Chigirinskiy v. Panchenkova

Filing 60

OPINION AND ORDER re: 17 MOTION to Strike PURSUANT TO FED.R.CIV.P. 12(F) PORTIONS OF THE COMPLAINT, filed by Tatiana Romanova Panchenkova; 36 MOTION to Dismiss Complaint, filed by Tatiana Romanova Panchenkova. For the for egoing reasons, Tatiana's motion to strike is DENIED and her motion to dismiss is GRANTED in part and DENIED in part. The Clerk of Court is directed to close the motions at docket numbers 17 and 36. (Signed by Judge J. Paul Oetken on 3/31/2015) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SHALVA PAVLOVICH CHIGIRINSKIY,
:
:
:
Plaintiff,
-v:
:
TATIANA ROMANOVA PANCHENKOVA,
:
:
Defendant. :
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14-CV-4410 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff, Shalva Pavlovich Chigirinskiy (“Shalva”), brings this action against his ex-wife,
Tatiana Romanova Panchenkova (“Tatiana”), seeking to recover money and property in
Tatiana’s possession that is allegedly wholly or partly his. Shalva asserts causes of action for
breach of contract, conversion, unjust enrichment, fraudulent inducement, accounting, and
constructive trust. Tatiana moves to strike portions of the complaint and to dismiss all of
Shalva’s claims. For the reasons that follow, Tatiana’s motion to strike is denied and her motion
to dismiss is granted in part and denied in part.

1

I.

Background
A. Factual Background 1
1. The Parties
Shalva and Tatiana met in Russia in the late 1990s. (Dkt. No. 4 Ex. A, Complaint

(“Compl.”), ¶ 18.) They married in December 2003 and have a total of four children together.
(Id.) In 2008, Shalva and Tatiana decided to relocate their family to the United States. (Id. ¶
19.) They began the process of moving to the United States in late 2008 or early 2009. (Id. ¶
23.)
In early 2009, Shalva and Tatiana “decided to formally end their marriage” but “continue
to live together as de facto husband and wife with the children” in the United States. (Id. ¶ 20.)
They obtained a divorce decree in Russia in April 2009. (Id.)
Shalva and Tatiana initially settled in New York City. (Id. ¶ 24.) “[O]n and off from
approximately February to September 2009,” they resided at an apartment in Manhattan at 44
East 67th Street (the “East 67th Street Apartment”). (Id.) They subsequently moved to a home
in Greenwich, Connecticut. (Id.) Beginning in April 2010, however, Shalva “became
increasingly concerned about information he received about secret financial dealings by
[Tatiana].” (Id. ¶ 26.) In August 2010, he decided that “trust in the relationship had irretrievably
broken down” and ceased cohabitation with Tatiana. (Id.) Tatiana remarried in 2011. (Id. ¶ 27.)

1

The facts below are, unless otherwise noted, drawn from the Complaint, and are accepted as
true on a motion to dismiss brought under Federal Rule 12(b)(6). Aegis Ins. Servs., Inc. v. 7
World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013).
2

2. The Collection
Both before and during his marriage to Tatiana, Shalva amassed a “significant and
valuable” collection of household items (the “Collection”). (Id. ¶ 28.) Prior to the marriage, the
Collection comprised “unique artwork, valuable decorative objets d’art (including numerous
precious items made by the famous House of Faberge) and antiques as well as antique, historic
and first edition books, primarily Russian in origin.” (Id.) Shalva and Tatiana added more
valuable property to the Collection during their marriage, including “extensive and expensive
household fixtures and decorative items including antique furniture, oriental carpets, chandelier
and valuable sconces, decorative vases and other similar furnishing[s].” (Id.) Shalva alleges that
the value of the Collection “was at relevant times in the range of $120 million.” (Id.)
Before the parties divorced, Shalva transferred title to a portion of the Collection to
Tatiana via three deeds of gift. (Id. ¶ 29; Dkt. No. 38, Declaration of Maria Grechishkina
(“Grechishkina Decl.”), Ex. 1, Declaration of Larisa Nukhimovna Ryabchenko (“Ryabchenko
Decl.”), Ex. U (“Deeds”).) Shalva alleges that he executed the Deeds—signed on October 4,
2007, March 25, 2008, and September 2, 2008—on Tatiana’s “explicit and repeated
representations that [the Collection] would be preserved by her in trust for her, her son from a
former marriage, and [Shalva and Tatiana’s] four children in specific shares.” (Compl. ¶¶ 14,
29.) Shalva pleads that “[t]hese representations were made by [Tatiana] for the purpose of
inducing [Shalva] to transfer the valuable property to her.” (Id. ¶ 14.)
Shalva and Tatiana allegedly struck an “agreement” that the “major part” of the
Collection, including the property gifted to Tatiana, would be shipped to the United States. (Id. ¶
22.) Tatiana supervised the shipment of some, but not all, of this property to New York from the
parties’ homes in France, England, and Russia. (Id. ¶ 23.) Tatiana had some of the property
3

shipped to the East 67th Street Apartment, and some to an art storage facility in Manhattan. (Id.)
She later transferred some of the property to Connecticut. (Id.) It appears that some property
was also sent to secure storage facilities in Europe. (Id. ¶ 32.) Shalva alleges that because
“[Tatiana] and her staff handled all of the details of the shipping” (id. ¶ 23), she is likely to have
a complete inventory and photographs of all of the items in the Collection (id. ¶ 32). In contrast,
Shalva, who was not involved in the shipping of the Collection and does not recall its full range
of items, alleges that he does not have the complete list of items shipped to the United States or
sent to storage in Europe. (Id.)
After the parties’ relationship ended in 2010, Tatiana allegedly began selling items from
the Collection for her own benefit. (Id. ¶ 33.) Some of the items, Shalva alleges, were sold at
“substantially below market value,” evincing Tatiana’s intent “to dissipate the Collection and not
[] preserve it or its value.” (Id.)
3. The Real Estate
Shalva alleges that, when the parties divorced, Tatiana owned, either directly or indirectly
through “alter-ego corporate entities,” five apartments in New York City. (Id. ¶¶ 34, 37.)
Among these was the East 67th Street Apartment, where the parties resided when they first
arrived in New York. Tatiana allegedly owned this apartment while the family lived there, but
falsely represented to Shalva that she rented it. (Id. ¶¶ 24, 34.) Based on this representation,
Shalva transferred Tatiana approximately $6,000 per month—funds that Tatiana “converted . . .
to her own use.” (Id. ¶ 24.)
Tatiana allegedly failed to disclose the five New York apartments at the time of the
parties’ divorce. (Id. ¶ 35.) Shalva learned about four of these apartments—which Tatiana refers

4

to as the “Old Apartments” 2—in 2012, and filed suit in Russia seeking division or compensation
for them. (Id. ¶ 36.) Shalva claims that his suit was dismissed “on a preliminary procedural
issue regarding formalities for presenting foreign records,” and was never adjudicated on the
merits. (Id.) The fifth apartment, which Shalva learned about in 2014, has not been the subject
of suit in Russia. (Id. ¶ 37.)
Three other real estate properties are in dispute. Two are penthouse apartments that
Tatiana purchased through alter-ego entities in 2010, before the parties separated, in a building at
205 East 85th Street. (Id. ¶ 38.) Tatiana allegedly purchased those properties with marital funds
but has since sold them. (Id.) The third is a joint investment that Shalva and Tatiana made in an
apartment in April 2008 in the Mark Hotel in New York City. (Id. ¶ 39.) There has been a delay
in the development of this property, and it is unclear whether it will be proceed or whether the
funds will be returned to investors. (Id.) Shalva contends, nonetheless, that he is entitled to
whatever value is realized in connection with this apartment. (Id.)
4. Jewelry
Also in dispute are three pieces of jewelry (the “Jewelry”) in Tatiana’s possession: a 37carat diamond ring that Shalva purchased in London in October 2006, for approximately $3.6
million, and an emerald ring and ruby necklace that Shalva bought in January 2008 in
Switzerland for $1.9 million. (Id. ¶ 40.) Shalva contends that these items were bought as
“investments” that Tatiana “was permitted to use . . . for only so long as she and [Shalva] were
together as a couple.” (Id.) Title to the Jewelry remains with Shalva. (Id.)

