1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

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

UNITED STATES OF AMERICA, 

 

Plaintiff, 

v. 

REAL PROPERTY LOCATED AT 7505 AND 7171 

FOREST LANE, DALLAS, TEXAS 75230, WITH ALL 

APPURTENANCES, IMPROVEMENTS, AND 

ATTACHMENTS THEREON, AND ANY RIGHT TO 

COLLECT AND RECEIVE ANY PROFIT, RENT, 

INCOME, AND PROCEEDS THEREFROM, 

Defendant. 

____________________________________________/ 

CLAIMANTS’ MOTION TO DISMISS THE VERIFIED COMPLAINT 

Claimants Mordechai Korf, Uriel Laber, Optima 7171 and Optima Ventures (collectively, 

“Claimants”) respectfully submit this alternative motion to address whether the Court should 

dismiss the Verified Complaint for Forfeiture in Rem, dated August 6. 2020 (the “Verified 

Complaint” or “Compl.”),1 on grounds of international comity and abstention. As noted in the 

concurrently filed Motions to Compel Arbitration, Claimants urge the Court not to reach the instant 

Motion to Dismiss and instead order the United States to arbitrate its claims.2

 

1

 Citations to “Paul Decl.” refer to the February 5, 2021 Declaration of Joshua N. Paul. Citations 

to “Ex.” refer to the exhibits to the Paul. Decl., and all page citations to the exhibits refer to the 

page numbers of the as-filed PDFs. Citations to “Marchukov Aff.” refer to the February 5, 2021 

Declaration of Dmytro Marchukov. Citations to “Dkt.” refer to the docket in this action. 

2

 Optima Ventures and Optima 7171 have moved to compel arbitration pursuant to the U.S.-

Ukraine BIT at the first available opportunity, i.e., six months from the date that the dispute arose. 

See Dkt. 36. Korf and Laber, in turn, have moved to compel arbitration pursuant to the doctrine 

of equitable estoppel. See Dkt. 37. All Claimants seek arbitration of their claims and urge the 

Court not to reach the merits of the instant motion to dismiss. See Rule 12(b) (“No defense or 

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PRELIMINARY STATEMENT 

This case is an example of the United States engaging in egregious overreach, and 

attempting to step into the shoes of Ukraine, a sovereign state, in order to assert claims that alleged 

conduct committed in Ukraine, by wealthy and powerful Ukrainian nationals, that purportedly 

harmed a Ukrainian bank, violates specific provisions of Ukrainian criminal law. Notwithstanding 

that no Ukrainian prosecutor or government entity has even alleged that the Ukrainian conduct 

described in the Verified Complaint violates Ukrainian criminal law, the United States now seeks, 

in federal court in Florida, the forfeiture of property located in Texas, because the United States 

alleges that property was acquired with funds unlawfully obtained in Ukraine, under Ukrainian 

law. 

PrivatBank is, and has been, one of the largest financial institutions in Ukraine. The bank 

was owned by two Ukrainian billionaires, Ihor Kolomoisky and Gennadiy Boholiubov until 

December 2016, when the Ukrainian government seized the bank and nationalized it as a result of 

what the Ukrainian government claimed was massive theft and fraud. Since that time, PrivatBank 

has engaged in a worldwide shotgun-blast of litigations against its former owners, all of which are 

premised on PrivatBank’s claims that Kolomoisky and Boholiubov orchestrated a scheme in which 

they looted the bank by fraudulently misappropriating loan proceeds, laundering those proceeds 

through various bank accounts in Ukraine and around the world, and then using the funds to invest 

in assets around the world, including in the United States. 

 

objection is waived by joining it with one or more other defenses or objections in a responsive 

pleading or in a motion.”); Babcock v. Neutron Holdings, Inc., 454 F. Supp. 3d 1222, 1228 (S.D. 

Fla. 2020) (“A motion to compel arbitration is treated as a Rule 12(b)(1) motion to dismiss for lack 

of subject-matter jurisdiction.”). 

