Alan L. Frank Law Associates, P.C. v. OOO RM Invest et al

Filing 350

MEMORANDUM & ORDER,the Settling Parties' Motion to Strike Affirmative Defenses (Dkt. 345) from the Frank Parties' Answer is GRANTED in part and DENIED in part, and the Settling Parties' Motion to Strike Affirmative Defenses from Khavin son's Answer (Dkt. 346) is GRANTED in part and DENIED in part. The Frank Parties' first affirmative defense and Khavinson's thirteenth and fourteenth affirmative defenses are STRUCK from their respective answers to the Settling Parties' counterclaim. So Ordered by Judge Nicholas G. Garaufis on 7/30/2021. (Lee, Tiffeny)

Case 2:17-cv-01338-NGG-ARL Document 350 Filed 07/30/21 Page 1 of 14 PageID #: 5182

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALAN L. FRANK LAW ASSOCIATES, P.C.,
MEMORANDUM & ORDER
17-CV-1338 (NGG) (ARL)

Plaintiff,
-against-

OOO RM INVEST, VARWOOD HOLDINGS,
LTD., TCAHAI HAIRULLAEVICH KATCAEV,
SASHA SCHMDT and SERGEY PIROZHNIKOV,
Defendants.
OOO RM INVEST, VARWOOD HOLDINGS,
LTD. and TCAHAI HAIRULLAEVICH KATCAEV,
Counter-Plaintiffs,
-against-

ALAN L. FRANK LAW ASSOCIATES, P.C.,
ALAN L. FRANK and EUGENE A. KHAVINSON,
Counter-Defendants.
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff and Counter-Defendant Alan L. Frank Law Associates,
P.C. (“Frank Firm”) commenced this interpleader action on February 22, 2016 against Defendants and Counter-Plaintiffs OOO
RM Invest (“RM”), Varwood Holdings, Ltd. (“Varwood”), and
Tcahai Hairullaevich Katcaev (collectively, the “Settling Parties”)
and Defendants Sasha Schmdt and Sergey Pirozhnikov. (Compl.
(Dkt. 1) ¶¶ 1-6.) The action arises from a $2.9 million settlement
agreement between the Settling Parties and several nonparties.
(Settling Parties’ Rule 56.1 Stmt. (“Settling Parties’ 56.1”) (Dkt.
277-1) ¶ 15.) The Settling Parties subsequently asserted counterclaims against Frank Firm and its principal, Alan L. Frank
(collectively, the “Frank Parties”), and Eugene A. Khavinson, alleging, inter alia, legal malpractice and breach of fiduciary duty.

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(Settling Parties’ Ans., Crossclaim, and Counterclaim (“Counterclaim”) (Dkt. 169) at 9-19.)
Pending before the court are two motions by the Settling Parties
to strike affirmative defenses from the Frank Parties’ and Khavinson’s responses to the Counterclaim. (See Frank Parties’ Ans. to
Counterclaim (“Frank Ans.”) (Dkt. 343); Khavinson Ans. to
Counterclaim (“Khavinson Ans.”) (Dkt. 344); Mot. to Strike
Frank Ans. (Dkt. 345); Mot. to Strike Khavinson Ans. (Dkt. 346);
Frank Parties’ Mem. in Opp. (“Frank Opp.”) (Dkt. 347); Khavinson Mem. in Opp. (“Khavinson Opp.”) (Dkt. 348).)
For the reasons explained below, the Settling Parties’ Motions to
Strike are GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND

The court assumes familiarity with the factual and procedural
history of this case, and it provides a summary of that history
only insofar as it is necessary to the resolution of the pending
motions. 1 Except as otherwise indicated, the facts in this section
are not in dispute.
A. Factual Background
RM is a Russian limited liability company with its principal place
of business in Russia. (Settling Parties’ 56.1 ¶ 1.) At the time this
lawsuit was filed, Defendants Katcaev, Schmdt, and Pirozhnikov
were the three “participants” who held equity in RM. (Id. ¶¶ 25.) RM has effectively ceased operations, and its only material
assets are its share of the settlement proceeds discussed below.
(Schmdt & Pirozhnikov Rule 56.1 Stmt. (“Schmdt & Pirozhnikov
1

The facts are set forth in greater detail in Magistrate Judge Arlene Lindsay’s Reports and Recommendations (“R&Rs”), and in the court’s
Memorandum and Order adopting those R&Rs. (See Feb. 24, 2020 R&R
(Dkt. 302); Mar. 2, 2020 R&R (Dkt. 303); Mem. & Order Adopting R&Rs
(Dkt. 335).)

