Preview
Filing # 179729730 E-Filed 08/15/2023 05:33:31 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 2023-020202-CA-01
CODY KERNS, an individual, KERNS CAPITAL
MANAGEMENT, INC., a British Virgin Islands
Corporation, and WFTMB HOLDINGS, LLC,
a Florida Limited Liability Company,
Plaintiffs,
v.
FXWINNING, LTD., a Hong Kong Limited Company,
JONATHAN LOPEZ, an individual,
JULIAN KUSCHNER, an individual,
DAVID MERINO, an individual,
RENAN DA ROCHA GOMES BASTOS, an individual,
RAFAEL BRITO CUTIE, an individual,
BBRC REAL ESTATE, LLC,
a Florida Limited Liability Company
Defendants.
/
PLAINTIFFS’ EX PARTE MOTION FOR AN ORDER AUTHORIZING SERVICE OF
PROCESS VIA EMAIL AND TEXT MESSAGE ON DEFENDANT RAFAEL BRITO
CUTIE PURSUANT TO SECTION 48.197, FLORIDA STATUTES
Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and
WFTMB Holdings, LLC (“WFTMB”) (collectively, “Plaintiffs”), by and through undersigned
counsel and pursuant to Section 48.197, Florida Statutes, hereby move this Court for an order
authorizing Plaintiffs to serve the Summons, Complaint, and Plaintiffs’ First Request for
Production via email and text message on Defendant Rafael Brito Cutie (“Brito”), and in support
thereof state as follows:
INTRODUCTION
Brito is one of the masterminds behind a scheme to defraud investors through the use of a
foreign exchange trading platform. Brito, as the Chief Executive Officer of Defendant FXWinning,
Ltd. (“FXWinning”), is a technologically savvy con-man whose entire business is based entirely
online. Brito, in concert with the other Defendants, defrauded Plaintiffs, and an untold number of
other investors, out of millions of dollars.
Brito regularly holds himself out as being reachable through various email addresses and
communicates via text message. In fact, Kerns recently communicated with Brito about the actions
giving rise to this lawsuit. Federal courts have long found that service of process via email satisfies
due process and is reasonably calculated to give a defendant notice of a pending action against
him. Even closer to home, this Court has recently found that service on Brito via email and
WhatsApp text messaging is appropriate. See CFT Solutions, LLC et al. v. FxWinnging Ltd., et al.,
Case No. 2023-016392-CA-01 (11th Cir. Ct., Aug. 6, 2023).
Accordingly, this Court should permit Plaintiffs to serve process on Brito through his
known email addresses and mobile telephone number pursuant to Section 48.197, Florida Statutes.
STATEMENT OF FACTS
1. Brito is believed to be living in either the United Arab Emirates or Cyprus. See
Compl. at ¶ 17; Declaration of C. Kerns, attached as Exhibit A at ¶ 6. However, Brito frequently
travels all over, from country to country and his precise location is unknown. Id.
2. Brito and Kerns communicated via SMS text messaging. See Ex. A at ¶¶ 3-4. The
mobile number Brito used to communicate with Kerns is +357 95 121396. Id. at ¶¶ 3-4.
2
3. Kerns first contacted Brito on or around June 26, 2023. Id. at ¶ 3. Thereafter, Kerns
sent several text messages to Brito. Id. at ¶ 4. None of the text messages Kerns sent to Brito were
returned as undeliverable. Id.
4. On June 28, 2023, Brito responded to Kerns’ text message. Id.
5. Plaintiffs have no reason to believe that Brito no longer uses this number. Id. at ¶
5.
6. On May 5, 2023, Defendant Renan da Rocha Gomes Basto (“da Rocha”), along
with other plaintiffs (the “CFT Plaintiffs”), brought suit against Brito and others in this Court. See
CFT Solutions, LLC et al. v. FXWinning Ltd., et al., Case No. 2023-016392-CA-01 (11th Jud. Cir.
Ct.). There, the CFT Plaintiffs filed a Motion for Alternative Service on Rafael Brito Cutie, a true
and correct copy of which is attached as Exhibit B.
7. The CFT Plaintiffs acknowledge that Brito also communicates via email, through
his personal email address rafabritocu@gmail.com. See Ex. B. Likewise, Brito’s business email
address is ceo@fxwinning.net. See Ex. B.
8. This Court subsequently granted the Motion for Alternative Service on Rafael Brito
Cutie on August 6, 2023. A true and correct copy of the Court’s August 6, 2023 Order is attached
as Exhibit C. The Court permitted the CFT Plaintiffs to effect service of process on Brito through
email at the rafabritocu@gmail.com and ceo@fxwinning.net addresses and via WhatsApp text
messaging. Id.
MEMORANDUM OF LAW
Section 48.197, Florida Statutes, provides for alternative means of service of process,
including “via email or other technology.” Specifically, Section 48.102, Florida Statutes, provides
that service on a party residing in a foreign country may be effectuated by one of the following:
3
a) By any internationally agreed-upon means of service
reasonably calculated to give actual notice of the
proceedings, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters;
b) If there is no internationally agreed-upon means of service,
or if an international agreement allows but does not specify
other means, by a method reasonably calculated to give
actual notice of the proceedings; or
c) Pursuant to motion and order by the court, by other means,
including electronically by e-mail or other technology,
which the party seeking service shows is reasonably
calculated to give actual notice of the proceedings and is not
prohibited by international agreement, as the court orders.
§ 48.197(a)-(c), FLA. STAT. (2023) (emphasis added). The newly enacted Section 48.197, Florida
Statutes, mirrors its federal counterpart – Federal Rule of Civil Procedure 4. See FED. R. CIV. P.
4(f). When the Florida rule is identical to a federal rule, Florida courts may rely on federal
decisions as persuasive guidance. See Dinter v. Brewer, 420 So. 2d 932, 934 n.2 (Fla. 3d DCA
1982) (“Decisions and commentaries under the federal rules are persuasive guidelines to the
interpretation of state rules closely patterned thereon.”); accord Gangelhoff v. Lokey Motors Co.,
Inc., 270 So. 2d 58, 59 (Fla. 2d DCA 1972) (acknowledging Florida courts have authority to rely
“on case law enunciated in the Federal decisions” when deciding matters involving identical state
law).
The use of the word “or” between subsection b and subsection c in Section 48.197, Florida
Statutes, allows parties to utilize either subsection in effecting service of process. See Rio Props.,
Inc. v. Rio Inter’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (“Rule 4(f)(3) is one of three
separately numbered subsections in Rule 4(f), and each subsection is separated from the one
previous merely by the simple conjunction ‘or.’ Rule 4(f)(3) … stands independently, on equal
footing.”); see also Seaboard Marine Ltd., Inc. v. Magnum Freight Corp., No. 17-21815, 2017
WL 7796153, at *1 (S.D. Fla. Sept. 21, 2017) (“Despite coming last in the list of available methods
4
of service in Rule 4(f), there is no indication from the plain language of the Rule that the three
subsections, separate by the disjunctive ‘or,’ are meant to be read as a hierarchy.”); Osio v. Moros,
No. 1:21-CV-20706, 2022 WL 17583631, at *1 (S.D. Fla. Sept. 26, 2022) (“‘If a party cannot, or
chooses not to, serve a defendant abroad using one of the methods specified in Rule 4(f)(1) and
(2), the party may accomplish service’ using the third method.”) (quoting De Gazelle Grp., Inc. v.
