UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:20-cv-23278-DPG 

UNITED STATES OF AMERICA,

Plaintiff, 

v. 

APPROXIMATELY $9,105,221.62 IN FUNDS (PLUS 

INTEREST) CURRENTLY HELD BY THE UNITED 

STATES MARSHALS SERVICE REPRESENTING 95% 

OF THE NET PROCEEDS FROM THE SALE OF THE 

REAL PROPERTY LOCATED AT 500 WEST 

JEFFERSON STREET, LOUISVILLE, KY 40202 

KNOWN AS PNC PLAZA,

Defendant.

_______________________________________/

CLAIMANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

WITH PREJUDICE

Case 1:20-cv-23278-DPG Document 221 Entered on FLSD Docket 12/19/2023 Page 1 of 19
Claimants Mordechai Korf, Uriel Laber, Optima CBD Investments LLC (“Optima CBD”), 

and CBD 500, LLC (“CBD 500,” and, collectively, “Claimants”) respectfully submit this 

memorandum of law in support of their Motion to Dismiss the First Amended Complaint (D.E. 

187) (the “FAC”), dated January 5, 2023, filed by plaintiff the United States of America (the 

“United States” or “Government”), with prejudice.

PRELIMINARY STATEMENT

This Court dismissed the Government’s initial complaint, ruling that it named a noncognizable in rem defendant through an “unorthodox” forfeiture strategy that improperly rendered 

its claims in personam rather than in rem. But the FAC fares no better. It too must be dismissed, 

this time with prejudice, because of two dispositive defects that cannot be cured. First, the FAC is 

time-barred under the applicable statute of limitations. Second, the FAC does not meet the 

heightened pleading standard for forfeiture actions, as it fails to adequately allege that the instant 

in rem defendant is substantially connected to criminal conduct.

The FAC alleges that two Ukrainian billionaires, Ihor Kolomoisky and Gennaidy 

Boholiubov, misappropriated funds through a fraudulent loan scheme involving PrivatBank, a 

Ukrainian bank they owned, and then laundered those funds, in part, by investing them in U.S.-

based assets. In 2011, an entity owned by Kolomoisky, Boholiubov, and their American partners, 

Claimants Korf and Laber, allegedly used $13 million of the proceeds from two of those 

purportedly fraudulent Ukrainian loans to purchase PNC Plaza, real property located in Louisville, 

Kentucky. In 2018, as part of a foreclosure process, PNC Plaza was sold to a new entity owned by 

Claimants Korf, Laber, and an unrelated joint venture partner (“Firm A”), with funds that are not 

alleged to derive from any fraudulent PrivatBank loans or from any other unlawful conduct. In 

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November 2020, PNC Plaza was sold, under the supervision of the Government, to Firm A. The 

instant defendant is $9.1 million of the proceeds derived from that November 2020 sale.

The FAC must be dismissed as time-barred under the one-year limitations period in 18 

U.S.C. § 984(b), which applies because the FAC seeks the forfeiture of cash that cannot be directly 

traced to an unlawful offense. As detailed below, the Government has not traced and cannot trace 

the defendant proceeds to allegedly fraudulent PrivatBank loans or any other alleged criminal 

offense. The FAC is therefore untimely because it was filed in January 2023, well more than a year 

after the latest possible “offense” at issue, i.e., the November 2020 sale of PNC Plaza the 

Government itself supervised. 

Nor can the FAC’s time-barred claims be saved by the relation back doctrine. Under Rule 

15(c)(1)(C), that doctrine would only apply to the FAC in the event the Government’s initial 

complaint mistakenly named an improper defendant in the original complaint. But the Government 

has already admitted the flaw in its initial pleading was no mistake. In fact, the Government 

insisted for more than two years, including in response to Claimants’ arguments that the initial 

defendant was not a cognizable in rem defendant, that it named the initial (and wrong) defendant 

as the result of an intentional, deliberate and strategic decision. It therefore cannot rely on the 

relation back doctrine, and the FAC’s claims must be measured from its filing in January 2023.