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For reasons yet to be explained, and based on authority yet to be identified, the United 

States chose, in August 2020, to step into the fight between the Ukrainian government and two of 

Ukraine’s most prominent citizens by filing the Verified Complaint. Mirroring PrivatBank’s 

allegations, the United States claims that the property at issue was obtained using funds derived 

from the same unlawful and fraudulent scheme at issue in PrivatBank’s various litigations and in 

a wave of substantially similar lawsuits that have been decided and are being decided by the 

Ukrainian courts. Remarkably, the United States claims that the property is subject to forfeiture 

even though the purportedly unlawful Ukrainian conduct upon which the forfeiture is sought has 

not even been alleged to be criminal by any Ukrainian prosecutor. Undeterred by the lack of any 

criminal convictions obtained by, or even charges brought by, Ukrainian law enforcement, the 

United States seeks to itself allege and prove violations of Ukrainian criminal law, carried out in 

Ukraine, by Ukrainian nationals, against a Ukrainian state-owned bank. This overreach is a 

patently improper and transparent effort by the United States to enforce Ukrainian law and regulate 

conduct occurring in Ukraine in violation of principles of international comity. 

Beyond the fact that the United States has no authority to interpret, allege, and prosecute 

crimes under Ukrainian criminal law (in this Court or anywhere), the United States’ claims are 

time-barred under the one-year statute of limitations for forfeiture claims. 

All of these fatal defects to the Verified Complaint are detailed below, and mandate 

dismissal of this action with prejudice. 

FACTUAL BACKGROUND 

A. Ukraine Nationalizes PrivatBank and Initiates Litigation Around the World

As alleged in the Verified Complaint, PrivatBank, which is located in Ukraine, is one of 

Ukraine’s largest banks, and has been since at least the early 2000s. See Compl. ¶ 10. In December 

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2016, the National Bank of Ukraine (“NBU”) nationalized PrivatBank, transferring ownership of 

the bank to the Ukrainian government.3 See id. 

The United States alleges that PrivatBank was seized after audits purportedly “uncovered 

a scheme by the bank’s owners to steal over $5 billion from the bank via the issuance of fraudulent 

loans.” Id. The United States alleges that PrivatBank’s former owners, Ihor Kolomoisky and 

Gennadiy Boholiubov are “Ukrainian oligarch[s]” who, together, “excercised extensive control 

over PrivatBank and its activities.” Id. ¶¶ 11-12. 

Following the seizure of the bank, the Ukrainian government – through 

PrivatBank – embarked on a worldwide frenzy of litigation, filing actions in London, Switzerland, 

Israel, Cyprus, and, here in the United States, in Delaware Chancery Court.4 PrivatBank’s claims 

in each of those actions are premised on the same allegations underlying the United States’ claims 

here – that Kolomoisky and Boholuibov “used their control of PrivatBank to steal billions of 

dollars of the bank’s funds,” and laundered the purportedly stolen proceeds through bank accounts 

in Ukraine and elsewhere around the world. Compl. ¶¶ 1, 16-18, 22-83. 

The United States alleges that Kolomoisky and Boholuibov’s conduct violated Ukrainian 

criminal law. See id. ¶¶ 64-73. Remarkably, the United States does not, because it cannot, allege 

that Kolomoisky and Boholuibov have been convicted in Ukraine of any alleged violations of 

Ukrainian cirminal law, including violations asserted by the United States itself.5 In fact, no 

 

3

 See https://bank.gov.ua/en/news/all/derjava-uhvalila-rishennya-pro-vhodjennya-do-kapitalupat-privatbank (“The bank will be transferred from private shareholders into the ownership of the 

State. . . .”). 

4

 The Court may take judicial notice of the existence of other litigations filed by PrivatBank, the 

existence of which are not in dispute. See Cavero v. Law Offices of Erskine & Fleisher, 2012 WL 

13134213, at *3 (S.D. Fla. Aug. 28, 2012).

5

 The United States does not provide any explanation as to why it (not the Ukrainian government) 

is asserting violations of Ukrainian criminal law by Ukrainian nationals against a Ukrainian stateowned bank. Claimants are unaware of any basis upon which the United States has the authority 

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criminal charges have even been filed against Kolomoisky and Boholuibov in Ukraine relating 

to PrivatBank. 

The Verified Complaint contains extensive allegations regarding the nature of the supposed 

scheme employed by Kolomoisky and Boholuibov “to steal billions of dollars of [PrivatBank’s] 

funds.” Compl. ¶ 16; see also id. ¶¶ 16-83. These allegations include references to specific loans 

that the United States alleges were used by Kolomoisky and Boholuibov to fraudulently steal loan 

proceeds from PrivatBank, in violation of Ukrainian law. See, e.g., id. ¶¶ 36-39, 44, 47, 59. 

