation. See Hess,

(quoting Philip Morris USA, Inc. v. Hess,

(Fla. Dist. Ct. App.

2012)); R.J. Reynolds Tobacco Co. v. Martin,

(Fla. Dist. Ct. App. 2010).

The Court previously found Plaintiffs’ Complaint had sufficiently stated a claim on this count but

cautioned that “[i]t may be the case that [the] undisclosed facts about outside vendors are not

ultimately material or harmful (especially given that those companies may have discarded the

relevant files).” Trudel,

.

And so it came to be. After Plaintiffs subpoenaed Viewpointe, the company informed

them that, while it “maintains a check archive on behalf of SunTrust, in which SunTrust stores

checks drawn on its accounts,” it found no records related to Scherban’s various accounts. See

Def. MSJ, Exh. 11 (Affidavit of James Randolph Thomas), ¶ 3;

Exh. A at 2-3. This comes as

no surprise because, as Plaintiffs themselves admit, “[T]he joint savings account ending 5216, at

issue here, has had no checking privilege.” Pl. Opp. to Def. MSJ at 35. Viewpointe thus could

not possibly have maintained a check archive for that account, and it follows that SunTrust did

not “conceal[] or fail[] to disclose a material fact” when it declined to mention its relationship

with that vendor. See Hess,

. Indeed, Plaintiffs now criticize SunTrust for

allowing them to subpoena Viewpointe in the first place, as such action has proved “a waste of

time and resources.” Pl. Opp. to Def. MSJ at 35. Needless to say, they seem to have abandoned

any claim related to Defendant’s concealing its relationship with that company.

17 That leaves Iron Mountain. In its subpoena response, the company reported that it had

located a now-defunct Customer ID number “for SunTrust’s branch at 800 S. Federal Highway,

Boca Raton, FL 33432.” Def. MSJ, Exh. 10 at 1. Its account with SunTrust, however, “is

inactive and has been for several years.”

“All inventory was either permanently withdrawn

or destroyed and Iron Mountain no longer has access to this account.”

As the vendor never

retained “file level” information for its customers, it is unable to determine “what was in any

individual carton stored.” In other words, it cannot confirm or deny whether it ever stored

records related to Account 5216 (or any other Scherban account). Iron Mountain can say

definitively, however, that if it did house such records, it no longer does.

Given that Iron Mountain has “discarded the relevant files,” this Court, too, must jettison

Plaintiffs’ fraudulent-concealment claim. See Trudel,

. At best, SunTrust

knew all along that the vendor had no relevant files, and they thus never concealed or failed to

disclose a material fact. See Hess,

. At worst, it believed that Iron Mountain

could have records and did not disclose such fact to Plaintiffs. But Trudel and Ruslan’s reliance

(if any) on that representation was not detrimental. As an initial matter, Plaintiffs never took

SunTrust’s word that it “no longer has any records in its system.” Instead, they diligently

conducted their own search for those documents, ultimately issuing subpoenas to the vendor.

See Def. MSJ, Exhs. 10, 11. In any event, even had SunTrust disclosed its relationship with Iron

Mountain, that company would have no relevant records for Plaintiffs.

Indeed, Plaintiffs do little to defend their fraudulent-concealment claim, instead devoting

fewer than two pages to “SunTrust’s Declination to Produce Contractual Documents” relating to

Iron Mountain. See Pl. Opp. to Def. MSJ at 33. They hint at opposing summary judgment only

by maintaining (without explanation) that “whether or not SunTrust in fact has had a contractual

18 relationship with Iron Mountain” has “ripened into a triable issue.” Id. at 35. It is Civil

Procedure 101, however, that parties must have a “dispute about a material fact [that] is genuine”

to proceed to trial. Liberty Lobby,

(internal quotation marks omitted) (emphasis

added). Here, Plaintiffs may dispute SunTrust’s relationship with Iron Mountain, as Trudel and

Ruslan have repeatedly asked the Bank to produce its contract and retention agreement with the

vendor, but “SunTrust continued to deny that it has ever had a contract with Iron Mountain and

has produced none.” Pl. Opp. to Def. MSJ at 34.