The FAC must be dismissed for an additional reason. The Government has failed to 

plead—with the heightened particularity for in rem forfeiture actions required by Supplemental 

Rule E(2) or otherwise—a substantial connection between the current in rem defendant and 

underlying criminal activity. Even though this is a requisite element for each of the Government’s 

claims, the Government does not even attempt to meet it. Notably, the FAC does not allege that 

the defendant asset is substantially connected to the allegedly fraudulent PrivatBank loan proceeds 

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used to purchase PNC Plaza in 2011. Nor does the FAC sufficiently allege that the funds used by 

Korf and Laber to purchase PNC Plaza in the 2018 foreclosure sale were substantially connected 

to illegal conduct. There is no allegation at all that those funds were the proceeds of fraudulent 

PrivatBank loans, or any other illegal conduct. Instead, the FAC contains but a single allegation, 

which is unsupported and conclusory, that the 2018 transaction was intended for an unlawful 

purpose simply because Korf and Laber were supposedly on both sides of the transaction. This 

pleading deficiency alone requires dismissal. 

FACTUAL BACKGROUND1

A. The 2011 PNC Plaza Investment

The FAC alleges that two prominent Ukrainian business magnates, Ihor Kolomoisky and 

Gennaidy Boholiubov, used their ownership and control of PrivatBank, one of the largest banks in 

Ukraine, “to steal billions of dollars of the bank’s funds,” which they then purportedly laundered 

through a vast network of accounts and entities, and ultimately invested in the United States. See

FAC ¶¶ 13-15, 19-22, 29. 

According to the FAC, two Miami-based businessmen, Mordechai Korf and Uriel Laber, 

allegedly played “critical roles” in Kolomoisky’s and Boholiubov’s laundering scheme “by 

establish[ing] a complex system of entities in order to facilitate the laundering of the 

misappropriated funds, and to invest the funds in property and businesses in the United States.” 

Id. ¶¶ 90, 99. One of these investments concerns PNC Plaza, real property located in Louisville, 

1 This factual background is taken exclusively from the Government’s allegations in the FAC, 

which are presumed to be true for the purpose of this motion only. Claimants strongly contest the

Government’s allegations and deny any wrongdoing. The Court is familiar with the factual 

background and Claimants respectfully refer to the R&R’s recitation of the background. See R&R 

at 4-13. Claimants include here only the detailed facts pertinent to each of its arguments.

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Kentucky, acquired for $77,050,000 in September 2011 by Optima 500, LLC, (“Optima 500”), an 

entity owned collectively by Kolomoisky, Boholiubov, Korf and Laber. See id. at ¶¶ 105-106.

2

 

As alleged, the 2011 purchase of PNC Plaza was funded with: (1) deposits totaling $3.5 

million as part of the purchase contract; (2) Optima 500’s assumption of the $65,700,000 

outstanding mortgage on the property; and (3) $13,151,167.17 provided by Optima 500 to cover 

the remainder of the purchase price. See id. ¶¶ 107-109. The Government alleges the $13 million

provided by Optima 500 is “directly traceable to two loans obtained from PrivatBank by 

Kolomoisky and Boholiubov (the “PrivatBank Loans”), and was the proceeds of embezzlement, 

misappropriation, and fraud.” Id. ¶ 24. According to the FAC, the PrivatBank Loans were 

fraudulent and violated Ukrainian law because they were based on a series of misrepresentations 

as to their purpose, the source of repayment and the collateral. See id. ¶¶ 48, 52-55, 70-79. 

The FAC purports to trace $13,151,167.17 from the two PrivatBank Loans in Ukraine 

“through several accounts at PrivatBank Cyprus,” “a convoluted journey to the United States” and 

ultimately “to an account at Regions Bank in the United States in the name of Optima Ventures,” 

an entity owned by Kolomoisky, Boholiubov, Korf, and Laber. Id. ¶¶ 110, 132-133. These funds

were allegedly then used to purchase PNC Plaza “in the name of Optima 500.” Id. ¶ 135. The FAC

does not identify or trace any other money used to purchase PNC Plaza to any unlawful activity.

2 A substantial portion of the allegations in the FAC detail various related-party loans and 

miscellaneous activities that have nothing to do with PNC Plaza or this action. See id. ¶¶ 49-69, 

80-102. Specifically, pages 11-16 and 17-25 of the FAC discuss facts and circumstances that have 

no relevance to the “approximately $9,105,221.62 in funds” actually at issue in this case, rendering 

the FAC an impermissible “shotgun” pleading that fails to comport with the lower standard set 

forth in Federal Rule of Civil Procedure 8(a)(2). See Barmapov v. Amuial, 986 F.3d 1321, 1325 

(11th Cir. 2021) (affirming dismissal of complaint with prejudice where it was a “shotgun pleading 

. . . rife with immaterial factual allegations, including five pages and 24 paragraphs of irrelevant 

details about the alleged criminal backgrounds of some of the defendants”). Under well settled 

Eleventh Circuit law, such pleadings are “fatally defective” and should be dismissed. See B.L.E. 

v. Georgia, 335 F. App’x 962, 963 (11th Cir. 2009).

