1

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov 

In re: 

 

Astor EB-5, LLC, Case No. 18-24170-BKC-AJC 

 Chapter 11 

 Debtor. 

__________________________________/ 

Astor EB-5, LLC, Adv. Case No. 19−01203−AJC 

 Plaintiff, 

v. 

Astor EB−5 Funding, LLC, 

 Defendant. 

____________________________________/ 

DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S PRAYERS FOR ATTORNEYS’

FEES AND PUNITIVE DAMAGES 

 Defendant Astor EB−5 Funding, LLC (“Defendant”), pursuant to Federal Rule of Civil 

Procedure 12(f), made applicable to this adversary proceeding by Federal Rule of Bankruptcy 

Procedure 7012(b), moves to strike Plaintiff, Astor EB-5, LLC’s (“Plaintiff”) prayers for 

prevailing party attorneys’ fees in Counts I-IV and punitive damages in Count IV of the 

Complaint (the “Motion”), and in support states as follows: 

1. On July 2, 2019, Plaintiff filed its Complaint [ECF No.1] the (“Complaint”). The 

Complaint contains four causes of action: (1) fraudulent transfer (“Count I”); (2) declaratory 

judgment (“Count II”); (3) quiet title (“Count III”); and (4) slander of title (“Count IV”). 

2. Plaintiff has demanded prevailing party attorneys’ fees in each of Counts I-IV. 

For the reasons below, Plaintiff’s demands for prevailing party attorneys’ fees must be stricken 

from each Count. 

Case 19-01203-AJC Doc 11 Filed 08/20/19 Page 1 of 6
2

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

3. Additionally, Plaintiff has demanded punitive damages in Count IV. However, 

Plaintiff’s allegations amount to no more than conclusory recitations of the elements of slander 

of title and are insufficient to support a claim for punitive damages and there is no record 

evidence supporting any such claim. Accordingly, Plaintiff’s demand for punitive damages in 

Count IV should be stricken. 

LEGAL ARGUMENT AND AUTHORITIES

I. Prevailing Party Attorneys’ Fees 

It is well-known that “[i]n the United States, the prevailing litigant is ordinarily not 

entitled to collect a reasonable attorneys’ fees from the loser.” Alyeska Pipeline Serv. Co. v. 

Wilderness Soc'y, 421 U.S. 240, 247 (1975). Florida law also follows this “American Rule,” and 

“each party generally bears its own attorneys' fees unless a contract or statute provides 

otherwise.” United States v. Pepper's Steel & Alloys, Inc., 289 F.3d 741, 742 (11th Cir. 2002), 

certified question answered, 850 So. 2d 462 (Fla. 2003) (internal citations omitted). Accordingly, 

Plaintiff’s demands for prevailing party attorneys’ fees must be supported by contract or statute. 

 Count I is brought pursuant Florida’s Uniform Fraudulent Transfer Act, Fla. Stat. § 

726.101, et seq. (“FUFTA”). There is no statutory fee provision in FUFTA. While FUFTA does 

contain what is commonly known as the “catchall provision,” which authorizes courts to grant 

“[a]ny other relief the circumstances may require,” this does not provide a sufficient basis for 

attorneys’ fees. Fla. Stat. § 726.108(c)(3); Euro RSCG Direct Response, LLC v. Green Bullion 

Fin. Services, 872 F. Supp. 2d 1353, 1364 (S.D. Fla. 2012) Plaintiff has identified no other 

potential basis for an award of prevailing party attorneys’ fees. Accordingly, the demand in 

Count I for prevailing party attorneys’ fees should be stricken. 

Case 19-01203-AJC Doc 11 Filed 08/20/19 Page 2 of 6
3

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

Count II seeks a declaratory judgment and is brought pursuant Fla. Stat. § 86.011, et seq. 

(“Declaratory Judgments Act”). There is no statutory fee provision in the Declaratory 

Judgments Act. While the Declaratory Judgments Act does provide for an award of costs as may 

be equitable, costs do not include attorneys’ fees. Fla. Stat. § 86.081; Price v. Tyler, 890 So. 2d 

246, 252 (Fla. 2004). Plaintiff has identified no other potential basis for an award of prevailing 

party attorneys’ fees. Accordingly, the demand in Count II for prevailing party attorneys’ fees 

should be stricken. 

Count III seeks a judgment quieting title and is brought pursuant Fla. Stat. § 65.011, et 

seq. (“Quiet Title Act”). There is no statutory fee provision in the Quiet Title Act. While the 

Quiet Title Act does provide for an award of costs as may be necessary to protect the rights of 

the parties, it does not permit the recovery of attorneys’ fees. Fla. Stat. § 65.011; Price, 890 So. 

