TRUSTEE’S RESPONSE TO DEFENDANTS STEVEN ZAKHARYAYEV’S AND EVELINA 

PINKHASOVA’S PARTIAL MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT 1

Davor Rukavina, Esq.

Tex. Bar No. 24030781

Thomas D. Berghman, Esq.

Tex. Bar No. 24082683

Julian P. Vasek, Esq.

Tex. Bar No. 24070790

MUNSCH HARDT KOPF & HARR P.C.

500 N. Akard St., Ste. 4000

Dallas, Texas 75201

214-855-7500

drukavina@munsch.com

tberghman@munsch.com

jvasek@munsch.com

COUNSEL FOR SCOTT M. SEIDEL,

CHAPTER 7 TRUSTEE

IN THE UNITES STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

GOODMAN NETWORKS, INC.,

Debtor.

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Case No. 22-31641-mvl7

(Chapter 7) 

SCOTT M. SEIDEL, TRUSTEE, et al., 

Plaintiff,

v. 

18920 NW 11TH, LLC, et al., 

Defendants.

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Adv. No. 23-03072-mvl 

TRUSTEE’S RESPONSE TO DEFENDANTS STEVEN 

ZAKHARYAYEV’S AND EVELINA PINKHASOVA’S PARTIAL 

MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

TO THE HONORABLE MICHELLE V. LARSON,

UNITED STATES BANKRUPTCY JUDGE:

Scott M. Seidel, chapter 7 trustee (the “Trustee”) for Goodman Networks, Inc. (the 

“Debtor”), files this his Trustee’s Response to Defendants Steven Zakharyayev’s and Evelina 

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Pinkhasova’s Partial Motion to Dismiss Plaintiffs’ Amended Complaint, in support of which he 

would respectfully show as follows: 

I. BACKGROUND

1. On August 5, 2023, the Trustee filed his Original Compliant (Dkt. No. 1), which 

sets forth claims and causes of action against 18920 NW 11th, LLC (“18920”), James Goodman 

(“Goodman”), James Frinzi (“Frinzi”), Steven Zakharyayev (“Zakharyayev”), Evelina Pinkhasova 

(“Pinkhasova”), People NQ, Inc. (“People”), JJC & People, LLC (“JJC”), and GDMN Family 

Investments 2, LLC (“GDMN”). Following the Court’s ruling (Dkt. No. 21, the “Opinion” or 

“Op.”) on a motion to dismiss by Zakharyayev and Pinkhasova (the “Movants”), on February 20, 

2024, the Trustee filed his Trustee’s Amended Complaint (Dkt. No. 23, the “Complaint” or 

“Compl.”) against all the same defendants.

2. At a high level, the Complaint alleges Goodman sought to extract for himself 

whatever value the Debtor had left, knowing the Debtor was insolvent and was about to default on 

its secured bonds. Compl. ¶ 39. He sought advice from Frinzi, who suggested a stock sale

involving non-existing redemption rights, and identified Zakharyayev as a potential purchaser to 

acquire the stock and exercise the non-existing redemption rights. Id. ¶¶ 40 – 41. Zakharyayev 

involved 18920, which he and his wife Pinkhasova owned and controlled. See id. ¶¶ 30, 41. 

Goodman and the Goodman Entities1 owned stock in the Debtor, and Goodman and others 

concocted a scheme by which “(i) the Goodman Entities would transfer the Transaction Shares to 

18920; (ii) 18920 would demand redemption of the Transaction Shares from the Debtor; and (iii) 

the Debtor would use cash and other assets to satisfy the (in fact non-existent) redemption 

demand.” Id. ¶ 42. 

 

1 Capitalized terms not defined herein have the meaning attributed to them in the Complaint.

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3. On March 9 and 10, 2022, the following events transpired in furtherance of this 

scheme within a 24-hour period (among other things): 

• Various Goodman Entities and 18920 entered into share purchase 

agreements pursuant to which 18920 would buy 4,032,918 shares of the 

Debtor’s stock for $12,372,656. Compl. ¶¶ 44-46. However, 18920 did not 

have the funds to close. Compl. ¶ 48. 