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B. The 2018 Foreclosure and Purchase of PNC Plaza 

As alleged in the FAC, six years after purchasing PNC Plaza with purportedly tainted 

funds, on March 13, 2017, Optima 500 defaulted on its $65,700,000 mortgage and went into 

foreclosure on January 31, 2018. See id. ¶¶ 138-140. During the pendency of the foreclosure 

proceedings, the Government alleges that “Korf and Laber entered negotiations with a third-party 

investment firm, Firm A . . . [and] they agreed to enter a joint venture that altered the ownership 

structure of PNC Plaza.” Id. ¶ 142. The FAC expressly disavows any connection between Firm A 

and the PrivatBank Loans, acknowledging that “Firm A was an unrelated third-party investor, 

which, on information and belief, had no connection to the Optima Family of companies or 

Kolomoisky and Boholiubov’s misappropriation scheme from PrivatBank.” Id. ¶ 142, fn. 10. The 

Government does not seek the forfeiture of any interest or proceeds owned by or belonging to Firm 

A. See generally id. ¶¶ 4-5, 163. 

To effectuate this “restructuring”, the FAC alleges that Korf and Laber created a new entity

in 2017, Claimant Optima CBD, which in turn formed Claimant CBD 500 in 2018, both of which 

the government alleges and acknowledges were “separate from Kolomoisky and Boholiubov’s 

ownership.” Id. ¶¶ 143-145. In 2018, CBD 500 together with Firm A formed a joint venture (the 

“Joint Venture”) for the purposes of holding PNC Plaza, of which Korf and Laber, through CBD 

500, held 95% while Firm A held 5%. See id. ¶ 147. 

In 2018, Firm A purchased the promissory note on PNC Plaza for approximately $27 

million. See id. ¶ 149. As alleged, this $27 million was funded in two parts: (1) “a loan of 

approximately $17 million from . . . a third-party lender;” and (2) a contribution of $10 million 

from Korf, Laber and Firm A, of which $9.5 million came from Korf and Laber using funds from 

“a different entity: Felman Trading Americas Inc.,” (“FTA”). Id. ¶¶ 154-155. Although the 

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Government alleges that FTA was “used to hide the involvement of Kolomoisky and Boholiubov 

in the ownership of PNC Plaza,” id. ¶ 156, there are no allegations that any of the $9.5 million

FTA contributed to the 2018 purchase of PNC Plaza by the Joint Venture were derived from funds 

misappropriated from PrivatBank, or otherwise traceable to any specific unlawful activities. See 

generally id. ¶¶ 156-160. 

Thereafter, Firm A transferred the mortgage purchase agreement to the Joint Venture, and 

Korf and Laber, through Optima 500, transferred a Deed in Lieu of Foreclosure to the Joint 

Venture. See id. ¶¶ 150, 152. These transactions “extinguished the original promissory note” and 

resulted in the Joint Venture owning PNC Plaza. Id. ¶ 152. The Government nonetheless alleges 

that PNC Plaza remained under Korf and Laber’s control because “[t]hey in effect never stopped 

owning the real property,” but the FAC does not include any allegations, let alone specific 

allegations, that the 2018 sale of PNC Plaza to the Joint Venture was in furtherance of any unlawful 

activities. Id. ¶¶ 152-153. 

C. The 2020 Government-Supervised Sale of PNC Plaza

In 2019, Firm A offered to purchase PNC Plaza from the Joint Venture, which sale was 

consummated in 2020 for $22.25 million with the Government’s knowledge and under its 

supervision. See id. ¶¶ 161-166. There are no allegations that any of the sale proceeds were derived 

from or traceable to proceeds misappropriated from PrivatBank or any other specified unlawful 

activities. See generally id. ¶¶ 161-166.

The Government now seeks to forfeit approximately $9,105,221.62 representing CBD 

500’s portion of the net proceeds received by the Joint Venture from the 2020 sale of PNC Plaza. 

See id. ¶¶ 166-167. 