Tamaz Trading Establishment, 817 F.3d 747, 750 (11th Cir. 2016)). Notably, “the decision to issue
an order allowing service by alternate means lies solely within the discretion of the district court.”
Chanel, Inc. v. Zhixian, No. 10-CV-60585, 2010 WL 1740695, at *2 (S.D. Fla. Apr. 29, 2010);
accord Birmingham v. Doe, No. 21-CV-23472, 2022 WL 3656963, at *2 (S.D. Fla. Aug. 25, 2022)
(acknowledging district courts have broad authority to order alternate service methods under Rule
4(f)(3) so long as “the service method is not prohibited by international agreement and is
reasonably calculated to give notice to the defendants”).
Section 48.197(c)’s federal counterpart—Rule 4(f)(3)—merely “requires that service be
(1) directed by the court; and (2) not prohibited by international agreement.” Adidas AG v.
Individuals, P’ships & Unincorporated Assns., No. 19-cv-61264-UU, 2019 WL 7841807, at *1
(S.D. Fla. May 23, 2019). As long as alternative methods of service of process comport with due
process, a court can authorize alternative methods of service of process. Id.
This Court should exercise its discretion and permit Plaintiffs to serve Brito via email and
text message pursuant to Section 48.197, Florida Statutes.
I. Service via Email and Text Message is not Prohibited by an International Agreement.
Alternative service is permissible under Section 48.197(c), Florida Statutes, when it does
not violate an international agreement. § 48.197(c), FLA. STAT. (2023). The only international
service agreements to which the United States is a signatory is the Hague Convention on the
5
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the
“Hague Service Convention”) and the Inter-American Service Convention and Additional Protocol
(the “Inter-American Service Convention”).
Brito may be residing in either Cyprus or the United Arab Emirates (“UAE”). See Ex. A at
¶ 6. However, his precise address is unknown. Id. In any event, neither Cyprus nor the UAE are
signatories to the Inter-American Service Convention, so that treaty is inapplicable. See Inter-
American Service Convention and Additional Protocol, U.S. Dep’t of State,
https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-
asst/Service-of-Process/Inter-American-Service-Convention-Additional-Protocol.html (last
visited Aug. 15, 2023) (listing signatories to the Inter-American Service Convention).
Turning to the Hague Service Convention, Cyprus is a signatory. See Apaville LLC v. First
Citizens Bank, No. 20-80705-CIV, 2020 WL 13348682, at *2 (S.D. Fla. Aug. 11, 2020) (noting
that “Cyprus … has not objected to any part of the Hague Convention”) (emphasis in original).
The UAE, on the other hand, is not. See CKR L. LLP v. Anderson Invs. Int'l, LLC, 525 F. Supp. 3d
518, 524 (S.D.N.Y. 2021) (“The UAE is not a signatory to the Hague Convention.”). But whether
Cyprus and the UAE are signatories to the Hague Service Convention is irrelevant because the
Hague Service Convention is inapplicable in cases where, such as here, the party’s address is
unknown. Dolphin Cove Inn, Inc. v. Vessel Olympic Javelin, No. 3:19-CV-1018-J-34JRK, 2020
WL 4927590, at *2 (M.D. Fla. Aug. 21, 2020) (“The Hague Convention, however, does not apply
if the address of the person to be served with the document is not known.”) (internal quotation
omitted); Atlas One Fin. Grp., LLC v. Alarcon, No. 12-CV-23400, 2014 WL 12571403, at *3 (S.D.
Fla. Feb. 28, 2014) (“The Hague Convention does not apply to service … where the address of the
person to be served is unknown.”); Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 13 (Fla. 4th DCA
6
2014) (“However, the Hague Convention is expressly inapplicable in cases where the location of
the person to be served is unknown.”).
Brito’s whereabouts are unknown. See Ex. A at ¶ 6. As such, the Hague Service Convention
does not apply. Atlas One Fin. Grp., LLC, 2014 WL 12571403, at *3; Alvarado-Fernandez, 151
So. 3d at 13. Therefore, service of process on Brito via email and text messaging does not violate
an international agreement.
II. Service of Process on Brito via Email Satisfies Due Process.
As long as the “alternative method of service under Rule 4(f)(3)” fulfills due process
requirements, “the court can exercise its discretion” in ordering the alternative method. Premier
Trailer Leasing, Inc. v. DM World Transp., LLC, No. 8:19-CV-2558-T-60AAS, 2020 WL 886671,
at *2 (M.D. Fla. Feb. 24, 2020). Constitutional due process is satisfied where a party provides
“notice reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.” Mullane v.
Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
Courts have long held that service by email is reasonably calculated to apprise a defendant
of the action against them. See, e.g., Dolphin Cove Inn, Inc. v. Vessel Olympic Javelin, No. 3:10-
cv-1018-J-34JRK, 2020 WL 4927590, at *4 (M.D. Fla. Aug. 21, 2020) (finding “service via e-
mail complies with due process requirements.”); U.S. Commodity Futures Trading Com 'n v.
Aliaga, 272 F.R.D. 617, 621 (S.D. Fla. 2011) (due process satisfied by email addresses recently
used to send messages to customers).
There is little doubt that Brito is technologically savvy. He is the Chief Executive Officer
of FXWinning, an online foreign exchange market and cryptocurrency platform. See Ex. B. The
nature of FXWinning’s business is to trade currency entirely online. See id.; Compl. at ¶ 30. The
7
CFT Plaintiffs recently moved this Court for an order permitting alternative service of process on
Brito through, inter alia, email and WhatsApp text messaging. See generally Ex. B. The CFT
Plaintiffs’ Motion for Alternative Service on Rafael Brito Cutie acknowledges that Brito’s email
address is the same email addresses that Plaintiffs are intending to use for service—
rafabritocu@gmail.com and ceo@fxwinning.net. See id.
Service of process on Brito is reasonably calculated to apprise him of this lawsuit and the
claims against him. Dolphin Cove Inn, Inc, 2020 WL 4927590, at *4. As such, this Court should
exercise its discretion and permit Plaintiffs to effect service of process on Brito via email.
III. As Another Layer of Notice, Service of Process on Brito via Text Messaging Also
Satisfies Due Process.
When determining whether an alternative means of service comports with due process,
courts must consider whether the alternative method of service is the “most likely means of
communication to reach the foreign entity or individual to be served.” Al-Saadi v. Annchery Fajas
USA, Inc., No. 20-23937-CIV, 2022 WL 898562, at *2 (S.D. Fla. Mar. 28, 2022); see also Rio
Props., Inc., 284 F.3d at 1016 (explaining that in order to satisfy due process, the method of service
“must be reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”) (internal
citation omitted).
Courts have permitted service via text messaging, especially where service via text
messaging is only one prong of a multi-prong approach to service. See Allstate Assurance Co. v.
