UNIVERSAL TRADING & INVESTMENT CO., INC., Plaintiff, Appellant, FOUNDATION HONESTY INTERNATIONAL, INC., Plaintiff, v. BUREAU FOR REPRESENTING UKRAINIAN INTERESTS IN INTERNATIONAL AND FOREIGN COURTS; UKRAINIAN PROSECUTOR GENERAL‘S OFFICE; UKRAINE, Defendants, Appellees.
No. 22-1499
United States Court of Appeals For the First Circuit
November 27, 2023
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.
Stephen F. Reardon, with whom Law Office of Stephen F. Reardon was on brief, for appellant.
Robert M. Shaw, with whom Ralph T. Lepore, III, and Holland & Knight LLP were on brief, for appellees.
MONTECALVO, Circuit Judge. This case of international dimensions returns to us for the second time.
In the 1990s, Cube, Ltd. (“Cube“), a Ukrainian company, which later was reorganized to become United Energy Systems of Ukraine (“UESU“), hired Universal Trading & Investment Company, Inc. (“UTICo“) to help it recover lost assets.
Based on UTICo‘s helpful sharing of information, UPGO enlisted UTICo to assist it in tracing and recovering assets that Lazarenko and his accomplice, Petro Kiritchenko, allegedly had stolen from Ukraine. UPGO agreed to provide UTICo a 12% commission on certain assets “returned to Ukraine, in connection with” the agreement. Approximately $15 million of the siphoned assets finally have been returned to Ukraine.1
In the instant case, UTICo has sued Ukraine, UPGO, and the Bureau for Representing Ukrainian Interests in International and Foreign Courts (the “Bureau“) (collectively, the “Ukrainian defendants“), claiming that it has helped block and freeze assets all over the world and is owed a commission for its work. We previously affirmed the district court‘s exercise of jurisdiction over UTICo‘s breach-of-contract claim, finding that the Ukrainian defendants’ transactions with UTICo were exempt from immunity under the Foreign Sovereign Immunities Act (the “FSIA“),
Following our resolution of the appeal, the parties engaged in discovery and additional motion practice before the district court. In analyzing UTICo‘s breach-of-contract claim, the district court construed each asset recovery and failure to pay a commission as a separate claim for breach of contract. Universal Trading & Inv. Co., Inc. v. Bureau for Representing Ukrainian Ints. in Int‘l & Foreign Cts. (“UTICo III“), 605 F. Supp. 3d 273, 291 n.11 (D. Mass. 2022). It ultimately dismissed all the breach-of-contract claims because some were not ripe, others were barred by the statute of limitations, and the single remaining claim failed on the merits. See id. at 290-99. The district court also denied UTICo‘s motions to amend the complaint and several of UTICo‘s discovery-related requests. See id. at 286-88.
UTICo now appeals each of those decisions, arguing that its breach-of-contract claims should survive summary judgment, that it should be allowed to amend the complaint, and that it should be permitted to conduct additional discovery. Finding no error in the district court‘s opinion, we affirm.
I. Background
A. Factual Background
We assume the parties’ familiarity with the factual context of this case and focus our recitation of the facts on those relevant to the instant appeal. Because the primary issue on appeal is the district court‘s entry of summary judgment in favor of the Ukrainian defendants on UTICo‘s breach-of-contract claims, we take the facts in the light most favorable to UTICo
1. The Contractual Arrangement
UTICo is a Massachusetts corporation that offers international asset recovery services. After UTICo informed UPGO and other Ukrainian agencies of its discovery that Lazarenko, then the First Deputy Prime Minister and eventually the Prime Minister of Ukraine, was stealing money owed to the Ukrainian government, UPGO hired UTICo to assist it in recovering assets related to UESU and its parent company, United Energy International, Ltd.
On May 15, 1998, UTICo and UPGO reached their first agreement (the “May 1998 Agreement“). That agreement stated:
“Taking into account information and assistance that [UTICo] is providing[,] . . . [UPGO] has agreed that [UTICo] will be attributed a commission of 12 (twelve) percent on all and any above assets to be returned to Ukraine, in connection with the Power of Attorney” that was executed alongside the May 1998 Agreement.
The May 1998 Agreement further clarified that renumeration could not be paid from the State budget of Ukraine; instead, it was payable only “from the assets to be repatriated to Ukraine from outside of Ukraine.”
In the months and years that followed, UPGO executed additional agreements relating to the May 1998 Agreement and granted UTICo powers of attorney to pursue various asset investigations across the globe. The additional powers of attorney contemplated work in the United States, the British Virgin Islands, Guernsey, the Bahamas, Panama, and other countries. But none of the powers of attorney contemplated work in Switzerland.