• Pinkhasova, on behalf of 18920, made a demand to the Debtor purporting 

to exercise a nonexistent mandatory stock redemption right. Compl. ¶ 50. 

However, 18920 had not paid for the Transaction Shares and therefore did 

not own them. Id.

• Frinzi, on behalf of the Debtor agreed to settle the invalid redemption 

demand in exchange for the Debtor issuing a $50 million note to 18920. 

Compl. ¶ 51. 

• The Debtor and 18920 entered into a Settlement Agreement to compromise 

the note, under which “(i) the Debtor would pay 18920 $14,500,000; (ii) the 

Debtor would assign to 18920 one-half of the AMRR Note (such half 

representing $22 million) (the ‘Half AMRR Note’), (iii) the Debtor would 

assign to 18920 the LSU License; and (iv) the Debtor would assign to 18920 

the Trademarks (the Trademarks, the LSU License and the Half AMRR 

Note, collectively, the ‘Transferred Assets’).” Compl. ¶ 54. 

4. Then, on March 11 and 15, 2022, the Debtor and GNET transferred $13,474,075.00 

to 18920, who turned around and transferred $10 million to the Goodman Entities, purportedly as 

payment under the stock purchase agreements. The most charitable way to characterize this 

transaction would be to describe it as akin to a leveraged buyout, which would constitute a 

fraudulent transfer in any event, even if one declined to consider all the other questionable 

circumstances described in the Complaint. 

5. The Complaint therefore seeks, inter alia, to recover the Transferred Assets or their 

value under fraudulent transfer law, to hold Frinzi liable for breaching his fiduciary duties as an 

officer of the Debtor and GNET, and to hold Goodman, Zakharyayev, and Pinkhasova accountable 

for their participation in Frinzi’s breaches and the benefit they derived therefrom. 

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6. On September 21, 2023, Zakharyayev and Pinkhasova (the “Movants”) filed their 

second motion to dismiss, styled Defendants Steven Zakharyayev and Evelina Pinkhasova’s 

Partial Motion to Dismiss Plaintiffs’ Amended Complaint (Dkt. No. 28, the “MTD”).

II. ARGUMENT & AUTHORITIES

7. The Fifth Circuit has aptly summarized the dismissal standard under rule 12(b)(6) 

as follows: 

To survive a motion to dismiss, a complaint must contain sufficient factual matter 

which, when taken as true, states “a claim to relief that is plausible on its face.” Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 

2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. The 

facts alleged must “be enough to raise a right to relief above the speculative level,” 

but the complaint may survive a motion to dismiss even if recovery seems “very 

remote and unlikely.” Twombly, 550 U.S. at 555–56, 127 S. Ct. 1955 (quoting 

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). 

Thus, “the complaint must provide more than conclusions, but it ‘need not contain 

detailed factual allegations.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) 

(quoting Colony Ins. Co. v. Peachtree Const., Ltd., 647 F.3d 248, 252 (5th Cir. 

2011) ). 

Innova Hosp. San Antonio, L.P. v. Blue Cross and Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th 

Cir. 2018). 

8. It bears emphasizing that, when considering a motion to dismiss under rule 

12(b)(6), a court must accept all factual allegations as true and draw all reasonable inferences in 

the plaintiff’s favor. Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). “‘All 

questions of fact and any ambiguities in the current controlling substantive law must be resolved 

in the plaintiff’s favor.’” Vardeman v. City of Houston, 55 F.4th 1045, 1050 (5th Cir. 2022) 

(“quoting Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)). Rule 12(b)(6) motions are viewed 

with disfavor and rarely granted. Lormand, 565 at 232. The Court should therefore “adhere to the 

Supreme Court’s admonition that ‘[t]he plausibility standard is not akin to a ‘probability 

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requirement’ ....’” See Innova Hosp. San Antonio, 892 F.3d at 729 (quoting Iqbal, 556 U.S. at 

678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955)). 