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56.1”) (Dkt. 280 at ECF pp. 13-19) ¶ 34.) In or around 2013,
Katcaev negotiated a deal with Net Element, Inc. (“Net Element”), subject to which RM would transfer its principal assets
to Net Element in exchange for 30% of Net Element’s stock.
(Decl. of Sasha Schmdt (“Schmdt Decl.”) (Dkt. 280 at ECF pp. 26) ¶ 7.) The deal fell apart, and the Defendants retained Frank
Firm to represent them in actions against Net Element, with
Khavinson as co-counsel. (Id. ¶ 9; Settling Parties’ 56.1 ¶ 17;
Counterclaim ¶ 13.) Frank Firm filed a lawsuit against Net Element and other defendants in the Southern District of Florida, on
behalf of RM, Varwood, and Katcaev. (Settling Parties’ 56.1 ¶¶
10-12.) The parties to this underlying lawsuit eventually reached
a settlement agreement, subject to which the Settling Parties
would receive $2.9 million and 1,000,000 shares of Net Element
stock. (Id. ¶¶ 14-16.) After the deduction of attorney’s fees and
costs, the remaining value of the settlement fund was just over
$2.3 million. (Settling Parties’ 56.1 ¶ 24.)
The Settlement Agreement provided for the settlement funds to
be released to Frank Firm and did not specify how those funds
would be apportioned. (Id. ¶¶ 15, 20.) The Frank Parties, as well
as Schmidt and Pirorzhnikov, suggest that Schmdt, Katcaev, and
Pirozhnikov had agreed to split the proceeds from the settlement
equally between the three of them, and Schmdt and Pirozhnikov
asked Frank to distribute the funds accordingly. (Schmdt & Pirozhnikov 56.1 ¶ 36.) Katcaev opposed that plan and demanded,
through new counsel, that Frank transfer most of the proceeds to
him. (Id. ¶ 37.) Frank subsequently brought this interpleader action to resolve the parties’ dispute over the distribution of the
settlement proceeds.

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B. Procedural Background
Frank Firm commenced this interpleader action in this court on
February 22, 2016. (Compl. at 1.) The Settling Parties filed crossclaims in which they asserted their right to the settlement funds
and brought counterclaims for legal malpractice, breach of fiduciary duty, and a declaratory judgment against the Frank Parties
and Khavinson. (See Counterclaim.) On November 30, 2020, the
court adopted two R&Rs by Magistrate Judge Arlene Lindsay, denied the Settling Parties’ motion for summary judgment, and
partially granted and partially denied the Frank Parties’ and
Khavinson’s motions to dismiss the Settling Parties’ counterclaims. (See Mem. & Order Adopting R&Rs (“M&O”) (Dkt. 335).)
The Frank Parties and Khavinson subsequently filed their answers to the Counterclaim, in which they asserted numerous
affirmative defenses. (See Frank Ans. at 12-16; Khavinson Ans. at
12-14.) The Settling Parties then moved to strike eleven of the
seventeen affirmative defenses asserted by the Frank Parties and
eight of the fourteen affirmative defenses asserted by Khavinson.
II.