Benton, No. 3:21-cv-3124-K-BN, 2023 WL 3105098, at *4 (N.D. Tex. Apr. 25, 2023) (permitting
service via text message); Two Canoes LLC v. Addian Inc., No. 21-cv-19729 (SDW) (JRA), 2023
WL 3052728, at *5 (D.N.J. Apr. 21, 2023) (permitting service of subpoena on non-party via email,
WhatsApp, and text message); Marvici, 2021 WL 5323748, at *3 (permitting service via email,
8
text message, and certified mail); Aleman-Valdivia v. Top Dog Plumbing & Heating Corp., No.
20-CV-421 (LDH)(MMH), 2021 WL 4502479, at *11 (E.D.N.Y. Sept. 30, 2021) (permitting
service of process via SMS text message and WhatsApp “because of the similarities between
standard SMS text message and WhatsApp”); Ross v. Dejarnetti, No. 18-11277, 2019 WL
8301676, at *6 (E.D. La. Aug. 23, 2019) (authorizing service of process via text message in
addition to email).
Here, service via text messaging is the most likely means of contacting Brito. Ex. A at ¶¶
3-5. Each message was delivered. Id. at ¶ 4. Brito responded to Kerns via text message as recently
as June 28, 2023. See id. As one court correctly noted, “personal cell phone numbers, generally
speaking, are uniquely tethered to their holders, and tend to be durable, such that there is little risk
that some other user now uses [the defendant’s] phone number.” Marvici v. Roche Facilities Maint.
LLC, No. 21CIV4259PAEJLC, 2021 WL 5323748, at *3 (S.D.N.Y. Oct. 6, 2021). Although
service of process via email alone satisfies due process, the additional safeguard of service via text
messaging ensures that Brito will be apprised of the pendency of this action. Rio Props., Inc., 284
F.3d at 1016. Likewise, this Court recently permitted the CFT Plaintiffs to serve Brito via text
message, too. See Ex. C
As such, the Court should exercise its discretion and permit Plaintiffs to serve Brito via
text message. Premier Trailer Leasing, Inc., 2020 WL 886671, at *2; accord Ex. C.
IV. Courts Regularly Grant Ex Parte Motions to Serve Process Via Alternative Means.
Federal Courts regularly entertain ex parte motions to effect service of process on
defendants via alternative means. See Chengdu Jiechen Tech. Ltd. v. Trobing-US, No. 21-61020-
CIV-ALTMAN/Hunt, 2021 WL 10382802 (S.D. Fla. Aug. 10, 2021) (granting ex parte motion
for order authorizing alternate service of process); Marconi Int’l Univ., Inc. v. Ricci, No. 20-22508-
9
CV-MARTINEZ/OTAZO-REYES, 2020 WL 13388303, at *1 (S.D. Fla. Aug. 3, 2020) (same);
Luxottica Group S.p.A v. Individuals, P’ships & Unincorporated Ass’n Identified on Schedule
“A”, No. 19-62622-CIV-MARTINEZ-SNOW, 2020 WL 6529615, at *1 (S.D. Fla. Jan. 8, 2020)
(same); St-Honore v. Agote, No. 17-cv-62276-KMM, 2017 WL 8812537, at *1 (S.D. Fla. Dec. 28,
2017) (same); Fendi Adele, S.r.l. v. 1n1qualitybag.com, No. 16-CIV-60113-COOKE/TORRES,
2016 WL 8710784, at *2 (S.D. Fla. Mar. 29, 2016) (same).
Following that line of cases, the Complex Business Litigation Division has also granted ex
parte service motions. See, e.g., Maria Fabiola Organista Cardenas, et al. v. TCG Capital, LLC,
et al., No. 22-022957-CA-01 (11th Cir. Ct. June 15, 2023) (J. Rebull) (granting plaintiffs’ ex parte
motion for service of process on foreign defendant residing in Ecuador via email without a
hearing); Steven Paul Kowalski v. Binance Holdings, Ltd. et al., No. 21-023426-CA-01 (11th Cir.
Ct. Nov. 22, 2021) (J. Hanzman) (granting plaintiff’s motion to serve Russian defendants via email
Facebook). Indeed, this Court granted Plaintiffs’ two (2) ex parte motions for an order authorizing
alternative service of process on defendant David Merino and Defendant FXWinning on August
12, 2023.
CONCLUSION
Based on the foregoing, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and
WFTMB Holdings, LLC, request that this Court enter an order pursuant to Section 48.197, Florida
Statutes, authorizing them to serve Defendant Rafael Brito Cutie with process by sending copies
of the Summons, Complaint, and Plaintiffs’ First Request for Production via email to
ceo@fxwinning.net and rafabritocu@gmail.com, and via text message to the following mobile
telephone number: +357 95 121396.
10
Dated: August 15, 2023 Respectfully submitted,
SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, Florida 33131
(305) 925-9947
By: /s/ David M. Levine
David M. Levine, Esq.
Florida Bar No.: 84431
Email: dlevine@sfl-law.com
Secondary: eservice@sfl-law.com
Fausto Sanchez, Esq.
Florida Bar No.: 86229
Email: fsanchez@sfl-law.com
Lauren M. Allen, Esq.
Florida Bar No.: 1018424
Email: lallen@sfl-law.com
Robert Kemper, Esq.
Florida Bar. No.: 1038549
Email: rkemper@sfl-law.com
Counsel for Plaintiffs
11
EXHIBIT A
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 2023-020202-CA-01
CODY KERNS, an individual, KERNS CAPITAL
MANAGEMENT, INC., a British Virgin Islands
Corporation, and WFTMB HOLDINGS, LLC,
a Florida Limited Liability Company,
Plaintiffs,
v.
FXWINNING, LTD., a Hong Kong Limited Company,
JONATHAN LOPEZ, an individual,
JULIAN KUSCHNER, an individual,
DAVID MERINO, an individual,
RENAN DA ROCHA GOMES BASTOS, an individual,
RAFAEL BRITO CUTIE, an individual,
BBRC REAL ESTATE, LLC,
a Florida Limited Liability Company
Defendants.
/
DECLARATION OF CODY KERNS IN SUPPORT OF PLAINTIFFS’ EX PARTE
MOTION FOR AN ORDER AUTHORIZING SERVICE OF PROCESS VIA EMAIL
AND TEXT MESSAGE ON DEFENDANT RAFAEL BRITO CUTIE
PURSUANT TO SECTION 48.197, FLORIDA STATUTES
I, Cody Kerns, declare as follows:
1. My name is Cody Kerns. I am a Plaintiff in this matter, and I am over 18 years of
age.
2. I am capable of making this declaration and I make this declaration based on my
personal knowledge.
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
3. On or about June 26, 2023, I first contacted Brito through text message. I sent him
a text message to his mobile telephone number at: +357 95 121396. A true and correct copy of
Brito’s contact information is attached as Exhibit 1.
4. Thereafter, from June 26, 2023 through June 28, 2023, I sent Brito several text
messages. None of those text messages returned as undeliverable. Indeed, on or about June 28,
2023, Brito sent me a text message from the mobile telephone number: +357 95 121396, a true
and correct copy of which is attached hereto as Exhibit 2.
5. I have no reason to believe that Brito no longer uses the +357 95 121396 mobile
telephone number.
6. I do not know exactly where Brito lives because he travels frequently. Brito may
live in either Cyprus or the United Arab Emirates. However, Brito also frequently visits Dubai,
United Arab Emirates. I only communicated with Brito electronically.