A. THE TRUSTEE HAS ADEQUATELY PLED A CLAIM FOR KNOWING PARTICIPATION IN 

BREACH OF FIDUCIARY DUTY

9. The Movants ask the Court to dismiss the Trustee’s claim for their knowing 

participation in Frinzi’s breach of fiduciary duty. “Under Texas law, ‘where a third party 

knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint 

tortfeasor with the fiduciary and is liable as such.’” Meadows v. Hartford Life Ins. Co., 492 F.3d 

634, 639 (5th Cir. 2007) (quoting Kinzbach Tool Co. v. Corbett–Wallace Corp., 138 Tex. 565, 160 

S.W.2d 509, 514 (1942)). “To establish a claim for knowing participation in a breach of fiduciary 

duty, a plaintiff must assert: (1) the existence of a fiduciary relationship; (2) that the third party 

knew of the fiduciary relationship; and (3) that the third party was aware that it was participating 

in the breach of that fiduciary relationship.” Id. (citing Cox Tex. Newspapers, L.P. v. Wootten, 59 

S.W.3d 717, 721–22 (Tex. App. 2001)). The Movants only challenge elements (2) and (3). They 

do not dispute that Frinzi owed fiduciary duties to the Debtor and GNET. 

10. With respect to the second element, whether the Movants knew Frinzi owed the 

Debtor and GNET fiduciary duties, they claim the Complaint does not make this allegation. The 

Movants’ argument boils down to a criticism that the Complaint does not contain the phrase, 

“Zakharyayev and Pinkhasova knew about the fiduciary relationship.” But even if it did contain 

that phrase, “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 

more than labels and conclusions, and a formulaic recitation of a cause of action's elements will 

not do.” Twombly, 550 U.S. at 545. Rather, the proper inquiry is whether the Complaint contains 

“factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

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11. The Complaint contains factual allegations from which the Court can reasonably 

infer that the Movants knew Frinzi owed fiduciary duties to the Debtor and GNET. The Complaint 

alleges that both Movants knowingly participated in Frinzi’s breaches. Compl. ¶¶ 130-131. They 

could not have done that without knowing about the duties in the first place. The Court can also 

reasonably infer that people who own and control a company, Compl. ¶ 30, and came 

recommended to participate in a multimillion-dollar transaction, Compl. ¶ 40-41, are sophisticated 

enough to understand and recognize fiduciary duties. Zakharyayev is an attorney licensed to 

practice in New York and Florida, so he more than anyone should know what duties an officer 

owes to the corporation he or she manages. Compl. ¶ 29. And, the Movants knew that they were 

transacting with the Chief Executive Officer of the Debtor and of GNET, meaning the law imposes 

on them the knowledge that Frinzi owed fiduciary duties to these entities.

12. Regarding the third element, whether the Movants knew they were participating in 

Frinzi’s breaches of his fiduciary duties, the Movants seem to suggest, without citing any authority, 

that the Trustee must plead an element of conspiracy—that they actually conspired or participated 

with Frinzi to breach his fiduciary duties—in order to plead claim for knowing participation. They 

also claim the Court already rejected the Trustee’s argument that the Complaint states a claim for 

knowing participation based on this element. But the Court expressly noted in its opinion that: 

“The Trustee has not pleaded a claim for knowing participation in the Complaint. Therefore, the 

Court does not address any claim for knowing participation.” Op. p. 8, n. 3. The Movants have 

cited no authority for the proposition that knowing participation cannot exist without overt 

conspiracy, which on its face is something more than participation. 

13. Furthermore, the Movants’ suggestion that the amended Complaint merely restates 

the prior conspiracy claim has no merit. The following allegations are brand new:

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130. Zakharyayev knowingly participated in Frinzi’s breaches of fiduciary duty. 

