Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kozyrev v. Ponomarenko

United States District Court, S.D. Florida

June 20, 2019




         THIS CAUSE is before the Court upon Defendant Fatima Esenova's (“Esenova” or “Defendant”) Corrected Motion to Dismiss, ECF No. [35] (the “Motion”), filed on June 10, 2019.[1]Plaintiff Alexandr Kozyrev (“Kozyrev” or “Plaintiff”) filed a response, ECF No. [28] (“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.

         I. BACKGROUND

         This case involves a dispute over a loan and the use of funds intended for real estate investments. As alleged in the Complaint, ECF No. [1], 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 demand.

         As a 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.


         Rule 8 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.”

         When 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)).


         In the 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.

         a. Breach of contract

          To 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. [1], ¶ 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.

         b. Restitution and unjust enrichment

         Esenova 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.