Under penalties of perjury, I declare that I have read the foregoing Declaration and that the
facts stated in it are true and correct.
15
Executed in Boca Raton, Florida this _______ day of August, 2023.
________________________________
Cody Kerns
2
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
EXHIBIT 1
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
EXHIBIT 2
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038
EXHIBIT B
Filing # 178619475 E-Filed 07/31/2023 10:54:37 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT OF
FLORIDA, IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
CFT SOLUTIONS, LLC, a Delaware limited
liability company, RENAN DE ROCHA
GOMES BASTOS, an individual;
ADELANGELA FUMAGALLI, an
individual; JAY KATARI, an individual,
STEVEN DE LA FE, an individual, and
KERIM EDUARDO SALUME BABUN, an
individual, COMPLEX BUSINESS DIVISION
Plaintiffs, Case No. 2023-016392-CA-01
v.
FXWINNING LTD., a Hong Kong limited
company, RAFAEL BRITO CUTIE, an
individual, ROMAN CARDENAS, an
individual,
Defendants.
____________________________________/
MOTION FOR ALTERNATIVE SERVICE ON RAFAEL BRTIO CUTIE
Plaintiffs, CFT Solutions, LLC (“CFT”), Renan de Rocha Gomes Bastos (“Bastos”),
Adelangela Fumagalli (“Fumagalli”), Steven de la Fe (“de la Fe”), and Kerim Eduardo
Salume Babun (“Salume”) (collectively, “Plaintiffs”), respectfully submit this
memorandum of law in support of Plaintiffs’ motion for an order authorizing alternate
service on Defendant, Rafael Brito Cutie, who is believed to reside in Cyprus and Dubai,
whose company, Defendant, FxWinning, Ltd., made an appearance in this case, and who
has otherwise communicated with the Plaintiffs in this case, admitting to his knowledge of
the lawsuit. See Exhibit A. In support thereof, Plaintiffs state:
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
INTRODUCTION
Defendants stole more than Eighty Million Dollars ($80,000,000.00) from Plaintiffs
through a fraudulent enterprise held out to be a legitimate online foreign exchange trading
platform, FxWinning. Defendant, Brito Cutie, is (or was) the CEO of FxWinning at all
times relevant. Brito Cutie is aware of the lawsuit, aware of the claims, and has been in
recent direct communication with some of the Plaintiffs herein about this lawsuit.
Plaintiffs respectfully move for an order authorizing alternate service on Brito Cutie
who is believed to reside in Cyprus and/or Dubai, but whose current address is either
unknown or unable to be used to effectuate service. Specifically, Plaintiffs respectfully
request that the Court issue an order allowing them to serve the Summons, Amended
Complaint, and the Court’s existing Orders upon Brito Cutie via (1) electronic mail; (2)
WhatsApp text message; (3) Social Media accounts (Instagram, Facebook, and LinkedIn);
(4) FedEx to the three Cyprus addresses associated with Brito Cutie; and (5) electronic
mail and FedEx to FxWinning’s counsel of record who appeared in this matter.
Furthermore, Plaintiffs respectfully request an order from the Court authorizing
Plaintiffs to serve all subsequent motions and pleadings in this action on the Brito Cutie
via e-mail until such time as he appears in the action.
PRELIMINARY STATEMENT
As set forth in the Amended Complaint, Brito Cutie oversaw a conspiracy to steal
Plaintiffs’ money and launder it through accounts that Defendants controlled throughout
the world. Plaintiffs believe that the evidence will show that Brito Cutie was the individual
2
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
primarily directing FxWinning’s actions and the scheme to steal billions of dollars from
customers all over the world—including the dozens of FxWinning clients in the State of
Florida.
Brito Cutie is believed to be a citizen of Cuba. But, upon information and belief, he
is regularly moving between countries—and possibly even continents—including but not
limited to Cyprus and Dubai, U.A.E. Despite the diligent efforts of their investigators,
Plaintiffs have been unable to identify an address for Brito Cutie in Cuba or the U.A.E.;
furthermore, Plaintiffs’ investigation reveals multiple addresses associated with Brito Cutie
in Cyprus, but it is not clear if he is residing at any of these locations, and the evidence
suggests he is currently moving between countries and continents.1
The three Cyprus addresses, associated with Brito Cutie, that Plaintiffs were able to
discovery include: (a) 46 Nicodemou Milona, Petevinos Court, Flat 102, 3095, Limassol,
Cyprus; (b) Vasileos Alexandrou 2, 2nd Floor, Flat 202, 3020, Limassol, Cyprus; and (c)
Mariou Toka 40, Elder Light Building, Flat 5, 3095, Limassol, Cyprus. In addition,
Plaintiffs were able to locate three social media accounts associated with Brito Cutie,
including a LinkedIn account which was recently updated in or around May 2023. Brito
Cutie’s discovered social media accounts, include: (a) Facebook
(https://www.facebook.com/rafael.brito.566/); (b) Instagram
(https://www.instagram.com/rafa_cub85/); and (c) LinkedIn
(https://cy.linkedin.com/in/rafael-brito-cutie-2ba14261). See Composite Exhibit B.
1
For example, on or around May 9, 2023, Brito Cutie was in Dubai at the Armani
Hotel for meetings relating to this lawsuit.
3
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
Florida law generally requires compliance with the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
of 1965 (the "Hague Service Convention") when documents are to be served abroad. But
the Hague Service Convention, to which Cyprus is a signatory, does not apply where the
address of the person to be served with the document is unknown. Moreover, both Cuba
and the U.A.E. are neither signatories of the Hague Service Convention.2 Under these
circumstances, service on Brito Cutie via e-mail, WhtasApp, social media, FedEx, and
through FxWinning’s lawyers is appropriate.
Florida courts may accept any particular method of service as long as it does not
contradict any self-executing international agreement or implementing statutes and is not
prohibited by the law of the foreign state. Service by e-mail (or similar electronic means)
is not prohibited under the Hague Service Convention or any other international treaty or
Cuban or Emirate law.3 Moreover, service by electronic means and FedEx is reasonably
calculated to provide notice to the Cutie Brito, because he is already aware and
communicating about the lawsuit, and therefore the proposed service comports with due
process. For these reasons, Plaintiffs respectfully requests that the Court grant this motion.
2
See, e.g., Valero v. De Nevi, No. 17-cv-20745-Moreno, 2017 WL 3917161, at *2 (S.D. Fla.
Sept. 6, 2017) (“Cuba, which incidentally is not a signatory to the Hague Convention[.]”);
Berdeaux v. OneCoin Ltd., No. 19-cv-4074 (VEC), 2020 WL 409633, at *1 (S.D.N.Y. Jan. 24,
2020) (“[T]he UAE is not a signatory to the Hague Convention.”).
3
See CKR Law LLP v. Anderson Investments Int'l, LLC, 525 F. Supp. 3d 518, 524 (S.D.N.Y.
2021) (“[T]he Court is not aware of any other international agreement to which Dubai is a party
that prohibits service by mail, email, or WhatsApp.”).
