United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Duda Defendants'
Motion to Dismiss (Doc. 58) filed on February 5, 2018.
Plaintiff filed a Response in Opposition (Doc. 62) on
February 20, 2018, and the Dudas field a Reply (Doc. 66). For
the reasons set forth below, the Motion is denied and this
matter is stayed.
case arose because of an alleged fraudulent transfer of real
property located in Collier County, Florida (the
“Property”). Plaintiff seeks recovery of the
Property, owned and fraudulently transferred by Defendants
Edson and Natalina Duda to Geby Investments, LLC in avoidance
of a creditor's (Kozma Investmentos, Ltda's) claim,
stemming from a $14 million foreign
Arbitration Award (the Award) entered in Brazil. Plaintiff is
currently 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).
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)
(Kozma I). On September 19, 2017, the Court entered
an Opinion and Order denying Defendant Geby's Motion to
Dismiss for failure to state a claim, finding in part that
Kozma's allegations established that it has a
“right to payment” as required under FUFTA.
Kozma Investmentos, LTDA v. Duda, 2017 WL 4155429
(M.D. Fla. Sept. 19, 2017) (Kozma II). In so
finding, the Court relied on the fact that an underlying
enforcement action in State Court brought by Plaintiff to
gain recognition of the Award under the Florida Uniform
Out-of-Country Foreign Money Judgment Recognition Act, Fla.
Stat. § 55.601 et seq. (the “Enforcement
Action”) was pending. Id. at * 3.
Dudas now move to dismiss the Amended Complaint for lack of
personal jurisdiction and failure to state a claim, arguing
in part that since this Court issued its decision in
Kozma II, the State Court has issued an order
denying recognition of the Award in the Enforcement
Action. Therefore, the Dudas argue that Kozma no
longer has a “claim” or “right to
payment” as required to state a claim under FUFTA. The
Dudas also argue that Kozma has failed to allege sufficient
facts to establish personal jurisdiction over the Dudas who
are Brazilian citizens. In support, the Dudas have submitted
the Declaration of Defendant Natalina Sacchi Duda (the
“Duda Declaration”). (Doc. 58-1). The Court will
first address the jurisdictional argument.
conduct a two-part analysis when determining personal
jurisdiction over a non-resident defendant. Cable/Home
Communication Corp. v. Network Productions, Inc., 902
F.2d 829, 855 (11th Cir.1990) (citations omitted). First,
courts examine the jurisdictional issue under the state
long-arm statute. Id.That is, the defendant must
perform “some act by which it purposefully avails
itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of
its laws.” Burger King v. Rudzewicz, 471 U.S.
462, 476 (1985) (quoting Hanson v. Denckla, 357 U.S.
235, 253 (1958)). Second, courts examine whether sufficient
“minimum contacts” exist to satisfy the Due
Process Clause of the Fourteenth Amendment to ensure the
lawsuit does not offend “traditional notions of fair
play and substantial justice.” Id. (citing
Int'l Shoe Co. v. Washington, 326 U.S. 310
(1945) (quoting Milliken v. Meyer, 311 U.S. 457
(1940)) (other citations omitted). The plaintiff “bears
the initial burden of alleging in the complaint sufficient
facts to make out a prima facie case of jurisdiction.”
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009). The Dudas assert that neither component of this
standard is satisfied in this case.
Florida Long-Arm Statute
relies upon subsection (1)(a)(1) and (1)(a)(3) of the Florida
long-arm statute related to specific jurisdiction, which
permit the exercise of jurisdiction over actions arising from
the carrying on of a business venture in Florida, or owning,
using, or holding a mortgage or other lien on any real
property within Florida. (Doc. 33, ¶ 12).
Fla. Stat. § 48.193(1)(a)(1): Business
or Business Venture in Florida
order to establish that a defendant is carrying on [a]
business for the purposes of the long-arm statute, the
activities of the defendant must be considered collectively
and show a general course of business activity in the state
for pecuniary benefit.” Horizon Aggressive
Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162,
1167 (11th Cir. 2005) (quoting Future Tech. Today, Inc.
v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.
2000)). “[E]ngaging in a single act for profit can
amount to a business venture, ” Labbee v.
Harrington, 913 So.2d 679, 683 (Fla. 3d DCA 2005)
(citing Wm. E. Strasser Constr. v. Linn, 97
So.2d 458, 460 (Fla. 1957)), but not every gainful
transaction involving a Florida resident amounts to a
business venture. See Walack v. Worldwide
Machinery Sales, Inc., 278 F.Supp.2d 1358, 1366
(M.D. Fla. 2003). Some factors the Court must consider
include the “presence and operation of an office in
Florida, [ ] the possession and maintenance of a license to
do business in Florida, the number of Florida clients served,
and the percentage of overall revenue gleaned from Florida
clients.” Horizon, 421 F.3d at 1167 (internal
cited in the Amended Complaint as a basis for personal
jurisdiction, Plaintiff does not argue in its brief why this
subsection is satisfied. Plaintiff states in the Amended
Complaint that Geby Investments is a Florida limited
liability company owned by the Dudas, but Plaintiff does not
allege that Geby Investments regularly conducts business in
Florida. Therefore, the Court easily finds that Plaintiff has
not met its burden to establish sufficient facts to make out
a prima facie case of personal jurisdiction based on a
business or business venture in ...