This dispute, however, proves immaterial to resolving Plaintiffs’ claim. As discussed

above, regardless of whether SunTrust once contracted with Iron Mountain to store data, the

latter no longer maintains records related to the 5216 account. While Plaintiffs level plenty of

shots against SunTrust, they do nothing to impugn Iron Mountain’s veracity, nor do they allege

that the vendor might still actually maintain records of the account. The Court therefore

concludes that there is no dispute of “material fact[s]” related to the fraudulent-concealment

count, as none of the points in contention is capable of “affect[ing] the outcome of the suit.”

Liberty Lobby, Inc., 477 U.S. at 247-48 (“Factual disputes that are irrelevant or unnecessary will

not be counted.”). It grants Defendant summary judgment on that basis.

C. Discovery Violations

Plaintiffs alternatively move under Federal Rule of Civil Procedure 56(d) to defer any

ruling on summary judgment, alleging that they have not yet received an adequate opportunity to

conduct discovery. See ECF No. 88. To resolve the Motion, the Court first recounts this case’s

lengthy discovery history before turning to Plaintiffs’ alleged deficiencies.

19 1. Background

On January 27, 2017, having dismissed much of the case, the Court authorized Plaintiffs

to conduct discovery on their remaining counts, starting with interrogatories, requests for

production of documents, and requests for admissions from SunTrust. See Minute Order. It also

permitted the issuance of the aforementioned subpoenas to Iron Mountain and Viewpointe, both

of which duly responded. See Def. MSJ, Exhs. 10, 11.

SunTrust, too, answered each document request and provided approximately 1,000

responsive pages. See ECF No. 84 (Def. Opp. to Motion to Compel) at 2. Those documents

included a portion of the Bank’s document-retention policy, several versions of its Rules and

Regulations from 1995 through 2013, and the Bank’s agreement with Viewpointe. Id. at 2 n.1.

SunTrust redacted portions of its Records Retention Policy, purportedly because that information

is not generally available to the public or to its customers. Id. at 2 n.3. It also removed certain

pages from the Policy that it deemed irrelevant, although it produced a “table of contents” so that

Plaintiffs could discern which portions were omitted. Id. Those sections apparently related to

the Bank’s retention schedule for such internal records as “administration, finance, human

resources, lending, marketing and communications” — i.e., regulations with no bearing on a

customer’s bank account. Id.

After written discovery concluded, the parties convened before the Court on April 27,

2017, for a status hearing. Plaintiffs there asked for additional third-party discovery, and the

Court (over SunTrust’s objection) agreed to extend the deadline so that they could subpoena two

law firms in Florida, each of which had addresses listed on SunTrust’s screenshots of the 5216

account. See Minute Order. Plaintiffs did so, and the parties returned for another status hearing

on July 26, 2017. During that conference, Plaintiffs pitched two more requests: First, they asked

20 SunTrust to turn over additional screenshots of the 5216 account. Second, they sought an

additional sixty days to conduct depositions. Over objections from Defendant, the Court granted

both of these requests as well. See Minute Order.

Originally, Plaintiffs stated that they wished to depose John Barry (Former Vice

President and Counsel for SunTrust), who executed an affidavit in this matter, and Cindy

Negron, a former employee who left SunTrust in 2005. The day after the July status conference,

counsel for Plaintiffs asked to take three additional depositions: (1) Russell T. McAndrew, a

former branch manager at the SunTrust Boca Raton branch who left the Bank in July 2002; (2)

Janice Bucher, a former employee at that branch who left in July 1999; and (3) the person “most

knowledgeable” about SunTrust’s contracts for archiving documents. See ECF No. 74 (Def.

Mot. for Protective Order) at 4. In a now-familiar pattern, SunTrust objected to each deposition,

except to one for a corporate designee, as they related to the claims that had been dismissed. Id.

at 6. Plaintiffs countered that the causes of action were dismissed “without prejudice,” and they

believed this discovery could prove fruitful in amending their Complaint. See ECF No. 75 (Pl.

Opp. to Protective Order) at 3. In an abundance of caution, the Court denied SunTrust’s Motion

for a Protective Order on August 15, 2017, allowing the depositions to proceed during the

ensuing month. See Minute Order.