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PROCEDURAL HISTORY

The Government commenced this action in August 2020, filing a civil forfeiture complaint 

that named the rights of Optima CBD and CBD 500 to collect any profit from PNC Plaza as the in 

rem defendant. Case No. 20-cv-23279, D.E. 1 at ¶ 10. Claimants moved to dismiss, arguing, inter 

alia, that the complaint failed to allege a cognizable in rem defendant, and failed to plausibly allege 

a substantial connection between the funds used in connection with the 2018 and 2020 sales of

PNC Plaza and the alleged 2011 criminal conduct in Ukraine. See 20-cv-23279, D.E. 78 at 16-18. 

Magistrate Judge Goodman agreed and recommended dismissal without prejudice. See

Case No. 20-cv-23278, D.E. 164 at 69, 74 (the “R&R”). The R&R found that the Government 

chose to sue an improper res as the in rem defendant, thus rendering the suit one brought in 

personam or quasi in rem, as opposed to in rem as a civil forfeiture must be. Id. at 69-71, 74. The 

R&R reasoned that the Government’s decision “to pursue an unorthodox forfeiture strategy” gave 

rise to “a jurisdictional defect” and that “[b]y choosing to not name the real property as the in rem

Defendant, the United States has, in effect, opted to pursue what seems more like an in personam

action or perhaps a quasi in rem claim.” Id. at 69. The R&R found that the Government wrongly 

“based its forfeiture case [] on the alleged prior conduct of” Korf and Laber, because they 

purportedly “stood on both sides” of the 2018 sale of PNC Plaza, making the Government’s claims 

in personam as opposed to in rem. Id. at 70-71.

On January 3, 2023, this Court affirmed, adopted the R&R and granted the United States’ 

motion for leave to amend its complaint. Case No. 20-cv-23278, D.E. 185 and 186. On January 5, 

2023, the United States filed the FAC, naming as the in rem defendant “Approximately 

$9,105,221.62 in funds (plus interest) currently held by the United States Marshals Service 

representing 95% of the net proceeds from the sale of the real property located at 500 West 

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Jefferson Street, Louisville, KY 40202 known as PNC Plaza.” D.E. 187.

APPLICABLE PLEADING STANDARD

The applicable pleading standard is set forth in the R&R, and Claimants respectfully refer 

to and incorporate the Court’s prior recitation of it here. See D.E. 164, 58-60. In addition, to state 

a forfeiture claim, the United States must plead “sufficiently detailed facts” that a “substantial 

connection” exists between the property and alleged offense. 18 U.S.C. § 983(c)(3); United States 

v. $38,000 in United States Currency, 816 F.2d 1538, 1548 (11th Cir. 1987) (dismissal under Rule 

E(2)(a) for failure to allege substantial connection).

ARGUMENT

I. The First Amended Complaint is Time-Barred 

Even though this case has been pending for more than two years and is based upon events 

that occurred more than a decade ago, the Government has failed to timely amend its complaint 

against the proper in rem defendant. As a result, the FAC is time-barred and must be dismissed.

A. The First Amended Complaint Is Untimely Under 18 U.S.C. § 984(b)

The FAC must be dismissed because it is subject to a one-year statute of limitations that 

began running no later than the November 2020 sale of PNC Plaza to Firm A that was conducted 

under the supervision and with the approval of the Government. The one-year limitations period 

applies because the FAC does not plead, with particularity, that the current in rem Defendant, CBD 

500’s portion of the proceeds arising out of the aforementioned sale, is traceable to any specified 

unlawful conduct.

Pursuant to 18 U.S.C. § 984(b), an action that seeks the forfeiture of cash that cannot be 

directly traced to an offense must be filed within one year of that offense. Id. (“No action pursuant 

to this section to forfeit property not traceable directly to the offense that is the basis for the 

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forfeiture may be commenced more than 1 year from the date of the offense.”). As detailed in 

Section II, infra, the FAC does not plausibly allege a traceable connection between the in rem

Defendant—$9.1 million in proceeds derived from the November 2020 sale of PNC Plaza—and 

the alleged 2011 misappropriation of funds from PrivatBank via the PrivatBank Loans, or any 

other specified unlawful activities. Therefore, the claims in the FAC are subject to the one-year 

statute of limitations set by 18 U.S.C. § 984(b).3

The latest possible “offense” described in the FAC is the November 2020 Governmentapproved and supervised sale of PNC Plaza to Firm A. FAC at ¶¶ 27, 165 (“The sale was 

consummated on November 17, 2020, and, by order of the Court, the net proceeds of the sale . . . 

w[ere] restrained and held by the USMS in escrow.”). Thus, the applicable one-year limitations 

period expired no later than November 17, 2021, more than a year prior to the Government’s filing 

of the FAC in January 2023. Accordingly, the FAC is time-barred and must be dismissed.