Zakharyayev, even if he believed that there was a mandatory redemption right, 

knew that Frinzi was breaching his fiduciary duties, both of care and of loyalty, 

especially given his knowledge as a licensed attorney. Among other things, 

Zakharyayev knew that the Debtor was insolvent and that Frinzi and Goodman 

were seeking a way to transfer large assets to Goodman on account of his otherwise 

worthless stock, at the expense of the Debtor, GNET, and their creditors. This 

violated both the duty of loyalty, since Frinzi was favoring Goodman at the expense 

of his companies, and also the duty of care even if Zakharyayev believed there was 

a mandatory right of redemption, because Zakharyayev knew that the metrics could 

not possibly be met to exercise the same and because Zakharyayev knew that Frinzi 

was engaging in a fraudulent transfer, itself tortious. Zakharyayev instigated, aided, 

and abetted these breaches of fiduciary duty by negotiating and papering the 

transaction with Frinzi.

131. Zakharyayev and Pinkhasova knowingly participated in Frinzi’s breaches 

of fiduciary duty. In addition to the above with respect to Zakharyayev, both 

Zakharyayev and Pinkhasova: (i) knew that 18920 did not own, because it had not 

paid for, the Transaction Shares when they demanded, on behalf of 18920, payment 

on the alleged redemption right; (ii) knew that there was no basis in law or in fact 

for the $50 Million Note, as 18920 did not own the Transaction Shares even if they 

could have believed that there was a redemption right; (iii) knew that there was no 

basis for the Settlement Agreement and the transactions contemplated thereby, as 

18920 did not own the Transaction Shares even if they could have believed that 

there was a redemption right; and (iv) knew that Frinzi was causing the Debtor and 

GNET to execute the foregoing and transfer the Half AMRR Note, the Transferred 

Assets, and the Cash Transfers when no obligation at all was owing from the Debtor 

or GNET to 18920. 

132. Both Zakharyayev and Pinkhasova knew that, in authorizing all of the 

foregoing, Frinzi had undertaken no due diligence into whether 18920 even owned 

the Transaction Shares (such as by consulting with counsel, or consulting with 

American Stock Transfer, or even asking for any proof from Zakharyayev and 

Pinkhasova), much less whether there was a redemption right, and was acting to 

benefit Goodman, thus breaching his duties of care and loyalty. In other words, 

Zakharyayev and Pinkhasova knew that the whole purpose of the transaction was 

to benefit Goodman and themselves, using 18920 as an intermediary, by sucking 

cash and assets out of the Debtor and GNET, when 18920 had not even paid for the 

Transaction Shares or owned them, and that Frinzi was breaching his fiduciary 

duties by agreeing and by engaging in the transactions.

133. Zakharyayev and Pinkhasova instigated, aided, and/or abetted—and 

thereby knowingly participated in—these breaches of fiduciary duty by, among 

other things, making the fraudulent redemption demand, insisting on the subsequent 

settlement documents, and insisting on, and aiding in the transfer of, the Half 

AMRR Note, the Transferred Assets, and the Cash Transfers.

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14. The Movants knew the Debtor was insolvent, Compl. ¶ 47, yet they also knew 

Frinzi would cause the Debtor to transfer millions of dollars to them, see, e.g., Compl. ¶ 48; indeed, 

they incited him to do precisely that with their actions and their demands. Even if they believed 

there was a mandatory redemption right for the shares—which is negated by the Trustee’s wellpled facts, see Compl. ¶¶ 71-72, 138—the fact that an officer of an insolvent company was 

transferring millions of dollars on account of equity would put any reasonable person on notice 

that the officer was breaching a fiduciary duty because: (i) insolvent companies do not pay on 

equity; and (ii) they knew that the ultimate recipient of the majority of the transfer was Goodman, 

an insider. See Compl. ¶¶ 130-33. In other words, they knew that the whole purpose of the 

transaction, and for which they were making millions of dollars to act as a “shill,” was for an 

insolvent company to funnel money to an insider. 