Perhaps not surprisingly, each deposition had hiccups (including scheduling difficulties

due to Hurricane Irma), but the crux of the parties’ dispute turns on the deposition of SunTrust’s

corporate designee. Under Federal Rule of Civil Procedure 30(b)(6), a plaintiff may depose an

organization (like SunTrust) and “describe with reasonable particularity the matters for

examination.” That organization must then designate at least one officer to “testify about

information known or reasonably available to the organization.” Id.

21 Plaintiffs so moved, and after amending the scope of this deposition several times, sought

a person knowledgeable about (1) the archiving and handling of accounts at SunTrust’s 800 S.

Federal Highway, Boca Raton, Florida, branch; (2) “Dispatch of archived materials” from that

branch with Iron Mountain; (3) the branch’s contract with Iron Mountain; (4) how the branch

handled the Scherban-Nikitina family accounts; (5) the branch’s authority to implement outgoing

wire transfers per instructions received by fax; (6) “Operation of the ‘ARGO Sales and Service’”

software used at the branch, “including but not limited to incorporation of the data system used

in 1995-2003, data archiving, procedure for access, logs-in and retrievals of data missing for any

reason”; and (7) operations of the branch’s Departments of Dormant Accounts and of Returned

Mail. See ECF No. 76 (Pl. Mot. to Compel), Exh. A at 2.

SunTrust ultimately selected John Barry as its corporate designee (the same counsel and

former Vice President who also testified in his individual capacity). To prepare, Barry

apparently consulted an employee with SunTrust’s Operations Center in Richmond, Virginia, to

gain additional information on the Argo Software System, which ran Channel Link, the

company’s internal banking system. See ECF No. 84 (Def. Opp. to Mot. to Compel), Exh. A

(Deposition of John Barry) at 8-10. He asked that employee (1) to do another search for the

Scherbans in the Bank’s Channel Link system, (2) to explain the precursor bank systems before

Channel Link, including one known as the A.M. Teller System, and (3) to describe what the

department would do to recover missing information from Channel Link. Id. Based on those

conversations (and his personal knowledge), Barry testified to some of the basics regarding

Channel Link, including how employees logged in, how the software recorded such log-ins, and

any modifications to data on that interface. Id. at 36-38. When pressed, however, he struggled

to answer more technical questions about the Channel Link servers and software. Id. at 38-41.

22 After SunTrust declined to supplement Barry’s testimony, Plaintiffs moved to compel it

to produce a “Rule 30(b)(6) witness who is duly prepared and who is in a position to answer

questions, at least on the groups of questions Nos. 6 and 7 in the Notice of the Deposition.” ECF

No. 76 at 19. They also asked this Court to order SunTrust to supplement its discovery under

Federal Rule of Civil Procedure 26(e), which requires parties to provide additional discovery

upon learning that its previous disclosures were “incomplete or incorrect” “in some material

respect.” Specifically, Trudel and Ruslan asked the Court to compel Defendant to (1)

supplement, remove redactions, or provide a privilege log with respect to SunTrust’s retention

policy, and (2) produce extracts from its in-house technical operating instructions for archiving

and deleting data regarding accounts. See Pl. Mot. to Compel at 19

While that Motion was pending, SunTrust moved for summary judgment, and Plaintiffs

responded with the instant Rule 56(d) Motion, asking the Court to put the proceedings on ice

until the Bank complied with their additional discovery requests. The Court turns now to that

Motion.

2. Rule 56(d) Motion

Under Rule 56(d), a court may defer considering a motion for summary judgment, deny

the motion, or allow time for the non-movant to obtain affidavits or declarations or to take

discovery if that party “shows by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition.” Such an affidavit must state “with sufficient

particularity why additional discovery is necessary.” United States ex rel. Folliard v. Gov’t

Acquisitions, Inc.,

(D.C. Cir. 2014) (citation and internal quotation marks

omitted). Specifically, the non-movant’s affidavit must: (1) “outline the particular facts the non-

movant intends to discover and describe why those facts are necessary to the litigation,” (2)

23 “explain why the non-movant could not produce the facts in opposition to the motion for

summary judgment,” and (3) “show the information is in fact discoverable.”

