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Kozma Investmentos, LTDA v. Duda

United States District Court, M.D. Florida, Fort Myers Division

March 29, 2018

KOZMA INVESTMENTOS, LTDA, a foreign corporation, Plaintiff,

          OPINION AND ORDER [1]


         This 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.


         This 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, [2]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).

         On July 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.[3] Id. at * 3.

         The 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[4]. 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.


         A. Personal Jurisdiction

         Courts 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.

         1. Florida Long-Arm Statute

         Plaintiff 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).

         (a) Fla. Stat. § 48.193(1)(a)(1): Business or Business Venture in Florida

         “In 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 citations omitted).

         Although 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 ...

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