1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ESTATE OF SCHERBAN, et al. , Plaintiff s ,
v. Civil Action No. 15
- 1966 (JEB)

SUNTR UST BANK, aka SUNTRUST BANKS INC ., et al. , Defendant s .

MEMORANDUM OPINION Plaintiffs and half

- brothers Evgenyi, Ruslan, and Yevgen Scherban, all Ukrainian nationals, bring this action for recovery of any and all assets in the SunT rust Bank accounts of their deceased father , Yevgenyi Alexandrovich Scherban (Scherban) , and his third wife and mother to Yevgen , Nadedja Nikitina Scherban (Nikitina)

. Scherban was allegedly a l eading entrepreneur in Ukraine and one of the richest businessmen there in the early 1990s ; a ccording to
P laintiffs, his control over a natural

- gas distribution network led to scu ff les with criminal groups and ultimately to the 1996 assassination of him and his wife

. A few years before Scherban’s death, he set up several bank accounts with SunTrust in Boca Raton, Florida, near one of his vacation homes. These accounts were in Scherban and Nikitina’s names, but Plaintiffs state that the sons were the intended beneficiaries. Although the ir parents died about 20 years ago , the brothers have yet to obtain the assets

. The quest of their suit

– against SunTrust and a holding company in the British Virgin Islands

– is to recover what remains of these accounts , as well as to remed y what they allege was an improper2 conversion or confiscation of funds out of one of the accounts by means of the forgery of Nikitina’s signature

. While there is much more to the story and this suit , a n initial barrier blocks their claims: Yevgenyi and Nik itina’s estates are listed as plaintiffs along with the three half

- brothers

. As to the estates , SunTrust correctly points out that an estate itself can not properly be a plaintiff ; only a legal representative acting on behalf of the estate has that power

. As to the brothers , the Bank questions whether they have established their legal right to act as representatives for the estates

. Defendant also asserts that Plaintiffs have failed to serve it properly with the C omplaint. While these procedural requir ements are not insurmountable, the Court agrees that they temporarily stop Plaintiffs in their tracks. T he Court will thus grant the Motion and dismiss the C omplaint with leave to amend

. I. Analysis At this point, the other named Defendant

– Gwynfe Holding Ltd.

– has yet to be served, so SunTrust has moved by itself to dismiss. Although the Bank raise s various substantive defenses to Plaintiffs’ claims, the Court will separately consider the two aforementioned procedural challenges first.
A. Proper Plaintiffs
SunTrust initially asserts that Scherban and Nikitina’s estates ha ve been improperly included as P laintiffs in this action. It argues that “[t]he Complaint fails to identify any representative of the Estates much less allege that any person with authority to act on behalf of the Estates has in fact authorized the bringing of the suit.” Mot. at 8. Defendant maintains that only a duly appointed representative of the estates may bring claims on their behalf. Id. It is true that u nder Fed. R. Civ. P. 17(a) , an estate may not be a real party in interest; instead, only the3 executor or administrator of an estate may sue on its behalf. Rule 17 further states that for an individual acting as a representative, his capacity to sue or be sued is determined “by the law of the state where the court is located.” Fed. R. Civ. P. 17(b)(3). In the District of Columbia, “[a] foreign personal representative administering an estate which has property located in the District of Columbia shall file with the Register a copy of the appointment as personal representative and a[n authenticated] copy of the decedent’s will.” D.C. Code § 20

- 341. “The term personal representative is strictly construed under D.C . law to mean only the decedent’ s executor or administrator.” Estate of Manook v. Research Triangle Inst., Int’ l & Unity Res. Group, L.L.C. , 693 F. Supp. 2d 4, 17 (D.D.C. 2010) ; see also Saunders v. Air Florida, Inc. , 558 F. Supp. 1233, 1234 (D.D.C. 1983). Plaintiffs counter that this requirement applies only “if the claimed property is within the District,” which is “not the case here, [since] the claim is not for property in this District.” Opp.
at 9. Although they do not spell this out, Plaintiffs presu mably think the property is in Florida

– where the accounts were first opened

– and/ or wherever the converted funds ended up

. In taking such a position, Plaintiffs want to have their cake and eat it too. They claim that venue is proper in D.C. because “S unTrust does business in this District, and because all relevant documents, necessary for tracing the funds, and other relevant information, may be obtained in Washington, D.C.” Compl., ¶ 16. Yet they seek to avoid D.C. registration rules by claiming the property is not in the District. At a most basic level, since SunTrust is a national bank operating with branches in both Florida and D.C., Scherban’s assets in the Bank ’s accounts could be thought to be property located in either place, since SunTrust w ould ultimately have to surrender funds from some branch were Plaintiffs successful

. In another sense, Plaintiffs cannot even be certain4 of the location of the converted funds, which they allege the Bank initially wire d to a bank in the Czech Republic