LEGAL STANDARD

Under Rule 12(f) of the Federal Rules of Civil Procedure, “[t]he
court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12(f). “Although courts are given discretion to resolve
Rule 12(f) motions, as a general rule motions to strike affirmative
defenses are disfavored and should not be granted unless there
are strong reasons for doing so.” Perez v. De Domenico Pizza &
Rest. Inc., 14-cv-7236 (LDW) (ARL), 2016 WL 3774389, at *1
(E.D.N.Y. May 31, 2016).2 “In order for a court to strike a defense
as insufficient: (1) there must be no question of fact that might
2

When quoting cases, and unless otherwise noted, all citations and quotation marks are omitted, and all alterations are adopted.

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allow the defense to succeed; (2) there must be no substantial
question of law that might allow the defense to succeed; and (3)
the plaintiff must be prejudiced by the inclusion of the defense.”
Id. (emphasis in original); see also S.E.C. v. McCaskey, 56 F. Supp.
2d 323, 326 (S.D.N.Y. 1999).
III.

DISCUSSION

The Settling Parties ask the court to strike the majority of the
Frank Parties’ and Khavinson’s affirmative defenses, on the
grounds that they either fail as a matter of law or are legally insufficient.
The Second Circuit has held that “the plausibility standard of
[Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)] applies to
determining the sufficiency of all pleadings, including the pleading of an affirmative defense.” GEOMC Co., Ltd. v. Calmare
Therapeutics Inc., 918 F.3d 92, 97 (2d Cir. 2019). But it has also
explained that “applying the probability standard to any pleading
is a context-specific task,” and that where “an affirmative defense, rather than a complaint, is at issue . . . the degree of rigor
appropriate for testing the pleading” may be reduced in light of
the limited time interval afforded to a defendant filing an answer.
Id. at 98. Further, “the nature of the affirmative defense” may
also dicate the rigor of the analysis, because the facts needed to
plead an affirmative defense may or may not be “readily known.”
Id.
A. Motion to Strike the Frank Parties’ Affirmative Defenses
The Settling Parties move to strike the first, second, third, fifth,
sixth, seventh, ninth, twelfth, thirteenth, fifteenth, and seventeeth affirmative defenses asserted by the Frank Parties. For
the reasons explained below, the motion is granted with respect
to the Frank Parties’ first affirmative defense and denied with respect to the remaining affirmative defenses.

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1. First Affirmative Defense
The Frank Parties’ first affirmative defense is that the Settling
Parties’ claims are barred by Pennsylvania state law, which they
suggest bars legal malpractice claims arising from settlement
agreements. (Frank Ans. at 12.) The Settling Parties argue that
the court has already rejected this defense as a matter of law.
(Mot. to Strike Frank Ans. at 2.) This court, in deciding the Frank
Parties’ motion to dismiss the Settling Parties’ counterclaim, considered and rejected the argument that Pennsylvania law bars
legal malpractice claims arising from settlement agreements.
(See M&O at 27-29 (“Regardless of which law applies to the Settling Parties’ legal malpractice claim, the claim is not barred
simply by the fact that it arises from a settlement agreement.”))
The court therefore finds that this affirmative defense is legally
insufficient and grants the motion to strike it from the Frank Parties’ answer.
2. Second Affirmative Defense
The Frank Parties’ second affirmative defense is that the Settling
Parties’ claims are barred by Pennsylvania state law’s contributory negligence doctrine. (Frank Ans. at 12.) The Settling Parties
argue that the Frank Parties fail to plead sufficient facts in support of this defense. (Mot. to Strike Frank Ans. at 3.) The Frank
Parties allege, inter alia, that Katcaev provided them with conflicting instructions regarding distribution of the settlement
funds. (Frank Ans. at 5..) In light of the limited time available to
the Frank Parties to file an answer and the nature of the defense
asserted, as well as the Settling Parties’ failure to establish that
they will be prejudiced by the inclusion of the affirmative defense, the court finds that the Frank Parties have met their
pleading burden and declines to strike this affirmative defense.