2

The Old Apartments consist of the East 67th Street Apartment, two apartments at 150 West
56th Street, and one apartment at 175 East Broadway. (Compl. ¶ 34.)
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B. Procedural History
1. Prior Litigation
There are two legal disputes between these parties of potential relevance to this action.
First, in connection with the parties’ divorce in April 2009, Tatiana began a proceeding in Russia
to divide ownership of some of the couple’s marital property. (Dkt. No. 45, Plaintiff’s
Opposition to Defendant’s Motion to Dismiss (“Opp. Memo”), at 4.) That proceeding resulted in
a judgment that divided some, but not all, of the parties’ marital property. (Ryabchenko Decl.
Ex. L (“2009 Judgment”).) Second, as alluded to above, Shalva commenced an action in Russia
in 2013 to dispute the ownership of certain property—including the “Old Apartments”—but that
action was dismissed because relevant documents were not “apostilled.” 3 (Opp. Memo at 20;
Compl. ¶ 36; Ryabchenko Decl. Ex. P (“2013 Judgment”).) The relevance of these proceedings
is discussed in greater detail below. 4
Shalva alleges that on May 6, 2014, his counsel sent a letter to Tatiana’s counsel
demanding return of property from the Collection and other marital property. (Compl. ¶ 41.)
Tatiana’s counsel allegedly acknowledged receipt of the letter but did not respond to it. (Id.)
This suit followed.
2. This Action
Shalva commenced this action in the Supreme Court of the State of New York on June 5,
2014. Tatiana filed a notice of removal on June 18, 2014. (Dkt. No. 1.) Shalva then moved to

3

Shalva refers to an “apostille” as “a form of international certification equivalent to
notarization.” (Opp. Memo at 24.)
4

Tatiana has also initiated litigation against Shalva in Connecticut state court in connection with
allegations of domestic abuse by Shalva, the custody of their children, and enforcement of the
2009 Judgment. (Def. Memo at 5–6.)
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remand for want of federal jurisdiction. (Dkt. No. 2.) The Court denied the motion, finding
jurisdiction proper because Tatiana had demonstrated United States citizenship. (Dkt. No. 19.)
Tatiana moved to strike portions of the Complaint on July 14, 2014. (Dkt. No. 17.)
Shalva filed an opposition to the motion, and Tatiana filed a reply. (Dkt. Nos. 26 & 29.) The
motion to dismiss was filed on August 15, 2014. (Dkt. No. 36.) Shalva filed his opposition to
that motion on October 2, 2014, and Tatiana filed a reply on October 25. (Dkt. Nos. 45 & 55.)
II.

Discussion
Shalva asserts six claims against Tatiana in this action. All are under state law, and all

are connected to Tatiana’s allegedly wrongful appropriation—and in some cases, sale—of
property that Shalva claims belongs, in whole or in part, to him.
First, Shalva sues for breach of contract. He alleges that he and Tatiana had an
agreement both that property purchased during the marriage would remain their joint property
and that property purchased by Shalva prior to their marriage would continue to be owned by
Shalva. (Compl. ¶ 44.) This property would be “enjoyed by them jointly and for the benefit of
their family while they cohabitated with their children in the United States.” (Id.) Tatiana
allegedly violated this agreement by both failing to return the property and selling some of the
property and not paying Shalva for its value. (Id. ¶ 46.) Second, Shalva sues for conversion,
alleging that Tatiana “holds or held and sold both tangible and real property to which [Shalva] is
rightfully entitled as marital property, property owned before marriage, or property pursuant to
an oral contract.” (Id. ¶ 49.) Third, Shalva sues for unjust enrichment, both for property to
which she was not entitled and proceeds from sale of property that she was required to maintain.
(Id. ¶¶ 55–56.) Fourth, Shalva sues for rescission of the Deeds on the basis of Tatiana’s
“fraudulent misrepresentation” that she would transfer the property “into an appropriate
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structure” in trust for herself, her son from a previous marriage, and the parties’ four children.
(Id. ¶¶ 58–61.) Fifth, Shalva seeks an accounting of the property Tatiana currently holds and has
sold from 2008 to the present. (Id. ¶¶ 62–65.) Sixth and finally, Shalva seeks a constructive
trust over the money and property in Tatiana’s possession to which he is entitled. (Id. ¶¶ 66–68.)
Tatiana argues that the action merits dismissal on five grounds: (1) that this court is not
the most appropriate and convenient forum for this case; (2) that the court should abstain on the
basis of international comity; (3) that Shalva’s claims are barred by res judicata; (4) that the
statute of limitations has run on all of Shalva’s claims; and (5) that Shalva fails to state a claim
upon which relief can be granted.
A. Subject Matter Jurisdiction
This Court previously concluded that this action meets the requirements for federal
diversity jurisdiction under 28 U.S.C. § 1332(a)(2). (See Dkt. No. 19.) The Court is also
satisfied that this case does not fall within the narrow “domestic relations” exception to diversity
jurisdiction, which is limited to cases “involving the issuance of a divorce, alimony, or child
custody decree.” See Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). Nor is this matter “on
the verge” of the domestic relations exception, to the extent that the Second Circuit’s decision in
Bossom v. Bossom remains good law. 551 F.2d 474, 475 (2d Cir. 1976); see Fromer v. Mincheff,
No. 13-CV-8567 (JPO), 2014 WL 3537014, at *1 n.2 (S.D.N.Y. July 17, 2014) (“It is not
precisely clear how much of Bossom survived . . . [the] overall tightening of judicially crafted
exceptions to 28 U.S.C. § 1332 [in Marshall v. Marshall, 547 U.S. 293 (2006)].” (citing Wright,
Miller & Cooper, 13 Federal Practice and Procedure § 3609.1 (3d ed. 2014)).

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B. Choice of Law
The parties disagree on what law governs Shalva’s claims. Tatiana contends that Russian
law governs “significant issues” in the case, while Shalva argues that New York or Connecticut
law applies to all the claims except his cause of action for fraudulent inducement, which he
concedes is governed by Russian law. (Opp. Memo at 9.)
“A federal trial court sitting in diversity jurisdiction must apply the law of the forum state
to determine the choice-of-law.” Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d
Cir. 2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Under New
York law, the first step in the choice-of-law analysis is to determine whether there is, in fact, an
“actual conflict of laws.” Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998). Only if there is
such a conflict is the court required to apply choice-of-law principles and resolve which forum’s
law applies. Fed. Ins. Co. v. Am. Home Assur. Co., 639 F.3d 557, 566 (2d Cir. 2011).
Neither party has meaningfully addressed whether there is an actual conflict between the
law of Russia and that of New York and Connecticut on the causes of action pleaded here. 5
District courts “need not . . . avoid[] a full analysis” of a foreign forum’s law “on the basis of an
inadequate submission by one party,” and should exercise their power under Federal Rule 44.1 to
ascertain that law by considering “any relevant material or source, including testimony, whether
or not submitted by a party or admissible under the Federal Rules of Evidence.” Curley, 153

5

Shalva faults Tatiana for “mak[ing] no showing that even Russian law is materially different
from the law of the forum on the fundamental claims here at issue” (Opp. Memo at 7), but
“conventional notions of burden of proof . . . are anathema to the underlying purpose of Rule
44.1,” and the parties have “a collective responsibility” to assist the Court in ascertaining foreign
law. In re Ishihara Chem. Co., Ltd., 121 F. Supp. 2d 209, 217 (E.D.N.Y. 2000), vacated on
other grounds, 251 F.3d 120 (2d Cir. 2001).
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F.3d at 13 (quoting Fed. R. Civ. P. 44.1). In this case, however, the Court need not resolve
whether there is a conflict of laws because, even if there were, New York or Connecticut law
would apply to everything except the fraudulent inducement claim.
“New York applies separate choice-of-law approaches to contract and to tort claims.”
Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 336 (2d Cir. 2005). For
contract claims, New York courts apply “the ‘center of gravity’ or ‘grouping of contacts’ choice
of law theory.” Id. (quoting In re Allstate Ins. Co., 613 N.E.2d 936, 939 (N.Y. 1993)) (brackets
omitted). As the Court of Appeals has noted, the most significant contacts in this analysis are
“the place of contracting, negotiation and performance; the location of the subject matter of the
contract; and the domicile of the contracting parties.” Travelers Cas. & Sur. Co. v. Dormitory
Auth.-State of New York, No. 07-CV-6915 (DLC), 2008 WL 5233691, at *2 (S.D.N.Y. Dec. 16,
2008) (quoting In re Allstate, 613 N.E.2d at 940).
The “center of gravity” of the breach of contract claim here is either New York or
Connecticut. Each state is more closely connected to the claim than Russia is. Shalva concedes
that the alleged contract was formed in Russia before the parties moved to the United States
(Opp. Memo at 7), so the first two relevant factors—the place of contracting and the place of
negotiation—point to the application of Russian law. But the balance of factors weigh in favor
of New York or Connecticut. The contract, under which the parties allegedly agreed to enjoy
their joint and individual property while they cohabitated, was performed in New York and
Connecticut. The subject matter of the contract—the aforementioned property—is largely in

10

these states. 6 And while Shalva’s domicile is unclear—he insists that “he has not been domiciled
[in Russia] for over five years” (id. at 11)—Tatiana is domiciled in Connecticut. New York or
Connecticut law therefore governs the breach of contract claim.
With respect to tort claims, New York applies an “interest analysis.” GlobalNet
Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 384 (2d Cir. 2006) (quoting Schultz
v. Boy Scouts of Am., Inc., 480 N.E.2d 679, 684 (N.Y. 1985)) (internal quotation marks omitted).
For purposes of this analysis, torts are divided into two categories: “conduct-regulating” torts,
which involve “the appropriate standards of conduct,” and “loss-allocating torts,” which have to
do with “allocating losses that result from admittedly tortious conduct.” Schultz, 480 N.E.2d at
684–85. The nature of the analysis depends on the type of tort at issue. If the tort is conductregulating—as the alleged torts here are—“the law of the place of the tort will usually have a
predominant, if not exclusive, concern.” Id. at 684 (internal quotation marks omitted).
Shalva’s claims for conversion and unjust enrichment, which are torts subject to interest
analysis, are likewise governed by New York or Connecticut law. Conversion is plainly a
conduct-regulating tort. See, e.g., Charron v. Sallyport Global Holdings, Inc., No. 12-CV-6837
(WHP), 2014 WL 7336463, at *20 (S.D.N.Y. Dec. 24, 2014). District courts in this circuit
disagree about which choice-of-law test applies to unjust enrichment claims. See Gerloff v.
Hostetter Schneider Realty, No. 12-CV-9404 (LGS), 2014 WL 1099814, at *9 (S.D.N.Y. Mar.
20, 2014) (“Whether to apply to an unjust enrichment claim New York’s ‘center of gravity’
choice of law test applicable to contract disputes, or New York's ‘interest analysis’ test