B. The Relation Back Doctrine Does Not Apply

The FAC’s untimeliness cannot be remedied or forgiven by application of the relation back 

doctrine, which does not apply here because the Government’s decision to file the initial complaint 

in this action against an improper res was an intentional and strategic choice, not a mistake. Thus, 

the relation back doctrine does not apply and the FAC is time-barred.

3 Section 984(b) applies notwithstanding that the FAC seeks relief under 18 U.S.C. § 981. It is 

well established that section 984(b) applies to actions brought under section 981 where, as here, 

the Government fails to adequately trace the property at issue to the alleged offense. See United 

States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 158-59 (3d Cir. 2003) (applying section 

984 to a complaint seeking relief under 18 U.S.C. § 981, reasoning “section 984 is not by its terms 

a separate action for forfeiture. Rather, it applies to, and modifies the requirements of, forfeiture 

actions in which the subject property is cash or other fungible property.”); United States v. 

$61,900.00, 2010 WL 11623206, at *3–4 (E.D.N.Y. Sept. 8, 2010) (While section 984(d) allows

“the Government to forfeit traceable, fungible property using § 981” the Government must use § 

984 “when money is not traceable directly to the offense.”) (internal quotations omitted).

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Rule 15(c)(1) applies if “the amendment changes the party or the naming of the party 

against whom a claim is asserted[.]” That is exactly what the Government did here by swapping 

the prior defendant (corporate rights) for cash (fungible property). As relevant here, Federal Rule 

of Civil Procedure 15 provides that an amended pleading that changes the party against whom a 

claim is asserted relates back to the original pleading only when the newly-named party 

“(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a 

mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C). 

The law is clear that the relation back doctrine only applies to a newly-named defendant 

when the failure to name that defendant in the original complaint was a mistake. See Powers v. 

Graff, 148 F.3d 1223, 1226 (11th Cir. 1998) (“The Rule permits an amendment to relate back only 

where there has been an error made concerning the identity of the proper party . . . .”); Lelieve v. 

Orosa, 2011 WL 5103949, at *4 (S.D. Fla. Oct. 27, 2011) (“A key requirement for relation back 

under Rule 15(c)(1)(C) is that the plaintiff ha[s] made a ‘mistake.’”). Indeed, whether the omission 

of the newly-named Defendant was a mistake or not is a threshold issue in determining whether 

relation back applies, and if a “court determines that no ‘mistake’ was made, it is irrelevant whether 

the to-be-joined party received notice and would not be prejudiced.” Id. at *4, see also Rodriguez 

v. Quiñones, 508 F. Supp. 3d 1198, 1202 (S.D. Fla. 2020) (“a finding of a mistake is necessary 

before moving on to the other requirements” of Rule 15(c)(1)(C)) (citations omitted). The relation 

back doctrine does not apply where the plaintiff makes a “deliberate decision not to sue a party 

whose identity plaintiff knew from the outset,” which even “the most liberal interpretation of 

‘mistake’ cannot include.” Powers 148 F.3d at 1227 (quoting Wells v. HBO & Co., 813 F. Supp. 

1561, 1567 (N.D. Ga. 1992)).

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Here, there is no doubt the Government’s failure to name the instant defendant in rem as a 

defendant in its initial complaint or otherwise within the applicable limitations period was not a 

mistake. Rather, when the Government filed its initial complaint on August 6, 2020, it made a 

conscious choice to name as the in rem defendant not PNC Plaza itself, but instead “all right to 

and interest in PNC Corporate Plaza Holdings LLC held, controlled, or acquired, directly or 

indirectly, by Optima CBD Investments LLC and/or CBD 500 LLC, including any interest held in 

or secured by the real property located at 500 West Jefferson Street, Louisville, KY 404202.” Case

No. 20-cv-23279, D.E. 1 ¶ 10. 