While UTICo performed work for UPGO, UPGO twice confirmed the validity of the contractual arrangement. Specifically, on October 2, 1998, UPGO sent a letter to George Lambert, UTICo‘s President, “certify[ing] the previously agreed terms in regard to the unlawful assets outside of Ukraine.” And almost a year later, in August 1999, Nikolai Obikhod, then the Deputy Prosecutor General of Ukraine, wrote to Lambert, recognizing “the work accomplished by, and the assistance from, [UTICo]” in tracing assets and affirming that UTICo was entitled to “12% of all funds returned to Ukraine from outside of its borders with the assistance of UTICo.”
2. Investigation and Blocking of Assets
i. UTICo Investigation
No one disputes that UTICo was instrumental in helping the Ukrainian defendants investigate and freeze millions of dollars in assets around the world that had been expatriated from Ukraine.
Some of that assistance was provided prior to the execution of the May 1998 Agreement. For example, in October 1997, UTICo shared several documents with UPGO concerning UESU and Somolli Enterprises Ltd. (“Somolli“), an offshore entity through which UESU diverted funds.2
UTICo obtained and shared evidence with the Ukrainian defendants after the May 1998 Agreement went into effect as well. Pursuant to the numerous powers of attorney executed in connection with the May 1998 Agreement, UTICo gathered evidence from across the globe, obtaining additional information about Bassington and other entities involved in Lazarenko‘s money-laundering scheme, such as Bainfield Co. (“Bainfield“); Orphin S.A. (“Orphin“); Wilnorth, Inc. (“Wilnorth“); and GHP, Corp. (“GHP“).
UTICo performed much of its work abroad in places like the British Virgin Islands and Panama. But it also performed, or at least attempted to perform, extensive work for the Ukrainian defendants in the United States. Specifically, in 1999, UTICo learned that Lazarenko and Kiritchenko had used expatriated assets to purchase real estate in California and instigated proceedings in the United States District Court for the Northern District of California to recover the real estate. On April 13, 1999, acting as amicus curiae for UTICo, UPGO sent a letter to the Northern District of California, which purportedly assigned UPGO‘s claims to the real estate to UTICo (the “1999 California Assignment“). In the letter, UPGO explained to the court that (1) Kiritchenko was facing prosecution in Ukraine, (2) Kiritchenko purchased the California properties with expatriated assets, and (3) UPGO supported UTICo‘s lawsuit to attach all Kiritchenko‘s realty in the United States, which was acquired with the laundered funds. UPGO also gave UTICo power of attorney to pursue the assets of Lazarenko, Kiritchenko, and their co-conspirators in the United States.
Despite UPGO‘s letter, a dispute over UTICo‘s standing to sue on UPGO‘s behalf ensued. The district court ultimately concluded that UTICo did not have standing because the purported assignment of Ukraine‘s claims to UTICo was invalid and the various powers of attorney were not equivalent to an assignment of ownership. Universal Trading & Inv. Co. v. Kiritchenko, No. C-99-3073 MMC, 2007 WL 2669841, at *20-21 (N.D. Cal. Sept. 7, 2007). The Ninth Circuit affirmed. Universal Trading & Inv. Co. v. Kiritchenko, 346 F. App‘x 232 (9th Cir. 2009). Accordingly, UTICo was unable to recover the U.S. properties.
In addition to the evidence regarding activities in the United States, UTICo also recovered evidence of Kiritchenko‘s and Lazarenko‘s activities in Switzerland. None of the powers of attorney between UPGO and UTICo specifically contemplated UTICo performing work in Switzerland. But through the course of UTICo‘s investigations, it developed evidence that Kiritchenko and Lazarenko held assets at various Swiss banks, including Credit Suisse, SCS Alliance, and Banque Populaire Suisse.
ii. Swiss Investigation
UTICo was not the only group to investigate Lazarenko and Kiritchenko‘s international money-laundering scheme. Prior
Starting in January 1998, UPGO sent letters rogatory to the Swiss authorities, seeking assistance in investigating Kiritchenko and his co-conspirators. In a supplementary request dated February 14, 1998, UPGO indicated that Kiritchenko was suspected of money laundering and that Kiritchenko was the beneficiary of GHP -- an entity implicated in the laundering scheme. In response, on March 6, 1998, Switzerland opened a criminal investigation to determine whether money laundering or other financial crimes had been committed in Geneva.
In connection with the Swiss investigation, a Swiss investigating judge ordered the seizure of documents concerning bank accounts opened in Kiritchenko‘s name and started freezing those accounts’ assets. A June 25, 1999 opinion by the Swiss Federal Tribunal (the “June 1999 decision“) details the Swiss investigating judge‘s inquiry and the contents of UPGO‘s January and February 1998 letters rogatory.
According to the June 1999 decision, in mid-March 1998, the Swiss investigating judge ordered SCS Alliance to supply all documents concerning GHP‘s bank account and other accounts opened in Kiritchenko‘s name, as well as the names of the other suspected individuals. On March 27 and April 1, 1998, SCS Alliance responded with information about bank accounts opened in Kiritchenko‘s name as well as a bank account opened in the name of a family member. The bank also supplied information about accounts held in the following entities’ names: Bainfield; Wilnorth; GHP; Brancross Ltd. of Antigua (“Brancross“); European Federal Credit Bank Ltd. (“European Federal“); and Zeneta Foundation of Vaduz (“Zeneta“). Thus, the Swiss authorities got tipped off to Lazarenko‘s and Kiritchenko‘s involvement in these entities before UPGO and UTICo executed their May 1998 Agreement.
