645 West 44th Street Associates, assignee of Marine Midland Bank, N.A. v. Koch et al
ORDER denying 30 Motion to Dismiss 23 Amended Complaint; Dismissing without prejudice Third Amended Complaint; Any Amended Pleading due by 4/30/2014. Signed by Judge Robert N. Scola, Jr. on 4/24/2014. (rss) Modified Text on 4/24/2014 (ls).
United States District Court
Southern District of Florida
645 West 44th Street Associates,
Richard F. Koch and Richard F.
Koch d/b/a Koch Realty Co.,
Civil Action No. 13-61475-Civ-Scola
Order On Defendant’s Motion To Dismiss
The Plaintiff, 645 West 44th Street Associates, filed this lawsuit on July 8,
2013, “to turn . . . foreign judgments . . . into a judgment of this Court pursuant
to 28 U.S.C. § 1738, so that they may be enforced as a federal judgment in the . .
. Southern District of Florida.” (Third Am. Compl. ¶6, ECF No. 23.) According to
the Third Amended Complaint, a New York state court entered a monetary
judgment against the Defendant, Richard F. Koch, and in favor of Marine Midland
Bank in October 1993. (Id. ¶4.) 1 The judgment was later assigned to 645 West.
645 West renewed the judgment in June 2008, and recorded the judgment in
Broward County, Florida in July 2008. (Id.) Count 1 of the Third Amended
Complaint seeks to enforce the October-1993-renewed-in-June-2008 judgment,
In June 2011, 645 West brought another action in a New York state court
“to enforce the judgments.” (Id. ¶5.) In September 2012, the New York state
court entered a judgment against Koch and another individual, Helen Elkin. (Id.)
Count 2 of the Third Amended Complaint seeks to enforce the September-2012
Koch responded to the lawsuit by filing a motion to dismiss. Koch argues
that Count 1 is barred by Florida’s statute of limitations because 645 West waited
more than 5 years to file an “independent action” on the foreign judgment. (Mot.
Dismiss 1, ECF No. 30.) Alternatively, Koch argues that New York law contains a
20-year statute of repose to enforce a judgment that cannot be extended. (Id. 3.)
Finally, Koch argues that the Court should dismiss Count 2 because the
September-2012 judgment was not entered against him, but against his ex-wife,
645 West has responded, disputing Koch’s analysis and
The Court accepts the facts, as plead, in the Third Amended Complaint. Cf.
Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998) (“In evaluating the
sufficiency of a complaint, a court must accept the well pleaded facts as true and
resolve them in the light most favorable to the plaintiff.”).
conclusion regarding Count 1. But 645 West has “withdrawn” Count 2. (Notice
Withdrawal Count II, ECF No. 39.)
A. New York State of Limitations
Under New York law, a judgment is valid for 20 years. N.Y. C.L.P.R. 211(b)
(McKinney 2014) (“A money judgment is presumed to be paid and satisfied after
the expiration of twenty years.”). But New York law also provides that a judgment
creditor may reset the 20-year-validity period by renewing the judgment. In re
Vinieris, 391 B.R. 707, 713 (Bankr. S.D.N.Y. 2008); see also N.Y. C.L.P.R. 5014
In this case, 645 West alleges that the initial judgment against Koch was
entered in October 1993, and that 645 West renewed that judgment in June
2008. Under New York law, the renewed judgment is valid until June 2028. See
In re Vinieris, 391 B.R. 713. Koch argues that “New York law allows a judgment,
even one renewed, to be enforced for only 20 years from the date of its original
execution.” (Mot. Dismiss 3, ECF No. 30). That is not the law. While it is true
that New York law presumes that a judgment has been satisfied 20 years after it
was entered, New York law also permits a creditor to renew a judgment, resetting
the 20-year-life cycle. See In re Vinieris, 391 B.R. 713; First Nat. Bank of Long
Island v. Brooks, 781 N.Y.S.2d 624 (Table), (N.Y.Dist.Ct. Sept. 22, 2003)
(explaining that a judgment creditor who renews his or her judgment under N.Y.