2d at 253. Plaintiff has identified no other potential basis for an award of prevailing party 

attorneys’ fees. Accordingly, the demand in Count III for prevailing party attorneys’ fees should 

be stricken. 

Count IV seeks a judgment for damages for slander of title. Plaintiff has cited no 

contractual or statutory basis for an award of prevailing party attorneys’ fees in a slander of title 

action. Instead, attorneys’ fees may only be awarded as special damages. Bloom v. Weiser, 348 

So. 2d 651, 653 (Fla. 3d DCA 1977). Plaintiff has already demanded attorneys’ fees in its 

demand for special damages. See Complaint, ¶ 42(a). Plaintiff has not identified any other 

potential basis for an award of prevailing party attorneys’ fees, thus its extraneous demand for 

prevailing party attorneys’ fees in Count IV should be stricken. 

II. Punitive Damages 

Section 768.72, Florida Statutes, provides in pertinent part as follows: 

Case 19-01203-AJC Doc 11 Filed 08/20/19 Page 3 of 6
4

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

In any civil action, no claim for punitive damages shall be permitted unless there 

is a reasonable showing by evidence in the record or proffered by the claimant 

which would provide a reasonable basis for recovery of such damages. The 

claimant may move to amend her or his complaint to assert a claim for punitive 

damages as allowed by the rules of civil procedure. 

 This statute is applicable in adversary proceedings. In re Johnson, 453 B.R. 433, 438-439 

(Bankr. M.D. Fla. 2011). Unlike in Florida state courts, a plaintiff may plead an entitlement to 

punitive damages in its initial complaint. Id. at 439. However, that pleading may still be 

challenged if the pleader fails to comply with the statute and demonstrate a reasonable basis for 

punitive damages based on record evidence or proffer evidence any evidence supporting such a 

request. Id. Conclusory allegations of entitlement based on willful, intentional, knowing, or 

malicious conduct , or formulaic recitations of the elements of slander of title, are insufficient to 

demonstrate a reasonable basis for punitive damages in an initial complaint. Id.

 The allegations in Count IV fail to demonstrate either record evidence or a proffer that 

would provide a reasonable basis for punitive damages. Without citations to ultimate fact, Count 

IV merely alleges that Defendant reasonably should have known that the Mortgage and UCC 

Financing Statement were falsehoods, and that it acted with malice and reckless indifference to 

the truth of the representations made in the Mortgage and UCC Financing Statement. See 

Complaint, ¶¶ 39-40. 

Taken as a whole, the Complaint at most pleads that Plaintiff’s own managing member 

individually committed fraud upon both Plaintiff and Defendant and that Defendant did not 

provide adequate consideration for the Mortgage and UCC Financing Statement. Even if it were 

true that Defendant did not provide adequate consideration (which is false), that alone is not a 

reasonable basis for punitive damages. Otherwise every fraudulent transfer claim could 

potentially include an award of punitive damages. Instead, Plaintiff’s allegations amount to no 

Case 19-01203-AJC Doc 11 Filed 08/20/19 Page 4 of 6
5

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

more than conclusory statements of malicious conduct and are insufficient to demand punitive 

damages. 

WHEREFORE, the Defendant respectfully requests that the Court enter an Order 

granting this Motion, striking Plaintiff’s demands for prevailing party attorneys’ fees and 

punitive damages, and granting such other and further relief as the Court may deem just and 

proper. 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served on August 

20, 2019, via the Court’s Notice of Electronic Filing upon the Registered Users listed on the 

attached Exhibit 1. 

s/ Peter D. Russin 

Peter D. Russin, Esquire 

Florida Bar No. 765902 

prussin@melandrussin.com 

Meaghan E. Murphy 

Florida Bar No. 102770 

mmurphy@melandrussin.com 

MELAND RUSSIN & BUDWICK, P.A. 

3200 Southeast Financial Center 

200 South Biscayne Boulevard 

Miami, Florida 33131 

Telephone: (305) 358-6363 

Telecopy: (305) 358-1221 

Attorneys for Defendant

Case 19-01203-AJC Doc 11 Filed 08/20/19 Page 5 of 6
Exhibit 1 

Electronic Mail Notice List

The following is the list of parties who are currently on the list to receive email notice/service for 

this case. 

 Ricardo Corona bk@coronapa.com, rcorona@coronapa.com 

 Adam I Skolnik askolnik@skolniklawpa.com, 

bk.skolniklaw@gmail.com;skolnikar45106@notify.bestcase.com 

Case 19-01203-AJC Doc 11 Filed 08/20/19 Page 6 of 6