Recently, certain of the Ukrainian borrowers accused by the United States of committing 

Ukrainian crimes, in Ukraine, against a Ukrainian bank, have initiated litigations in Ukraine 

against PrivatBank seeking judgments that, contrary to PrivatBank’s allegations in its various 

litigations (and the United States here), the purportedly fraudulent loans were in fact entirely 

legitimate and consistent with Ukrainian law (the “Related Actions”). Those cases are proceeding 

through the Ukrainian judicial system, and Ukrainian courts have begun issuing decisions directly 

refuting PrivatBank’s allegations, which are mirrored by the United States in the Verified 

Complaint. 

As a specific example, the United States alleges that the application for Loan Number 

4N09129D falsely “stated that the loan would be repaid via funds earned through ferroalloy 

production; instead, it was repaid with funds from two other loans.” Compl. ¶ 47. The United 

States claims that such alleged misrepresentations “constituted a fraud by and on PrivatBank.” Id. 

¶ 48. However, in a decision issued by the Economic Court of Kyiv on January 22, 2021, the 

Ukrainian court found that the “the loan repayment and payment of all interest, fees, and other 

 

to allege and prosecute violations of the criminal laws of Ukraine, a sovereign state, and the 

Verified Complaint fails to cite any such authority. 

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payments, which were set forth in the Loan Agreement No. 4N09129D . . . were made at the 

expense of funds received by [NZF] from its business activities, at the expense of the Guarantor 

and not at the expense of other loan funds, which were received by [NZF] under other loan 

agreements.” See Paul Decl., Ex. 1 (Decision, Joint Stock Co. Nikopol Ferroalloy Plant v. Joint 

Stock Co. Comm. Bank PrivatBank, No. 910/14224/20 (Kyiv Econ. Ct. Jan. 22, 2021), at 25). This 

finding by a Ukrainian court concerning issues of Ukrainian law directly contradicts the United 

States’ allegation that Loan No. 4N09129D was a “fraud,” and that the proceeds from that loan 

“constituted embezzlement and conversion.” Compl. ¶¶ 48, 61. Another decision issued by the 

same Ukrainian court on the same day determined that a number of other loans the United States 

purports to identify as fraudulent were not, including Loan Nos. 4N10122D, 4N10221D, 

4N10224D, 4N10220D, and 4N10263D. See Paul Decl., Ex. 2 (Decision, Joint Stock Co. Nikopol 

Ferroalloy Plant v. Joint Stock Co. Comm. Bank PrivatBank, No. 910/13313/20 (Kyiv Econ. Ct. 

Jan. 22, 2021), at 4-5); Compl. ¶ 36. 

Another Ukrainian borrower identified in the Verified Complaint, ZFZ, has filed at least 

four similar actions in Ukraine seeking declarations that its loans were properly performed. Each 

of those actions concern loans that are substantially similar to the ZFZ Loan identified in the 

Verified Complaint, and expressly reference this case. See, e.g., Paul Decl., Ex. 3 (Statement of 

Claim, Joint Stock Co. Zaporizhzhia Ferroalloy Plant v. Joint Stock Co. Comm. Bank PrivatBank, 

No. 18-180/282 (Kyiv Econ. Ct. Dec. 3, 2020), at 21) (noting that on August 6, 2020, two actions 

were filed by the United States DOJ in this Court, including an action against real property located 

at 7505 and 7171, Forest Lane, Dallas, Texas, 75230).6 The actions remain active and pending. 

 

6

 Accord Paul Decl., Ex. 4 (Statement of Claim, Joint Stock Co. Zaporizhzhia Ferroalloy Plant 

v. Joint Stock Co. Comm. Bank PrivatBank, No. 18-183/328 (Kyiv Econ. Ct. Dec. 3, 2020), at 21); 

id., Ex. 5 (Statement of Claim, Joint Stock Co. Zaporizhzhia Ferroalloy Plant v. Joint Stock Co. 

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B. The United States Seeks To Forfeit the Property

On August 6, 2020, the United States filed the Verified Complaint for forfeiture in rem

seeking to forfeit the 19.435-acre tract of land known as the CompuCom Campus, located at 7505 

and 7171 Forest Lane, Dallas, Texas 75230 (the “Property”). See Compl. ¶¶ 1-3. The United 

States alleges that the Property was purchased in 2010 by Claimant Optima 7171, a Delaware 

limited liability company owned 100% by Claimant Optima Ventures. Id. ¶ 99. Claimant Optima 

Ventures, also a Delaware limited liability company, was owned in part by Kolomoisky and 

Boholiubov. Id. ¶ 86(c). 

