Regions Bank v. Kaplan et al

Filing 811

ORDER denying 581 Motion to Strike Affidavit of Pavel Reytikh. Signed by Judge Elizabeth A. Kovachevich on 3/24/2017, nunc pro tunc April 16, 2016. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REGIONS BANK, etc.,
Plaintiff,

v.

CASE NO. 8:12-CV-1837-T-17MAP

MARVIN KAPLAN, etc.,
et al.,
Defendants.
/
ORDER

This cause is before the Court on:
Dkt. 541-16 Affidavit of Pavel Reytikh
Dkt. 581
Motion to Strike Affidavit of Pavel Reytikh, with Exhibit
(Kaplan Parties)
Dkt. 605
Response (Bridgeview Bank Group)
Defendants/Counter-Claimants/Cross-Claimants Marvin I. Kaplan, R1A Palms,
LLC, Triple Net Exchange, LLC, MK Investing, LLC and BNK Smith, LLC (“Kaplan
Parties”) move to strike the Affidavit of Pavel Reytikh, pursuant to Fed. R. Civ. P. 56(e),
because it is a “sham” affidavit.

Kaplan Parties state that Pavel Reytikh is an employee of Bridgeview Bank
Group who worked in the BBG department that handled check returns during the time
frame surrounding the transactions which are the subject of this case. Mr. Reytikh was
deposed on May 13, 2015. Kaplan Parties contend that at deposition, Mr. Reytikh was
unable to recall any details regarding the transactions that gave rise to this dispute.

Case No. 8:12-CV-1837-T-17MAP
Kaplan Parties further state that Mr. Reytikh had limited recall regarding dates, times
and events and admitted that his recollection of the transactions was general, at best.

Kaplan Parties argue that Mr. Reytikh has now (November 16, 2015) submitted
an Affidavit in support of the Bank Group’s Statement of Undisputed Facts (Dkt. 541).
Kaplan Parties argue that now Mr Reytikh recalls details surrounding the key
transactions, including dates, times, regular practices of the bank, and account
balances. Further, Mr. Reytikh now supplies conclusions about conventional banking
practices and industry standards that favor BBG’s position. Kaplan Parties argue that
Mr. Reytikh has offered no foundation for his conclusions nor has he provided any
qualifications which explain why Mr. Reytikh is qualified to make those conclusions.
Kaplan Parties request that the Affidavit of Pavel Reytikh be stricken and
disregarded for the purposes of summary judgment. Kaplan Parties assert that Mr.
Reytikh is not competent to testify about undefined banking practices in the absence of
a proper foundation, which has not been supplied. Kaplan Parties further argue that
Mr. Reytikh’s Affidavit testimony is fundamentally inconsistent with his earlier deposition
in numerous, material respects.
Crossclaim Defendant Bridgeview Bank Group (“BBG”) opposes Kaplan Parties’
Motion to Strike. BBG argues that Pavel Reytikh’s deposition testimony was based on
his personal knowledge of the matters questioned, but Mr. Reytikh’s Affidavit, a
corporate records custodian affidavit, is based on his review of BBG’s business records
of which he has personal knowledge. BBG argues that Kaplan Parties noticed Pavel
Reytikh for deposition in his individual capacity (a Rule 30(b)(1) deposition), and Kaplan
Parties never noticed a corporate representative of BBG for deposition (a Rule 30(b)(6)
deposition).
BBG argues that a review of the Affidavit and deposition testimony of Mr. Reytikh
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Case No. 8:12-CV-1837-T-17MAP
establishes that there is no inconsistency, or no inconsistency which would cause the
Court to disregard the Affidavit. BBG further argues that the corroborating evidence,
together with the deposition testimony of Mr. Reytikh, clearly establish the reliability of
the Affidavit, and require that the Motion to Strike be denied.

I. Standard of Review
Under the “sham affidavit rule," [w]hen a party has given clear answers to
unambiguous questions which negate the existence of any genuine issue of material
fact, that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.” Van T. Junkins &
Assoc.. Inc. v. U.S. Indus.. Inc.. 736 F.2d 656, 657 (11th Cir. 1984). “This rule is applied
‘sparingly because of the harsh effect [it] may have on a party’s case.’” Allen v. Bd. of
Pub. Educ. for Bibb Cntv.. 495 F.3d 1306,1316 (11th Cir. 2007)(quoting Rollins v.
Techsouth. 833 F.2d 1525,1530 (11th Cir. 1987). Accordingly, a party bears “a heavy
burden in order to exclude an affidavit under the sham affidavit rule.” In re Stand ‘N
Seal. Prods. Liab. Litia.. 636 F.Supp.2d 1333,1335 (N.D. Ga. 2009).
The Court notes that a deponent may testify to a lack of personal knowledge,
and subsequently declare personal knowledge based on a review of the records. See
Del Rosario v. Labor Ready Southeast. Inc.. 124 F.Supp.2d 1300,1315-1316 (S.D. Fla.
2015). The Reytikh Affidavit states that it is based on his personal recollection and the
records of Bridgeview Bank Group, and that “unless otherwise stated herein, all
statements of fact are made upon the documents, reports, records and data
compilations of BBG.” (Reytikh Aff., par. 7).
After consideration, the Court denies the Motion to Strike Affidavit of Pavel
Reytikh (Dkt. 581).

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Case No. 8:12-CV-1837-T-17MAP

DONE and ORDERED in Chambers in Tampa, Florida on this J ^ ^ tla v of
March, 2017, nunc pro tunc April 17, 2016.

Copies to:
All parties and counsel of record

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