Preview
Filing # 115403585 E-Filed 10/21/2020 05:41:47 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
CASE NO.: 2020-020048-CA-01
AMBAR MOTORS, INC., a Florida
Corporation,
Plaintiff,
v.
MEDIRISK, PLLC, a Florida Limited
Liability Company, HUGO MARTINEZ
and MILENIS GONZALEZ MARTINEZ,
Defendants.
___________________________________/
MOTION TO DISMISS
Defendant, MILENIS GONZALEZ MARTINEZ (“Milenis”), by and through her
undersigned counsel, respectfully requests this Court to dismiss Count II of the Complaint and as
grounds therefor states:
1. Plaintiff filed the Complaint on September 17, 2020. The Complaint contains the
following Counts: Count I (Theft) and Count II (Fraudulent Transfer). Defendant, Milenis, is only
named as a defendant in Count II of the Complaint.
2. For the reasons discussed herein, Count II of the Complaint should be dismissed
against Defendant, Milenis.
Dismissal of Count II (Fraudulent Transfer)
3. This Court should dismiss Count II of the Complaint. The Complaint fails to
contain sufficient factual allegations regarding the alleged transfers. In addition, Count II
improperly attempts to commingle four (4) separate fraudulent transfer causes of action into a
single count.
A. Insufficient Factual Allegations
4. The Complaint fails to contain sufficient ultimate facts to state a cause of action for
fraudulent transfer.
5. In Paragraph 20, the only Paragraph describing any alleged fraudulent transfer,
Plaintiff alleges the following:
Defendant Martinez and Defendant Gonzalez-Martinez fraudulently transferred
assets of Plaintiff, including but not limited to monies withdrawn from Defendant
MediRisk's operating account ("Plaintiffs Assets"), in a scheme intended to defraud
Plaintiff.
This allegation is entirely conclusory. Plaintiff does not identify any specific transfers, when any
transfers were made, and which Defendant received which alleged transfer.
6. Thus: (a) with respect to the timing of alleged transfers, Plaintiff has merely alleged
that Defendants “fraudulently transferred assets” without specifically alleging when; and (b) with
respect to the alleged transferees, Plaintiff’s allegations do not distinguish between what, if
anything, was received by each alleged transferee.
7. With respect to what was allegedly transferred, Plaintiff alleges nothing more than
“monies withdrawn.” See Complaint at ¶ 20. Plaintiff does not allege approximate amounts that
were allegedly transferred.
8. In addition, because Plaintiff lumps together multiple Defendants without
differentiating between them, without identifying alleged transfers, and without identifying
approximate dates of alleged transfers, separation of transfers and defendants would undoubtedly
facilitate a clearer presentation. See Fla. R. Civ. P. 1.110(f) (“Each claim founded upon a separate
2
transaction or occurrence and each defense other than denials shall be stated in a separate count or
defense when a separation facilitates the clear presentation of the matter set forth.”).
B. Improper Commingling of Separate and Distinct Causes of Action
9. The Complaint improperly includes multiple separate and distinct causes of action
in Count II.
10. Plaintiff alleges Count II is being brought pursuant to Chapter 726 of the Florida
Statutes. Chapter 726, however, provides for four (4) separate causes of action for fraudulent
transfer. Section 726.105 provides for two (2) of those causes of action, and section 726.106
provides for the other two (2) fraudulent transfer causes of action.
11. It appears that Plaintiff is attempting to allege all four (4) types of fraudulent
transfer causes of action in Count II.
12. There are several problems with Plaintiff’s improper commingling of four (4)
causes of action in Count II. First, as reflected in the title of section 726.105, that section provides
for causes of action for “[t]ransfers fraudulent as to present and future creditors.” Section 726.106,
however, only provides for causes of action for “[t]ransfers fraudulent as to present creditors.”
Thus, to the extent any transfers were made before Plaintiff allegedly became a creditor, Plaintiff
would not be able to recover any such transfers under section 726.106.
13. Second, the elements of the four (4) fraudulent transfer causes of action are
different:
(a) Section 726.105(1)(a) addresses actual fraudulent transfers, which are ones made
“[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.”
(b) Section 726.105(1)(b) addresses constructive fraudulent transfers “as to present and
future creditors”; for section 726.105(1)(b) to apply, the transfer must have been made:
3
Without receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor:
1. Was engaged or was about to engage in a business or a transaction for which
the remaining assets of the debtor were unreasonably small in relation to the
business or transaction; or
2. Intended to incur, or believed or reasonably should have believed that he or she
would incur, debts beyond his or her ability to pay as they became due.