Notwithstanding the absence of any Ukrainian criminal convictions (or even charges) 

relating to the supposedly massive fraud engaged in and directed by Kolomoisky and Boholiubov, 

the United States seeks forfeiture of the Property on the grounds that the Property was purchased 

with “misappropriated funds” that were fraudulently and unlawfully obtained from PrivatBank in 

Ukraine. See id. ¶¶ 1-5. Every one of the causes of action asserted in the Verified Complaint is 

predicated on the United States’ unproven and unfounded accusations that a portion of the funds 

Claimant Optima 7171 used to purchase the Property were “misappropriated from PrivatBank.” 

Id. ¶ 104; see also id. ¶¶ 127-48. 

On September 4, 2020, without a hearing or any opportunity to respond, the United States 

obtained an ex parte restraining order, which prohibited the Property from being “transferred, sold, 

assigned, pledged, distributed, encumbered, attached or disposed of in any manner . . . unless 

approved in writing by the Government.” Dkt. 5-1:2. Subsequently, the United States conditioned 

the sale of the Property upon the deposit of the net sale proceeds into the account of the United 

 

Comm. Bank PrivatBank, No. 18-188/341 (Kyiv Econ. Ct. Dec. 3, 2020), at 21); id., Ex. 6 

(Statement of Claim, Joint Stock Co. Zaporizhzhia Ferroalloy Plant v. Joint Stock Co. Comm. 

Bank PrivatBank, No. 18-189/342 (Kyiv Econ. Ct. Dec. 3, 2020), at 21). 

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States Marshals Service. The market value of the Property is $23,250,000.00. To date, there has 

been no hearing or opportunity to challenge the basis for the ex parte restraining order.

ARGUMENT 

I. INTERNATIONAL COMITY REQUIRES ABSTENTION 

International comity is an abstention doctrine that accords deference to the decisions of 

foreign sovereigns. See Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237-38 (11th 

Cir. 2004). As this Court has held, it is “prudent and just” for a federal court to abstain from 

jurisdiction in deference to concurrent proceedings in another jurisdiction. Curran v. Hindu Credit 

Union Co-Op Soc’y Ltd., 2011 WL 1131107, at *3 (S.D. Fla. Mar. 25, 2011) (Cooke, J.) (citations 

omitted); accord Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257-58 (11th 

Cir. 2006) (affirming dismissal on comity grounds); ITL Int’l, Inc. v. Walton & Post, Inc., 741 F. 

Supp. 2d 1313, 1317 (S.D. Fla. 2010) (dismissing on comity grounds). 

The Eleventh Circuit applies a three-factor test in determining whether abstention is 

warranted: (1) whether international comity applies; (2) fairness to litigants; and (3) efficient use 

of scarce judicial resources. See Turner Entertainment Co. v. Degeto Film GmbH, 25 F.3d 1512, 

1518 (11th Cir. 1994); Rivera de Chavon Dev. Grp. SRL v. Diaz, 2011 WL 5825770, at *3 (S.D. 

Fla. Nov. 17, 2011); ITL Int’l, Inc., 741 F. Supp. 2d at 1316. All factors are easily met here. 

A. The Doctrine of Comity Applies 

In the Eleventh Circuit, international comity may be applied either retrospectively or 

prospectively. Curran, 2011 WL 1131107, at *2; Ungaro-Benages, 379 F.3d at 1238; St. Martinus 

Univ., NV v. Caribbean Health Holding, LLC, 2020 WL 956301, at *7 (S.D. Fla. Feb. 27, 2020), 

appeal dismissed sub nom. St. Martinus Univ. v. Caribbean Health Holding, LLC, 2020 WL 

7018197 (11th Cir. Sept. 28, 2020). When applied prospectively, courts evaluate: (i) the strength 

of the United States’ interest in using a federal forum, (ii) the strength of the foreign nation’s 

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interests, and (iii) the adequacy of the alternative forum, a factor dictated by forum non conveniens

analysis. Id.; Curran, 2011 WL 1131107, at *2. Abstention is warranted here under each factor 

in the prospective comity analysis. 