. See Compl., ¶¶ 48

- 50.
As Plaintiffs desire SunTrust to grant them recovery of their deceased parents’ accounts and to compensate them for the wrongful conversion and confiscation of assets, see Compl. at
28

- 29, the Court believes the question more proper ly turns on whether the present action can be considered a form of property. District of Columbia law suggests that it can be . In Estate of Manook , the p laintiff

– an Iraqi citizen ’ s estate

– brought claims under D.C.’s wrongful

- death and survival s tatutes for his killing by several American defense contractors operating in Iraq

. See 693 F. Supp. 2d at 9

- 10, 16. Defendants argued, as SunTrust does here, that the estate was not a proper plaintiff under the requirements of Rule 17 and D.C. law , and no personal representative of the estate had filed the requisite paperwork establishing their legitimacy. Id. The p laintiff countered that since it “ ha[d] no property within the District, the Estate need not file with the Register.” Id. at 17. The district court rejected that argument, instead concluding that since “Plaintiff’s present action can b e considered a form of property ” under D.C. law, the failure to file proof of appointment of personal representative with the Register “prevents the Estat e from bringing suit.” Id. (citing Bullard v. Curry

- Cloonan , 367 A.2d 1 27 , 132 (D.C. 1 9 76)). The
court determined , however, that “this procedural oversight is curable,” and it directed the
p laintiff to file its documents with the Register within several weeks of the issuance of the Court’s order. Id. A similar course of action is appropriate here. This outcome seems particularly prudent since the brothers have not provided proper assurances to this Court that they are , in fact, legally able to bring c laims on behalf of Scherban and Nikitina’s estates. Plaintiffs concede that while they were the intended beneficiaries , their

names do not so appear on any of the accounts

. See Compl. , ¶¶ 34

- 42. Although they assert that5 the affidavits of the brothers “ state under oath that they are duly authorized to make a claim to the estate,” Opp. at 9, this is contradicted by the affidavits themselves, which include no such
statements

. See id. , Attach. 1 (Affidavit of Ruslan Chtcherban); i d. , Attach. 2 (Affidavit of Yevgenyi E. Scherban); i d. , Attach. 3 (Affidavit of Yevgen E. Scherban). Further complicating matters is the existence of a so - called “P ersonal R epresentative’s D eed ” of Scherban , which was attached to SunTrust’s Reply. See Repl y, Exh. 2 . This document appears to name an Alan Lindsay “as Personal Representative of the Estate of” Scherban. Id. at 1. It also appears to have enabled Lindsay to sell real estate owned by Scherban in 2001 and to transfer proceeds from the sale to th e decedent’s SunTrust bank account. Id. at 5. Given the Court’s uncertainty as to who the e states ’ legal personal representative s actually are

– including what role, if any, Lindsay has

– it will not proceed without Plaintiffs ’ first filing documents manifesting the appropriate appointment of a personal repre sentative as well as authenticated copies of decedents’ wills. See D.C. Code § 20

- 341. A s this is a procedural hurdle potentially within Plaintiffs’ ability to overcome , the Court will dismiss the Complaint with leave to amend so that they may remove the e states as part ies and establish which named Plaintiffs are the proper representative s
. B. Service of Process Defendant also allege s a second procedural defect that may halt this case , arguing that under Fed. R. Civ. P. 12(b)(5) service of process was insufficient

. See Mot. at 6

- 7. In such a circumstance , “[t]he party on whose behalf service is made has the burden of establishing its validity when challenged” by “demonstrat[ing] that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Light v. Wolf , 816 F.2d 746, 751 (D.C. Cir. 1987) (citations and internal quotation marks omitted).6 Adequate service of proc ess requires “more than notice to the defendant,” Omni Capital Int’ l , Ltd. v. Rudolf Wolff & Co., Ltd. , 484 U.S. 97, 104 (1987), and Plaintiff s bear the burden of proving that Defendant was properly served. See Fed. R. Civ. P. 4(c)(1); Light , 816 F.2d at 751.
As SunTrust is a corporation, Plaintiffs must conform to Fed. R. Civ. P. 4 (h)

. See Wilson v. Prudential Fin. , 332 F. Supp. 2d 83, 87

- 88 (D.D.C. 2004)

. Rule 4(h) (1) authorizes service on a corporation “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process . . .

. ” The rule also allows service in accordance with the law of the state where process is served or the state w here the subject district court is located. Id. ; Fed. R. Civ. P. 4(e)(1). The District’s rule , a mirror image of Rule 4(h), also authorize s servi ce on corporations to be made “ to an officer, a managing or general agent, or any other agent authorized by a ppointment or by law to receive service of process . . .