Claimants moved to dismiss that complaint in May 2021, in part on the grounds that the 

Government had named an improper res as the defendant. See Case No. 20-cv-23279, D.E. 78. In 

response, the Government did not concede or acknowledge that it made a mistake in identifying 

the wrong defendant. The Government did not seek to amend its complaint to name a proper in 

rem defendant after the November 2020 sale of PNC Plaza, or after Claimants raised the issue in 

May 2021. To the contrary, the Government argued strenuously, for well over a year, that it 

considered other potential defendants, and made the deliberate and intentional decision to name 

the corporate interests as the in rem defendant in its original complaint. In briefing the issue to the 

magistrate judge, the Government wrote: 

The government chose to forfeit that corporate interest in the 

building, rather than the building itself, because there was a pending 

sale when it brought the forfeiture action, and an action against the 

building itself would likely have disrupted that sale, including by 

prejudicing the rights and interests in the company and the property

of the third-party investor.

Case No. 20-cv-23278, D.E. 153 at 5 (emphasis added). The Government further asserted that it 

had correctly named the in rem defendant—i.e., it had not made a mistake—and that the Court 

should recognize the Government’s “crafted” and “more precise approach.” Id.; see also Renewed 

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Motion to Dismiss Hearing Tr. at 79:18-22 (July 8, 2022) (the Government stating that it made “a 

very intentional decision in order not to bring a forfeiture action against property . . . .”) (emphasis 

added).

Magistrate Judge Goodman recognized the Government’s deliberate choice in the R&R, 

noting that the Government had intentionally named an intangible corporate interest rather than a 

tangible asset for strategic purposes: 

The United States has not convinced the Undersigned that its 

decision to pursue an unorthodox forfeiture strategy did not result 

in a jurisdictional defect arising from the naming of an incorrect in 

rem defendant. By choosing to not name the real property as the in 

rem Defendant, the United States has, in effect, opted to pursue

what seems more like an in personam action or perhaps a quasi in 

rem claim.

Case No. 20-cv-23278, D.E. 164 at 69 (emphasis added). 

The record thus shows the Government’s deliberate choice to proceed against the initial 

defendant was intentional and not in any way a mistake, and the Government may not now claim 

otherwise. The Government’s intentional decision, which it defended repeatedly and vociferously,

is “the antithesis of making a mistake concerning the proper party’s identity,” which is the basis 

for permitting relation back. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 549 (2010); see also 

Powers, 148 F.3d at 1228 (where “Plaintiffs made a ‘deliberate decision’ not to sue” certain 

defendants, they were not entitled to the benefit of “relation back under Rule 15”). 

In this case, the Government is not a plaintiff who misunderstands a potential defendant’s 

“status or role in the events giving rise to the claim at issue” and who then sues the wrong 

“defendant based on that misimpression.” Krupski, 560 U.S. at 549. Instead, the Government was 

aware of the potential in rem defendant it now seeks to proceed against no later than November 

2020, and rather than amend its complaint at any time in the one year after the sale of PNC Plaza, 

the Government insisted that it had not made a mistake in choosing to proceed against the initial 

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in rem defendant. For more than a year the Government argued against any finding that it had 

mistakenly named the wrong defendant, and it chose to litigate the issue extensively, and beyond 

the expiration of the statute of limitations. Having led the parties down that path, the Government 

may not now claim mistake to obtain the benefit of Rule 15’s relation back provision. Indeed, here,

any mistake on the Government’s part “was a mistake in legal judgment, not a mistake in the 

naming of the party, and thus it is not covered by Rule 15(c).” Nobles v. Rural Cmty. Ins. Servs., 

303 F. Supp. 2d 1279, 1287 (M.D. Ala. 2004); see also Scott v. Safeco Ins. Co. of Indiana, 2020 

WL 4934486, at *4 (N.D. Ga. June 24, 2020) (“The Eleventh Circuit has not recognized a mistake 

of law as a ‘mistake’ under Rule 15(c)(1)(C), and several district courts to have addressed this 

issue within the Eleventh Circuit have specifically rejected it.”).

Given the foregoing, the FAC is time-barred and does not relate back to the original 

complaint, and this Court should dismiss the FAC with prejudice. 

II. The FAC Fails to Adequately Plead a Substantial Connection

The Government’s forfeiture claims in the FAC also fail because, even after being 

instructed by the Court to “firm up, clarify and explain in more-precise factual terms the theory 

used to support the claim for the forfeitability of the proceeds” (R&R at 81-82), it has not done so.

D.E. 169 at 5. The Government has not alleged, and cannot allege, a viable connection, let alone a 

substantial one, between the defendant asset—the $9.1 million of proceeds from the November 

2020 sale of PNC Plaza belonging to CBD 500—and the underlying offense, the alleged 

misappropriation of funds from PrivatBank through fraudulent loans in violation of Ukrainian law.