6

As noted above, Shalva alleges that some of the property was shipped not to the United States,
but to storage in Europe. (Compl. ¶ 32.)
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applicable to tort claims, is a matter of debate among district courts in this Circuit.”). As pleaded
here, the unjust enrichment claim here sounds more in tort than it does in contract, and the Court
therefore applies interest analysis. Cf. Fieger, 251 F.3d at 394 (applying the “center of gravity”
to a quantum meruit claim “sound[ing] more in contract than in tort). That analysis clearly
points to the application of the law of New York or Connecticut. The conduct underlying both
the conversion and unjust enrichment causes of action—Tatiana’s failure to return property in
which Shalva has an interest and proceeds from the sale of such property—occurred in the
United States, either in New York or Connecticut, and the Court sees no compelling reason not
to apply the law of those jurisdictions here. The same is true for the constructive trust and
accounting causes of action, because they are connected to property located in New York or
Connecticut. See Moses v. Apple Hospitality Reit Inc., No. 14-CV-3131 (DLI) (SMG), 2015 WL
1014327, at *4 (E.D.N.Y. Mar. 9, 2015) (“With respect to constructive trusts, ‘the law of the
situs of the property’ governs such claims . . . .” (quoting S.E.C. v. Credit Bancorp, Ltd., 138 F.
Supp. 2d 512, 531 (S.D.N.Y. 2001), rev’d in part, vacated in part on other grounds, 297 F.3d
127 (2d Cir. 2002))); Stikas v. J.P. Morgan Chase Bank, Nat. Ass’n, No. 14-CV-1277 (PAC),
2015 WL 1262203, at *6 (S.D.N.Y. Mar. 19, 2015) (“Since an accounting is equitable, the law of
the jurisdiction with the greater interest in having its law applied in the litigation governs. Here,
Connecticut law has the greatest interest in the litigation because the property at issue is in
Connecticut, and Plaintiff suffered her alleged damages there.” (internal quotation marks
omitted)).
At this stage, the Court need not decide whether New York or Connecticut law governs
the above claims because, as discussed below, all of them—with the exception of the causes of

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action for an accounting and constructive trust—withstand the motion to dismiss regardless of
which state’s law applies.
As to the claim for rescission based on fraudulent inducement, Shalva properly concedes
that Russian law applies. Each of the Deeds contains a choice-of-law clause stating that the
Deed “may be terminated in accordance with the applicable laws of the Russian Federation.”
(See Deeds at 2, 13, and 19.) However, “under New York law, a contractual choice-of-law
provision governs only a cause of action sounding in contract, not one sounding in tort, unless
the express language of the choice-of-law provision is sufficiently broad as to encompass the
entire relationship between the contracting parties.” Refco Grp. Ltd., LLC v. Cantor Fitzgerald,
L.P., No. 13-CV-1654 (RA), 2014 WL 2610608, at *40 (S.D.N.Y. June 10, 2014) (quoting
H.S.W. Enters., Inc. v. Woo Lae Oak, Inc., 171 F. Supp. 2d 135, 141 n. 5 (S.D.N.Y. 2001))
(brackets and internal quotation marks omitted). Courts treat the specific wording of a choiceof-law provision as crucial in determining how broad the provision is: provisions applying to
disputes “arising out of” or “relating to” a contract are capacious enough to reach related tort
claims, while provisions stating that a contract will be “governed by” or “construed in
accordance with” the law of a state are not. Id. (internal quotation marks omitted); see also
Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir. 1996) (holding that a choice-of-law provision stating
that the contract “shall be governed by and construed in accordance with the laws of . . .
Massachusetts” was not “broad[] enough to apply to fraudulent misrepresentation”). Here, there
is no ambiguity: the choice-of-law provision speaks to the directly to the remedy Shalva seeks—

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termination of the Deeds—and provides that Russian law shall apply. 7 The fraudulent
inducement claim is therefore governed by Russian law.
C. Forum Non Conveniens
1. Governing Principles
Forum non conveniens permits dismissal of an action when “a court abroad is the more
appropriate and convenient forum for adjudicating the controversy.” Sinochem Intern. Co. v.
Malaysia Intern. Shipping Corp., 549 U.S. 422, 425 (2007). The doctrine is “essentially[] a
supervening venue provision, permitting displacement of the ordinary rules of venue when, in
light of certain conditions, the trial court thinks that jurisdiction ought to be declined.” Id. at
429–30 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994)) (internal quotation
marks omitted). The burden of proof “on all elements of the motion” to dismiss for forum non
conveniens falls on the defendant, Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State
Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001), and “[a]ny review of a forum non
conveniens motion starts with a strong presumption in favor of the plaintiff’s choice of forum,”
Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 2005) (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)) (internal quotation marks omitted).
In Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir. 2001) (en banc), the
Second Circuit outlined a three-step analysis for motions to dismiss for forum non conveniens.

7

Even if the choice-of-law provision were not determinative here, Russian law would still apply
because the alleged fraudulent inducement occurred in Russia. (Compl. ¶ 29; Opp. Memo at 9.)
See H.S.W. Enters., 171 F. Supp. 2d at 142 (“In cases involving conduct-regulating laws, like
fraudulent inducement, where the parties are domiciled in different states, the locus of the tort
will almost always be determinative.” (quoting Krock, 97 F.3d at 646) (brackets and internal
quotation marks omitted)).
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The “first level of inquiry” in the analysis is an assessment of the level of deference owed to a
plaintiff’s choice of forum. Iragorri, 274 F.3d at 73. The degree of deference to which that
choice is entitled “varies with the circumstances”: “great deference” is owed where the plaintiff
is suing in her home forum, while “less deference” attaches when foreign plaintiff selects a
United States forum for her suit. Id. at 71 (citing Koster v. (Am.) Lumbermens Mut. Cas. Co., 30
U.S. 518, 524 (1947); Piper Aircraft, 454 U.S. at 255–56). This is so because a plaintiff’s
residence is generally a proxy for convenience: a plaintiff’s choice of her home forum “is
presumed to be convenient,” while it is “much less reasonable” to presume that a foreign plaintiff
has selected a U.S. forum for reasons of convenience. Id. (internal quotation marks omitted).
A plaintiff’s residence is not dispositive of the level of deference owed, however. The
Second Circuit has instructed that district courts are to assess deference on a “sliding scale”
approach:
The more it appears that a domestic or foreign plaintiff’s choice of forum has
been dictated by reasons that the law recognizes as valid, the greater the
deference that will be given to the plaintiff’s forum choice. Stated differently,
the greater the plaintiff’s or the lawsuit’s bona fide connection to the United
States and to the forum of choice and the more it appears that considerations of
convenience favor the conduct of the lawsuit in the United States, the more
difficult it will be for the defendant to gain dismissal for forum non conveniens.
Id. at 71–72 (footnote omitted). In making this assessment, courts are required to weigh factors
tending to show that a choice of forum was genuinely motivated by considerations of
convenience and factors indicating that a choice was made for forum-shopping reasons. Norex
Petroleum, 416 F.3d at 156. The “convenience factors,” which weigh against dismissal, include
“[1] the convenience of the plaintiff’s residence in relation to the chosen forum, [2] the
availability of witnesses or evidence to the forum district, [3] the defendant’s amenability to suit
15

in the forum district, [4] the availability of appropriate legal assistance, and [5] other reasons
relating to convenience or expense.” Id. at 155 (internal quotation marks omitted). The “forumshopping factors” that militate against deference to a plaintiff’s choice of forum include “[1]
attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, [2]
the habitual generosity of juries in the United States or in the forum district, [3] the plaintiff’s
popularity or the defendant’s unpopularity in the region, or [4] the inconvenience and expense to
the defendant resulting from litigation in that forum.” Id. (internal quotation marks omitted).
The court is not required to consider each of the convenience and forum-shipping factors, but its
analysis should be holistic and avoid emphasizing one factor to the exclusion of others. Id. The
greater the deference owed to a plaintiff’s choice of forum, the greater the defendant’s burden to
demonstrate the genuine inconvenience of the forum. Iragorri, 274 F.3d at 74.
The deference analysis is followed by two more steps. First, the district court “asks if
there is an alternative forum that has jurisdiction to hear the case.” Peregrine Myanmar Ltd. v.
Segal, 89 F.3d 41, 46 (2d Cir. 1996). “An alternative forum is generally adequate if: (1) the
defendants are subject to service of process there; and (2) the forum permits litigation of the
subject matter of the dispute.” Bank of Credit & Commerce Int’l, 273 F.3d at 246 (internal
quotation marks omitted). Second, the district court determines, based on “the Gilbert factors,”
which forum would be the “most convenient” and “best serve the ends of justice.” Peregrine
Myanmar, 89 F.3d at 46 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)). In doing so, the
court must weigh both “private interest” factors and “public interest” factors. DiRienzo v. Philip
Servs. Corp., 294 F.3d 21, 29 (2d Cir. 2002). The “private interest” factors include “(1) ease of
access to evidence; (2) the availability of compulsory process for the attendance of unwilling
witnesses; (3) the cost of willing witnesses’ attendance; (4) if relevant, the possibility of a view
16

of premises; and (5) all other factors that might make the trial quicker or less expensive.” Id. at
29–30 (citing Gilbert, 330 U.S. at 508). The “public interest” factors to be considered are “(1)
administrative difficulties associated with court congestion; (2) the unfairness of imposing jury
duty on a community with no relation to the litigation; (3) the local interest in having localized
controversies decided at home; and (4) avoiding difficult problems in conflict of laws and the
application of foreign law.” Id. at 31 (citing Gilbert, 330 U.S. at 508–09) (internal quotation
marks omitted).
Having considered all of the above, the district court should dismiss the action for forum
non conveniens “only if the chosen forum is shown to be genuinely inconvenient and the
[alternate] forum is significantly preferable.” Iragorri, 274 F.3d at 74–75. The court must be
mindful that forum-shopping considerations may motivate a defendant to press for dismissal as
much as they drive a plaintiff to resist it. Id. at 75. The court should therefore “arm [itself] with
an appropriate degree of skepticism” in determining whether the chosen forum is in fact
genuinely inconvenient and the alternative forum is clearly preferable. Id.
2. Analysis
Applying that framework here, the Court finds that Tatiana has not met her burden of
showing that the Southern District of New York is a genuinely inconvenient forum and that a
Russian court would be significantly preferable.
a. Deference to Shalva’s Choice of Forum
At the first step, the Court concludes that some deference is owed to Shalva’s choice to
bring his action in this forum. 8