Around the same time, the Swiss investigating judge met with an investigating judge from Kiev, Ukraine. At a March 27, 1998 meeting between the judges, the Swiss investigating judge provided the Ukrainian investigating judge with references to the offshore companies that had accounts at SCS Alliance. The Swiss investigating judge specifically highlighted accounts for which Kiritchenko appeared to be a beneficiary that Ukraine had not mentioned in its prior letters rogatory -- that is, Brancross, Wilnorth, European Federal, Zeneta, and Bainfield.
In April 1998, UPGO continued to supplement its earlier letters rogatory. Those letters provided a range of additional information, including (1) details on a contract whose proceeds allegedly were paid into Bainfield‘s Swiss account, (2) an explanation of Lazarenko‘s suspected involvement in the money-laundering scheme, and (3) identification of other bank accounts at SCS Alliance and Credit Suisse allegedly implicated in the scheme. And so, the Swiss investigating judge continued to request information and seize accounts held in Kiritchenko‘s and Lazarenko‘s names, as well as accounts opened by the companies implicated in the laundering scheme, at Credit Suisse and SCS Alliance.
All told, before May 15, 1998 -- the date on which UTICo and UPGO entered their first agreement -- the Swiss investigating judge had received information on and ordered the seizure of the following accounts at SCS Alliance:
- 5317, held by Kiritchenko;
- 5383, held by Bainfield;
- 5451, held by Wilnorth;
-
5452, held by GHP; - 5482, held by Brancross;
- 5484, held by Izabella Kiritchenko;
- 5491, held by European Federal; and
- 5522, held by Zeneta.
And at Credit Suisse, the Swiss investigating judge had received information on and ordered the seizure of the following accounts:
- 875.709.72, held by Paddox Industries Ltd. (“Paddox“);
- 823.896.2, held by GHP; and
- 562.927.6, held by European Federal.
iii. Swiss Judgments
The proceedings in Switzerland ultimately led to two judgments -- one against Lazarenko and the other against Kiritchenko.
On June 28, 2000, the Court of Police in Geneva found Lazarenko guilty of money laundering and ordered him to pay nearly 10.7 million Swiss francs to Geneva (the “June 2000 Swiss court judgment“). Although the judgment required Lazarenko to pay Geneva, Switzerland ultimately transferred most of the funds to Ukraine.
About two months later, on August 30, 2000, the Attorney General of Geneva issued a condemnation ruling against Kiritchenko, finding him guilty of money laundering (the “August 2000 Swiss court judgment“). As a part of Kiritchenko‘s penalty, the Attorney General required Kiritchenko to pay a fine of 1 million Swiss francs and ordered the transfer of certain assets held at Credit Suisse and SCS Alliance to Ukraine.3 Specifically, the August 2000 Swiss court judgment ordered the transfer of assets deposited in the following accounts at SCS Alliance:
- 5317, held by Kiritchenko4;
- 5383, held by Bainfield;
- 5451, held by Wilnorth;
- 5452, held by GHP;
- 5482, held by Brancross; and
- 5522, held by Zeneta.
And it further ordered the transfer of assets deposited in the following accounts at Credit Suisse:
- 875.709.72, held by Paddox;
- 823.896.22, held by GHP; and
- 21383, held by Kiritchenko.
The fine of 1 million Swiss francs was to be paid from account 5484, held by an entity named May at SCS Alliance.
Nearly all the accounts listed in the August 2000 Swiss court judgment overlap with those identified and investigated by Switzerland as a part of its investigation. See supra Part I.A.2.ii. Only account 21383, held in the name of Kiritchenko at Credit Suisse, was not explicitly named in the June 1999 decision. Although the account was not explicitly named in the June 1999 decision, the decision indicates that the Swiss investigating judge had requested information for all accounts that “had been opened in the name[] of . . . Kiritchenko” and “ordered the seizure of [those] accounts.”
The two Swiss proceedings ultimately resulted in the transfer of roughly $15 million to Ukraine.5 Those funds made their way to Ukraine in three tranches:
- Approximately 10.6 million Swiss francs (“tranche one“) seized in connection with the June 2000 Swiss court judgment were transferred to UPGO‘s escrow account in October 2000. In March 2001, the funds were transferred to the Ukrainian treasury.
- Approximately $4,058,000 (“tranche two“) seized in connection with the August 2000 Swiss court judgment were transferred to UPGO‘s escrow account in October 2000. In March 2009, the funds were transferred to the Ukrainian treasury.