To state a cognizable forfeiture claim under either Section 981(a)(1)(C) or Section 

981(a)(1)(A), the Government must allege “sufficiently detailed facts” demonstrating that a 

“substantial connection,” or nexus, exists between the defendant asset and alleged criminal 

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activity. 18 U.S.C. § 983(c)(3); $38,00 in U.S. Currency, 816 F.2d at 1548 (affirming dismissal of 

complaint for failure to allege sufficient facts demonstrating a substantial connection); see also 

United States v. Any & All Ownership Int. Held in the Name, No. 16-9158, 2020 WL 278762, at 

*9 (D.N.J. Jan. 16, 2020) (“the plain language of the relevant provisions indicates that the stated 

nexus—involved in, traceable to, and proceeds—is an element of the civil forfeiture claims” and, 

“at a minimum, the Government must plausibly plead the requisite connection between the 

underlying offense and the seized property”). Here, the FAC not only fails to adequately plead 

such a nexus, the Government’s allegations affirmatively disprove any connection, substantial or 

otherwise, between funds purportedly obtained unlawfully from PrivatBank and the proceeds that 

constitute the defendant asset.

The gravamen of the FAC is that $13 million of the $77 million used to purchase PNC 

Plaza in 2011 derived from an alleged “foreign bank fraud,” in violation of Ukrainian law,4carried 

out by Kolomoisky and Boholiubov, who at the time were the majority shareholders of PrivatBank. 

See FAC ¶¶ 106, 109-110, 134-137. But as alleged, six years after the 2011 purchase of PNC Plaza, 

(and two years after PrivatBank was nationalized in 2016), PNC Plaza went into foreclosure, and 

in 2018 the property was acquired by the Joint Venture via the acquisition of the mortgage by Firm 

A and the subsequent transfer from Optima 500 of a deed in lieu of foreclosure to the Joint Venture. 

See id. ¶¶ 138-142, 148-152. The FAC alleges that the funds used by the Joint Venture to acquire 

PNC Plaza derived from two sources: a $17 million loan the Joint Venture took out from a thirdparty lender, and a $10 million contribution from Korf, Laber, and Firm A. See id. ¶ 154.

4 As a threshold matter, the Government has failed to allege “sufficiently detailed facts” to support 

a reasonable belief that it will prove the existence of any underlying criminal conduct. 

Case 1:20-cv-23278-DPG Document 221 Entered on FLSD Docket 12/19/2023 Page 15 of 19
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The Government acknowledges that the funds contributed by Firm A were not substantially 

connected to any unlawful activity. See id.¶ 142, fn. 10 (“Firm A was an unrelated third-party 

investor, which... had no connection to the Optima Family of companies or Kolomoisky and 

Boholiubov’s misappropriation scheme from PrivatBank.”). With respect to the $9.5 million 

contributed by Korf and Laber, the FAC alleges those funds were provided by FTA. See id. ¶ 155. 

The FAC also alleges that Korf and Laber “injected more money into PNC Plaza” via Optima 1375 

II. Id. ¶ 157. Crucially, however, the FAC does not contain a single allegation concerning the 

source of the funds provided by FTA or Optima 1375 II, in connection with the 2018 purchase of 

PNC Plaza or otherwise, let alone specific allegations tracing those funds to specified unlawful 

activities. See generally, FAC. There are no allegations tracing the purportedly illicit proceeds of 

the PrivatBank Loans to FTA or Optima 1375 II. There are no allegations that the funds from FTA 

or Optima 1375 II derived from other purportedly fraudulent PrivatBank loans, or that those funds 

were substantially connected to any unlawful activity of any kind. 

Rather, in pure conclusory fashion, the Government alleges that the “use of funds 

purportedly” from those companies “allowed Korf and Laber to continue owning” PNC Plaza, and 

to “conceal[] and disguise[e] the nature, location, source, ownership, and control of the 

misappropriated funds.” Id. ¶ 160. That conclusory assertion, unsupported by any specific 

allegations, does not adequately plead a substantial connection between the $9.1 million in 

proceeds that the FAC names as the defendant in rem, and any unlawful activity, requiring 

dismissal of the Government’s claims. See United States v. Wood, 2016 WL 8131221, at *3 (E.D. 