4
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
MEMORANDUM OF LAW
A. Alternate Service on Brito Cutie Is Appropriate
Alternate service of process on Brito Cutie is appropriate because his addresses are
unknown, or he is currently residing in countries which do not adhere to the Hague Service
Convention. “[C]ompliance with the Convention is mandatory in all cases to which it
applies.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988); see
also Ingenieria Y Exportacion De Tecnologia S.L. v. Freytech, Inc., 210 So. 3d 211, 212
(Fla. 3d DCA 2016) (“[T]he Hague Convention applies in all cases ‘where there is occasion
to transmit a judicial or extrajudicial document for service abroad.’”) (quoting Grupo Radio
Centro, S.A.B. de C.V. v. Am. Merchant Banking Grp., Inc., 71 So. 3d 151, 151 (Fla. 3d
DCA 2011)). Where the defendant resides in a non-signatory to the Hague Convention,
then service is valid if it complies with due process and is not in violation of any other
international treaty. See, e.g., U.S. Commodity Futures Trading Com'n v. Aliaga, 272
F.R.D. 617, 620 (S.D. Fla. 2011) (“The Dominican Republic is not a signatory to the Hague
Convention . . . As such, no international law prohibits the CFTC from serving Defendants
and Relief Defendant via e-mail or through service on local counsel in the United States.”).
Cuba and the U.A.E. are not signatories to the Hague Service Convention. Valero, 2017
WL 3917161, at *2; Berdeaux, 2020 WL 409633, at *1.
Cyprus is a signatory to the Hague Service Convention. See Apaville LLC v. First
Citizens Bank, No. 20-cv-80705-Altman, 2020 WL 13348682, at *2 (S.D. Fla. Aug. 11,
2020). However, the Hague Service Convention “is expressly inapplicable in cases where
the location of the person to be served is unknown.” Alvarado-Fernandez v. Mazoff, 151
5
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
So. 3d 8, 13 (Fla. 4th DCA 2014); see also Hague Service Convention, art. 1, 20 U. S.T.
361 (1969) (the Convention "shall not apply where the address of the person to be served
with the document is not known"); Trapenard v. Clester, No. 6:22-cv-660-RBD, 2023 WL
2264177, at *3 (M.D. Fla. Feb. 28, 2023) (“[T]he Hague Convention does not apply if ‘the
address of the person to be served with the document is not known.’” (quoting Hague
Convention, art. 1).
Because Brito Cutie’s address is unknown despite Plaintiffs’ diligent investigation,
the Hague Service Convention does not apply with respect to him. Alvarado-Fernandez,
151 So. 3d at 13; Trapenard, 2023 WL 2264177, at *3 (finding diligent investigation where
plaintiff “represents that ‘it appears that Clester is regularly moving between countries,
perhaps even continents’ making it impossible for Plaintiff to determine the address for
Clester, . . .”).
The case at hand is analogous to the recent Trapenard matter, where the complaint
brought claims relating to “a nonfungible token purchasing scam, asking for monetary
damages and injunctive relief.” Id. at *1. In Trapenard, the plaintiff could not reliably
identify a certain defendant’s known address, and instead proffered that said defendant was
“regularly moving between foreign countries, and his current location is unknown.” Id.
The plaintiff moved the court for service “by alternative means – namely via direct Twitter
messaging and by email.” Id. The court noted that “given the lack of evidence as to [the
defendant]’s current whereabouts, it is unknown whether the foreign country he may
currently be residing in is also a signatory to the Hague Convention.” Id. at *2. The court
noted that this “is not fatal to Plaintiff's motion, however, as the Hague Convention does
6
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
not apply if ‘the address of the person to be served with the document is not known.’” Id.
at *3 (citing Hague Convention, art. 1). Ultimately, the Trapenard found that “because
[the defendant]’s address is unknown, Plaintiff is not required to serve him pursuant to the
Hague Convention,” and the court permitted service by e-mail and Twitter. Id.
Similarly, because Brito Cutie’s current address is unknown, and he is believed to
be traveling between multiple countries and continents, the Hague Convention
requirements should not apply. Instead, alternative service via electronic means and FedEx
is appropriate under the facts of this case. Therefore, the Plaintiffs’ respectfully request
that the Court permit alternate service on Defendant, Brito Cutie.
B. Service by Electronic Means and FedEx Is Not Prohibit and Is Reasonably
Calculated to Provide Notice to Brito Cutie
Plaintiffs proposes to serve the Brito Cutie via (1) electronic mail; (2) WhatsApp
text message; (3) Social Media accounts (Instagram and LinkedIn); (4) FedEx to the three
Cyprus addresses associated with Brito Cutie; and (5) electronic mail and FedEx to
FxWinning’s counsel of record who appeared in this matter.
Service of process by electronic means and FedEx is legally permissible and
appropriate under these circumstances. "Florida courts may accept any particular method
of service, so long as it does not contradict any self-executing international agreement or
implementing statutes, or as long as such method is not expressly prohibited by the law of
the foreign state." Alvarado-Fernandez, 151 So. 3d at 14; see also Asperbras Tecnologia
Industrial v. Good Hope Devel., LLC, 213 So. 3d 1061, 1064 (Fla. 3d DCA 2017). The
Hague Service Convention does not prohibit service by e-mail. See, e.g., Richemont Int'l
7
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
SA v. montblanchot.com, No. 20-cv-61941, 2020 WL 5763931, at *2 (S.D. Fla. Sept. 28,
2020) (concluding that “service by e-mail or internet communication does not violate” the
Hague Convention); see also Ryder Truck Rental, Inc. v. Chanje Energy, Inc., No. 21-cv-
21044-JLK, 2021 WL 9565825, at *3 (S.D. Fla. Aug. 8, 2021) (collecting service by e-
mail cases).
Nor is e-mail service expressly prohibited by Cyprus or Emirate law. See Apaville,
2020 WL 13348682, at *2 (“[B]ecause Cyprus, where Redfern apparently resides, [ ] has
not objected to any part of the Hague Convention, email service—as to him—is “not
prohibited by international agreement.”); CKR Law, 525 F. Supp. 3d at 524 (“[T]he Court
is not aware of any other international agreement to which Dubai is a party that prohibits
service by mail, email, or WhatsApp.”).
Furthermore, service by e-mail also comports with due process. See Trapenard, at
*4 (“[C]ourts have found that service by email satisfies due process requirements.”). "The
Constitution does not require any particular means of service of process, only that the
method selected be reasonably calculated to provide notice and an opportunity to respond."
Rio Props., Inc. v. Rio Intern. Inc., 284 F.3d 1007, 1016-17 (9th Cir. 2002); see also
Trapenard, 2023 WL 2264177, at *4 (“Due process requires that the method of service
crafted by the district court . . . be reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.”) (internal quotations and citations omitted).
"Generally, courts look for some basis to conclude that the proposed e-mail address
is, in fact, associated with the defendant in question," and courts "routinely find that service
8
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
by e-mail comports with due process when the e-mail is directed to an address that has
been confirmed.” Taser Int'l, Inc. v. Phazzer Elecs., Inc., 2016 WL 7137699, *2 (M.D.
Fla. Nov. 29, 2016). Examples of such confirmation include where the e-mail address is
associated with the defendant's business or an e-mail sent to the address has not been
returned as undeliverable. See, e.g., Dolphin Cove, 2020 WL 4927590, at *4 (finding
service by e-mail reasonably calculated to apprise defendant e-mails sent to that address
had not been returned as undeliverable); Lifted Research Grp., Inc. v. Bbhats.net, 2013 WL
12086772, *2 (S.D. Fla. Nov. 27, 2013) (concluding that service by e-mail would comport
with due process because plaintiff had submitted evidence that contact e-mails it had for
defendants were valid and operational).