(citations and

internal quotation marks omitted).

The Court concludes that Plaintiffs fail on the first prong. Although they allege a bevy of

discovery deficiencies, they cannot show why any of those missing facts are “necessary” to the

litigation. To wit, Plaintiffs seek the following:

 To depose another Rule 30(b)(6) witness who is more familiar with the ARGO system, as well as the operations of the Boca Raton branch’s Departments of Dormant Accounts and of Returned Mail;

 An unredacted version of SunTrust’s policies regarding data retention (or a privilege log justifying the redacted versions); and

 Extracts from the in-house operating instructions for archiving and deleting data concerning the accounts.

Pl. Rule 56(d) Mot. at 20. Each of these requests relates, at bottom, to SunTrust’s data-retention

practices and whether the Bank might still retain (or could recover) information pertaining to

Scherban-family accounts. Plaintiffs proffer testimony from four purported IT experts, who

attest that the “accounts’ data” is likely “recoverable by the IT engineers,” and that the experts

are “nearly certain . . . that the data on the accounts is still contained on SunTrust’s servers.”

Had SunTrust complied with their discovery obligations, they theorize, “that would have been

discovered very quickly.”

The Court sympathizes with Plaintiffs’ frustration that SunTrust cannot account for their

missing million dollars. Even if the most likely culprit is Alexeenko, see, e.g., First Scherban

Decl., ¶¶ 4-5, 10; SAC, ¶¶ 85-86, it is not unreasonable that they should expect the Bank to shed

more light on what transpired. Unfortunately for Trudel and Ruslan, however, the Court’s

summary-judgment ruling does not turn on whether SunTrust might still recover data from the

24 5216 account. Rather, even assuming the Bank could do so, the Court granted judgment on the

accounting count because no fiduciary relationship exists between the parties. Likewise, it

rejected Plaintiffs fraudulent-concealment theories given the statute of repose and discovery

showing that neither Iron Mountain nor Viewpointe retains relevant records. At this stage, it is

simply irrelevant to these counts whether SunTrust still retains or could recover more

information about the 5216 account.

In the end, Rule 56(d) is “intended to prevent railroading a non-moving party through a

premature motion for summary judgment before the non-moving party has had the opportunity to

make full discovery.” Milligan v. Clinton,

(D.D.C. 2010) (citations and

internal quotation marks omitted). Here, Plaintiffs had a full opportunity to conduct discovery

on their remaining claims — and, indeed, the Court has granted them significant latitude to do

so. Based on that discovery, the Court has all the information needed to rule on summary

judgment, and none of Plaintiffs’ proposed avenues for discovery could yield facts that would

change the outcome. The Court therefore must deny their Rule 56(d) Motion, as well as their

related Motion to Compel.

D. Leave to Amend

Finally, in their Opposition to Defendant’s Motion for Summary Judgment, Plaintiffs

“reserve[]” their “request to be allowed to re-amend the pleadings after the phase of discovery.”

Pl. Opp. to Def. MSJ at 36. As the D.C. Circuit has often reiterated, however, “[A] request for

leave [to amend] must be submitted in the form of a written motion.” Benoit v. U.S. Dep’t of

Agric.,

(D.C. Cir. 2010) (citation and internal quotation marks omitted; second

alteration in original). Moreover, “[i]t is well-established in this district that a plaintiff cannot

amend his Complaint in an opposition to a defendant’s motion for summary judgment.” Jo v.

25 District of Columbia,

(D.D.C. 2008); DMSC, Inc. v. Convera Corp.,

(D.D.C. 2007) (rejecting plaintiff’s attempt to broaden claims and thereby

amend complaint in opposition to summary-judgment motion). Plaintiffs’ request for leave to

amend here (which they acknowledge also fails to include “a proposed amended pleading”) is

therefore improper, and the Court denies it.

IV. Conclusion

For the foregoing reasons, the Court grants SunTrust summary judgment and denies

Plaintiffs’ Cross-Motion. It also denies Plaintiffs’ Motion for Relief under Rule 56(d), as well as

their related Motion to Compel. A contemporaneous Order to that effect will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: January 25, 2018

26