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3. Third Affirmative Defense
The Frank Parties’ third affirmative defense is that the Settling
Parties’ claim for consequential damages is remote and speculative, and that it is based on the inaccurate premise that the
interpleader is itself actionable. (Frank Ans. at 12-13.) The Settling Parties argue that the Frank Parties fail to plead sufficient
facts in support of this defense. (Mot. to Strike Frank Ans. at 3.)
In light of the limited time available to the Frank Parties to file
an answer and the nature of the defense asserted, as well as the
Settling Parties’ failure to establish that they will be prejudiced
by the inclusion of the affirmative defense, the court finds that
the Frank Parties have met their pleading burden and declines to
strike this affirmative defense.
4. Fifth Affirmative Defense
The Frank Parties’ fifth affirmative defense is that the Settling
Parties’ voluntary consent to the Division Agreement and Settlement Agreement preclude their claims. (Frank Ans. at 13.) The
Settling Parties argue that, in the absence of specific citations to
those agreements, this defense is implausible. (Mot to Strike
Frank Ans. at 3-4.) In light of the limited time available to the
Frank Parties to file an answer and the nature of the defense asserted, as well as the Settling Parties’ failure to establish that they
will be prejudiced by the inclusion of the affirmative defense, the
court finds that the Frank Parties have met their pleading burden
and declines to strike this affirmative defense.
5. Sixth Affirmative Defense
The Frank Parties’ sixth affirmative defense is that no statute or
contract authorizes the Settling Parties to recover attorneys’ fees.
(Frank Ans. at 13.) The Settling Parties argue that the court has
already rejected this defense as a matter of law. (Mot. to Strike
Frank Ans. at 4.) The court previously denied the Frank Parties’

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request to strike the Settling Parties’ request for attorneys’ fees,
reasoning that while the Settling Parties could not recover attorneys’ fees based on certain dismissed counterclaims, they might
be able to recover attorneys’ fees if they prevailed on certain remaining counterclaims. (M&O at 33-34.) The Settling Parties
erroneously conflate the court’s refusal to strike their prayer for
attorneys’ fees with a binding decision by this court that attorneys’ fees are not precluded under the law. Because the court
made no such finding, it declines to strike this affirmative defense.
6. Seventh Affirmative Defense
The Frank Parties’ seventh affirmative defense is that the Settling
Parties have failed to assert cognizable claims against Alan Frank
individually. (Frank Ans. at 14.) The Settling Parties argue that
the court has already rejected this defense as a matter of law.
(Mot. to Strike Frank Ans. at 4.) While the court previously denied the Frank Parties’ motion to dismiss with respect to a similar
claim, it did not rule as a matter of law that the Settling Parties
have asserted cognizable claims against Alan Frank individually.
(See M&O at 33.) Accordingly, the legal sufficiency of this affirmative defense remains an open issue in this case, and the court
declines to strike this affirmative defense.
7. Ninth Affirmative Defense
The Frank Parties’ ninth affirmative defense is that their alleged
failure to apportion the settlement funds is not actionable, and
therefore cannot give rise to legal malpractice or breach of fiduciary duty claims. (Frank Ans. at 14.) The Settling Parties argue
that the court has already rejected this defense as a matter of law.
(Mot. to Strike Frank Ans. at 4-5.) The court previously denied
the Frank Parties’ motion to dismiss on this basis, finding that
they “d[id] not adequately establish that their alleged failure to
counsel their clients to determine how the settlement funds
would be divided is not actionable.” (M&O at 31.) But the court