- Approximately $1,744,980 (“tranche three“) were transferred to the Ukrainian treasury in April 2002. The parties disagree as to whether Kiritchenko voluntarily returned this money or
returned it pursuant to the August 2000 Swiss court judgment.
v. Blocking of Other Assets
The Swiss assets are not the only assets to have been blocked. The parties agree that nearly $270 million of assets connected to the money-laundering scheme have been blocked in Switzerland and beyond. But the Ukrainian defendants represent that only the above-mentioned Swiss assets have been returned to Ukraine.
B. Procedural History
On November 26, 2010, UTICo6 sued the Ukrainian defendants, alleging that the Ukrainian defendants breached their contractual duties under the May 1998 Agreement. UTICo also alleged that the Ukrainian defendants breached the 1999 California Assignment, were unjustly enriched, breached their fiduciary duties to UTICo, made misrepresentations to UTICo, and negligently failed to convey certain information to UTICo. It also asked the court to declare that: (1) UTICo is not subject to Ukrainian jurisdiction; (2) Ukrainian court decisions concerning UTICo would
not be recognized in Massachusetts; and (3) a power of attorney executed on April 30, 1999, was in effect until June 5, 2010, when the Supreme Court of the United States denied certiorari on a petition related to the California litigation, see Universal Trading & Inv. Co. v. Kiritchenko, 561 U.S. 1038 (2010) (mem.).
The Ukrainian defendants moved to dismiss the complaint in its entirety, arguing that (1) they were immune from suit; (2) Massachusetts was an improper venue for the suit; and (3) UTICo failed to state a claim for which relief could be granted.
The district court granted in part and denied in part the Ukrainian defendants’ motion to dismiss. UTICo I, 898 F. Supp. 2d at 326. Specifically, the district court concluded that it could assert jurisdiction
The Ukrainian defendants appealed the district court‘s assertion of jurisdiction, and we affirmed. UTICo II, 727 F.3d at 12. Like the district court, we found that the commercial activity exception to the FSIA permitted the court to exercise jurisdiction over the May 1998 Agreement breach-of-contract claim, reasoning that the “asset recovery services . . . described in UTICo‘s complaint [were] exactly the sort for which private citizens contract,” id. at 20, and that the May 1998 Agreement did “not impinge on Ukraine‘s sovereignty because [it] d[id] not . . . require [Ukraine] to reappropriate any assets into the Ukrainian treasury that [the] defendants decide[d] not to reappropriate,” id. at 22.
Back in the district court, the parties engaged in limited discovery relating to the timeliness of UTICo‘s breach-of-contract claim. Both parties filed motions for summary judgment on the statute-of-limitations question. Following a
February 18, 2015 hearing on the cross-motions for summary judgment, the district court denied UTICo‘s motion.
On May 16, 2018, the district court held a second hearing on the Ukrainian defendants’ motion for summary judgment. The district court ultimately denied the Ukrainian defendants’ motion. But during the hearing, it also narrowed the scope of the claims before it. It determined that UTICo‘s claims for breach of contract became ripe only when the relevant assets were actually repatriated to Ukraine. And because only the roughly $15 million in assets connected to the June 2000 Swiss court judgment and the August 2000 Swiss court judgment (the “Swiss assets“) had been repatriated to Ukraine, the district court limited UTICo‘s breach-of-contract claim in the case to the Swiss assets.
In the time between the two hearings, UTICo had moved to amend its complaint. The district court also addressed this motion at the May 16, 2018 hearing. It denied the motion, reasoning that to the extent UTICo was attempting to add allegations that the Ukrainian defendants breached the duty of good faith and fair dealing, UTICo had failed to meaningfully explain these theories of recovery. It also emphasized UTICo‘s delay in seeking to amend the complaint and how UTICo did not even attach a proposed amended complaint to its motion. See UTICo III, 605 F. Supp. 3d at 285.
After additional discovery, on February 8, 2019, the Ukrainian defendants moved for summary judgment a second time,
arguing that the remaining breach-of-contract claims were barred by the statute of limitations and that, in any event, the claims failed on the merits. In response, UTICo moved under
In a detailed decision issued on June 1, 2022, the district court granted the Ukrainian defendants’ second motion for summary judgment, finding that UTICo‘s breach-of-contract claims connected to the two tranches of Swiss assets repatriated to Ukraine in 2001 and 2002 -- that is, tranches 1 and 3 -- were barred by the statute of limitations and that the remaining claim failed on the merits. UTICo III, 605 F. Supp. 3d at 280, 293, 299. The court also denied UTICo‘s other motions, reasoning that the
On June 1, 2022, the district court entered judgment in favor of the Ukrainian defendants. This timely appeal followed.
II. Discussion
On appeal, UTICo challenges each of the district court‘s rulings in the June 1, 2022 decision. UTICo also seeks review of the district court‘s determination that UTICo‘s breach-of-contract claim was ripe only as it related to the $15 million of Swiss assets that have been transferred to the Ukrainian treasury. Finally, UTICo argues that the district court abused its discretion by denying UTICo‘s three motions to amend. We address each argument in turn, beginning with UTICo‘s contention that the district court erred in limiting its breach-of-contract claim to those relating to the $15 million of Swiss assets.
