UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

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

UNITED STATES OF AMERICA,

Plaintiff, 

v. 

REAL PROPERTY LOCATED AT 

7505 AND 7171 FOREST LANE, 

DALLAS, TEXAS 75230 et al.,

Defendants.

_______________________________________/

CLAIMANTS’ NOTICE REGARDING TOPIC NUMBER TWO OF THE 

COURT’S POST-HEARING ADMINISTRATIVE ORDER (D.E. 143)

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In their motion to dismiss and supplemental filings (Dkt. 78, 118, 126, 137, 

140), Claimants showed that the Verified Complaint should be dismissed because,

among other reasons, this Court should abstain from jurisdiction in favor of parallel 

proceedings in which Ukrainian courts have issued judgments directly contradicting 

the United States’ core allegations in this case.

Following oral argument, the Court issued a Post-Hearing Administrative 

Order (Dkt. 143) asking the parties to address certain issues in supplemental filings

including, as relevant to this submission: (1) whether abstention under international 

comity is mandatory such that a court can be reversed for not dismissing a case on 

international comity grounds if the relevant factors have been established; and (2) 

whether comity is ever appropriate in a civil lawsuit filed by the United States. (Id.). 

As explained below, (1) abstention is a discretionary doctrine, but the Eleventh 

Circuit can reverse, and has reversed, denial of comity where the trial court abused 

its discretion; and (2) abstention based on international comity in a civil action 

brought by the United States is consistent with the law and appropriate in this action.

I. Failure To Abstain For Comity May Be Reversible Error

Abstention based on international comity permits courts to abstain from 

exercising jurisdiction in deference to the decisions of foreign sovereigns. See 

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237-38 (11th Cir. 2004).

Courts consider three factors when evaluating a claim for abstention under 

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international comity: (1) the principles of international comity; (2) fairness to 

litigants; and (3) efficient use of scarce judicial resources. Turner Ent. Co. v. Degeto 

Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994). Where, as here, foreign courts 

have issued judgments on the relevant issues, retrospective comity applies, and 

courts consider whether: (1) the foreign court was competent and used proceedings 

“consistent with civilized jurisprudence,” (2) the foreign judgment was rendered by 

fraud, and (3) the foreign judgment is prejudicial because it is “repugnant to 

fundamental principles of what is decent and just.” Ungaro-Benages, 379 F.3d at

1238. Courts also consider whether the central issue in a dispute is a matter of 

foreign law and the prospect of conflicting judgments. See Turner, 25 F.3d at 1521.

As with most doctrines of abstention, the decision to abstain under 

international comity is discretionary and not mandated by statute. See UngaroBenages, 379 F.3d at 1237 n.13 (“Abstention doctrines are prudential doctrines and 

this court is not obligated under American statutory law to defer to foreign courts.”) 

While discretionary, however, a trial court’s determination to abstain or exercise 

jurisdiction is subject to appellate review. See, e.g., Daewoo Motor Am., Inc. v. Gen. 

Motors Corp., 459 F.3d 1249, 1256 (11th Cir. 2006) (affirming dismissal of action 

under international comity abstention); Turner, 25 F.3d at 1523 (vacating district 

court order that failed to apply international comity abstention); Ungaro-Benages, 

379 F.3d at 1240–41.

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The standard of review on such an appeal is whether the trial court abused its 

discretion in granting or denying dismissal based on abstention. See Daewoo Motor 

Am., Inc., 459 F.3d at 1256 (“While we ordinarily review the grant of motions to 

dismiss or summary judgment de novo, a district court’s decision to abstain will only 

be reversed upon a showing of abuse of discretion.”); In re Neves, 783 F. App'x 995, 

996 (11th Cir. 2019) (“We review a court’s grant or denial of comity for abuse of 

discretion.”); Belize Telecom, Ltd. v. Gov't of Belize, 528 F.3d 1298, 1308–09 (11th 

Cir. 2008) (“This Court also reviews a district court’s grant or denial of comity to a 

foreign judgment for abuse of discretion.”). “A court abuses its discretion if it 

applies the law in an unreasonable or incorrect manner, follows improper procedures 

in making a determination, or makes findings of fact that are clearly erroneous.” 

Neves, 783 F. App'x at 996; see also Belize Telecom, 528 F.3d at 1303 (“A district 

court abuses its discretion when the court fails to apply the proper legal standard or 

to follow proper procedures in making its determination.”).