8

Neither of the parties has briefed the deference factors in any depth.
17

It is undisputed that, while Shalva has a residence in New York, he is not a citizen of the
United States. (Compl. ¶ 7; Dkt. No. 37, Defendant’s Memorandum of Law in Support of its
Motion to Dismiss (“Def. Memo”), at 10.) But citizenship is not dispositive, and the same
presumption of deference to a plaintiff’s choice of forum applies where a noncitizen plaintiff is a
U.S. resident. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103 (2d Cir. 2000) (“We
have never accorded less deference to a foreign plaintiff’s choice of a United States forum where
that plaintiff was a U.S. resident.”); see also Piper Aircraft, 454 U.S. at 255 n.23 (“Citizens or
residents deserve somewhat more deference than foreign plaintiffs . . . .”). Shalva, however,
stops short of arguing that he is a U.S. resident. He contends merely that he “has a home in New
York and is frequently in residence here for extended periods.” (Opp. Memo at 11). Tatiana’s
evidence, moreover, is that Shalva holds only a nonimmigrant visa. 9 Accordingly, for the
purposes of forum non conveniens, the Court’s analysis proceeds on the basis that Shalva is
neither a citizen nor resident of the United States.
Nonetheless, the suit here bears a bona fide connection to the chosen forum. The
“convenience” factors indicate that the choice of forum is likely to have been motivated by
genuine convenience. First, while Shalva is not strictly a U.S. resident, his place of residence in
practical terms is convenient in relation to New York. Shalva, along with Tatiana and his family,
moved to New York several years ago. He has a home in New York, and while he remains a
citizen of Russia and has pursued litigation there against Tatiana, he does not appear to maintain

9

(See Grechishkina Decl. Ex. 2, Declaration of Tatiana Panchenkova (“Tatiana Decl.”), ¶¶ 30–
31.) In deciding a motion to dismiss for forum non conveniens without a factual hearing, a court
accepts the facts alleged in the complaint as true, but may also consider affidavits submitted by
the parties. See Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 697 n.1 (2d Cir. 2009)
(citing Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 645 (2d Cir. 1956)).
18

a residence there. (See Compl. ¶ 7.) As a practical matter, therefore, New York is not
inconvenient in relation to his residence.
Second, the availability of witnesses and evidence in New York supports, albeit only
slightly, the view that Shalva selected this forum for reasons of convenience. “[A]t the first step
of [the forum non conveniens] analysis, the issue is not whether witnesses and evidence are
unavailable in the defendant’s preferred forum, but whether they are more available in plaintiff’s
chosen foreign forum than in its home forum.” Norex Petroleum, 416 F.3d at 156. Shalva
contends that the bulk of the relevant witnesses and documents are located in the United States,
and principally in New York, while Tatiana argues that they are found in Russia. (See Dkt. No.
46, Affidavit of Courtney L. Weiner, Ex. 1, Declaration of Shalva Chigirinskiy (“Shalva Decl.”),
¶ 11; Dkt. No. 55, Reply Memorandum of Law in Support of Motion to Dismiss (“Reply
Memo”), at 5–6.) Both parties appear to overstate their positions to some extent, but the Court is
persuaded that the relevant evidence in this case is somewhat “more available” in New York and
Connecticut than it is in Russia. Tatiana has identified several witnesses in Russia who would be
unable to travel to the United States to testify here (Grechishkina Decl. Ex. 2, Declaration of
Tatiana Panchenkova (“Tatiana Decl.”), ¶ 20), but it appears to the Court that central
witnesses—including the parties themselves—and the bulk of documents related to the disputed
property are located in the United States. This supports the view that Shalva selected New York
on the basis of convenience.
Third, Tatiana is a citizen of the United States and is therefore amenable to suit here.
(See Dkt. No. 19.) This fact, however, does not automatically weigh in Shalva’s favor, as a
“plaintiff's choice of the defendant's home forum will not, by itself, warrant a presumption of
convenience.” Norex Petroleum, 416 F.3d at 155 (quoting Pollux Holding Ltd. v. Chase
19

Manhattan Bank, 329 F.3d 64, 74 (2d Cir. 2003)) (internal quotation marks omitted). Rather, a
“plaintiff’s choice to initiate suit in the defendant’s home forum—as opposed to any other where
the defendant is also amenable to suit—only merits heightened deference to the extent that the
plaintiff and the case possess bona fide connections to, and convenience factors favor, that
forum.” Pollux Holding, 329 F.3d at 74. Tatiana is also a citizen of Russia (Def. Memo at 3),
and is presumably subject to suit there. This factor, therefore, neither bolsters nor undermines
the claim that this forum was chosen for convenience. 10
On the other side of the ledger, the relevant factors do not tend to show that Shalva’s
choice of this forum “was motivated by forum-shopping reasons.” Iragorri, 274 F.3d at 72.
Tatiana has offered no proof that Shalva’s decision to bring the action in New York represents an
“attempt[] to win a tactical advantage resulting from local laws that favor the plaintiff’s case” or
has any connection to “the habitual generosity of juries” or “the plaintiff’s popularity or the
defendant’s unpopularity” in the United States or New York. Id. Tatiana asserts that Shalva
sued here “presumably because he thinks an American court would be more favorable” (Def.
Memo at 10), but offers little to substantiate that claim. Indeed, both parties appear to agree that
Shalva’s most recent suit against Tatiana in Russia failed not because of unfavorable local laws,
but instead because Shalva had failed to essentially notarize relevant documents. (Id. at 25–26;
Opp. Memo at 24.) And the last “forum-shopping factor”—the “inconvenience and expense to
the defendant resulting from litigation in [the chosen] forum,” Iragorri, 274 F.3d at 72—is
decidedly in Shalva’s favor. Defending this action in New York is sure to cause Tatiana some

10

Neither party has identified facts relevant to the “availability of appropriate legal assistance”
factor or raised “other reasons relating to convenience or expense.” Iragorri, 274 F.3d at 72.
20

inconvenience and expense—she says that she will be required, for example, to translate the
testimony of witnesses in Russia who might be deposed there (Def. Memo at 13)—but litigation
in Russia, where Tatiana has not lived for several years and is far from Tatiana’s current home in
Connecticut, is likely to be more burdensome for her.
The Court recognizes, to be sure, that “even when a foreign plaintiff’s decision to sue in
the United States is not obviously informed by forum shopping, there may be little reason to
assume that it is convenient for the plaintiff.” Norex Petroleum, 416 F.3d at 155 (internal
quotation marks omitted). In this case, however, the possibility that Shalva’s decision to bring
this action was motivated by convenience is a real one, and there is insufficient evidence of
forum-shopping to conclude otherwise. The Court is accordingly persuaded that some deference
is owed to Shalva’s decision to litigate here.
b. Adequate Alternative Forum
Russia is an adequate alternative forum for this dispute. Shalva’s main argument to the
contrary is that the parties, the disputed property, and the relevant evidence are all in the United
States. As noted above, however, an alternative forum is adequate if “(1) the defendant[] [is]
subject to service of process there; and (2) the forum permits litigation of the subject matter of
the dispute.” Bank of Credit & Commerce Int’l, 273 F.3d at 246 (internal quotation marks
omitted). Tatiana consents to jurisdiction in Russia and has submitted expert evidence showing
that Russian courts could entertain the property claims Shalva asserts here. (See Tatiana Decl. ¶
39; Ryabchenko Decl. ¶¶ 159–63.) Russia is therefore an adequate alternative forum.
c. Private and Public Interest Factors
The private and public interest factors do not weigh decisively in favor of either Shalva
or Tatiana.
21

As noted above, the private interest factors to be considered are: “(1) ease of access to
evidence; (2) the availability of compulsory process for the attendance of unwilling witnesses;
(3) the cost of willing witnesses’ attendance; (4) if relevant, the possibility of a view of premises;
and (5) all other factors that might make the trial quicker or less expensive.” DiRienzo, 294 F.3d
at 29–30. The first and second factors, Tatiana contends, point toward Russia as the more
convenient forum: determining whether property is jointly owned or solely owned by Shalva will
require translation and authentication of Russian legal documents, and there are ten Russian
witnesses who would be unwilling to travel to the United States to testify. (Def. Memo at 13–
14.) The third and fourth factors are not relevant here, but as to “other factors” relating to speed
and expense, Tatiana argues that litigating the case in New York will require her to obtain both
Russian legal advice and appraisals for the “Russian icons and antiques” that might be among the
parties’ property. 11 (Id. at 12–15.)
The private interest factors are, at best, neutral. The first factor weighs against Tatiana.
She has made an insufficient showing that Russian legal documents will play an important part
in establishing the ownership of the parties’ property or that there is a significant number of such
documents. Shalva, on the other hand, points to documents that, while potentially available in a
Russian action, are more easily accessible in New York. (See Shalva Decl. ¶¶ 10–11.) The