First, as the Verified Complaint makes clear, Ukraine’s interests predominate over this 

action. The United States’ entire case rests on an expansive web of alleged conduct that was 

conceived, directed, and executed in Ukraine by Ukrainian oligarchs, bank agents, and corporate 

borrower entities. The Verified Complaint alleges that two Ukrainian nationals, Kolomoisky and 

Boholiubov, misappropriated assets from PrivatBank, “a Ukrainian financial institution located in 

Ukraine.” Compl. ¶¶ 10-12, 16. It alleges that Kolomoisky and Boholiubov caused PrivatBank 

to issue loans to companies they owned or controlled, naming three such companies – NZF, ZFZ, 

and OGZK – all of which are based in Ukraine. Id. ¶¶ 33-63. It alleges that Kolomoisky and 

Boholiubov established a de facto “credit committee” at PrivatBank, consisting of PrivatBank 

employees, to approve the allegedly unlawful loans. Id. ¶¶ 56-62. It alleges that Kolomoisky and 

Boholiubov laundered the loan proceeds through a network of shell companies, which they created 

and controlled, at a PrivatBank branch “controlled by PrivatBank in Ukraine.” Id. ¶¶ 74-83. And 

it alleges that the losses primarily impacted PrivatBank in Ukraine. Id. ¶¶ 82-83. The four corners 

of the pleadings leave no doubt that the nexus of the alleged scheme was rooted in Ukraine, which 

has an overriding interest in prosecuting and regulating allegedly criminal conduct in its own 

borders. Abstention is thus appropriate. See In re Maxwell Communications Corp., 93 F.3d 1036, 

1051 (2d Cir. 1996) (abstaining, where “England has a much closer connection to these disputes 

than does the United States”). 

Second, Ukraine’s interests eclipse those of the United States. The only United Statesbased conduct alleged in the Verified Complaint is the after-the-fact use of allegedly unlawful 

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proceeds to purchase real estate in Texas. However, none of the downstream United States-based 

conduct would be unlawful but for the allegations of wrongdoing in Ukraine. 

More fundamentally, to permit the United States to pursue claims that require U.S. courts 

to determine the legality of conduct in Ukraine runs contrary to the United States’ interests in 

respecting Ukraine’s judicial process, sovereign rights, and Constitution. See Mujica v. AirScan 

Inc., 771 F.3d 580, 615 (9th Cir. 2014) (“the strength of the U.S. government’s interest in 

respecting Colombia’s judicial process” weighs in favor of dismissal). Article 62 of the 

Constitution of Ukraine grants the Ukrainian criminal court exclusive authority to determine and 

establish that a crime under Ukrainian law has been committed. Marchukov Aff. ¶¶ 16, 31 n.19. 

Likewise, Article 124 of the Constitution of Ukraine provides that only Ukrainian courts are 

entitled to administer justice in Ukraine, and that no other body or authority can exercise or usurp 

the functions of the court. Id. ¶¶ 23, 29. Therefore, the Constitution of Ukraine dictates that the 

judgment of the Ukrainian court is the exclusive mechanism to determine and establish that a crime 

has been committed and that a certain person has committed the crime. Id. ¶¶ 11-12, 24, 34. In 

the absence of such ruling by a Ukrainian criminal court, any finding in a U.S. court concerning 

the legality of conduct in Ukraine would invade Ukraine’s sovereignty and its longstanding 

Constitutional principles. See Republic of Philippines v. Pimentel, 553 U.S. 851, 852-53 (2008) 

(a foreign state has a comity interest in using its own courts, and its “dignity is not enhanced if 

other nations bypass its courts without right or good cause”); Bi v. Union Carbide Chems. & 

Plastics Co., 984 F.2d 582 (2d Cir. 1993) (dismissing the claims of Indian nationals injured by a 

chemical plant explosion in Bhopal based on Indian legislation granting the Indian government 

exclusive standing to represent all victims); Ungaro-Benages, 379 F.3d at 1239 (dismissing claims 

of heir to German corporation where “the German government has a significant interest in having 

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the Foundation be the exclusive forum for these claims”). Nevertheless, the United States – unable 

to refer to a single criminal investigation or charge levied against any defendant in the Ukraine 

concerning the management of PrivatBank – relies on its own interpretation and application of 

Ukrainian criminal law to conduct occurring in Ukraine, for which Ukraine itself has not brought 

any such charges.