15. The Complaint more than adequately states a claim against the Movants for 

knowing participation in Frinzi’s breaches of his fiduciary duties, so the Court should deny the 

MTD.

B. ZAKHARYAYEV IS NOT IMMUNE FROM LIABILITY

16. The Movants claim Zakharyayev is immune from suit based on the attorneyimmunity defense. In support, they cite Texas law, but the Complaint clearly alleges that 

Zakharyayev is an attorney in New York and in Florida. They provide no analysis for which state’s 

laws would apply. In New York, for example, an attorney does not have immunity with respect 

to his advice to a client when the attorney has a “personal interest” in the advice that he gives, or 

when there is “fraud, collusion, malice, or bad faith.” Beatie v. DeLong, 164 A.D.2d 104, 109-

110 (N.Y. App. 1990). Florida law appears to provide “judgmental immunity” of an attorney 

against a malpractice claim, and absolute immunity when participating in judicial proceedings, but 

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does not appear to have a generalized attorney immunity doctrine. See, generally, Arko Plumbing 

Corp. v. Rudd, 230 So. 3d 520, 523-24 (Fl. App. 2017).

17. Additionally, and critically, while the Complaint references the fact that 

Zakharyayev is a licensed attorney partially to note that Zakharyayev knew or should have known 

of the nefarious nature of the transaction he was orchestrating and personally involved in, the 

Complaint does not allege that Zakharyayev was representing 18920 as its legal counsel. Nowhere 

does the Complaint allege that his liability “arises out of conduct Zakharyayev undertook in his 

capacity as an attorney for 18920,” as the MTD suggests. See MTD at p. 9. Rather, the Complaint 

alleges that Zakharyayev was acting in a non-attorney role either individually or as the owner of 

18920 and for personal benefit.

18. Furthermore, attorney immunity is an affirmative defense on which the attorney 

bears the burden of proving that his conduct was “part of the discharge of his duties to his client.” 

Cantey Hanger LLP v. Byrd, 467 S.W.3d 477, 484 (Tex. 2015). Dismissal of a complaint under 

Rule 12(b)(6) based on an affirmative defense is appropriate “only if an affirmative defense or 

other bar to relief appears on the face of the complaint.” Garrett v. Commonwealth Mortg. Corp. 

of America, 938 F.2d 591, 594 (5th Cir. 1991). Here, no such affirmative defense appears on the 

face of the Complaint because, as noted above, the Trustee has not even alleged that Zakharyayev 

was acting as an attorney for 18920 and within the scope of any attorney-client relationship with 

18920. The Trustee will also add that, if and when Zakharyayev asserts any such attorney 

immunity affirmative defense, the Trustee will seek to pierce any attorney privilege based on the 

fraudulent nature of the transaction.

19. In any event, and to the extent that Texas law applies, the Fifth Circuit has 

summarized the applicable law as follows:

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Under Texas law, attorney immunity is a “comprehensive affirmative defense 

protecting attorneys from liability to non-clients, stemming from the broad 

declaration ... that ‘attorneys are authorized to practice their profession, to advise 

their clients and interpose any defense or supposed defense, without making 

themselves liable for damages.’ ” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 

481 (Tex. 2015) (quoting Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App. 

1910, writ ref'd)), reh'g denied (Sept. 11, 2015). The immunity aims “to ensure 

‘loyal, faithful, and aggressive representation by attorneys employed as advocates.’ 

” Id. (quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.–Dallas 2000, 

pet. denied)). Generally, the immunity applies to “conduct ... involving ‘the office, 

professional training, skill, and authority of an attorney.’ ” Reagan Nat'l Advert. of 

Austin, Inc. v. Hazen, No. 03-05-00699-CV, 2008 WL 2938823, at *3 (Tex. App.—

Austin July 29, 2008, no pet.) (citations omitted). If an attorney shows that the 

conduct at issue was “part of the discharge of the [attorney's] duties in representing 

[the] client,” immunity is appropriate. Cantey, 467 S.W.3d at 481 (quoting Toles v. 