Here, service by e-mail is reasonably calculated to provide actual notice to the Brito
Cutie, who has already admitted that he is aware of this lawsuit, see Exhibit A. Brito Cutie
is a technologically savvy users of online forex and cryptocurrency trading accounts. The
e-mail addresses that Plaintiffs proposes to use are Brito Cutie’s personal e-mail and his
personal social media handles. Under similar circumstances, courts have found that service
by e-mail and social media handles was likely to provide actual notice. See, e.g.,
Birmingham v. Doe, 593 F. Supp. 3d 1151, 1162 (S.D. Fla. 2022) (permitted alternative
service via “social media direct messaging (i.e., Facebook or LinkedIn)”); Oueiss v. Al
Saud, No. 1:20-cv-25022-Moore, 2021 WL 5088942, at *8 (S.D. Fla. Jan. 18, 2021)
(permitting “service via Twitter” on various individuals located in Dubai); Trapenard,
2023 WL 2264177, at *4 (permitting service via e-mail and Twitter, particularly when “it
9
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
is clear from the email communications to date that [defendant] is well aware of the present
lawsuit”).
The matter at hand is analogous to the case of Kowalski v. Binance Holdings Ltd.,
No. 2021-023426-CA-01 (Fla. 11th Jud. Cir. Nov. 22, 2021), where the Hon. J. Hanzman,
presiding as the Court, granted alternative service under a similar set of facts. See Kowalski
Order, attached as Exhibit C. In Kowalski, the “[p]laintiff move[d] for entry of an order
authorizing alternate service of process on two individual defendants who are believed to
reside in Russia, but whose addresses are either unknown or unable to be used to effectuate
legal service in Russia.” Id. at *1. The Court found that because the defendant’s “address
is unknown despite [p]laintiff’s diligent investigation, the Hague Service Convention does
not apply[.]” Id. at *2. The Court further found that “service by e-mail is reasonably
calculated to provide actual notice to the Foreign Defendants,” noting that the “individuals
are technologically savvy.” Id. at *3. The Court found that service via e-mail and “via
the Facebook accounts that [p]laintiff’s investigators have identified and reasonably
believe to be owned by the Foreign Defendants is an appropriate backstop to service by e-
mail.” Id. at *4.
Similarly, Plaintiffs here seek leave to serve Defendant by electronic means and
FedEx, which will reasonably provide notice to Brito Cutie—who has already shown his
awareness of his lawsuit. See Exhibit A.
CONCLUSION
Because it is not prohibited by international agreement or relevant law and is
reasonably calculated under the circumstances to provide the Defendant, Rafael Brito
10
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
Cutie, with further actual notice of this action and an opportunity to respond, Plaintiffs
requests that the Court authorize service of process on the Defendant, Brito Cutie, via the
following methods:
1. Electronic mail at Brito Cutie’s personal e-mail address:
rafabritocu@gmail.com;
2. Electronic transmission at Brito Cutie’s last known WhatsApp number;
3. Electronic transmission to Brito Cutie’s social media handles, including:
a. Facebook: https://www.facebook.com/rafael.brito.566/;
b. Instagram: https://www.instagram.com/rafa_cub85/; and
c. LinkedIn: https://cy.linkedin.com/in/rafael-brito-cutie-2ba14261.
4. FedEx to the three Cyprus addresses associated with Brito Cutie, including:
a. 46 Nicodemou Milona, Petevinos Court, Flat 102, 3095, Limassol,
Cyprus;
b. Vasileos Alexandrou 2, 2nd Floor, Flat 202, 3020, Limassol, Cyprus; and
c. Mariou Toka 40, Elder Light Building, Flat 5, 3095, Limassol, Cyprus.
5. Electronic mail and FedEx to FxWinning’s counsel of record, including:
a. jmacelloni@b2b.legal; barakat@b2b.legal; and service@b2b.legal; and
b. BARAKAT + BOSSA, 2701 Ponce de Leon Blvd., Suite 202, Coral
Gables, Florida 33134.
Dated: July 31, 2023 Respectfully submitted,
NELSON MULLINS
/s/ Ryan K. Todd
Justin Kaplan | Fla. Bar No. 33725
justin.kaplan@nelsonmullins.com
11
NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW
One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com
Preview
Filing # 179729730 E-Filed 08/15/2023 05:33:31 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 2023-020202-CA-01 CODY KERNS, an individual, KERNS CAPITAL MANAGEMENT, INC., a British Virgin Islands Corporation, and WFTMB HOLDINGS, LLC, a Florida Limited Liability Company, Plaintiffs, v. FXWINNING, LTD., a Hong Kong Limited Company, JONATHAN LOPEZ, an individual, JULIAN KUSCHNER, an individual, DAVID MERINO, an individual, RENAN DA ROCHA GOMES BASTOS, an individual, RAFAEL BRITO CUTIE, an individual, BBRC REAL ESTATE, LLC, a Florida Limited Liability Company Defendants. / PLAINTIFFS’ EX PARTE MOTION FOR AN ORDER AUTHORIZING SERVICE OF PROCESS VIA EMAIL AND TEXT MESSAGE ON DEFENDANT RAFAEL BRITO CUTIE PURSUANT TO SECTION 48.197, FLORIDA STATUTES Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and WFTMB Holdings, LLC (“WFTMB”) (collectively, “Plaintiffs”), by and through undersigned counsel and pursuant to Section 48.197, Florida Statutes, hereby move this Court for an order authorizing Plaintiffs to serve the Summons, Complaint, and Plaintiffs’ First Request for Production via email and text message on Defendant Rafael Brito Cutie (“Brito”), and in support thereof state as follows: INTRODUCTION Brito is one of the masterminds behind a scheme to defraud investors through the use of a foreign exchange trading platform. Brito, as the Chief Executive Officer of Defendant FXWinning, Ltd. (“FXWinning”), is a technologically savvy con-man whose entire business is based entirely online. Brito, in concert with the other Defendants, defrauded Plaintiffs, and an untold number of other investors, out of millions of dollars. Brito regularly holds himself out as being reachable through various email addresses and communicates via text message. In fact, Kerns recently communicated with Brito about the actions giving rise to this lawsuit. Federal courts have long found that service of process via email satisfies due process and is reasonably calculated to give a defendant notice of a pending action against him. Even closer to home, this Court has recently found that service on Brito via email and WhatsApp text messaging is appropriate. See CFT Solutions, LLC et al. v. FxWinnging Ltd., et al., Case No. 2023-016392-CA-01 (11th Cir. Ct., Aug. 6, 2023). Accordingly, this Court should permit Plaintiffs to serve process on Brito through his known email addresses and mobile telephone number pursuant to Section 48.197, Florida Statutes. STATEMENT OF FACTS 1. Brito is believed to be living in either the United Arab Emirates or Cyprus. See Compl. at ¶ 17; Declaration of C. Kerns, attached as Exhibit A at ¶ 6. However, Brito frequently travels all over, from country to country and his precise location is unknown. Id. 2. Brito and Kerns communicated via SMS text messaging. See Ex. A at ¶¶ 3-4. The mobile number Brito used to communicate with Kerns is +357 95 121396. Id. at ¶¶ 3-4. 