. ” D.C. Super. Ct. R. Civ.
P. 4

. The B ank contends that Plaintiffs improperly served Wendy Turner, who is a branch manager for SunTrust , and therefore not an officer, managing or general agent, or a n agent authorized by appointment or law. See Mot. at 7. Turner, moreover, declares by affidavit that she is the branch manager of a local SunTrust branch in D.C. and is neither the resident agent for the B ank here nor authorized to accept service of a c omplaint against it. See Mot., Exh. 1 (Affidavit of Wendy Turner). Instead, “[u]pon information and belief,” SunTrust claims that the registered agent for the B ank in D.C. is Corporation Service Company, located at 1090 Vermont Ave., Washington, D.C., 20 005. See Mot. at 7. Plaintiffs counter that this cannot be true, as SunTrust is not even incorporated in the District, having let its incorporation lapse in 1990 and dissolving it sho rtly thereafter. See Opp.7 at 2. Plaintiffs put forward evidence that the Bank’s charter has been revoked , see Aff. of George Lambert , Exh. 2 (District of Columbia Corporations Search), meaning that SunTrust
cannot have a registered agent in the District. See Opp. at 2. Attesting to the propriety of serving Turner , Plainti ffs attached to their Opposition an exhibit showing that Plaintiff’s counsel George Lambert had communicated with Samuel Fuller, Senior Bank Examiner for the District of Columbia, who had responded that “[f]or a national bank, a branch manager should accep t service on behalf of the bank.” Lambert Aff. , Exh. 1 (Email Correspondence with Samuel Fuller) at 3

. This suggests that Wendy Turner

– the branch manager for one of the D.C. branches of SunTrust

– should have accepted service of Plaintiffs’ C omplaint. Fuller, it should be noted, also furnished Lambert with contact information for the “bank representative[] that will accept service of process on behalf of the bank.” Id. This appears to be Dan O’Neill, President, Greater Washington and Maryland Divisio n, Sun Trust Bank, 1445 New York Ave., NW, Washington,
D.C. 20005. Id. No case precedent in this D istrict appears to settle the question as to w hether a bank branch manager who is not designated as a registered agent can nonetheless accept service of process for the purposes of compliance with Rule 4(h). “ The general rule with regard to a domestic corporation is that the person upon which a summons and a complaint are served must have some measure of discretion in operating some phase of the defendant ’ s business or in th e management of a given office.” Baade v. Price , 175 F.R.D. 403, 405 (D.D.C. 1997)

. As to the question of whi ch employees may be consi dered to have “some measure of discretion in operating” a d efendant’s business for the purpose of Rule 4(h), courts in this D istrict have approached this question by analyzing the employee in question’s functions, responsibilities, and position of authorit y. See, e.g. , Lopes v. JetsetDC, LLC , 994 F. Supp. 2d 135, 144 (D.D.C.8 2014); Estate of Klieman v. Palestinian Auth. , 547 F. Supp. 2d 8, 13 (D.D.C. 2008) , vacated on reconsideration on other grounds , 82 F. Supp. 3d 237 (D.D.C. 2015); Flynn v. Pulaski Cons t. Co., Inc. , No. 0 2

- 2336, 2006 WL 47304, at *4

- 5 (D.D.C. Jan. 6, 2006)

. The parties dispute whether or not Turner satisfies Rule 4(h)’s standards , each putting forward plausible arguments

. See Mot. at 6

- 7; Opp. at 5

- 8

. Instead of attempting to resolve the dispute, however, the Court believes the wiser course is for Plaintiff s to simply re - serve Defendant. This makes sense here, where the Court is requiring amendment of the Complaint for imprope r Plaintiffs. The Court t rusts that , to save all parties time and expense at this point,
Sun Trust’s counsel will simply agree to accept ser vice of the Amended Complaint. Although the C ourt has the authority to dismiss an action outright on the basis of insufficient service of proc ess, “the court can, in its sound discretion, ‘direct that service be effected within a specified time,’” quashing the defective service without dismissing the case. Wilson , 332 F. Supp. 2d at 89 (quoting Fed. R. Civ. P. 4(m))

. C hoosing to quash service in lieu of dismissing the case is appropriate where “dismissing the plaintiff’s cas e .
. . would potentially subvert justice and unfa irly prejudice the plaintiff, .

. . [and the defendant would] not be prejudiced by affording the plaintiff the opportunity to comply with Rule 4.” Candido v. District of Columbia , 24 2 F.R.D. 151, 164 (D.D.C. 2007) ; see generally Angelich v. MedTrust, LLC , 910 F. Supp. 2d 128, 132

- 33 (D.D. C. 2012)

. II. Conclusion The Court, accordingly, will issue a contemporaneous Order dismissing the Complaint without prejudice with leave to amend by March 31, 2016, but not dismiss ing the action. Cf. Ciralsky v. CIA , 355 F.3d 661, 665, 667 (D.C. Cir. 2004 )

.9 /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: February 26, 2016