DocketNumber: Civil Action No. 16–1199 (JDB)
Citation Numbers: 292 F. Supp. 3d 459
Judges: Bates
Filed Date: 2/26/2018
Status: Precedential
Modified Date: 7/25/2022
Currently before the Court are two motions filed by the defendant, Evelina Lekser, who is once again proceeding pro se. In her first motion, Lekser seeks leave to assert new claims against plaintiff's counsel *461and against two entities, Snowpoint Capital LLC ("Snowpoint") and SP Funding 452 LLC ("SP Funding"), both of which loaned Lekser money in 2015 to refinance the mortgage on the property that is the subject of this lawsuit. See Mot. for Leave to Amend the Verified Am. Compl. [ECF No. 149] ("Mot. for Leave to Amend"). In her second motion, Lekser asks the Court to enjoin SP Funding from foreclosing on the property. See Emergency Mot. Asking Court to Stay Foreclosure Sale of Property [ECF No. 163] ("Emergency Stay Mot."); Notice of Intent to Foreclose [ECF No. 163-2] at 2.
These motions represent neither the first time that Lekser has accused plaintiff's counsel of misconduct, see Def.'s Mot. to Disqualify Counsel [ECF No. 23]; February 2, 2015 Order [ECF No. 30] (denying the motion), nor the first time that she has attempted to impede the sale of the property, see Opp'n to Pl.'s Mot. for Summ. J. [ECF No. 57] (opposing plaintiff's motion for partial summary judgment on his claim for partition by sale); Def.'s Mot. for Reconsideration [ECF No. 102] (seeking reconsideration of the Court's order granting the request for partition). For the reasons that follow, both these motions will be denied.
I. Background
Because the Court's prior opinions describe the factual background of this lawsuit in some detail, see, e.g., July 5, 2017 Mem. Op. [ECF No. 88] at 1-4, the Court will only briefly summarize that background here. In 2008, Lekser and her father, plaintiff Konstantin Shvartser, jointly purchased a property located in Washington, D.C. Lekser and Shvartser both allege that at some point thereafter, each party began a campaign of fraudulent conduct to deprive the other of his or her interest in the property. Shvartser claims that in 2015, Lekser executed a fraudulent power of attorney, used that document to refinance the mortgage on the property, and pocketed a portion of the loan proceeds. See Am. Compl. [ECF No. 44] ¶ 28. Lekser claims that Shvartser engaged in a "pattern of prolonged abuse and harassment" to force her to relinquish her claim to the property, Answer [ECF No. 53] ¶ 129, which included hiring a third party to harass her, see id. ¶ 131, and failing to make agreed-upon renovations, see id. ¶ 133. Lekser does not deny, however, that she borrowed $800,000 from SP Funding or that the loan was secured by a mortgage on the property.
Shvartser filed this action against Lekser in 2016, and he later moved for partial summary judgment on his claim for partition of the property by sale. See Pl.'s Mot. for Partial Summ. J. [ECF No. 47]. In July 2017, the Court granted the motion and directed "Shvartser or his agent" to oversee the sale of the property and to "conduct any necessary repairs and renovations in preparation for sale." See July 5, 2017 Order [ECF No. 87] ("Partition Order"). Since the date of the Court's order, however, the property has not been sold. See Lekser Decl. [ECF No. 149-1] ¶¶ 10-12. Instead, SP Funding has initiated foreclosure proceedings due to Lekser's failure to make payments on the $800,000 loan. See Notice of Intent to Foreclose at 1. The foreclosure sale is scheduled to take place on Thursday, March 1, 2018. See id.
In the motions currently before the Court, Lekser seeks leave to assert claims against Shvartser's counsel, Fox Rothschild LLP, for its alleged failure to comply with the Court's Partition Order, see Mot. for Leave to Amend at 8-18, and against SP Funding for alleged statutory violations stemming from the issuance of the 2015 loan, see id. at 19. She also seeks a stay of the foreclosure sale. See Reply in Supp. of Def.'s Mot. for Leave to Amend [ECF No. 153] ("Def.'s Reply") at 4-5;
*462Emergency Stay Mot. at 5-9. Both motions will be denied.