Toles, 113 S.W.3d 899, 910–11 (Tex. App.–Dallas 2003, no pet.)).

On the other hand, “attorneys are not protected from liability to non-clients for their 

actions when they do not qualify as ‘the kind of conduct in which an attorney 

engages when discharging ... duties to [a] client.’ ” Id. at 482 (quoting Dixon Fin. 

Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 

2008 WL 746548, at *7 (Tex. App.–Houston Mar. 20, 2008, pet. denied) (mem. op. 

on reh'g)). For example, an attorney cannot avoid liability “for the damages caused 

by [the attorney's] participation in a fraudulent business scheme with [the] client, 

as ‘such acts are entirely foreign to the duties of an attorney.’ ” Id. (quoting Poole 

v. Hous. & T.C. Ry. Co., 58 Tex. 134, 137 (1882)).

Importantly, an attorney seeking dismissal based on attorney immunity bears the 

burden of establishing entitlement to the defense. JJJJ Walker, LLC v. Yollick, 447 

S.W.3d 453, 468 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also 

Cantey, 467 S.W.3d at 484 (“An attorney who pleads the affirmative defense of 

attorney immunity has the burden to prove that [the] alleged wrongful conduct ... 

is part of the discharge of [the attorney's] duties to [the] client.”). To meet this 

burden, the attorney must “conclusively establish that [the] alleged conduct was 

within the scope of [the attorney's] legal representation of [the] client.” Santiago v. 

Mackie Wolf Zientz & Mann, P.C., No. 05-16-00394-CV, 2017 WL 944027, at *3 

(Tex. App.—Dallas Mar. 10, 2017, no. pet. h.); accord Cantey, 467 S.W.3d at 484. 

Although Texas courts occasionally grant attorney immunity at the motion to 

dismiss stage, in those cases, the scope of the attorney's representation—and thus 

entitlement to the immunity—was apparent on the face of the complaint. See, e.g., 

Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-

CV, 2016 WL 164528, at *1, *7 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) 

(granting immunity when the complaint specifically alleged that a law firm's 

wrongful actions occurred “during [the firm's] representation of” the employee in 

that suit and concluding that “[b]ecause the facts alleged by [the plaintiff] were 

sufficient to support the defense of immunity, [the firm] did not need to present 

further evidence in support of its motion”).

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Kelly v. Nichamoff, 868 F.3d 371, 374-75 (5th Cir. 2017). 

20. In that case, the attorney-defendant filed a motion to dismiss based on immunity, 

and the Fifth Circuit affirmed the District Court’s denial because the attorney had not established 

the scope of his representation nor that his wrongful conduct fell within that scope. See id. at 375-

76. Here, the Complaint does not even allege the existence of an attorney-client relationship, much 

less the scope of one. Zakharyayev cannot, therefore, establish the attorney-immunity defense on 

the face of the pleadings.

21. The Fifth Circuit also noted that: 

Moreover, Kelly's complaint alleges that “Nichamoff received payments, not just 

for his fee for the [stock transfer] transaction, but additional payments, as a result 

of his participation in the conspiracy to defraud Plaintiff Kelly.” Kelly also claims 

that the Defendants (including Nichamoff) “had a pecuniary interest in ... Kelly's 

acquisition of” Legacy stock. These contentions allege that Nichamoff was 

“participat[ing] in independently fraudulent activities,” rather than merely 

representing a client's interests in a business transaction. Hazen, 2008 WL 2938823, 

at *3. While “[m]erely labeling an attorney's conduct ‘fraudulent’ does not and 

should not remove it from the scope of client representation or render it ‘foreign to 

the duties of an attorney[,]’ ” Texas courts have repeatedly warned that “[i]f a 

lawyer participates in independently fraudulent activities, [the lawyer's] action is 

‘foreign to the duties of an attorney.’” Highland, 2016 WL 164528, at *4, *5 

(quoting Cantey, 467 S.W.3d at 483; Alpert, 178 S.W.3d at 406). This includes “an 

attorney who participates in a fraudulent business scheme with [the] client” and is 

thus “not protected by the doctrine because such acts are ‘entirely foreign to the 

duties of an attorney’ and ‘not part of the discharge of an attorney's duties in 

representing a party.’ ” Santiago, 2017 WL 944027, at *3. 

