United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Geby Investments,
LLC's (Defendant or Geby) Motion to Dismiss
Plaintiff's Amended Complaint (Doc. 34) filed on
August 18, 2017. Plaintiff Kozma Investmentos, Ltda's
(Plaintiff or Kozma) Response in Opposition (Doc.
35) was filed on September 1, 2017, and Defendant filed
a Reply (Doc. 43) on September 13, 2017. For the
reasons set forth below, the Motion is denied.
case was removed from State Court on June 5, 2017 (Doc.
1). Plaintiff is proceeding on an Amended Complaint
(Doc. 33), alleging state law claims, specifically
two counts under the Florida Uniform Fraudulent Transfer Act,
Fla. Stat. §§ 726.105-106 (FUFTA). Plaintiff seeks
recovery of real property located in Collier County, Florida,
fraudulently transferred by Defendants Edson and Natalina
to Geby in avoidance of a creditor's (Kozma's) claim,
which stems from a $14 million foreign Arbitration Award (the
Award) entered in Brazil.
27, 2017, this Court entered an Opinion and Order denying
Plaintiff's Motion to Remand, finding this Court has
subject-matter jurisdiction over this case because the Award
falls under the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, also known as the New York
Convention (the Convention). Kozma Investmentos, LTDA v.
Duda, 2017 WL 3193606 (M.D. Fla. July 27, 2017).
Defendant now moves to dismiss the Amended Complaint for
failure to state a claim based upon two grounds: (1) the
three-year period under the Federal Arbitration Act (FAA) for
enforcing arbitration awards has expired; and (2) Kozma's
allegations do not establish that it has a “right to
payment” as required under FUFTA.
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This obligation
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation omitted). In addition, to
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the factual allegations
must be “plausible” and “must be enough to
raise a right to relief above the speculative level.”
Id. at 555; see also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Like its
counterpart above, Rule 12(b)(6) requires more than
accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). But, “[l]egal conclusions without
adequate factual support are entitled to no assumption of
truth.” Mamani v. Berzain, 654 F.3d 1148, 1153
(11th Cir. 2011) (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Factual allegations
that are merely consistent with a defendant's liability
[also] fall short of being facially plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337
(11th Cir. 2012) (internal citations omitted). Thus, the
Court engages in a two-step approach: “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S.
Three-Year Statute of Limitations
moves to dismiss Plaintiff's Amended Complaint in its
entirety as barred by the statute of limitations under the
FAA. Plaintiff responds that the Convention and the FAA does
not apply to fraudulent transfer actions, as Plaintiff is not
seeking to enforce the Award via this case. Rather, the
enforcement action is pending before the Circuit Court in and
for Collier County, independent of this case. Plaintiff further
argues that even if the Convention applies it does not act as
a time-bar here because the foreign judgment that Plaintiff
seeks to enforce was entered on January 20, 2016, when
Brazil's First Instance Court rejected the Dudas'
request to set aside the Award, thus entering a decision on
the merits on that date.
the existence of an affirmative defense will not support a
motion to dismiss because a plaintiff is not required to
negate an affirmative defense in his complaint. La Grasta
v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
2004). A complaint may be dismissed, however, when the
existence of an affirmative defense “clearly appears on
the face of the complaint.” Quiller v. Baraclays
Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984).
See also La Grasta, 358 F.3d at 845
(“[A] Rule 12(b)(6) dismissal on statute of limitations
grounds is appropriate only if it is ‘apparent from the
face of the complaint' that the claim is
time-barred” (quoting Omar ex rel. Cannon v.
Lindsey, 334 F.3d 1246, 1251 (11th Cir. 2003));
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir.
Convention Act specifies that the FAA “applies to
actions and proceedings brought under this chapter to the
extent that chapter is not in conflict with this chapter or
the Convention as ratified by the United States.” 9
U.S.C. § 208. Article 2 of the FAA provides for
enforcement of foreign arbitration agreements and awards, and
to these ends, it ratifies and incorporates the Convention. 9
U.S.C. § 201. Section 201 of the FAA provides that the
Convention shall be enforced in U.S. courts: “The
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of June 10, 1958, shall be enforced in United
States courts in accordance with this chapter.”
Id. The FAA imposes a three-year statute of
limitations to recognize and enforce Convention awards after
an arbitral award falling under the Convention is made. 9
U.S.C. § 207.
Court has previously rejected Plaintiff's argument that
this case does not fall under the Convention and continues to
do so here. However, the Court is not convinced this
action is time-barred based upon the face of the Amended
Complaint. The Amended Complaint, which the Court accepts as
On January 20, 2016, the First Instance Court, a court within
Brazil's judicial system and therefore a governmental
unit of Brazil, issued a ruling on the merits and rejected
the DUDAS' request to set aside the Arbitration Award
(the “Judgment”). As a result, the Judgment