Finally, courts routinely hold that Ukraine is an adequate alternative forum. See, e.g., In 

re Arbitration between Monegasque De Reassurances S.A.M., 311 F.3d at 499; Universal Trading, 

2007 WL 2669841, at *15; see also Curran, 2011 WL 1131107, at *4 (an alternative forum “need 

not be a perfect forum,” but instead is “adequate” so long as “it offers at least some relief”) (citing 

Leon v. Million Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001)). If anything, Ukraine “will be far 

more adept at applying the law of its own forum, particularly where it is already entertaining 

lawsuits involving the same subject matter.” Banco Latino v. Gomez Lopez, 17 F. Supp. 2d 1327, 

1332 (S.D. Fla. 1998). 

B. Fairness Considerations Warrant Abstention 

In addition to determining whether international comity applies, the Eleventh Circuit 

considers fairness to the litigants in deciding whether abstention is warranted. See Turner, 25 F.3d 

at 1521-22. Relevant considerations include: (1) the order in which the suits were filed, (2) the 

more convenient forum; and (3) the possibility of prejudice to parties resulting from abstention. 

See id. (citation omitted); St. Martinus Univ., 2020 WL 956301, at *16 (referencing forum non 

conveniens analysis in assessing fairness). 

Fairness militates strongly in favor of deference to the Ukrainian proceedings. While the 

order in which the suits were filed is a neutral factor, as the Related Actions were filed 

simultaneously or within a few months of this case, see Turner, 25 F.3d at 1522, the availability 

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of highly critical witnesses and the ability to obtain relevant documentary evidence render Ukraine 

a significantly more convenient forum than the United States. The overwhelming majority of the 

relevant evidence is located in Ukraine and will be extremely difficult, if not impossible, for 

Claimants to obtain in this Court. Such evidence concerns, among other things, the origination of 

purportedly fraudulent loans by a Ukrainian bank to Ukrainian entities (Compl. ¶¶ 33-63); the 

transfer of such funds both within and outside Ukraine, including through PrivatBank accounts 

allegedly located in numerous other foreign nations (id. ¶¶ 74-83); the organization and activities 

of the purported “electronic” credit committee at PrivatBank (id. ¶¶ 56-62); and information 

concerning the routing of funds through PrivatBank Cyprus (id. ¶¶ 79-81). As set forth in the 

Marchukov Declaration, Ukraine and the United States are both signatories to the Hague 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters 

(the “Evidence Convention”), which applies to requests for documents or deposition testimony. 

Marchukov Aff. ¶¶ 45-46. Ukraine, however, has issued a reservation to the Evidence Convention 

that effectively precludes pre-trial discovery of documentary evidence, declaring it “will not 

execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as 

known in common law countries.” Id. ¶¶ 52, 72 (explaining that Ukraine’s reservation is “broad 

and unqualified”). Claimants’ lack of crucial evidence and the attentdant prejudice they will suffer 

weighs in favor of abstention. See Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1332 (11th Cir. 2011) 

(affirming dismissal by this Court, where “the vast majority [of evidence] appears to be in Brazil 

and France”). 

Claimants also will not be able to compel the testimony of any witness who refuses to 

testify voluntarily. See, e.g., Ericson v. Wyndham Worldwide Corp., 2014 WL 11822749, at *5 

(S.D. Fla. Feb. 28, 2014) (Cooke, J.) (lack of compulsory process for the attendance of unwilling 

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foreign witnesses “strongly” favors dismissal); Tazoe, 631 F.3d at 1332 (same); Rosen v. Execujet 

Servs. LLC, 241 F. Supp. 3d 1303, 1309-12 (S.D. Fla. 2017) (same). A request for testimony 

through the Evidence Convention will still be dependent on the witnesses’s willingness to 

cooperate with such a request (as Ukrainian authorities do not, in practice, seriously enforce 

foreign requests for judicial assistance), and even such voluntary testimony will take at least eight 

to nine months per witness, the minimum time it takes to schedule a hearing in a Ukrainian court 

to obtain witness testimony. Marchukov Aff. ¶¶ 57-62. Once a hearing is set, however, success 

in obtaining testimony still depends on the witnesses’ willingness to cooperate because, if 

witnesses fail to do so, Ukrainian courts will not compel them, and the letter of request for 

testimony likely will be returned unexecuted. Id. ¶ 61. Claimants’ expert, Marchukov, was unable 

to identify a single instance in which a Ukrainian court compelled an unwilling witness to 

cooperate with a foreign request for pre-trial testimony. Id. ¶ 62. Thus, if a Ukrainian witness 

refuses to cooperate, Claimants – as well as Plaintiff – will have no recourse. Id. ¶ 71. 