11

Tatiana urges the Court to consider here the fact that this action is “vexatious and oppressive.”
(Def. Memo at 12–13.) As evidence, she points to the “impertinent and scandalous” allegations
in the Complaint and the “baseless” nature of the claims. (Id. at 12.) This argument has no
merit. The case law counsels that “plaintiffs should not [be] deprived of their choice of forum
except upon defendants’ clear showing that a trial in the United States would be so oppressive
and vexatious to them as to be out of all proportion to plaintiffs’ convenience.” DiRienzo, 294
F.3d at 30. The Court reads “oppressive and vexatious” in this context to refer to the burden on a
defendant of litigating in a distant forum, not to the merits of a plaintiff’s action, but either way,
the Court could not conclude at this stage that Shalva’s action is “oppressive and vexatious.”
22

second factor weighs slightly in Tatiana’s favor. She has identified several witnesses in Russia
who will testify about her and Shalva’s relationship but would be unwilling to come to the
United States. (Def. Memo at 13.) Shalva has identified several relevant witnesses in the United
States (Shalva Decl. ¶ 11), but has not shown that these witnesses would be unavailable or
unwilling to testify in Russia. At the same time, Tatiana concedes that some of her Russian
witnesses will be available for depositions if the action is tried here. See, e.g., Overseas
Programming Companies, Ltd. v. Cinematographische Commerz-Anstalt, 684 F.2d 232, 235 (2d
Cir. 1982) (“[A]ny difficulties that the Court might encounter regarding witnesses whose
attendance the Court is unable to compel can most likely be resolved by the use of deposition
testimony or letters rogatory.”) As to the “other factors” that Tatiana emphasizes, the burdens on
her are speculative. She argues that she “may” need to translate other Russian legal documents
or obtain reports or testimony from a Russian legal expert, but is vague about precisely what she
requires or what the associated expense would be. (Def. Memo at 14.) Nor does she explain
why it would be burdensome to find an appraiser for the “Russian icons or antiques” in New
York or elsewhere in the United States. In short, the private interest factors are either neutral or
against Tatiana.
The relevant “public interest” factors, again, are “(1) administrative difficulties associated
with court congestion; (2) the unfairness of imposing jury duty on a community with no relation
to the litigation; (3) the local interest in having localized controversies decided at home; and (4)
avoiding difficult problems in conflict of laws and the application of foreign law.” DiRienzo,
294 F.3d at 31 (internal quotation marks omitted). Tatiana contends that all four weigh in her
favor: the Southern District of New York “is one of the busiest in the United States”; the
litigation has no “bona fide connection” to New York; Russia has a strong interest in resolving
23

this dispute; and, because Russian law governs Shalva’s claims, a Russian court would be better
suited to resolve this dispute. (Def. Memo at 15–18.)
The Court is not persuaded that any of these factors favors Tatiana. First, there is no
reason to believe that the Russian court would handle this case more expeditiously than this
Court. See Cromer Fin. Ltd. v. Berger, 158 F. Supp. 2d 347, 355 (S.D.N.Y. 2001) (“While the
docket of the Southern District is an active one, courts in this district have shown themselves
more than able to address the issues that arise in complex actions in an expeditious and
comprehensive manner.”). Second, the community bears a strong relation to this litigation. As
discussed above, Shalva’s causes of action are strongly connected to New York, and much of the
property in dispute is in this state. Third, and relatedly, while Russia may have some interest in
having this dispute resolved in its courts, it is not a “localized” controversy: the parties are not
currently domiciled in Russia, much of the disputed property is not there, and many of the events
relevant to this action did not occur there. Finally, because all the claims except Shalva’s
fraudulent inducement cause of action are governed by either New York or Connecticut law, the
application of foreign law is not likely to be a significant obstacle. In sum, the public interest
factors do not favor dismissal.
d. Conclusion
In light of the above, the Court finds that Tatiana has not discharged her burden of
showing that New York is a “genuinely inconvenient” forum and that Russia is “significantly
preferable.” Iragorri, 274 F.3d at 74–75. Her motion to dismiss for forum non conveniens is
therefore denied.

24

D. Comity
Tatiana also argues that Shalva’s suit should be dismissed based on principles of comity.
This argument fails.
International comity is “the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation.” Bigio v. Coca-Cola Co., 239 F.3d 440,
454 (2d Cir. 2000) (“Bigio I”) (quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)) (internal
quotation marks omitted). The term “international comity” is used to describe “two distinct
doctrines” that reflect that recognition: first, a “canon of construction [that] might shorten the
reach of a statute,” and second, “a discretionary act of deference by a national court to decline to
exercise jurisdiction in a case properly adjudicated in a foreign state.” In re Maxwell Commc’n
Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir. 1996); accord Bigio v. Coca-Cola Co., 448
F.3d 176, 178 (2d Cir. 2006) (“Bigio II”). This second breed of comity, known as “comity
among courts” or “adjudicatory comity,” In re Maxwell, 93 F.3d at 1047; Mujica v. AirScan Inc.,
771 F.3d 580, 599 (9th Cir. 2014), is based on principles of “proper respect for litigation in and
the courts of a sovereign nation, fairness to litigants, and judicial efficiency,” Royal & Sun
Alliance Ins. Co. of Canada v. Century Int’l Arms, Inc., 466 F.3d 88, 94 (2d Cir. 2006). Under
this variant of comity, the court has the discretion to “decline to exercise jurisdiction over a case
before it when that case is pending in a foreign court with proper jurisdiction.” JP Morgan
Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 424 (2d Cir. 2005). “The
task of a district court evaluating a request for dismissal based on a parallel foreign proceeding is
not to articulate a justification for the exercise of jurisdiction, but rather to determine whether
exceptional circumstances exist that justify the surrender of that jurisdiction.” Royal & Sun
Alliance Ins. Co. of Canada, 466 F.3d at 93. In this context, the court should evaluate the
25

“totality of the circumstances,” including, but not limited to, “the similarity of the parties, the
similarity of the issues, the order in which the actions were filed, the adequacy of the alternate
forum, the potential prejudice to either party, the convenience of the parties, the connection
between the litigation and the United States, and the connection between the litigation and the
foreign jurisdiction.” Id. at 94 (internal quotation marks omitted).
Tatiana argues that Shalva’s suit warrants dismissal because the action properly belongs
in Russia. This dispute, she contends, is “between two Russians who lived, married, and
divorced in Russia . . . and continues to be litigated in pending proceedings filed by Shalva in
Russia to this day.” (Def. Memo at 20.) There appears to have been some overlap between this
action and the most recent action litigated in Russia, but Tatiana does not meaningfully contest
that all relevant proceedings in Russia are now over. 12 Rather, she contends that a pending case
in a foreign jurisdiction is not a prerequisite to comity-based abstention. (Reply Memo at 8.)
The case law suggests otherwise. See JP Morgan Chase Bank, 412 F.3d at 418; Royal &
Sun Alliance Ins. Co. of Canada, 466 F.3d at 92 (referring to “comity of the courts” as “the
recognition of a pending foreign proceeding that has yet to reach final judgment, and that proper
deference to that proceeding requires abstention in domestic courts”); see also United Feature
Syndicate, Inc. v. Miller Features Syndicate, Inc., 216 F. Supp. 2d 198, 210 (S.D.N.Y. 2002)
(“[F]ederal courts have the inherent, discretionary power to abstain from exercising . . .
jurisdiction in order to extend comity to related proceedings pending in other countries.”);

12

In fact, Tatiana cites no evidence to support her claim that the proceedings in Russia are
ongoing. She acknowledges that a Russian court upheld the 2013 Judgment on May 14, 2013
(Def. Memo at 25 (citing Ryabchenko Decl. ¶ 116)), and that a Russian court dismissed Shalva’s
separate claim with respect to two Moscow apartments on July 17, 2014 (id. at 6; Ryabchenko
Decl. ¶¶ 4–6).
26

Republic of Colombia v. Diageo N. Am. Inc., 531 F. Supp. 2d 365, 412 (E.D.N.Y. 2007) (“The
doctrine of international comity provides that, in certain circumstances, a federal court will . . .
dismiss a case before it in deference to a parallel action pending in a foreign jurisdiction.”). 13
But even if pendency of a parallel proceeding in a foreign jurisdiction is not a prerequisite to
comity abstention, the Court’s ultimate conclusion that this action should not be dismissed would
be unaffected. As discussed in the analysis of forum non conveniens (above) and res judicata
(below), the exceptional circumstances warranting abstention on the basis of comity are not
present. Tatiana’s motion to dismiss on the basis of international comity is accordingly denied.
E. Res Judicata
Tatiana argues, next, that portions of Shalva’s action are barred by res judicata, or claim
preclusion.
In an action founded on diversity jurisdiction, “the law of the forum with respect to
comity should be applied.” Alesayi Beverage Corp. v. Canada Dry Corp., 947 F. Supp. 658, 664
(S.D.N.Y. 1996), aff’d, 122 F.3d 1055 (2d Cir. 1997); see RA Global Servs., Inc. v. Avicenna
Overseas Corp., 843 F. Supp. 2d 386, 389 n.2 (S.D.N.Y. 2012). In New York, res judicata
“bar[s] successive litigation based upon the same transaction or series of connected transactions