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did not rule as a matter of law that the alleged failure to apportion funds was actionable. Accordingly, the legal sufficiency of
this affirmative defense remains an open issue in this case, and
the court declines to strike this affirmative defense.
8. Twelfth Affirmative Defense
The Frank Parties’ twelfth affirmative defense is that the Settling
Parties failed to reduce, avoid, or mitigate damages. (Frank Ans.
at 15.) The Settling Parties argue that the Frank Parties fail to
allege factual support for this defense. (Mot. to Strike Frank Ans.
at 5.) As noted above, the Frank Parties’ answer makes reference
to conduct by the Settling Parties that may have contributed to
the alleged damages, including “conflicting instructions provided
by Katcaev.” (Frank Ans. at 5.) In light of the limited time available to the Frank Parties to file an answer and the nature of the
defense asserted, as well as the Settling Parties’ failure to establish that they will be prejudiced by the inclusion of the affirmative
defense, the court finds that the Frank Parties have met their
pleading burden and declines to strike this affirmative defense.
9. Thirteenth Affirmative Defense
The Frank Parties’ thirteenth affirmative defense is that the equitable doctrines of laches, waiver, ratification, estoppel, and/or
unclean hands bar the Settling Parties’ claims. (Frank Ans. at 15.)
The Settling Parties argue that the Frank Parties fail to allege factual support for this defense. (Mot. to Strike Frank Ans. at 5.) In
light of the limited time available to the Frank Parties to file an
answer and the nature of the defense asserted, as well as the Settling Parties’ failure to establish that they will be prejudiced by
the inclusion of the affirmative defense, the court finds that the
Frank Parties have met their pleading burden and declines to
strike this affirmative defense.

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10. Fifteenth Affirmative Defense
The Frank Parties’ fifteenth affirmative defense is that any harm
sustained by the Settling Parties was caused by the culpable or
wrongful conduct of parties over which the Frank Parties have
no control. (Frank Ans. at 15.) The Settling Parties argue that the
Frank Parties fail to allege factual support for this defense. (Mot.
to Strike Frank Ans. at 5.) In light of the limited time available to
the Frank Parties to file an answer and the nature of the defense
asserted, as well as the Settling Parties’ failure to establish that
they will be prejudiced by the inclusion of the affirmative defense, the court finds that the Frank Parties have met their
pleading burden and declines to strike this affirmative defense.
11. Seventeenth Affirmative Defense
The Frank Parties’ seventeenth affirmative defense is that the
purported damages lack a basis in fact. (Frank Ans. at 16.) The
Settling Parties argue that the Frank Parties fail to allege factual
support for this defense. (Mot. to Strike Frank Ans. at 3.) In light
of the limited time available to the Frank Parties to file an answer
and the nature of the defense asserted, as well as the Settling
Parties’ failure to establish that they will be prejudiced by the inclusion of the affirmative defense, the court finds that the Frank
Parties have met their pleading burden and declines to strike this
affirmative defense.
B. Motion to Strike Khavinson’s Affirmative Defenses
The Settling Parties move to strike the fifth, sixth, seventh, ninth,
eleventh, twelfth, thirteenth, and fourteenth affirmative defenses
asserted by Khavinson. For the reasons explained below, the motion is granted with respect to Khavinson’s thirteenth and
fourteenth affirmative defenses and denied with respect to the
remaining affirmative defenses.

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1. Fifth Affirmative Defense
Khavinson’s fifth affirmative defense is that any damages must
be reduced to account for contributory or comparative negligence by the Settling Parties or other persons. (Khavinson Ans.
at 13.) The Settling Parties argue that Khavinson has failed to
allege sufficient factual support for this defense. (Mot. to Strike
Khavinson Ans. at 2.) In light of the limited time available to
Khavinson to file an answer and the nature of the defense asserted, as well as the Settling Parties’ failure to establish that they
will be prejudiced by the inclusion of the affirmative defense, the
court finds that Khavinson has met his pleading burden and declines to strike this affirmative defense.
2. Sixth Affirmative Defense
Khavinson’s sixth affirmative defense is that any damages were
caused by third parties over whom Khavinson had no control.
(Khavinson Ans. at 13.) The Settling Parties argue that Khavinson has failed to allege sufficient factual support for this defense.
(Mot. to Strike Khavinson Ans. at 2.) In light of the limited time
available to Khavinson to file an answer and the nature of the
defense asserted, as well as the Settling Parties’ failure to establish that they will be prejudiced by the inclusion of the affirmative
defense, the court finds that Khavinson has met his pleading burden and declines to strike this affirmative defense.
3. Seventh Affirmative Defense
Khavinson’s seventh affirmative defense is that the equitable doctrines of laches, waiver, estoppel, and/or unclean hands bar the
Settling Parties’ claims. (Khavinson Ans. at 13.) The Settling Parties argue that Khavinson has failed to allege sufficient factual
support for this defense. (Mot. to Strike Khavinson Ans. at 3.) In
light of the limited time available to Khavinson to file an answer
and the nature of the defense asserted, as well as the Settling