Even assuming Claimants (or Plaintiff) find a cooperative witness, any hearing may consist 

of a Ukrainian judicial officer reading written questions from the letter of request. Marchukov 

Aff. ¶ 60. Claimants’ counsel cannot be assured they will be provided the opportunity to question 

the witness directly, or explore, clarify, challenge, or impeach the responses of an adverse witness 

through cross-examination. Id. The end result of this laborious, expensive, and time-consuming 

process, which “may take well over a year” (id. ¶ 65), would be of little probative value and 

possibly inadmissible. Claimants’ lack of access to pre-trial documents and limited testimony 

render proceeding with this action highly impractical. In the face of such extraordiary evidencegathering obstacles, Claimants would sufferoverwhelming and prejudicial hardship in formulating 

and presenting a defense. 

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Beyond the glaring problems Claimants will confront in obtaining pre-trial discovery, 

Claimants also will endure overwhelming hardship presenting key witnesses at trial. Trials turn 

on witnesses. But a trial in this District will leave Claimants unable to ensure the testimony of, 

inter alia: (i) persons involved in the applications for the purportedly fraudulent loans submitted 

in Ukraine, (ii) Ukrainian employees of Plaintiff, including members of the “electronic” credit 

committee involved in issuing those loans, (iii) employees of PrivatBank Cyprus involved in the 

purportedly fraudulent transfer of loan proceeds, (iv) employees of non-party foreign entities who 

allegedly participated in disbursing funds, or (v) persons involved in the lawful acquisition of U.S. 

assets outside of the United States. These witnesses are outside the Court’s subpoena power, and 

Claimants have no means of compelling the appearance of any who decline voluntarily to travel 

to this District (or the United States at large) from around the world. See Ericson, 2014 WL 

11822749, at *5 (dismissing, where “Defendants have identified important witnesses that are 

outside this Court’s compulsory process”); Tazoe, 631 F.3d at 1332 (dismissing because the 

Southern District of Florida lacks the authority to compel certain witnesses to attend proceedings); 

Rosen v. Execujet Servs. LLC, 241 F. Supp. 3d 1303, 1309-12 (S.D. Fla. 2017) (dismissal “heavily” 

favored where “majority of the material witnesses in this action . . . would not be subject to 

compulsory process”). 

Moreover, the United States would suffer no discernible prejudice from a dismissal based 

on abstention. As discussed above, the United States has an acute interest in avoiding infringement 

on Ukrainian sovereignty and preserving amicable foreign relations with Ukraine. Supra, at 10-

11. And the United States cannot come close to establishing that the Ukrainian proceedings are 

incapable of producing a “fair and just result.” Rivera de Chavon Dev. Grp. SRL v. Diaz, 2011 

WL 5825770, at *3 (S.D. Fla. Nov. 17, 2011); Universal Trading & Inv. Co. v. Kiritchenko, 2007 

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WL 2669841, at *15 (N.D. Cal. Sept. 7, 2007) (rejecting any notion that “Ukrainian courts are so 

lacking in impartiality, due process, or procedural fairness” that their decisions should be 

disregarded by a U.S. court), aff’d sub nom. Universal Trading & Inv. Co. v. Kiritchenko, 346 F. 

App’x 232 (9th Cir. 2009). 

C. Abstention Furthers the Efficient Use of Scarce Judicial Resources 

Lastly, the efficient use of scarce judicial resources militates in favor of deferring to the 

Ukrainian proceedings. Criteria relevant to efficiency include (1) the inconvenience of the federal 

forum; (2) the desirability of avoiding piecemeal litigation; (3) whether the actions have parties 

and issues in common; and (4) whether the alternative forum is likely to render a prompt 

disposition. See Turner, 25 F.3d at 1522. 