13

Tatiana cites the Second Circuit’s decision in Bigio, 239 F.3d 440, in support of her position,
but this case is inapposite. The issue in Bigio was one of international comity in a different
sense: whether adjudication of the suit in the United States “would offend amicable working
relationships” with Egypt, where the plaintiffs’ claims arose. Bigio II, 448 F.3d at 178 (internal
quotation marks omitted); see also Bigio I, 239 F.3d at 454 (“[International comity] may
(although it does not in this case) take the form of a discretionary act of deference by a national
court to decline to exercise jurisdiction in a case properly adjudicated in a foreign state.”
(internal quotation marks omitted) (emphasis added)). Tatiana has neither alleged nor made any
showing that adjudication of Shalva’s suit here would have such an impact on the United States’
relations with Russia. Bigio is therefore inapplicable here.
27

if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the
party against whom the doctrine is invoked was a party to the previous action, or in privity with a
party who was.” RA Global Servs., 843 F. Supp. 2d at 389 (quoting New York v. Applied Card
Sys., Inc., 894 N.E.2d 1, 12 (N.Y. 2008)) (internal quotation marks and footnote omitted).
“[O]nce a claim is brought to a final conclusion, all other claims arising out of the same
transaction or series of transactions are barred, even if based upon different theories or if seeking
a different remedy.” Specialized Realty Servs., LLC v. Maikisch, 999 N.Y.S.2d 430, 431 (App.
Div. 2d Dep’t 2014) (quoting O’Brien v. City of Syracuse, 429 N.E.2d 1158, 1159 (N.Y. 1981));
see also Marinelli Assocs. v. Helmsley-Noyes Co., 705 N.Y.S.2d 571, 574 (App. Div. 1st Dep’t
2000) (“[Res judicata] bars not only claims that were actually litigated but also claims that could
have been litigated, if they arose from the same transaction or series of transactions.”) Whether a
claim arises out of a transaction or series of transactions, for purposes of res judicata, turns on
“whether the facts are related in time, space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations
or business understanding or usage.” Xiao Yang Chen v. Fischer, 843 N.E.2d 723, 725 (N.Y.
2005) (internal quotation marks omitted). Res judicata is an affirmative defense, and the party
asserting it bears the burden of proof of showing that it applies. Alesayi Beverage Corp., 947 F.
Supp. at 655 n.10.
Tatiana asks that the court give preclusive effect to both the 2009 Judgment and the 2013
Judgment. In the 2009 Judgment, Tatiana contends, the Russian court concluded that the gifts
made by Shalva to Tatiana via the Deeds were not marital assets, because “any assets received
by either spouse during the life in matrimony as a gift, as inheritance or under any otherwise [sic]
without consideration (known as personal assets of each spouse) are owned by such spouse.”
28

(Def. Memo at 23–24 (quoting 2009 Judgment at 12).) According to Tatiana, the Russian court
also rejected Shalva’s claim that the gifts had not been transferred. (Id.) With respect to the
2013 Judgment, Tatiana alleges that the Russian court’s determination that Shalva failed to prove
ownership with respect to the “Old Apartments” is binding and precludes Shalva from
reasserting a claim to those apartments in this action. (Id. at 25–26.)
There is no bar to Shalva’s claims with respect to the Deeds, except insofar as Shalva
claims that the gifts transferred thereunder are marital property for which Shalva is owed
compensation. The 2009 Judgment rejected these latter claims. But it did not address—nor
could it have addressed—the claim made here that the Deeds were fraudulently induced by
Tatiana’s “explicit and repeated representations that it would be preserved by her in trust for her,
her son from a former marriage and their four children in specific shares.” (Compl. ¶ 14.)
Shalva alleges that he did not discover that Tatiana failed to adhere to these representations until
after the parties’ divorce in 2009. That Shalva’s claim is “implausible on its face” (Def. Memo
at 25), even if true, is unrelated to whether it is foreclosed by res judicata. In short, taking the
allegations in the Complaint as true, Shalva’s claim that the Deeds were fraudulently induced
was neither litigated nor “could have been litigated” in the 2009 action. Marinelli Assocs., 705
N.Y.S.2d at 574.
On the other hand, Shalva is precluded from challenging the holding in the 2013
Judgment that he has no claim to the Old Apartments. Shalva argues that, at least with respect to
these apartments, the 2013 Judgment is not “a decision on the merits” because it rejected his
claim on “technical or procedural grounds.” (Opp. Memo at 24.) But characterizing the decision
in this fashion does not alter the fact that the 2013 Judgment is, in essence, a final judgment. The
court reached the merits of the claim and decided against Shalva because of the insufficiency of
29

the evidence he presented. See 10 Weinstein, Korn & Miller, New York Civil Practice ¶ 5013.03
(2014) (“Generally, . . . dismissal for failure of proof is a dismissal on the merits.”) Shalva does
not allege, and nor does it appear to the Court, that the Russian court dismissed his claims before
the close of his evidence. See NY CPLR § 5013 (“[A] judgment dismissing a cause of action
after the close of the proponent's evidence is a dismissal on the merits unless it specifies
otherwise.”). The cases that Shalva cites in support of his position are inapposite, because they
involve instances in which res judicata did not apply because the first court declined to
adjudicate the issue in question. See Frischknecht v. Novaes, 924 N.Y.S.2d 814, 814 (App. Div.
2d Dep’t 2011) (“The plaintiff’s claim for the distribution of the marital residence and other
assets is not barred by the doctrines of res judicata and collateral estoppel, since the Brazilian
court expressly declined to adjudicate the issue after it was raised by the parties.”); Cudar v.
Cudar, 946 N.Y.S.2d 630, 634 (App. Div. 2d Dep’t 2012) (concluding that res judicata was no
bar to the defendant’s claim because the previous court “stated that it could not decide” the
claim). Here, in contrast, the Russian court decisively rejected Shalva’s claim that the “Old
Apartments” are the parties’ joint property—and that Shalva is accordingly entitled to
compensation for them—as “far-fetched, unsubstantiated, [and] unlawful,” and held that the
claim “shall not be allowed.” (2013 Judgment at 10.) 14

14

Nor is this case analogous to Wilson v. N.Y.C. Hous. Auth., 791 N.Y.S.2d 567 (App. Div. 2d
Dep’t 2005), in which the court explained that res judicata does not bar an action where the
previous suit was dismissed for “failure to comply with a condition precedent to the
commencement of an action against defendant.” Id. at 568. The condition precedent there—the
plaintiff’s compliance with General Municipal Law § 50-h—related to the plaintiff’s ability to
bring the action; the court did not reach the merits of the plaintiff’s claim. Here, however, the
condition precedent—essentially, a requirement that documents be notarized—went to Shalva’s
burden of proof and the merits of his claim.
30

Accordingly, res judicata bars Shalva from contesting the ownership of the Old
Apartments, referred to in the 2013 Judgment, and from claiming that the gifts transferred under
the Deeds are marital property. He is not, however, precluded from arguing that the Deeds
should be rescinded because they were procured by fraudulent misrepresentations on Tatiana’s
part.
F. Statute of Limitations
Next, Tatiana argues that some of Shalva’s claims should be dismissed because the
statute of limitations applicable to those claims has expired.
“When a nonresident sues on a cause of action accruing outside New York, CPLR 202
requires the cause of action to be timely under the limitation periods of both New York and the
jurisdiction where the cause of action accrued.” Global Fin. Corp. v. Triarc Corp., 715 N.E.2d
482, 484 (N.Y. 1999). The purpose of the rule is to prevent nonresidents from forum-shopping
for a more favorable statute of limitations. Id. A cause of action “accrues” under CPLR § 202
“where the injury is sustained rather than where the defendant committed the wrongful acts.”
Gordon & Co. v. Ross, 63 F. Supp. 2d 405, 408 (S.D.N.Y. 1999). “Where an alleged injury is
purely economic, the place of injury usually is where the plaintiff resides and sustains the
economic impact of the loss.” Global Fin. Corp., 715 N.E.2d at 485.
Tatiana contends that certain of Shalva’s claims—claims in connection with “marital
personal property” and the conversion claim—are time-barred. (Def. Memo at 27–28.) She
argues, first, that the limitations period for claims related to marital property was triggered by the
Russian divorce proceedings. Under Russian law, Tatiana explains, parties to a divorce
proceeding are not required to divide all of their marital property within that proceeding; they
may continue to hold it jointly and seek division later. (Reply Memo at 12; Ryabchenko Decl. ¶
31