C.L.P.R. 5014 (McKinney 2014) obtains a “new 20-year judgment”).
B. Florida Statute of Limitations
Under Florida law, there are 2 methods to enforce a foreign judgment. 2 In
re Goodwin, 325 B.R. 328, 330 (Bankr. M.D. Fla. 2005). The first is a “traditional
common law action to enforce a judgment.” Id. The second way is to domesticate
a foreign judgment through the Florida Enforcement of Foreign Judgments Act.
Id. A claim seeking to enforce a foreign judgment under the traditional common
law action is subject to a 5-year statute of limitations. See Le Credit Lyonnais,
S.A. v. Nadd, 741 So. 2d 1165, 1169 (Fla. 5th DCA 1999) (commenting that “the
five-year statute remains as a bar to suits brought under the common law mode
of enforcement”); Fla. Stat. § 95.11(2)(a) (2013); see also Caiazza v. Tuff Realty
Corp., 805 So. 2d 29, 30 (Fla. 5th DCA 2001). A domesticated foreign judgment is
subject to a 20-year statute of limitations. In re Goodwin, 325 B.R. at 333; Fla.
Stat. § 95.11(1) (2013).
In this case, it is unclear whether 645 West is proceeding under the
common law method of enforcing a judgment, or if it is proceeding under the
Florida Enforcement of Foreign Judgments Act. The Third Amended Complaint
As used in this context, the term foreign judgment means a judgment or order
of a court in the United States, but in a state other than Florida. See Fla. Stat. §
alleges that 645 West recorded the October-1993-renewed-in-June-2008
judgment in state court in Broward County, Florida on July 25, 2008. But 645
West does not allege that it complied with any of the prerequisites required to
enforce a domesticated judgment—namely, simultaneously recording an affidavit
containing the parties’ names, and addresses, and delivering notice of the
recorded foreign judgment to Koch (by either the clerk of the court or by 645
West). See Fla. Stat. § 55.505 (2014). More to the point, if 645 West intended to
collect on a domesticated foreign judgment under the Florida Enforcement of
Foreign Judgments Act, there would be no need to have even filed this lawsuit.
See Cutler v. Harrison, 792 So. 2d 574, 575 (Fla. 3d DCA 2001) (explaining that
the Florida Enforcement of Foreign Judgments Act contemplates that a judgment
creditor file the judgment in Florida, “without the necessity of filing a lawsuit.”).
Given this ambiguity, the Court is unable to make a determination as to
whether the statute of limitations bars this case. Since 645 West has withdrawn,
or voluntarily dismissed, Count 2, the only judgment it is now seeking to enforce
is the October-1993-renewed-in-June-2008 judgment. The statute of limitations,
under the common-law method of enforcement expired in June 2013—a month
before 645 West filed this lawsuit. If 645 West is proceeding under the Florida
Enforcement of Foreign Judgments Act, it then enjoys a 20-year statute of
limitations, which has not yet expired. But, if that is the case, why did 645 West
file this lawsuit in the first place? In either event, it appears that this case has
reached the end of the road in this Court.
As explained in this Order, the Court is unsure what cause of action 645
West is asserting in its Third Amended Complaint. Consequently, the court is
unable to make a determination as to whether this case is barred by the statute
of limitations, as argued by Koch.
Having considered the Motion, the record, and the relevant legal
authorities, it is ordered that the Motion to Dismiss (ECF No. 30) is denied. The
Court dismisses the Third Amended Complaint without prejudice. Any amended
pleading must be filed by April 30, 2014, and must expressly state what cause of
action it is pursuing, in other words which method of enforcing the foreign
judgment it is traveling under.
Done and ordered, in chambers at Miami, Florida, on April 24, 2014.
Robert N. Scola, Jr.
United States District Judge
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