As shown above, Ukraine is the appropriate forum to determine the validity and legality of 

the loans identified in the Verified Complaint, and the Related Actions pending in Ukraine involve 

substantially the same parties and issues. Supra, at 5-6. Dismissal of this case would avoid 

unnecessary problems with piecemeal litigation, in light of the Related Actions that are currently 

being litigated. “If both proceedings continued, the courts’ calendars would have to be 

synchronized and the litigation would have to move back and forth across the Atlantic.” Turner, 

25 F.3d at 1522. “The Southern District of Florida is a very busy district,” and the issues to be 

resolved are simply too similar for the Court to “justify expending its resources to manage a case 

clearly suited for the [Ukrainian] courts.” ITL Int’l, Inc., 741 F. Supp. 2d at 1317.7 

 

7

 Abstention is further required by the doctrine of prescriptive comity, which obligates courts to 

“construe statutes to avoid unreasonable interference with other nations’ sovereign authority where 

possible.” See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2107 n.9 (2016); In re 

Maxwell Commc’n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir. 1996) (“[I]nternational 

comity . . . as a canon of construction . . . might shorten the reach of a statute.”). As shown above, 

under the Ukrainian Constitution, a conviction by a Ukrainian court is the sole mechanism for 

establishing that a crime occurred. Supra, at 10-11. But the Ukrainian government has not 

initiated a single investigation or brought a single charge against any person or corporate entity 

Case 1:20-cv-23278-MGC Document 38 Entered on FLSD Docket 02/05/2021 Page 15 of 18
16

II. THE FORFEITURE CLAIMS ARE BARRED BY THE STATUTE OF 

LIMITATIONS

Under 18 U.S.C. § 984(c), “[n]o action pursuant to this section to forfeit property not 

traceable directly to the offense that is the basis for the forfeiture may be commenced more than 1 

year from the date of the offense.” This one-year limitations period is mandatory and applies to 

“any forfeiture action in rem in which the subject property is cash, monetary instruments in bearer 

form, funds deposited in an account in a financial institution . . . , or other fungible property.” Id. 

§ 984(b)(1). 

The Verified Complaint alleges that certain Ukrainian bank loans, and the transmission of 

their proceeds into the United States, took place in 2010, nearly a decade prior to the filing of this 

lawsuit in 2020. Compl. ¶ 118. The United States’ claims are therefore time-barred. 

CONCLUSION 

Based on the foregoing, the Court should abstain from exercising jurisdiction over this 

action and dismiss all claims with prejudice. 

Dated: February 5, 2021 

Respectfully submitted, 

Black, Srebnick, Kornspan & Stumpf, P.A. 

201 South Biscayne Blvd., Suite 1300 

Miami, FL 33131 

Tel: (305) 371-6421 

Fax: (305) 371-6322 

By: /s/ Howard M. Srebnick

Howard M. Srebnick 

Florida Bar No. 919063 

Robert T. Dunlap 

 

related to the Ukrainian loan scheme alleged by the United States. The total absence of any 

criminal charges against anyone in Ukraine, let alone criminal convictions, necessitates abstention. 

See RJR Nabisco, 136 S. Ct. at 2107 n.9 (the courts of the United States “construe[] statutes to 

avoid unreasonable interference with other nations’ sovereign authority where possible.”). 

Case 1:20-cv-23278-MGC Document 38 Entered on FLSD Docket 02/05/2021 Page 16 of 18
17

Florida Bar No. 11950 

HSrebnick@RoyBlack.com 

RDunlap@RoyBlack.com 

Attorneys for Claimants Korf and the 

Corporate Entities 

Kasowitz Benson Torres LLP 

1633 Broadway 

New York, New York 10019 

(212) 506-1700 

Marc E. Kasowitz 

Mark P. Ressler 

Ronald R. Rossi 

Sarmad M. Khojasteh 

Joshua Paul 

Pro Hac Vice Anticipated

MKasowitz@kasowitz.com 

MRessler@kasowitz.com 

RRossi@kasowitz.com 

SKhojasteh@kasowitz.com 

JPaul@kasowitz.com 

Attorneys for Claimants Korf and the 

Corporate Entities 

/s/ Scott A. Srebnick

Scott A. Srebnick, P.A. 

201 South Biscayne Boulevard 

Suite 1210 

Miami, FL 33131 

Telephone: (305) 285-9019 

Facsimile: (305) 377-9937 

Scott@srebnicklaw.com 

Attorney for Claimant Laber

Case 1:20-cv-23278-MGC Document 38 Entered on FLSD Docket 02/05/2021 Page 17 of 18
18

CERTIFICATE OF SERVICE 

I hereby certify that on February 5, 2021, I electronically filed the foregoing document 

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being 

served this day on all counsel of record in the manner specified, either via transmission of Notices 

of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties 

who are not authorized to receive Notices of Filing electronically. 

/s/ Howard M. Srebnick 

Howard M. Srebnick 

Case 1:20-cv-23278-MGC Document 38 Entered on FLSD Docket 02/05/2021 Page 18 of 18