66.) If, however, a former spouse “subsequently interferes with the other’s rights in marital
property, the other has three years to request division of that marital property, after which the
claim is barred.” (Reply Memo at 12 (citing Ryabchenko Decl. ¶¶ 26–49, 63–72).) This threeyear period, Tatiana alleges, began running in 2010, when Tatiana is said to have interfered with
Shalva’s rights to the marital property “by refusing to give it to him or [by] selling it.” (Id.)
Tatiana contends, second, that the same is true for Shalva’s conversion claim in connection with
property he owned before the marriage: Shalva should have known of the alleged conversion no
later than August 2010, and his claim is therefore time-barred regardless of which law applies.
(Id. at 13–14.)
Tatiana’s first argument fails. New York’s borrowing statute applies only where the
plaintiff’s claims accrue outside New York. Here, Shalva’s claims arise from Tatiana’s alleged
sale of property belonging, in whole or in part, to Shalva, and her alleged refusal to return
Shalva’s share of that money or other property to him. Tatiana does not contest that these are
events that took place in New York or Connecticut. The borrowing statute is therefore no
obstacle to Shalva’s claims in connection with the parties’ marital property, even if such claims
are in fact time-barred in Russia. 15
Tatiana’s argument that the conversion claim is time-barred is premature at this stage,
and therefore also fails. “Under New York law, conversion claims are subject to a three-year
statute of limitations, which begins running when the alleged conversion takes place.” Mosdos
Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F. Supp. 3d 191, 209 (S.D.N.Y. 2014) (citing, inter

15

Apart from the conversion claim, Tatiana does not argue that Shalva’s claims are time-barred
under New York or Connecticut law.
32

alia, NY CPLR § 214(3)) (brackets and internal quotation marks omitted). This rule is not
without exception: “Where possession is originally lawful, a conversion does not occur until the
owner makes a demand for the return of the property and the person in possession of the property
refuses to return it.” In re Rausman, 855 N.Y.S.2d 263, 264 (App. Div. 2d Dep’t 2008). But this
exception “has no application in a case where the lawful custodian of property commits an overt
and positive act of conversion by an unlawful sale or disposition of the same.” Regions Bank v.
Wieder & Mastroianni, P.C., 526 F. Supp. 2d 411, 414 (S.D.N.Y. 2007) (quoting MacDonnell v.
Buffalo Loan, Trust & Safe Deposit Co., 85 N.E. 801, 803 (N.Y. 1908)), aff’d, 268 F. App’x 17
(2d Cir. 2008); Dynamic Worldwide Logistics, Inc. v. Exclusive Expressions, LLC, __ F. Supp.
3d __ , 2015 WL 72828, at *4 (S.D.N.Y. Jan. 6, 2015) (“[A]n action for conversion only arises if
plaintiff made demands for return of the property or a defendant wrongfully transferred or
dispossessed of it before a demand was made.”). The Complaint alleges that Tatiana, the lawful
custodian of the property at the relevant time, began to unlawfully dispose of property in which
Shalva had at least some interest even before the parties ceased cohabitation in 2010. (See, e.g.,
Compl. ¶ 33.) This suggests that at least some of Shalva’s claims may be time-barred. But the
facts necessary to determine whether the conversion claim is fully time-barred are not before the
Court, and it would therefore be premature to dismiss the claim at this juncture. See Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, No. 12-CV-3723 (RJS), 2013 WL 1294668, at *8
(S.D.N.Y. Mar. 28, 2013) (“[I]n the statute of limitations context[,] . . . dismissal is appropriate
only if a complaint clearly shows the claim is out of time.” (quoting Harris v. City of New York,

33

186 F.3d 243, 250 (2d Cir. 1999) (internal quotation marks omitted))). Tatiana’s motion to
dismiss the conversion claim is accordingly denied. 16
G. Dismissal Under Rule 12(b)(6)
Tatiana also moves to dismiss all of Shalva’s claims for failure to state a claim upon
which relief may be granted.
To survive a motion to dismiss under Federal Rule 12(b)(6), a complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The standard of “facial plausibility” is met when “the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Plausibility is distinct from probability, and “a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable,
and that a recovery is very remote and unlikely.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014) (quoting Twombly, 550 U.S. at 556) (internal brackets and quotation marks omitted). At
the same time, a court is “not bound to accept as true a legal conclusion couched as a factual

16

On this point, Connecticut’s law is not materially different from that of New York’s. See
Stuart & Sons, L.P., 456 F. Supp. 2d at 343–44 (“There are two classes of conversion. . . . In the
first class of conversion the possession is wrongful from the outset. . . . The second class of
conversion occurs when the possession is originally rightful, but becomes wrongful as a result
of: (1) a wrongful detention; (2) a wrongful use of the property; or (3) the exercise of an
unauthorized dominion over the property. With regard to the first instance, where the original
possession is authorized, but becomes wrongful when the property is detained without
authorization, a conversion does not occur until the possessor refuses to return the property on
demand. . . . In the other two instances in the second class of conversion, either the wrongful
use or the unauthorized dominion constitute the conversion and no demand for the return of the
property is necessary. Thus, the statute of limitations in either case begins to run when a party,
publicly or outwardly, exhibits wrongful use or unauthorized dominion over the property.”
(citations omitted)).
34

allegation.” Twombly, 550 U.S. at 555 (internal quotation mark omitted). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
1. Breach of Contract
Tatiana contends that Shalva’s breach of contract claim is barred by Russia’s statute of
frauds. As noted above, however, New York or Connecticut law applies to the breach of
contract claim here. Neither state’s statute of frauds bars this claim.
New York’s statute of frauds renders void an agreement that has not been reduced to
writing if “[b]y its terms [it] is not to be performed within one year from the making thereof.”
N.Y. Gen. Oblig. Law § 5-701; Cron v. Hargro Fabrics, Inc., 694 N.E.2d 56, 58 (N.Y. 1998).
The Court of Appeals has interpreted this provision “to encompass only those contracts which,
by their terms, have absolutely no possibility in fact and law of full performance within one
year.” Cron, 694 N.E.2d at 58 (internal quotation marks omitted). “[I]f the terms of the contract
include an event that might end the contractual relationship within a year, the contract is not
within the Statute of Frauds.” Rackson v. Sosin, 14 F. App’x 23, 24–25 (2d Cir. 2001) (summary
order) (citing Cron, 694 N.E.2d at 60). Connecticut has a similar rule. See C.R. Klewin, Inc. v.
Flagship Properties, Inc., 955 F.2d 5, 6 (2d Cir. 1992) (“[A]n oral contract that does not say, in
express terms, that performance is to have a specific duration beyond one year is, as a matter of
law, the functional equivalent of a contract of indefinite duration for the purposes of the statute
of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is
outside the proscriptive force of the statute regardless of how long completion of performance
will actually take.” (quoting C.R. Klewin v. Flagship Properties, 600 A.2d 772, 779 (Conn.
1991) (internal quotation marks omitted))).
35

The statute of frauds is therefore no bar to Shalva’s breach of contract claim. The claim,
as the Complaint describes it, is based on Shalva and Tatiana’s alleged agreement, made in 2009,
that personal property—both jointly owned and solely owned by Shalva—that was sent to the
United States or stored in Europe would be “enjoyed by them jointly and for the benefit of their
family while they cohabited with their children in the United States.” (Compl. ¶ 44.) The
duration of the performance contemplated in the contract—the parties’ cohabitation in the United
States—was one that could have exceeded, and in fact slightly did exceed, one year. But it could
have also lasted less than a year. Put otherwise, there is nothing in the contract’s terms,
according to the Complaint, that would have required the contract’s duration to be greater than
one year. Tatiana’s motion to dismiss is accordingly denied as to Shalva’s breach of contract
claim.
2. Conversion
“Conversion is the ‘exercise of unauthorized dominion over the property of another in
interference with a plaintiff’s legal title or superior right of possession.’” Citadel Mgmt., Inc. v.
Telesis Trust, Inc., 123 F. Supp. 2d 133, 147 (S.D.N.Y. 2000) (quoting Lopresti v. Terwilliger,
126 F.3d 34, 41 (2d Cir. 1997)); Stuart & Sons, L.P. v. Curtis Pub. Co., 456 F. Supp. 2d 336, 343
(D. Conn. 2006) (“Conversion occurs when one, without authorization, assumes and exercises a
right of ownership of property belonging to another to the exclusion of the owner’s rights.”). A
plaintiff suing for conversion must allege “legal ownership of a specific identifiable piece of
property and the defendant’s exercise of dominion over or interference with the property in
defiance of the plaintiff’s rights.” Regions Bank v. Wieder & Mastroianni, P.C., 526 F. Supp. 2d
411, 413 (S.D.N.Y. 2007) (quoting Ahles v. Aztec Enters., Inc., 502 N.Y.S.2d 821, 822 (App.
Div. 3d Dep’t 1986)) (internal quotation marks omitted).
36

Tatiana argues that Shalva cannot maintain a conversion claim in connection with the
parties’ marital property, because it is property to which “Tatiana has joint title or rights.” (Def.
Memo at 30.) This is incorrect. The fact that a defendant partly owns some property does not
foreclose the possibility that the defendant’s conduct may give rise to a conversion claim. See,
e.g., Farkas v. Farkas, No. 95-CV-8464 (HB), 1997 WL 411920, at *1 (S.D.N.Y. July 23, 1997);
Durso v. Vessichio, 828 A.2d 1280, 1289 (Conn. App. Ct. 2003) (sustaining finding of
conversion on basis that plaintiff had “an ownership interest” in property). Shalva’s allegation
here is that Tatiana interfered with his right to the parties’ marital property by refusing to return
the property or selling it and not paying Shalva any of the proceeds. No more is required to
allege conversion. Tatiana’s motion to dismiss Shalva’s claim for conversion is therefore
denied. 17
3. Unjust Enrichment
Tatiana seeks dismissal of Shalva’s unjust enrichment claim on the ground that it is
duplicative of his conversion claim. (Reply Memo at 15 n.7.) 18 “An unjust enrichment claim is
not available where it simply duplicates, or replaces, a conventional contract or tort claim.”