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Parties’ failure to establish that they will be prejudiced by the inclusion of the affirmative defense, the court finds that Khavinson
has met his pleading burden and declines to strike this affirmative defense.
4. Ninth Affirmative Defense
Khavinson’s ninth affirmative defense is that any damages sustained by the Settling Parties were caused by their own conduct
and lack of care. (Khavinson Ans. at 13-14.) The Settling Parties
argue that this defense lacks sufficient factual support. (Mot. to
Strike Khavinson Ans. at 3.) In light of the limited time available
to Khavinson to file an answer and the nature of the defense asserted, as well as the Settling Parties’ failure to establish that they
will be prejudiced by the inclusion of the affirmative defense, the
court finds that Khavinson has met his pleading burden and declines to strike this affirmative defense.
5. Eleventh Affirmative Defense
Khavinson’s eleventh affirmative defense is that the Settling Parties failed to mitigate damages. (Khavinson Ans. at 14.) The
Settling Parties argue that this defense lacks sufficient factual
support. (Mot. to Strike Khavinson Ans. at 3.) In light of the limited time available to Khavinson to file an answer and the nature
of the defense asserted, as well as the Settling Parties’ failure to
establish that they will be prejudiced by the inclusion of the affirmative defense, the court finds that Khavinson has met his
pleading burden and declines to strike this affirmative defense.
6. Twelfth Affirmative Defense
Khavinson’s twelfth affirmative defense is that the purported
damages are too speculative or conclusory to be recovered.
(Khavinson Ans. at 14.) The Settling Parties argue that this defense lacks sufficient factual support. (Mot. to Strike Khavinson
Ans. at 3-4.) In light of the limited time available to Khavinson to
file an answer and the nature of the defense asserted, as well as

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the Settling Parties’ failure to establish that they will be prejudiced by the inclusion of the affirmative defense, the court finds
that Khavinson has met his pleading burden and declines to
strike this affirmative defense.
7. Thirteenth Affirmative Defense
Khavinson’s thirteenth affirmative defense is that documentary
evidence contradicts the Settling Parties’ claims. (Khavinson Ans.
at 14.) The Settling Parties argue that because Khavinson has
failed to identify the relevant documentary evidence, relevant
facts, or relevant claims, this defense is too conclusory to be preserved. (Mot. to Strike Khavinson Ans. at 4.) The court agrees:
rather than alleging a specific legal or factual defense, Khavinson’s Answer merely invokes the vaguest possibility that some
unspecified documentary evidence might contain unspecified
facts that contradict an unspecified claim. For that reason, the
court strikes this affirmative defense as insufficient.
8. Fourteenth Affirmative Defense
Khavinson’s fourteenth affirmative defense is that he “reserves
the right to assert additional affirmative defenses as such are determined during the course of this litigation.” (Khavinson Ans. at
14.) This is not an affirmative defense to the Settling Parties’
counterclaims, but rather the broadest possible attempt to preserve every affirmative defense that he may theoretically wish to
assert at a subsequent stage of this litigation. The court therefore
strikes this affirmative defense.
IV.

CONCLUSION

For the reasons explained above, the Settling Parties’ Motion to
Strike Affirmative Defenses (Dkt. 345) from the Frank Parties’
Answer is GRANTED in part and DENIED in part, and the Settling
Parties’ Motion to Strike Affirmative Defenses from Khavinson’s
Answer (Dkt. 346) is GRANTED in part and DENIED in part. The

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Frank Parties’ first affirmative defense and Khavinson’s thirteenth
and fourteenth affirmative defenses are STRUCK from their respective answers to the Settling Parties’ counterclaim.
SO ORDERED.
Dated:

Brooklyn, New York
July 30 2021
_/s/ Nicholas G. Garaufis_
NICHOLAS G. GARAUFIS
United States District Judge

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