II. Legal Standard
Under Federal Rule of Civil Procedure 15(a), leave to file an amended a pleading "shall be freely given when justice so requires." However, the Court may deny such leave "when [it] finds 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment.' " Ellis v. Georgetown U. Hosp.,
III. Discussion
A. Claims Against Fox Rothschild
The bulk of Lekser's motion seeks leave to assert various claims against Shvartser's counsel, Fox Rothschild, for its alleged failure to renovate and sell the property pursuant to the July 2017 Partition Order. She asserts claims for misrepresentation, breach of fiduciary duty, injurious falsehood (a tort similar to defamation),
Drawing on an analogy to corporate law, Lekser seeks to assert these claims against Fox Rothschild derivatively-that is, on behalf of both parties and the property itself-and as a result, her motion seeks leave to amend Shvartser's amended complaint. See Mot. for Leave to Amend at 8-10. She likens herself and Shvartser to shareholders in a corporation and, just as shareholders may sometimes assert derivative fiduciary claims against the corporation's officers on the corporation's behalf, seeks to assert claims against Fox Rothschild for breaching the Partition Order on the property's behalf. Lesker cites no authority for this novel legal theory, however. Unlike a parcel of real estate, a corporation is a legal person,
Nevertheless, because documents filed pro se are to be liberally construed, see Erickson v. Pardus,
*463As an initial matter, Lekser has not adequately explained why Shvartser's counsel-as opposed to Shvartser himself-is the proper defendant. As the D.C. Court of Appeals has recognized on several occasions, "[o]nly in rare circumstances will a party be justified in suing [her] opponent's lawyer." Nave v. Newman,
Moreover, even if Fox Rothschild were the proper defendant, Lekser's claims still would not survive a motion to dismiss. As Shvarster notes in his opposition and Lekser does not dispute in her reply,
B. Claims Against Snowpoint and SP Funding
Lekser's proposed claims against Snowpoint and SP Funding can be disposed of more readily. Lekser asserts that these entities "failed to properly register with the appropriate [D.C.] agency ..., failed to obtain proper licenses from the appropriate [D.C.] agency ..., and failed to obtain a bond from the appropriate [D.C.] agency ... prior to, among other *464things, engaging in the act of lending residential funds, as a mortgage and note, regarding the Property." See Proposed Am. Compl. at 10-12; see also
C. Request for an Injunction
Finally, Lekser asks the Court to enjoin the foreclosure sale that is currently set to take place on Thursday, March 1, 2018. See Def.'s Reply at 4-5. As authority for the Court's power to issue such an injunction, Lekser points only to the Court's "inherent powers," Def.'s Reply at 4, and "the Property's status as the res of this lawsuit[ ] and ... [as] the focus of previous Orders of this Court," Emergency Stay Mot. at 9. And as substantive grounds for the injunction, Lekser cites "Fox Rothschild's failure to abide by the Court's Orders" and the fact that the loan on which SP Funding is foreclosing was allegedly issued in violation of D.C. law. Emergency Stay Mot. at 5-6, 9. But the statutory provisions that Lekser cites do not expressly authorize courts to enjoin such forecloses, cf.
IV. Conclusion
For the foregoing reasons, Lekser's Motion for Leave to Amend the Verified Amended Complaint and her Emergency Motion Asking Court to Stay Foreclosure Sale of Property will be DENIED . A separate order has been issued on this date.
" 'Injurious falsehood' is generally used to describe a group of torts also known as disparagement of property, slander of title or trade libel. It is closely related to traditional libel and slander except that the injury is not to personal reputation, but rather to the plaintiff's interest in, or the quality of, the plaintiff's property." Whetstone Candy Co., Inc. v. Nat'l Consumers League,
See, e.g., Samantar v. Yousuf,
See Pl.'s Opp'n to Def.'s Mot. for Leave to Amend [ECF No. 151] at 3; Def.'s Reply at 2-4.
Granting Lekser's motion as to Fox Rothschild would also add a new party to the litigation shortly before the deadline for dispositive motions. See January 28, 2018 Minute Order (setting Wednesday, February 28, 2018 as the deadline). A change on such short notice would prejudice both parties and would only further delay the resolution of this litigation. See Ellis,