A. Non-Repatriated Assets
UTICo first takes issue with the district court‘s discarding of the portion of UTICo‘s breach-of-contract claim premised upon the $260 million of blocked assets that are unconnected to the two Swiss court judgments. But its grievances can be disposed of quickly because they stem primarily from a misunderstanding of what exactly occurred at the May 16, 2018 hearing.
UTICo misinterprets the nature of the district court‘s May 16, 2018 order and June 1, 2022 decision. UTICo asserts that, during the May 16, 2018 hearing, the district court did not dismiss the claims premised upon the $260 million of blocked assets not encompassed in the Swiss assets, but rather it bifurcated the trial under
But the district court did no such thing. At the May 16, 2018 hearing, the district court made no mention of Rule 42(b). Rather, it noted that UTICo‘s breach-of-contract claim was not ripe insofar as it was based on non-repatriated assets and therefore dismissed the claims relating to the blocked -- but not yet repatriated -- $260 million. See Appellant Addendum at 45 (“At this point only the Swiss assets are litigable.“). In doing so, the district court made clear that it was not deciding the merits of UTICo‘s breach-of-contract
See Transcript of Motion Hearing at 39-40, Dist. Ct. Docket Item 168 (noting that the court was not granting “judgment on the merits” on the non-Swiss assets). In other words, it left open the possibility for UTICo to bring a new lawsuit if those assets are someday repatriated.
On appeal, UTICo does not otherwise dispute the district court‘s ruling that its breach-of-contract claims relating to the non-repatriated assets are not ripe. In fact, its statute-of-limitations arguments are premised on repatriation being defined as the point at which a breach-of-contract claim ripens.
Instead, UTICo attempts to circumvent the ripeness issue by asserting a different theory as to the non-repatriated assets: breach of the implied covenant of good faith and fair dealing. But that theory is notably absent from UTICo‘s initial complaint, and, for reasons explained infra, the district court did not abuse its discretion in denying UTICo‘s subsequent requests to amend the complaint to add a claim of breach of the implied covenant of good faith and fair dealing based on the Ukrainian defendants’ alleged failure to repatriate assets.
UTICo‘s arguments that the district court improperly dismissed and denied UTICo discovery on its breach-of-contract claim relating to the $260 million non-repatriated assets thus are without merit. Indeed, its underlying assumption that the district court granted summary judgment on the merits of this claim is incorrect. We therefore affirm the district court‘s dismissal of the portion of UTICo‘s breach-of-contract claim relating to the non-repatriated assets as unripe.
B. Swiss Assets
UTICo next challenges the district court‘s determination that the Ukrainian defendants were entitled to summary judgment on the portion of UTICo‘s breach-of-contract claim related to the Swiss assets that have been transferred to the Ukrainian treasury. It argues that the district court erred in finding that the statute of limitations barred UTICo‘s claims connected to tranches one and three and that equitable tolling was not warranted. UTICo also argues that it has raised a genuine issue as to whether it assisted the Ukrainian defendants in recovering the three tranches.9
1. Statute of Limitations
The parties agree that the relevant statute of limitations is six years and that UTICo‘s cause of action began to accrue when the assets were returned to Ukraine. On appeal, the parties also agree that assets are not “returned” until they are transferred into the Ukrainian treasury; mere transfer to UPGO‘s escrow account is not enough.10
Nevertheless, on appeal, UTICo rehashes its argument that assets are not “returned” until they reach the Ukrainian treasury, and, at various points, chastises the district court for finding that a cause of action accrues when assets are merely blocked. These arguments are puzzling, to say the least, as the district court found that a cause of action does not accrue until the funds reach the Ukrainian treasury, see id., and the Ukrainian defendants do not dispute this point on appeal.
UTICo commenced this action on November 26, 2010. Thus, unless tolling is warranted, any cause of action that accrued before November 26, 2004, is barred by the statute of limitations. Tranches one and three were transferred to the Ukrainian treasury in March 2001 and April 2002, respectively, and therefore, unless tolling is appropriate, any claims relating to these tranches are time-barred. The district court concluded tolling was not warranted because the return of funds to Ukraine was not inherently unknowable, the Ukrainian defendants did not have an affirmative duty to disclose to UTICo the return of funds to the Ukrainian treasury, and the Ukrainian defendants did not intentionally deceive or conceal the fact that tranches one and three had been returned. See UTICo III, 605 F. Supp. 3d at 293-95.
On appeal, UTICo makes much of the fact that it presented evidence showing that it typically takes five to seven years to recover expatriated assets once they are blocked. It accuses the district court of overlooking UTICo‘s expert affidavits to that effect in determining that the statute of limitations had run on tranches one and three.