§ 726.105(1)(b).
(c) Section 726.106(1) addresses constructive fraudulent transfers “as to present creditors”;
for section 726.106(1) to apply, the fraudulent transfer must have been made “without [the debtor]
receiving a reasonably equivalent value in exchange for the transfer . . . and the debtor [must have
been] insolvent at that time or the debtor [must have become] insolvent as a result of the transfer.”
§ 726.106(1). Further, the claim of the creditor must have arisen “before the transfer was made.”
Id.
(d) Section 726.106(2) addresses preferential transfers to insiders (and only applies to
present creditors); for section 726.106(2) to apply: (a) the creditor’s claim must have arisen “before
the transfer was made”; (b) “the transfer [must have been] made to an insider for an antecedent
debt”; (c) “the debtor [must have been] insolvent at that time”; and (d) “the insider [must have]
had reasonable cause to believe the debtor was insolvent.” § 726.106(2).
14. As is evident from the foregoing, the elements of each type of fraudulent transfer
under Chapter 726 are different.
15. Indeed, Plaintiff has failed to plead the elements of each of the four distinct
fraudulent transfer causes of action under Chapter 726.
16. Third, the defenses that may be available differ from one fraudulent transfer cause
of action to the next. See § 726.109. Accordingly, each type of fraudulent transfer cause of action
that Plaintiff seeks to bring should be set forth in a separate count.
4
Wherefore Defendant, Milenis, respectfully requests this Court to dismiss the Complaint
and grant such other and further relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the
Florida Courts E-Filing Portal on this 21st day of October, 2020 and a copy of same will be sent
by the E-Filing Portal via E-Mail to: counsel for the Plaintiff, Chase E. Jenkins, Esq., Jenkins
Lorenzo, LLC, Counsel for Plaintiff cjenkins@jenkinslorenzo.com 18851 NE 29th Avenue, Ste. 700,
Aventura, FL 33180.
WEISS SEROTA HELFMAN
COLE & BIERMAN, P.L.
Attorneys for Defendant Milenis Gonzalez Martinez
1200 N. Federal Highway, Suite 312
Boca Raton, FL 33432
Telephone: (561) 835-2111
By: /s/ Howard D. DuBosar
Howard D. DuBosar
Florida Bar No. 729108
hdubosar@wsh-law.com
kdoyle@wsh-law.com
tnovak@wsh-law.com
Charles M. Garabedian, Jr.
Florida Bar No 1000974
cgarabedian@wsh-law.com
isevilla@wsh-law.com
5
Preview
Filing # 115403585 E-Filed 10/21/2020 05:41:47 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CASE NO.: 2020-020048-CA-01 AMBAR MOTORS, INC., a Florida Corporation, Plaintiff, v. MEDIRISK, PLLC, a Florida Limited Liability Company, HUGO MARTINEZ and MILENIS GONZALEZ MARTINEZ, Defendants. ___________________________________/ MOTION TO DISMISS Defendant, MILENIS GONZALEZ MARTINEZ (“Milenis”), by and through her undersigned counsel, respectfully requests this Court to dismiss Count II of the Complaint and as grounds therefor states: 1. Plaintiff filed the Complaint on September 17, 2020. The Complaint contains the following Counts: Count I (Theft) and Count II (Fraudulent Transfer). Defendant, Milenis, is only named as a defendant in Count II of the Complaint. 2. For the reasons discussed herein, Count II of the Complaint should be dismissed against Defendant, Milenis. Dismissal of Count II (Fraudulent Transfer) 3. This Court should dismiss Count II of the Complaint. The Complaint fails to contain sufficient factual allegations regarding the alleged transfers. In addition, Count II improperly attempts to commingle four (4) separate fraudulent transfer causes of action into a single count. A. Insufficient Factual Allegations 4. The Complaint fails to contain sufficient ultimate facts to state a cause of action for fraudulent transfer. 5. In Paragraph 20, the only Paragraph describing any alleged fraudulent transfer, Plaintiff alleges the following: Defendant Martinez and Defendant Gonzalez-Martinez fraudulently transferred assets of Plaintiff, including but not limited to monies withdrawn from Defendant MediRisk's operating account ("Plaintiffs Assets"), in a scheme intended to defraud Plaintiff. This allegation is entirely conclusory. Plaintiff does not identify any specific transfers, when any transfers were made, and which Defendant received which alleged transfer. 6. Thus: (a) with respect to the timing of alleged transfers, Plaintiff has merely alleged that Defendants “fraudulently transferred assets” without specifically alleging when; and (b) with respect to the alleged transferees, Plaintiff’s allegations do not distinguish between what, if anything, was received by each alleged transferee. 