Ky. Oct. 17, 2016) (rejecting 981(a)(1)(C) forfeiture claim because “condo-related sale proceeds” 

were not traceable to underlying offenses and Government’s “inferential assertion that” the owner 

“could not have purchased the condo but for the alleged criminal conduct” was inadequate); see 

Case 1:20-cv-23278-DPG Document 221 Entered on FLSD Docket 12/19/2023 Page 16 of 19
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also United States v. $688,670.42 Seized from Regions Bank Acct. No. XXXXXX5028, 449 F. 

App’x 871, 877 (11th Cir. 2011) (“Section 981(a)(1)(C) confines the forfeiture to the proceeds of 

unlawful activity.”) (emphasis in original); Section 981(a)(1)(A) (providing for forfeiture of 

property involved in money laundering transactions) (emphasis added). For this reason, the 

Government has not, and cannot, establish a substantial connection between the defendant asset 

and the alleged underlying offense, requiring dismissal of the FAC with prejudice.

In this regard the FAC suffers from the same fatal defect as the Government’s original 

complaint—the Government is operating on the theory that “Korf and Laber are personally 

culpable, based on prior acts,” and the defendant asset is subject to forfeiture because Korf and 

Laber “stood on both sides of” the 2018 sale of PNC Plaza. R&R at 71. As Magistrate Judge 

Goodman held, however, this theory renders the claims in the FAC essentially in personam in 

nature, which is improper because civil forfeiture is “not an action against the claimant [owner].” 

Id. (citing $38,00 in U.S. Currency, 816 F.2d at 1543). The Court should not countenance the 

Government’s efforts to improperly pursue in personam claims under the guise of an in rem civil 

forfeiture action, and the FAC should be dismissed.

III. Jurisdiction Was Lacking Over the Original Complaint And Cannot Be Cured 

The Government’s initial complaint was dismissed for a jurisdictional defect. See. R&R at 

71. Jurisdiction is measured at time of filing. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 

567, 570-71, 582 (2004). Moreover, lack of jurisdiction cannot be cured by amendment and 

switching in a new defendant. See Newman-Green, Inc. v. Alfonzo Larrain, 490 U.S. 826, 831 

(1989); Brandenburg v. Bd. of Regents of Univ. Sys. of Georgia, 518 F. App’x 628, 631 (11th Cir. 

2013). Consequently, the United States cannot avoid dismissal here by amending its complaint to 

add a “proper” defendant; it must file a new suit against this “proper” defendant. To be sure, this 

Case 1:20-cv-23278-DPG Document 221 Entered on FLSD Docket 12/19/2023 Page 17 of 19
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is not merely an academic issue, as the difference between dismissal and amendment could have 

meaningful consequences in connection with the applicable statutes of limitations.

CONCLUSION

This Court should dismiss this action with prejudice and order the immediate return of the 

seized funds.

REQUEST FOR HEARING

Pursuant to Local Rule 7.1(b)(2), the Claimants hereby request a hearing on this motion 

because of the substantial and complex legal issues raised, the importance of the rights at stake, 

and the utility of discussing the factual nuances of the case. Claimants estimate that no more than 

one and a half hours will be required for argument.

Respectfully submitted,

/s/ Robert T. Dunlap

Velvel (Devin) Freedman 

Robert T. Dunlap (FL Bar No. 119509)

Colleen Smeryage

Roche Freedman LLP

1 SE 3rd Avenue, Suite 1250

Miami, FL 33131

Tel: (786) 924-2900

vel@rochefreedman.com

rdunlap@rochefreedman.com

csmeryage@rochefreedman.com

/s/ Howard Srebnick

Howard M. Srebnick (FL Bar No. 919063)

Zaharah Markoe (FL Bar No. 504734)

Black Srebnick

201 South Biscayne Blvd., Suite 1300

Miami, FL 33131

Tel: (305) 371-6421

HSrebnick@royblack.com

Zmarkoe@royblack.com

Case 1:20-cv-23278-DPG Document 221 Entered on FLSD Docket 12/19/2023 Page 18 of 19
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Marc E. Kasowitz 

Mark P. Ressler

Joshua N. Paul

Pro Hac Vice Anticipated

Kasowitz Benson Torres LLP

1633 Broadway

New York, New York 10019

Tel: (212) 506-1700 

MKasowitz@kasowitz.com

MRessler@kasowitz.com

JPaul@kasowitz.com 

Attorneys for Claimants 

Case 1:20-cv-23278-DPG Document 221 Entered on FLSD Docket 12/19/2023 Page 19 of 19