Accordingly, contrary to the United States’ contention during the hearing on 

Claimants’ motion to dismiss,1 it would be reversible error for this Court to deny 

Claimants motion to dismiss if, based on an analysis of the relevant factors, dismissal 

1 See Dkt. 145 (July 8, 2022 Hr’g Tr.) at 72–73 (“COURT: So it sounds to me like 

it could be an abuse of discretion going one way to dismiss, but not an abuse of 

discretion to deny the motion to dismiss. Is that in effect what you are saying? MR. 

BRONSHTEIN: Effectively, yes, Your Honor.”)

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would be appropriate. Indeed, the Eleventh Circuit has found that a trial court 

abused its discretion in denying a motion to dismiss based on abstention.2

In Turner, the Eleventh Circuit vacated the judgment of a district court 

denying a motion to dismiss or stay proceedings in deference to parallel foreign 

proceedings. Turner, 25 F.3d at 1523. The plaintiff, Turner Broadcasting, sued a 

group of German public television networks, alleging that they breached the parties’ 

license agreement by using satellites that extended their broadcast range beyond the 

agreed upon territory. Id. at 1516–17. After the action was removed to federal court, 

defendants moved to dismiss or stay in deference to parallel proceedings in 

Germany, which had determined that the defendants’ conduct was permissible. Id.

The district court denied the motion to dismiss and granted plaintiff’s motion for a 

preliminary injunction, but on appeal the Eleventh Circuit reversed and vacated the 

district court’s order. Id. at 1523. The Eleventh Circuit conducted an analysis of the 

factors to be considered in deciding whether comity applies, and reasoned that “the 

relevant concerns of international comity, fairness and efficiency point 

overwhelmingly, at this stage of the litigation, to deference to the German forum 

2 In Belize Telecom, the Eleventh Circuit reversed the district court’s denial of 

comity following a bench trial after asking the parties to brief the issue of the 

deference to be afforded the foreign judgment at issue. See 528 F.3d at 1304–05. 

Recognizing the importance of considering and deciding the issue properly, the court 

chose to exercise its discretion to conduct the comity analysis in part “[b]ecause the 

existence of a foreign judgment and the potential for conflicting judgments implicate 

concerns beyond those of the parties to the dispute.” Id. at 1304 n.7.

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which has already rendered a judgment on the merits.” Id.

As demonstrated in Turner and otherwise, this Court’s decision concerning 

Claimants’ motion to dismiss based on comity will be subject to appeal by the 

Eleventh Circuit to determine if this Court abused its discretion.

II. Comity May Apply In Civil Suits Filed By The United States

With respect to the application of comity in civil actions commenced by the 

United States, there is no authority that the doctrine of international comity cannot 

apply as a matter of law, and the application of the doctrine to dismiss the United 

States’ claims here is consistent with the law and the purpose of the doctrine.

Notwithstanding the United States’ contention that this Court cannot apply 

comity in a civil case where the United States is a plaintiff, to date Claimants have 

not identified a single case in which a court has held, as a matter of law, that 

international comity cannot apply in civil actions brought by the United States. To 

the contrary—in the litany of cases cited by the United States in which claimants 

argued that comity should apply (see Dkt. 119 at 9-11; Dkt. 149)—none held that 

comity was inapplicable as a matter of law, and all but one noted that, at most, the 

role of the United States as plaintiff was one of a number of factors to be considered 

in deciding whether comity applies.3 See, e.g., United States v. One Gulfstream G3 The one case that did not specifically address the other elements of international 

comity, United States v. All Assets Held In Acct. No. XXXXXXXX, 83 F. Supp. 3d 

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V Jet Aircraft, 941 F. Supp. 2d 1, 10 (D.D.C. 2013) (declining to apply comity where 

no parallel foreign proceeding existed and noting that government’s status as 

plaintiff was factor that “counsel[ed] against invoking the doctrine of comity”); 

United States v. All Assets Held at Bank Julius Baer & Co. (“Bank Julius”), 772 F. 

Supp. 2d 205, 207 (D.D.C. 2011) (declining to apply comity where no conflict 

between U.S. allegations and “decisions of [] Russian judiciary or legislature” and 

stating in dicta that when U.S. is plaintiff “would seem a particularly unsuitable 

candidate for abstention on international comity grounds”); United States. v. 

