16‐1505
Sberbank of Russia v. Traisman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 11th day of April, two thousand seventeen.
4
5 PRESENT: ROBERT D. SACK,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 PAUL A. CROTTY,
9 District Judge.
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11 Sberbank of Russia,
12
13 Plaintiff–Counter‐Defendant–Appellee,
14
15 v. No. 16‐1505
16
17 Yuri Traisman,
18
19 Defendant–Counter‐Claimant–Appellant.
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21
Judge Paul A. Crotty, of the United States District Court for the Southern District
of New York, sitting by designation.
1 FOR APPELLANT: ELY GOLDIN, Fox Rothschild LLP, Blue Bell, PA.
2
3 FOR APPELLEE: DANIEL A. RUBENS (Robert L. Sills, Igor
4 Marguylan, on the brief), Orrick, Herrington &
5 Sutcliffe LLP, New York, NY; Alfred U. Pavlis,
6 Finn Dixon & Herling LLP, Stamford, CT.
7
8 Appeal from a judgment of the United States District Court for the District
9 of Connecticut (Warren W. Eginton, Judge).
10 UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND
11 DECREED that the judgment of the District Court is AFFIRMED in part and
12 VACATED AND REMANDED in part.
13 Yuri Traisman appeals from a judgment of the District Court (Eginton, J.)
14 granting summary judgment in favor of Sberbank of Russia. The case arises
15 from Traisman’s personal guaranty of three commercial loans issued by Sberbank
16 to a Russian corporation associated with Traisman. The District Court ruled in
17 favor of Sberbank on its claim to enforce the guaranties and dismissed Traisman’s
18 counterclaims, based mainly on the preclusive effect of a judgment obtained by
19 Sberbank in a proceeding in Russia. We assume the parties’ familiarity with the
20 facts and record of the prior proceedings, to which we refer only as necessary to
21 explain our decision to affirm in part and vacate and remand in part.
22 Sitting in diversity and therefore applying Connecticut’s choice of law
23 rules, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), the District Court
2
1 applied Russian preclusion law to rule in Sberbank’s favor. We review the
2 District Court’s application of claim and issue preclusion de novo. Proctor v.
3 LeClaire, 715 F.3d 402, 411 (2d Cir. 2013).
4 Our review of the applicable provisions of the Russian Code of Civil
5 Procedure and the unrebutted expert report submitted by Traisman persuades us
6 that the District Court was correct as to issue preclusion but incorrect as to claim
7 preclusion. The issue of forgery that Traisman raised as a counterclaim in the
8 Russian litigation was fully litigated and decided on the merits. Our reading of
9 Article 61 of the Russian Code of Civil Procedure is that it bars the re‐litigation of
10 that issue in subsequent lawsuits. But based on the plain text of Article 134 of the
11 Russian Code of Civil Procedure and Traisman’s expert report, we conclude that
12 Russian claim preclusion rules permit subsequent litigation of claims not actually
13 asserted in the prior proceeding. Here, the parties agree that Traisman did not
14 assert any of his counterclaims or non‐forgery affirmative defenses in the Russian
15 litigation. The District Court therefore should not have granted summary
16 judgment to Sberbank on preclusion grounds as to those new claims and
17 defenses.1
1 Notwithstanding the erroneous preclusion ruling, however, on appeal
Traisman has abandoned his fifth counterclaim for ultra vires execution of the
underlying loans, his sixth counterclaim for abuse of process, and the seven
3
1 Finally, the District Court’s grant of a prejudgment remedy pursuant to
2 Connecticut law was proper because Sberbank sought a prejudgment remedy in
3 an independent Connecticut action to enforce the guaranties rather than bringing
4 “a prospective action in Connecticut . . . to enforce a foreign judgment.”
5 Travelers Cas. & Sur. Co. of Am. v. Caridi, 73 A.3d 863, 871 (Conn. App. Ct. 2013)
6 (quotation marks omitted).
7 Accordingly, we affirm the District Court’s judgment as to Traisman’s two
8 abandoned counterclaims and its grant of a prejudgment remedy, but we vacate
9 the judgment and remand for further proceedings as to Sberbank’s claim and
10 Traisman’s four remaining counterclaims. We need not address Traisman’s
11 appeal of the award of prejudgment interest.
12 We have considered the parties’ remaining arguments and conclude that
13 they are without merit. For the foregoing reasons, the judgment of the District
14 Court is AFFIRMED in part and VACATED in part, and the matter is
15 REMANDED for further proceedings consistent with this order.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
affirmative defenses that the District Court dismissed on the merits.
4