2 3. Kerns first contacted Brito on or around June 26, 2023. Id. at ¶ 3. Thereafter, Kerns sent several text messages to Brito. Id. at ¶ 4. None of the text messages Kerns sent to Brito were returned as undeliverable. Id. 4. On June 28, 2023, Brito responded to Kerns’ text message. Id. 5. Plaintiffs have no reason to believe that Brito no longer uses this number. Id. at ¶ 5. 6. On May 5, 2023, Defendant Renan da Rocha Gomes Basto (“da Rocha”), along with other plaintiffs (the “CFT Plaintiffs”), brought suit against Brito and others in this Court. See CFT Solutions, LLC et al. v. FXWinning Ltd., et al., Case No. 2023-016392-CA-01 (11th Jud. Cir. Ct.). There, the CFT Plaintiffs filed a Motion for Alternative Service on Rafael Brito Cutie, a true and correct copy of which is attached as Exhibit B. 7. The CFT Plaintiffs acknowledge that Brito also communicates via email, through his personal email address rafabritocu@gmail.com. See Ex. B. Likewise, Brito’s business email address is ceo@fxwinning.net. See Ex. B. 8. This Court subsequently granted the Motion for Alternative Service on Rafael Brito Cutie on August 6, 2023. A true and correct copy of the Court’s August 6, 2023 Order is attached as Exhibit C. The Court permitted the CFT Plaintiffs to effect service of process on Brito through email at the rafabritocu@gmail.com and ceo@fxwinning.net addresses and via WhatsApp text messaging. Id. MEMORANDUM OF LAW Section 48.197, Florida Statutes, provides for alternative means of service of process, including “via email or other technology.” Specifically, Section 48.102, Florida Statutes, provides that service on a party residing in a foreign country may be effectuated by one of the following: 3 a) By any internationally agreed-upon means of service reasonably calculated to give actual notice of the proceedings, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; b) If there is no internationally agreed-upon means of service, or if an international agreement allows but does not specify other means, by a method reasonably calculated to give actual notice of the proceedings; or c) Pursuant to motion and order by the court, by other means, including electronically by e-mail or other technology, which the party seeking service shows is reasonably calculated to give actual notice of the proceedings and is not prohibited by international agreement, as the court orders. § 48.197(a)-(c), FLA. STAT. (2023) (emphasis added). The newly enacted Section 48.197, Florida Statutes, mirrors its federal counterpart – Federal Rule of Civil Procedure 4. See FED. R. CIV. P. 4(f). When the Florida rule is identical to a federal rule, Florida courts may rely on federal decisions as persuasive guidance. See Dinter v. Brewer, 420 So. 2d 932, 934 n.2 (Fla. 3d DCA 1982) (“Decisions and commentaries under the federal rules are persuasive guidelines to the interpretation of state rules closely patterned thereon.”); accord Gangelhoff v. Lokey Motors Co., Inc., 270 So. 2d 58, 59 (Fla. 2d DCA 1972) (acknowledging Florida courts have authority to rely “on case law enunciated in the Federal decisions” when deciding matters involving identical state law). The use of the word “or” between subsection b and subsection c in Section 48.197, Florida Statutes, allows parties to utilize either subsection in effecting service of process. See Rio Props., Inc. v. Rio Inter’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (“Rule 4(f)(3) is one of three separately numbered subsections in Rule 4(f), and each subsection is separated from the one previous merely by the simple conjunction ‘or.’ Rule 4(f)(3) … stands independently, on equal footing.”); see also Seaboard Marine Ltd., Inc. v. Magnum Freight Corp., No. 17-21815, 2017 WL 7796153, at *1 (S.D. Fla. Sept. 21, 2017) (“Despite coming last in the list of available methods 4 of service in Rule 4(f), there is no indication from the plain language of the Rule that the three subsections, separate by the disjunctive ‘or,’ are meant to be read as a hierarchy.”); Osio v. Moros, No. 1:21-CV-20706, 2022 WL 17583631, at *1 (S.D. Fla. Sept. 26, 2022) (“‘If a party cannot, or chooses not to, serve a defendant abroad using one of the methods specified in Rule 4(f)(1) and (2), the party may accomplish service’ using the third method.”) (quoting De Gazelle Grp., Inc. v. Tamaz Trading Establishment, 817 F.3d 747, 750 (11th Cir. 2016)). Notably, “the decision to issue an order allowing service by alternate means lies solely within the discretion of the district court.” Chanel, Inc. v. Zhixian, No. 10-CV-60585, 2010 WL 1740695, at *2 (S.D. Fla. Apr. 29, 2010); accord Birmingham v. Doe, No. 21-CV-23472, 2022 WL 3656963, at *2 (S.D. Fla. Aug. 25, 2022) (acknowledging district courts have broad authority to order alternate service methods under Rule 4(f)(3) so long as “the service method is not prohibited by international agreement and is reasonably calculated to give notice to the defendants”). Section 48.197(c)’s federal counterpart—Rule 4(f)(3)—merely “requires that service be (1) directed by the court; and (2) not prohibited by international agreement.” Adidas AG v. Individuals, P’ships & Unincorporated Assns., No. 19-cv-61264-UU, 2019 WL 7841807, at *1 (S.D. Fla. May 23, 2019). As long as alternative methods of service of process comport with due process, a court can authorize alternative methods of service of process. Id. This Court should exercise its discretion and permit Plaintiffs to serve Brito via email and text message pursuant to Section 48.197, Florida Statutes. I. Service via Email and Text Message is not Prohibited by an International Agreement. Alternative service is permissible under Section 48.197(c), Florida Statutes, when it does not violate an international agreement. § 48.197(c), FLA. STAT. (2023). The only international service agreements to which the United States is a signatory is the Hague Convention on the 5 Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”) and the Inter-American Service Convention and Additional Protocol (the “Inter-American Service Convention”). Brito may be residing in either Cyprus or the United Arab Emirates (“UAE”). See Ex. A at ¶ 6. However, his precise address is unknown. Id. In any event, neither Cyprus nor the UAE are signatories to the Inter-American Service Convention, so that treaty is inapplicable. See Inter- American Service Convention and Additional Protocol, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial- asst/Service-of-Process/Inter-American-Service-Convention-Additional-Protocol.html (last visited Aug. 15, 2023) (listing signatories to the Inter-American Service Convention). Turning to the Hague Service Convention, Cyprus is a signatory. See Apaville LLC v. First Citizens Bank, No. 20-80705-CIV, 2020 WL 13348682, at *2 (S.D. Fla. Aug. 11, 2020) (noting that “Cyprus … has not objected to any part of the Hague Convention”) (emphasis in original). The UAE, on the other hand, is not. See CKR L. LLP v. Anderson Invs. Int'l, LLC, 525 F. Supp. 3d 518, 524 (S.D.N.Y. 2021) (“The UAE is not