7. With respect to what was allegedly transferred, Plaintiff alleges nothing more than “monies withdrawn.” See Complaint at ¶ 20. Plaintiff does not allege approximate amounts that were allegedly transferred. 8. In addition, because Plaintiff lumps together multiple Defendants without differentiating between them, without identifying alleged transfers, and without identifying approximate dates of alleged transfers, separation of transfers and defendants would undoubtedly facilitate a clearer presentation. See Fla. R. Civ. P. 1.110(f) (“Each claim founded upon a separate 2 transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.”). B. Improper Commingling of Separate and Distinct Causes of Action 9. The Complaint improperly includes multiple separate and distinct causes of action in Count II. 10. Plaintiff alleges Count II is being brought pursuant to Chapter 726 of the Florida Statutes. Chapter 726, however, provides for four (4) separate causes of action for fraudulent transfer. Section 726.105 provides for two (2) of those causes of action, and section 726.106 provides for the other two (2) fraudulent transfer causes of action. 11. It appears that Plaintiff is attempting to allege all four (4) types of fraudulent transfer causes of action in Count II. 12. There are several problems with Plaintiff’s improper commingling of four (4) causes of action in Count II. First, as reflected in the title of section 726.105, that section provides for causes of action for “[t]ransfers fraudulent as to present and future creditors.” Section 726.106, however, only provides for causes of action for “[t]ransfers fraudulent as to present creditors.” Thus, to the extent any transfers were made before Plaintiff allegedly became a creditor, Plaintiff would not be able to recover any such transfers under section 726.106. 13. Second, the elements of the four (4) fraudulent transfer causes of action are different: (a) Section 726.105(1)(a) addresses actual fraudulent transfers, which are ones made “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” (b) Section 726.105(1)(b) addresses constructive fraudulent transfers “as to present and future creditors”; for section 726.105(1)(b) to apply, the transfer must have been made: 3 Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: 1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. § 726.105(1)(b). (c) Section 726.106(1) addresses constructive fraudulent transfers “as to present creditors”; for section 726.106(1) to apply, the fraudulent transfer must have been made “without [the debtor] receiving a reasonably equivalent value in exchange for the transfer . . . and the debtor [must have been] insolvent at that time or the debtor [must have become] insolvent as a result of the transfer.” § 726.106(1). Further, the claim of the creditor must have arisen “before the transfer was made.” Id. (d) Section 726.106(2) addresses preferential transfers to insiders (and only applies to present creditors); for section 726.106(2) to apply: (a) the creditor’s claim must have arisen “before the transfer was made”; (b) “the transfer [must have been] made to an insider for an antecedent debt”; (c) “the debtor [must have been] insolvent at that time”; and (d) “the insider [must have] had reasonable cause to believe the debtor was insolvent.” § 726.106(2). 14. As is evident from the foregoing, the elements of each type of fraudulent transfer under Chapter 726 are different. 15. Indeed, Plaintiff has failed to plead the elements of each of the four distinct fraudulent transfer causes of action under Chapter 726. 16. Third, the defenses that may be available differ from one fraudulent transfer cause of action to the next. See § 726.109. Accordingly, each type of fraudulent transfer cause of action that Plaintiff seeks to bring should be set forth in a separate count. 4 Wherefore Defendant, Milenis, respectfully requests this Court to dismiss the Complaint and grant such other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the Florida Courts E-Filing Portal on this 21st day of October, 2020 and a copy of same will be sent by the E-Filing Portal via E-Mail to: counsel for the Plaintiff, Chase E. Jenkins, Esq., Jenkins Lorenzo, LLC, Counsel for Plaintiff cjenkins@jenkinslorenzo.com 18851 NE 29th Avenue, Ste. 700, Aventura, FL 33180. WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. Attorneys for Defendant Milenis Gonzalez Martinez 1200 N. Federal Highway, Suite 312 Boca Raton, FL 33432 Telephone: (561) 835-2111 By: /s/ Howard D. DuBosar Howard D. DuBosar Florida Bar No. 729108 hdubosar@wsh-law.com kdoyle@wsh-law.com tnovak@wsh-law.com Charles M. Garabedian, Jr. Florida Bar No 1000974 cgarabedian@wsh-law.com isevilla@wsh-law.com 5