UTICo‘s arguments about the precise impact these affidavits should have on the statute of limitations are not the model of clarity. To the extent that UTICo is arguing
UTICo next argues that it should be permitted to seek recourse under the discovery rule. The discovery rule permits tolling of the statute of limitations “until a prospective plaintiff learns or should have learned that [it] has been injured ... in three circumstances: where a misrepresentation concerns a fact that was ‘inherently unknowable’ to the injured party, where a wrongdoer breached some duty of disclosure, or where a wrongdoer concealed the existence of a cause of action through some affirmative act done with the intent to deceive.” Patsos v. First Albany Corp., 741 N.E.2d 841, 846 (Mass. 2001).
UTICo claims that the statute of limitations should have been tolled for two separate reasons: (1) the fact of repatriation was “inherently unknowable” and (2) the Ukrainian defendants fraudulently concealed the transfer of tranches one and three to the Ukrainian treasury. To the extent that UTICo again falls back on its expert affidavits to argue that a reasonable person would not have asked about the recovery of funds until five to seven years after assets were blocked, we are unconvinced. A reasonable juror could not sign onto that line of logic in light of the evidence that several news organizations had reported on interactions between Swiss authorities and UPGO. Moreover, as the district court noted, UTICo was in regular communication with UPGO and could have asked UPGO whether Ukraine had fully repatriated the assets from the accounts implicated in the June 2000 Swiss court judgment and August 2000 Swiss court judgment. See UTICo III, 605 F. Supp. 3d at 294. Although UTICo contests the accuracy of the news articles and suggests they referred to the transfer of funds to UPGO‘s escrow account rather than the Ukrainian treasury, those stories, at a minimum, put UTICo on notice that it should have been asking the Ukrainian defendants about the repatriation of the specific Swiss accounts implicated in tranches one and three if it truly thought it had a claim to a commission on those returned funds.
UTICo asserts it did just that, but that UPGO denied any recovery of Swiss assets. Therefore, UTICo argues, a reasonable juror could find that UPGO concealed the repatriation of tranches one and three. To demonstrate a genuine issue of fact as to whether the Ukrainian defendants concealed the transfer of tranches one and three to the Ukrainian treasury, UTICo relies on Lambert‘s affidavit and his 2019 deposition.
The Lambert affidavit and 2019 deposition suggest that UTICo asked representatives of UPGO whether any assets had been returned to the Ukrainian treasury. For example, Lambert attests that at meetings in 2003 with representatives of UPGO, he inquired about the recovery of frozen assets, including those from Switzerland, and that UPGO representatives denied that any assets had been repatriated. During his 2019
Under Massachusetts law, the rule governing equitable tolling of a statute of limitations because of fraudulent concealment is codified at
Whether Lambert‘s attestations create a genuine issue of material fact as to whether the repatriation of tranche three was unknowable or concealed by the Ukrainian defendants is a closer question. But we need not wade any further and decide whether UTICo has created a genuine issue of fact as to the timeliness of this claim because, as we next explain, the breach-of-contract claim relating to tranche three fails on the merits.
2. Recovery of Tranches Two and Three
We turn now to the district court‘s ruling that the Ukrainian defendants were entitled to summary judgment on the merits of UTICo‘s breach-of-contract claim relating to tranche two. The district court concluded that UTICo has not demonstrated a genuine issue of fact as to whether it was helpful in the recovery of the accounts listed in the August 2000 Swiss court judgment which comprise tranche two. UTICo III, 605 F. Supp. 3d at 298-99. Tranche three, like tranche two, implicates the August 2000 Swiss court judgment. Thus, we find that the district court‘s analysis on the merits of the breach-of-contract claim relating to tranche two applies equally to the claim relating to tranche three.
As the district court explained, a reasonable juror certainly could find that UTICo assisted the Ukrainian defendants in locating and blocking assets. See id. at 296-98. But the question before us is not merely whether UTICo assisted the Ukrainian defendants in a broad sense. To defeat the Ukrainian defendants’ motion for summary judgment, UTICo had to show that a reasonable juror could infer that the $4.058 million returned to Ukraine in tranche two and the $1.744 million in tranche three were returned to Ukraine “in connection with” the powers of attorney executed by UPGO. Like the district court, for purposes
UTICo argues that summary judgment should not have been granted to the Ukrainian defendants on the merits because it has raised a genuine issue of fact as to whether it was helpful in recovering tranches two and three. The Ukrainian defendants respond that there is no genuine issue of material fact as to UTICo‘s helpfulness in the recovery of tranches two and three because the record establishes that the Swiss authorities recovered these assets without meaningful help from UTICo.
Before diving deeper into UTICo‘s arguments on appeal, we find it useful to pause and lay out the summary judgment standard in more detail. Under
As an initial matter, UTICo‘s argument on appeal largely boils down to: (1) we recovered hundreds of documents; (2) we sent these to UPGO at some point; (3) UPGO shared the documents with the Swiss authorities; and (4) therefore, we must have been helpful to Ukraine in its efforts to recover the Swiss assets mentioned in the August 2000 Swiss court judgment. But UTICo does little to connect the dots and explain how it knows that the documents made their way to Switzerland and why the documents would have been critical to the Swiss authorities succeeding in their prosecution of Kiritchenko.