17

Tatiana cites KS v. ES, No. 303920/10, 2013 WL 1799039 (N.Y. Sup. Ct. April 4, 2013), in
support of her position that Shalva’s conversion claim is untenable because he and Tatiana had
equal rights to the property. KS, however, addressed a conversion claim by one spouse against
the other for conduct during their marriage. See id. at *8 (“[I]f the titled spouse could claim that
the non-titled spouse had stolen[] his or her personal property every time the non-titled spouse
used that property during the marriage, the Domestic Relations Law and its recognition of
marriage as an economic partnership would be completely undermined.” (citation omitted)). KS
is therefore distinguishable.
18

Tatiana also argues that the unjust enrichment claim should be dismissed because: (1) it is
duplicative of claims Shalva could have brought in Russia, and (2) Shalva is using it to cure a
defect in his breach of contract claim, namely, the fact that it is barred under the Russian statute
of frauds. (Opp. Memo at 31–32.) Neither argument succeeds because, as noted above, Russian
law does not govern this claim.
37

Corsello v. Verizon New York, Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). Nonetheless, unjust
enrichment may be pleaded in the alternative to breach of contract. See, e.g., St. John's Univ.,
New York v. Bolton, 757 F. Supp. 2d 144, 183 (E.D.N.Y. 2010) (“At the pleading stage, Plaintiff
is not required to guess whether it will be successful on its contract, tort, or quasi-contract
claims.”); Stein v. Horton, 914 A.2d 606, 613 (Conn. App. Ct. 2007) (“Parties routinely plead
alternative counts alleging breach of contract and unjust enrichment . . . .”). Tatiana’s motion to
dismiss Shalva’s unjust enrichment claim is accordingly denied.
4. Fraudulent Inducement
Tatiana moves to dismiss Shalva’s fraudulent inducement claim on the basis that all of
the Deeds contain an integration clause. (Def. Memo at 32; Reply Memo at 11.) Because the
parties have not briefed the relevant Russian law on rescission based on fraudulent inducement,
the Court is unable to determine whether the integration clauses in the Deeds foreclose this
claim. Tatiana may argue on summary judgment that it does. But her motion to dismiss this
claim is denied.
5. Accounting and Constructive Trust
Tatiana’s basis for seeking dismissal of Shalva’s final two claims—for accounting and a
constructive trust—is that these “are merely requests for relief and not causes of action.” (Def.
Memo at 33.) This contention has merit under Connecticut law, but not under New York law.
Compare Cendant Corp. v. Shelton, 474 F. Supp. 2d 377, 383 (D. Conn. 2007) (“[T]here is no
separate cause of action under Connecticut law for constructive trust . . . .”) and Macomber v.
Travelers Prop. & Cas. Corp., 804 A.2d 180, 184 n.3 (Conn. 2002) (noting that accounting and
constructive trust are “remedies” rather than “substantive causes of action”), with Reiner v.
Jaeger, 855 N.Y.S.2d 613, 614 (App. Div. 2d Dep’t 2008) (referring to “[a] cause of action to
38

impose a constructive trust”) and DiTolla v. Doral Dental IPA of New York, 469 F.3d 271, 275
(2d Cir. 2006) (“Under New York law, an accounting is a distinct cause of action rooted in
equity.”) Because it is unclear at this juncture which state’s law governs these claims, Tatiana’s
motion to dismiss is denied without prejudice to renewal at a later date.
H. Motion to Strike
Finally, Tatiana moves to strike portions of the Complaint. She takes issue with the
existence of three allegations in particular: (1) that the parties’ “intimate relationship and cohabitation” both preceded and followed their formal marriage (Compl. ¶ 17); (2) that Tatiana and
Shalva had their first child while married to other people, and then married after divorcing their
previous spouses (id. ¶ 18); and (3) that Tatiana “massively undervalued many of the items” in
the Collection on “documents including customs declarations” when she had them shipped to the
United States or sent to secure storage (id. ¶ 32). Tatiana also contends that Shalva disseminated
the Complaint—including the above “immaterial, impertinent, and scandalous information”—to
individuals both within and outside the United States, thereby confirming that the purpose of the
suit is “to harm Tatiana by manipulating the legal process.” (Dkt. No. 17, Defendant’s Motion to
Strike, at 7.) Tatiana’s arguments are without merit.
Federal Rule 12(f) empowers a court, acting on its own or on a motion made by a party,
to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” “[C]ourts should not tamper with the pleadings unless there is a strong
reason for so doing,” and should not ordinarily “strike a portion of the complaint on the grounds
that the material could not possibly be relevant on the sterile field of the pleadings alone.”
Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976). “To prevail on a
motion to strike, the defendant must show that: (1) no evidence in support of the allegations
39

would be admissible; (2) the allegations have no bearing on the relevant issues; and (3)
permitting the allegations to stand would result in prejudice to the movant.” Hargett v. Metro.
Transit Auth., 552 F. Supp. 2d 393, 404 (S.D.N.Y. 2008) (quoting M’Baye v. World Boxing
Ass’n, No. 05-CV-9581 (DC), 2007 WL 844552, at *4 (S.D.N.Y. Mar. 21, 2007)) (internal
quotation marks omitted). 19
None of the allegations identified by Tatiana are “immaterial, impertinent, or scandalous”
within the meaning of Rule 12(f). The first two allegations, which are related to the duration of
the parties’ relationship and the context in which it arose, are not obviously irrelevant to the
action. If true, they establish that the parties’ relationship was not limited to the period of their
formal marriage. That point, in turn, is not unrelated to the question of whether Shalva and
Tatiana had an agreement about how they would treat property acquired before and after
marriage. That Shalva and Tatiana had an extramarital affair and had their first child out of

19

Tatiana argues that this standard sets the bar too high. Instead, she quotes G-I Holdings, Inc.
v. Baron & Budd, 238 F. Supp. 2d 521, 555 (S.D.N.Y. 2002), for the proposition that
“allegations may be stricken if they have no real bearing on the case, will likely prejudice the
movant, or where they have criminal overtones.” (Dkt. No. 29, Defendant’s Reply Memo in
Support of Motion to Strike, at 2.) But the Court does not read G-I Holdings to alter the wellestablished rule that allegations should not be struck where they may bear on the action. See,
e.g., Schoolcraft v. City of New York, 299 F.R.D. 65, 67 (S.D.N.Y. 2014) (“It is not enough that
the matter offends the sensibilities of the objecting party if the challenged allegations describe
acts or events that are relevant to the action.” (brackets and internal quotation marks omitted));
Lennon v. Seaman, 63 F. Supp. 2d 428, 446 (S.D.N.Y. 1999) (“Motions to strike, however, are
not favored and will not be granted unless it is clear that the allegations in question can have no
possible bearing on the subject matter of the litigation.” (internal quotation marks omitted));
Eaton v. Am. Media Operations, Inc., No. 96-CV-6158 (MBM), 1997 WL 7670, at *5 (S.D.N.Y.
Jan. 9, 1997) (same). And although some courts have stated that a relevant but prejudicial
allegation may be struck where “the severity of the prejudice outweighs the materiality of the
allegation,” Orientview Technologies LLC v. Seven For All Mankind, LLC, No. 13-CV-0538
(PAE), 2013 WL 4016302, at *3 (S.D.N.Y. Aug. 7, 2013) (internal quotation marks omitted),
that is not the case here.
40

wedlock—allegations that Tatiana says are no more than “salacious details” (Dkt. No. 29,
Defendant’s Reply Memo in Support of Motion to Strike, at 3)—are not necessarily immaterial,
and do not warrant the extraordinary remedy that Tatiana seeks.
The same is true of the third allegation: that Tatiana understated the value of items in the
Collection on customs declarations and other documents. The proper value of items in the
Collection is likely to be a central issue in this litigation, and the accuracy of Tatiana’s valuations
in documents such as customs declarations—potential evidence of the worth of the Collection—
may bear directly on that question. To be sure, if evidence emerges that Shalva made this or
other allegations in the absence of sufficient “evidentiary support,” Tatiana may move for
sanctions under Rule 11. See In re Australia & New Zealand Banking Grp. Ltd. Sec. Litig., 712
F. Supp. 2d 255, 263 (S.D.N.Y. 2010) (quoting Fed. R. Civ. P. 11(b)(3)); Schoolcraft v. City of
New York, 299 F.R.D. 65, 67 (S.D.N.Y. 2014) (“Even if an allegation may not pass Rule 11
scrutiny at a later stage in the litigation it may not be stricken if it has have some possible
bearing on the subject matter of the party’s claim.” (internal quotation marks omitted)). At this
stage, however, the Court is not persuaded that the allegation is entirely irrelevant to the action.
The Court is also not convinced that Shalva acted improperly in sending the complaint to
individuals he has identified as potential witnesses in the action. Tatiana does not allege that the
act of disseminating the complaint was wrong, nor does she contend that Shalva sent the
complaint to individuals who are not potential witnesses. Rather, she alleges that the conduct
was improper simply because of the nature of the allegations in the complaint. Because the
Court has not found those allegations to be “immaterial, impertinent, or scandalous,” this
argument is without merit. Tatiana’s motion to strike is therefore denied.

41

III.

Conclusion
For the foregoing reasons, Tatiana’s motion to strike is DENIED and her motion to

dismiss is GRANTED in part and DENIED in part. The Clerk of Court is directed to close the
motions at docket numbers 17 and 36.
SO ORDERED.
Dated: March 31, 2015
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

42