United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant Fatima
Esenova's (“Esenova” or
“Defendant”) Corrected Motion to Dismiss, ECF No.
 (the “Motion”), filed on June 10,
2019.Plaintiff Alexandr Kozyrev
(“Kozyrev” or “Plaintiff”) filed a
response, ECF No.  (“Response”). The Court
has carefully considered the Motion, the Response, the record
in this case and the applicable law, and is otherwise fully
advised. For the reasons set forth below, the Motion is
granted in part.
case involves a dispute over a loan and the use of funds
intended for real estate investments. As alleged in the
Complaint, ECF No. , Kozyrev met Defendant Dimitry
Ponomarenko (“Ponomarenko”) when Ponomarenko
proposed several business projects in 2002. The two kept in
contact over the years and Ponomarenko eventually moved to
the United States. By 2014, Kozyrev enjoyed substantial
success in business, and in early 2015, Ponomarenko and
Kozyrev entered into a business agreement, ECF No. [1-2]
(“Agreement”). According to the Agreement,
Kozyrev would lend Ponomarenko $5 million over the course of
twenty-four (24) months to acquire real estate in Florida and
sell it for a profit. The Agreement further provided that
Ponomarenko would be personally liable for repayment of the
loan with interest. Kozyrev transferred a total of $4, 695,
601.05 in tranches pursuant to the Agreement, which he
alleges Ponomarenko and (now ex-) wife Esenova used for their
personal needs. In addition, neither Ponomarenko nor Esenova
have made efforts to repay Kozyrev, despite Kozyrev's
result, Kozyrev asserts three claims against Ponomarenko and
Esenova, including breach of contract (Count 1), restitution
(Count 2), and unjust enrichment (Count 3). In her Motion,
Esenova seeks dismissal of the claims against her for failure
to state a claim.
of the Federal Rules requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although a complaint “does not need detailed
factual allegations, ” it must provide “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); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)'s pleading standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). In the same vein, a complaint may not
rest on “‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These elements are required to survive a motion brought
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which requests dismissal for “failure to state a claim
upon which relief can be granted.”
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. Miccosukee Tribe of Indians of
Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations,' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682). A court considering a Rule 12(b) motion is
generally limited to the facts contained in the complaint and
attached exhibits, including documents referred to in the
complaint that are central to the claim. Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009);
see also Maxcess, Inc. v. Lucent Techs., Inc., 433
F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside
the four corners of the complaint may still be considered if
it is central to the plaintiff's claims and is undisputed
in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
Motion, Esenova argues that the Complaint fails to properly
allege claims for breach of contract, restitution, or unjust
enrichment. In addition, Esenova contends that Kozyrev's
claims are barred by the doctrine of res judicata. The Court
considers each argument in turn.
Breach of contract
state a claim for breach of contract, a plaintiff must plead
the existence of a contract, a material breach, and damages.
Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272
(11th Cir. 2009). Esenova argues that the breach of contract
claim is insufficiently pled because Kozyrev does not allege
an agreement between himself and Esenova. However, Esenova
does not dispute the authenticity of the subject Agreement,
which is central to Kozyrev's claim. That Agreement
states in pertinent part that “[i]n the case of the
purchase of real estate or other property by the Borrower
being married, his spouse is considered to be a co-borrower
in accordance with this loan agreement and is equally
responsible with the Borrower for this loan.” ECF No.
[1-2], ¶ 11. In addition, Kozyrev alleges that Esenova
was a direct beneficiary of the loan, ECF No. , ¶ 3,
and that she has failed to make any repayments on the loan.
At this juncture, the allegations are sufficient to state a
claim for breach of contract.
Restitution and unjust enrichment
argues next that Kozyrev's claims for restitution and
unjust enrichment are essentially the same, and that Kozyrev
has not alleged that he placed funds into her custody. As
such, he is not entitled to restitution for unjust
enrichment. To state a claim for unjust enrichment under
Florida law, a party must allege “a benefit conferred
upon a defendant by the plaintiff, the defendant's
appreciation of the benefit, and the defendant's
acceptance and retention of the benefit under circumstances
that make it inequitable for him to retain it without paying
the value thereof.” Alvarez v. Royal Caribbean
Cruises, Ltd., 905 F.Supp.2d 1334, 1341 (S.D. Fla. 2012)
(quoting Ruck Bros. Brick, Inc. v. Kellogg &
Kimsey, Inc., 668 So.2d 205, 207 (Fla. 2d DCA
1995)). In the Complaint, Kozyrev alleges that, by virtue of
the Agreement, Esenova was a beneficiary and co-debtor with
Ponomarenko, and that both she and Ponomarenko improperly
used Kozyrev's loaned funds to ...