UTICo‘s effusiveness and lack of developed argumentation before us and the district court may well mean its argument that it assisted in the recovery of tranches two and three is waived. See Zannino, 895 F.2d at 17 (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work, create the ossature for the argument, and put flesh on its bones.“); Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (“Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.” (citation and internal quotation marks omitted)). The district
This court also has reviewed UTICo‘s submissions and has reached the same conclusion: UTICo has failed to show that a reasonable juror could conclude that UTICo‘s work in connection with the May 1998 Agreement and related powers of attorney helped Ukraine recover the Swiss assets in tranches two and three.
A quick recap of the Swiss authorities’ knowledge at the time UTICo and Ukraine entered the May 1998 agreement demonstrates why UTICo‘s arguments on appeal lack merit. As previously mentioned, by the time May 15, 1998, rolled around, the Swiss authorities already knew the names of several companies associated with Kiritchenko, had identified accounts related to the companies at Credit Suisse and SCS Alliance, and had some awareness of the connection between those accounts and Kiritchenko‘s money-laundering scheme. The names of those companies and accounts later would reappear in the August 2000 Swiss court judgment. In addition, in the months leading up to the May 1998 Agreement, the Swiss investigating judge exchanged information with Ukraine and requested information regarding Kiritchenko and his companies’ accounts from banks within its jurisdiction.11 What is more, the information obtained by Switzerland was apparently not insubstantial as it was enough to result in the seizure and compulsory administration of the bulk of the accounts that later were named in the August 2000 Swiss court judgment.
UTICo is correct that it would be an additional two years before Kiritchenko would plead guilty to the Swiss charges. But its suggestion that UTICo was the one to tip the scales and secure Kiritchenko‘s plea with the evidence it gathered and the threat of its California litigation amounts to little more than conjecture that cannot defeat summary judgment. See Pleasantdale Condos., LLC, 37 F.4th at 733 (“Evidence that is conjectural or problematic will not suffice to forestall summary judgment.” (citation and internal quotation marks omitted)); Caban Hernandez, 486 F.3d at 8 (emphasizing that on summary judgment we do not have “to draw unreasonable inferences or credit bald assertions, empty conclusions, [or] rank conjecture“).
There are a few problems with UTICo‘s suggestion that it provided evidence that helped Ukraine recover the assets and caused Kiritchenko to plead to the Swiss charges. First, although UTICo establishes that it sent hundreds of pages of documents to UPGO, it is unclear exactly what they sent to UPGO and when. Although the powers of attorney are dated, the hundreds of pages of documents lack dates, and Lambert‘s affidavit does not fill that gap.
Similarly, UTICo has not put forth evidence establishing that these documents were crucial to the Swiss authorities in securing the August 2000 Swiss court judgment or Kiritchenko‘s plea. Although
This once again forces UTICo to rely on Lambert‘s statements to fill the gap. But neither his affidavit nor his 2019 deposition testimony rises to the occasion. As the district court noted, UTICo‘s argument that it assisted in the recovery of the Swiss assets suffers from issues of “vagueness” and is often “conclusory.” UTICo III, 605 F. Supp. 3d at 296, 298. Lambert‘s affidavit and 2019 deposition suffer from these same defects. Although Lambert‘s affidavit and deposition testimony recount the entities about which UTICo gathered evidence and the evidence recovered, they fail to include specific details from which one might infer how that evidence landed in Switzerland‘s hands, how it was crucial to obtaining the August 2000 Swiss court judgment, and why Switzerland could not obtain this information during its own investigation.12
Finally, UTICo‘s suggestion that its evidence and parallel litigation in California caused Kiritchenko to plea and provide the information to get Swiss recovery over the finish line overlooks the additional evidence obtained by Switzerland during its investigation. In particular, the Swiss investigating judge deposed Kiritchenko and Lazarenko. In his deposition, Lazarenko offered the Swiss authorities details on the money-laundering scheme and the entities implicated in it. And, in June 2000, two months before the August 2000 Swiss court judgment against Kiritchenko, Lazarenko pled guilty to the offenses against him, including the factual details underlying his offenses.
UTICo‘s strongest support for its assertion that UPGO forwarded helpful documents from UTICo to Switzerland are two December 12, 1998 letters from UPGO to the Swiss investigating judge. The two letters indicate that UPGO sent several volumes of documents to Switzerland that included, among other things, the following: (1) “[d]ocumentation on transfers of funds from the accounts of [United Energy International Ltd.] ... to the accounts of various firms in Swiss banks“; (2) “[c]opies of the documents on the owners and principals of [Bainfield, Paddox, and Bassington]“; and (3) information concerning Somolli. Even so, it remains unclear what information UTICo transmitted to Ukraine, whether those mailings both pre-date the December 12, 1998 letters and post-date the May 1998 agreement, and
Accordingly, we agree with the district court that the Ukrainian defendants are entitled to summary judgment on the portion of UTICo‘s breach-of-contract claim related to the Swiss assets that have been transferred to the Ukrainian treasury.