Kelly v. Nichamoff, 868 F.3d at 375-76. Here, the Complaint similarly alleges that Zakharyayev 

had a pecuniary interest in and personally benefitted from the transaction at issue, so dismissal is 

likewise unwarranted at this stage of the litigation. 

III. ALTERNATIVE MOTION

FOR LEAVE TO AMEND

22. Alternatively, to the extent the Court determines the Trustee failed to plead any 

element of a cause of action with sufficient particularity, the Trustee requests leave to amend. Rule 

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15 provides: “[t]he court should freely grant leave when justice so requires.” Fed. R. Civ. P. 

15(a)(2). There is a bias in favor of granting leave to amend, and the Court should not deny leave 

to amend with a substantial reason. E.g. Laruche Imports, Inc. v. APL Ltd., No. 11-3127, 2012 

U.S. Dist. LEXIS 15731, *2 (S.D. Tex. Feb. 8, 2012). “Normally, courts will afford a plaintiff the 

opportunity to overcome pleading deficiencies, unless it appears that the defects are incurable.” 

Bryan v. City of Dallas, 188 F. Supp. 3d 611, N.D. Tex. 2016) (citing Great Plains Trust Co. v. 

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (“[D]istrict courts often 

afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, 

unless it is clear that the defects are incurable or the plaintiffs advise the court that they are 

unwilling or unable to amend in a manner that will avoid dismissal.”); Hitt v. City of Pasadena, 

561 F.2d 606, 608 (5th Cir. 1977) (stating that “a court ordinarily should not dismiss the complaint 

except after affording every opportunity for the plaintiff to state a claim upon which relief can be 

granted” (internal alterations omitted))). Accordingly, the Court should permit the Trustee to 

amend the Complaint to the extent necessary to meet applicable pleading standards.

IV. CONCLUSION

WHEREFORE, PREMISES CONSIDERED, the Trustee respectfully request that the 

Court enter an order (A) denying the MTD; (B) granting leave to amend the Complaint to the 

extent the Court would otherwise be inclined to grant the MTD; and (C) providing the Trustee 

such other and further relief to which he is entitled at law or in equity.

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TRUSTEE’S RESPONSE TO DEFENDANTS STEVEN ZAKHARYAYEV’S AND EVELINA 

PINKHASOVA’S PARTIAL MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT 13

 RESPECTFULLY SUBMITTED this 2nd day of April, 2024. 

MUNSCH HARDT KOPF & HARR P.C.

By: /s/ Davor Rukavina 

Davor Rukavina, Esq. 

Tex. Bar No. 24030781 

Thomas D. Berghman, Esq. 

Tex. Bar No. 24082683 

Julian P. Vasek, Esq. 

Tex. Bar No. 24070790 

500 N. Akard St., Ste. 4000 

Dallas, Texas 75201 

214-855-7500 

drukavina@munsch.com 

tberghman@munsch.com 

jvasek@munsch.com 

COUNSEL FOR SCOTT M. SEIDEL, 

CHAPTER 7 TRUSTEE

CERTIFICATE OF SERVICE

The undersigned hereby certifies that, on April 2, 2024, a true and correct copy of this 

document (along with any attachments) was served via the Court’s CM/ECF system on all parties 

entitled to such notice, including counsel for Steven Zakharyayev and Evelina Pinkhasova 

(jgolinkin@jlcfirm.com). 

By: /s/ Davor Rukavina 

Davor Rukavina, Esq. 

4879-3641-8226v.2 013229.00016

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