Approximately $3,275.20 seized from Bank of Am. Acct. No. XXXXXXXXXXX, 2021 

WL 5300512, at *4 (S.D. Fla. Nov. 15, 2021) (finding claimant failed to allege a 

conflicting foreign proceeding or judgment and holding comity not applicable “in 

this particular case”). Crucially, none of these courts held that the United States’ 

status as plaintiff, on its own, bars the application of comity as a matter of law.

The lack of case law applying comity to civil forfeiture claims brought by the 

United States is not surprising, however, given the unprecedented nature of the 

United States’ claims before this Court. Here, the NZF and ZFZ Judgments 

eviscerate the United States’ foundational allegations—that the proceeds used to 

purchase the property in Kentucky were obtained in Ukraine by fraud in violation of 

360, 371-72 (D.D.C. 2015) is inapposite as there was no foreign judgment 

contradicting the United States’ allegations.

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Ukrainian law. Those Judgments hold that the specific loans the United States has 

identified as purportedly “fraudulent” were not fraudulent at all, but were in fact 

lawful and proper. As Claimants have explained, there are no other examples where 

the United States has pursued claims in a civil forfeiture action premised on 

allegations already adjudicated, and found contrary to the United States’ position, in 

a foreign court.

And, despite having multiple opportunities to do so, the United States has been 

unable to identify for the Court any cases, like this one, in which it has pursued civil 

forfeiture claims in the face of conflicting judgments already issued by foreign 

courts directly contradicting the United States’ allegations. See U.S. v. All Assets 

Held In Acct. No. XXXXXXXX, 83 F. Supp. 3d 360, 363–64, 371 (D.D.C. 2015) 

(settlement agreement); Approximately $3,275.20, 2021 WL 5300512 at *4 

(ongoing investigation); United States v. All Funds on Deposit at Sun Secured 

Advantage, Acct. No. *XXXX, 864 F.3d 374, 380 (5th Cir. 2017) (documents that 

“fell far short of demonstrating” result of Mexican investigation); United States v. 

Sum of $70,990,605, 234 F. Supp. 3d 212 (D.D.C. 2017) (order of Afghan attorney 

general); United States v. Real Prop. known as 2291 Ferndown Lane, Keswick VA 

22947-9195, 2011 WL 2441254 at *3 (W.D. Va. June 14, 2011) (non-final 

judgments later reversed on appeal); United States v. Real Prop. Known as Unit 5B, 

2012 WL 1883371 at *7 (S.D.N.Y. 2012) (foreign judgment consistent with 

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government allegations); One Gulfstream, 941 F. Supp. 2d at 10 (no parallel foreign 

proceeding).

4

In addition, applying comity in these circumstances furthers a primary goal of 

the doctrine: preventing conflicting judgments. The Eleventh Circuit has explained 

that the risk of inconsistent judgments in different courts across international 

boundaries creates concerns about “the prospect of ‘dueling courts,’ conflicting 

judgments, and attempts to enforce conflicting judgments,” all of which “raise major 

concerns of international comity.” Turner, 25 F.3d at 1521. The risk of conflict is 

particularly high here, where the Court will be called upon to decide issues of 

Ukrainian law involving the same facts upon which Ukrainian courts already have 

passed judgment. See Dkt. 78 at 9; Dkt. 126 at 3-6.

The Government’s position is an unprecedented assertion of executive 

authority in contravention of the well-established doctrine of international comity—

the doctrine that a state should recognize the “legislative, executive, or judicial acts 

of another nation, with due regard both to international duty and convenience, and 

to the rights of its own citizens, or of other persons who are under the protection of 

its laws.” Hilton v. Guyot, 159 U.S. 113, 164 (1895).

4 In Bank Julius, the individual at the center of the alleged scheme had been charged 

with crimes in Ukraine, convicted of crimes in Switzerland, and indicted for crimes 

in the United States. See 2005 WL 6718216 (Complaint, ¶¶15-17).

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August 22, 2022

Respectfully submitted,

/s/ Howard M. Srebnick

Howard M. Srebnick (FL Bar No. 919063)

Black Srebnick, P.A.

201 South Biscayne Blvd., Suite 1300

Miami, FL 33131

Tel: (305) 371-6421

Fax: (305) 371-6322

HSrebnick@RoyBlack.com

/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

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 

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