C. Motions to Amend
Finally, UTICo takes issue with the district court‘s denial of UTICo‘s three motions to amend.
“We review a district court‘s denial of a motion to amend for abuse of discretion.” Mulder v. Kohl‘s Dep‘t Stores, Inc., 865 F.3d 17, 20 (1st Cir. 2017).
We quickly dispose of UTICo‘s appeal of the denials of the first and second motions to amend. In its first motion to amend, UTICo sought leave to add an unfair and deceptive trade practices claim under
For some reason, UTICo never refiled its first motion to amend. Instead, UTICo waited over a year to file its second motion to amend. That motion made no mention of an unfair and deceptive trade practices claim. The precise amendments that UTICo sought to make were less than clear. At a minimum, it appears UTICo sought to add additional factual allegations it believed related to the tolling of the statute of limitations. During the May 16, 2018 hearing, UTICo also suggested that it
Again, we see no abuse of discretion in the district court‘s denial of the second motion to amend. The proposed amendments included in UTICo‘s motion did not relate to the Swiss assets -- the only claim remaining after the May 16, 2018 hearing. Nor did the proposed amendments relate to the reasoning on which the district court predicated its decision to limit the breach-of-contract claim to the repatriated Swiss assets. Instead, the proposed amendments merely identified funds which had yet to be repatriated and attempted to buttress UTICo‘s already dismissed claims that related to the California litigation.
Finally, we turn to the denial of UTICo‘s third motion to amend. UTICo moved to amend the complaint a third time late in this litigation. It sought to add several claims to the complaint, including claims for fraudulent concealment, breach of the implied covenant of good faith and fair dealing, and misrepresentation. The district court denied the motion to amend both because of undue delay and because UTICo‘s proposed amendments would have been futile. See UTICo III, 605 F. Supp. 3d at 286-87.
The district court acted within its discretion in denying the third motion to amend based on undue delay. By the time UTICo filed its third motion to amend, discovery had closed, the deadline for summary judgment motions had passed, and the Ukrainian defendants’ second motion for summary judgment was pending before the court. In addition, over a year had passed since the district court denied UTICo‘s second motion to amend for, among other reasons, its failure to meaningfully articulate a claim based on a theory of breach of the implied covenant of good faith and fair dealing. We have upheld the denial of motions to amend for undue delay based on even shorter time frames at earlier stages of the litigation. See, e.g., Calderon-Serra v. Wilmington Tr. Co., 715 F.3d 14, 20 (1st Cir. 2013) (affirming denial of motion to amend “filed ... nearly a year after the commencement of the action and many months after the ... motions to dismiss had been taken under advisement“); Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011) (per curiam) (affirming denial based on undue delay when plaintiff was aware of facts underlying proposed claim before filing suit yet waited four months to request to amend); Kay v. N.H. Dem. Party, 821 F.2d 31, 34 (1st Cir. 1987) (per curiam) (affirming a finding of undue delay when plaintiff
UTICo contends that its delay in filing the third motion to amend should not be held against it where the district court took nearly three years to rule on the motion and previously took over three years to rule on the second motion to amend. But UTICo‘s frustration about the pace of this litigation misses the point. For various reasons, the pace of this case‘s proceedings may have been slow. Nevertheless, UTICo still had ample time to seek leave to amend for a third time to try and remedy the flaws in its second motion to amend.
It also is unclear why UTICo could not have requested leave to make the amendments set forth in its third motion to amend at an earlier stage of the litigation. Although UTICo asserts in a conclusory manner that its proposed amendments were “based on new evidence and facts showing UTICo‘s assistance in the recovery by [the] defendants of the assets in Switzerland and elsewhere,” it does not explain why it had to wait until four months after the close of discovery to add these allegations and why it could not discover those facts earlier. Nor does it make any effort to explain what the “new evidence and facts” are and why they are critical. What is more, it does not appear that the proposed amendments actually further elucidate UTICo‘s assistance in recovery of the $15 million of Swiss assets. Indeed, at oral argument, UTICo conceded that its proposed amendments to the complaint did not affect the claims remaining at that point, that is, the breach-of-contract claims relating to the $15 million in Swiss assets, but rather focused on pleading additional claims. Given the delay in moving to amend for the third time and the lack of explanation for why UTICo failed to propose these amendments earlier, we conclude that the district court did not abuse its discretion in denying the third motion to amend.14 See Calderon-Serra, 715 F.3d at 20 (“Appreciable delay alone, in the absence of good reason for it, is enough to justify denying a motion for leave to amend.“).
III. Conclusion
For the reasons stated above, we affirm the district court‘s dismissal of UTICo‘s breach-of-contract claim insofar as it relates to blocked but not yet repatriated assets, its grant of summary judgment to the Ukrainian defendants on UTICo‘s breach-of-contract claim related to the Swiss assets, and its denial of UTICo‘s three motions to amend.