a signatory to the Hague Convention.”). But whether Cyprus and the UAE are signatories to the Hague Service Convention is irrelevant because the Hague Service Convention is inapplicable in cases where, such as here, the party’s address is unknown. Dolphin Cove Inn, Inc. v. Vessel Olympic Javelin, No. 3:19-CV-1018-J-34JRK, 2020 WL 4927590, at *2 (M.D. Fla. Aug. 21, 2020) (“The Hague Convention, however, does not apply if the address of the person to be served with the document is not known.”) (internal quotation omitted); Atlas One Fin. Grp., LLC v. Alarcon, No. 12-CV-23400, 2014 WL 12571403, at *3 (S.D. Fla. Feb. 28, 2014) (“The Hague Convention does not apply to service … where the address of the person to be served is unknown.”); Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 13 (Fla. 4th DCA 6 2014) (“However, the Hague Convention is expressly inapplicable in cases where the location of the person to be served is unknown.”). Brito’s whereabouts are unknown. See Ex. A at ¶ 6. As such, the Hague Service Convention does not apply. Atlas One Fin. Grp., LLC, 2014 WL 12571403, at *3; Alvarado-Fernandez, 151 So. 3d at 13. Therefore, service of process on Brito via email and text messaging does not violate an international agreement. II. Service of Process on Brito via Email Satisfies Due Process. As long as the “alternative method of service under Rule 4(f)(3)” fulfills due process requirements, “the court can exercise its discretion” in ordering the alternative method. Premier Trailer Leasing, Inc. v. DM World Transp., LLC, No. 8:19-CV-2558-T-60AAS, 2020 WL 886671, at *2 (M.D. Fla. Feb. 24, 2020). Constitutional due process is satisfied where a party provides “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). Courts have long held that service by email is reasonably calculated to apprise a defendant of the action against them. See, e.g., Dolphin Cove Inn, Inc. v. Vessel Olympic Javelin, No. 3:10- cv-1018-J-34JRK, 2020 WL 4927590, at *4 (M.D. Fla. Aug. 21, 2020) (finding “service via e- mail complies with due process requirements.”); U.S. Commodity Futures Trading Com 'n v. Aliaga, 272 F.R.D. 617, 621 (S.D. Fla. 2011) (due process satisfied by email addresses recently used to send messages to customers). There is little doubt that Brito is technologically savvy. He is the Chief Executive Officer of FXWinning, an online foreign exchange market and cryptocurrency platform. See Ex. B. The nature of FXWinning’s business is to trade currency entirely online. See id.; Compl. at ¶ 30. The 7 CFT Plaintiffs recently moved this Court for an order permitting alternative service of process on Brito through, inter alia, email and WhatsApp text messaging. See generally Ex. B. The CFT Plaintiffs’ Motion for Alternative Service on Rafael Brito Cutie acknowledges that Brito’s email address is the same email addresses that Plaintiffs are intending to use for service— rafabritocu@gmail.com and ceo@fxwinning.net. See id. Service of process on Brito is reasonably calculated to apprise him of this lawsuit and the claims against him. Dolphin Cove Inn, Inc, 2020 WL 4927590, at *4. As such, this Court should exercise its discretion and permit Plaintiffs to effect service of process on Brito via email. III. As Another Layer of Notice, Service of Process on Brito via Text Messaging Also Satisfies Due Process. When determining whether an alternative means of service comports with due process, courts must consider whether the alternative method of service is the “most likely means of communication to reach the foreign entity or individual to be served.” Al-Saadi v. Annchery Fajas USA, Inc., No. 20-23937-CIV, 2022 WL 898562, at *2 (S.D. Fla. Mar. 28, 2022); see also Rio Props., Inc., 284 F.3d at 1016 (explaining that in order to satisfy due process, the method of service “must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”) (internal citation omitted). Courts have permitted service via text messaging, especially where service via text messaging is only one prong of a multi-prong approach to service. See Allstate Assurance Co. v. Benton, No. 3:21-cv-3124-K-BN, 2023 WL 3105098, at *4 (N.D. Tex. Apr. 25, 2023) (permitting service via text message); Two Canoes LLC v. Addian Inc., No. 21-cv-19729 (SDW) (JRA), 2023 WL 3052728, at *5 (D.N.J. Apr. 21, 2023) (permitting service of subpoena on non-party via email, WhatsApp, and text message); Marvici, 2021 WL 5323748, at *3 (permitting service via email, 8 text message, and certified mail); Aleman-Valdivia v. Top Dog Plumbing & Heating Corp., No. 20-CV-421 (LDH)(MMH), 2021 WL 4502479, at *11 (E.D.N.Y. Sept. 30, 2021) (permitting service of process via SMS text message and WhatsApp “because of the similarities between standard SMS text message and WhatsApp”); Ross v. Dejarnetti, No. 18-11277, 2019 WL 8301676, at *6 (E.D. La. Aug. 23, 2019) (authorizing service of process via text message in addition to email). Here, service via text messaging is the most likely means of contacting Brito. Ex. A at ¶¶ 3-5. Each message was delivered. Id. at ¶ 4. Brito responded to Kerns via text message as recently as June 28, 2023. See id. As one court correctly noted, “personal cell phone numbers, generally speaking, are uniquely tethered to their holders, and tend to be durable, such that there is little risk that some other user now uses [the defendant’s] phone number.” Marvici v. Roche Facilities Maint. LLC, No. 21CIV4259PAEJLC, 2021 WL 5323748, at *3 (S.D.N.Y. Oct. 6, 2021). Although service of process via email alone satisfies due process, the additional safeguard of service via text messaging ensures that Brito will be apprised of the pendency of this action. Rio Props., Inc., 284 F.3d at 1016. Likewise, this Court recently permitted the CFT Plaintiffs to serve Brito via text message, too. See Ex. C As such, the Court should exercise its discretion and permit Plaintiffs to serve Brito via text message. Premier Trailer Leasing, Inc., 2020 WL 886671, at *2; accord Ex. C. IV. Courts Regularly Grant Ex Parte Motions to Serve Process Via Alternative Means. Federal Courts regularly entertain ex parte motions to effect service of process on defendants via alternative means. See Chengdu Jiechen Tech. Ltd. v. Trobing-US, No. 21-61020- CIV-ALTMAN/Hunt, 2021 WL 10382802 (S.D. Fla. Aug. 10, 2021) (granting ex parte motion for order authorizing alternate service of process); Marconi Int’l Univ., Inc. v. Ricci, No. 20-22508- 9 CV-MARTINEZ/OTAZO-REYES, 2020 WL 13388303, at *1 (S.D. Fla. Aug. 3, 2020) (same); Luxottica Group S.p.A v. Individuals, P’ships & Unincorporated Ass’n Identified on Schedule “A”, No. 19-62622-CIV-MARTINEZ-SNOW, 2020 WL 6529615, at *1 (S.D. Fla. Jan. 8, 2020) (same); St-Honore v. Agote, No. 17-cv-62276-KMM, 2017 WL 8812537, at *1 (S.D. Fla. Dec. 28, 2017) (same); Fendi Adele, S.r.l. v. 1n1qualitybag.com, No. 16-CIV-60113-COOKE/TORRES, 2016 WL 8710784, at *2 (S.D. Fla. Mar. 29, 2016) (same). Following that line of cases, the Complex Business Litigation Division has also granted ex parte service motions. See, e.g., Maria Fabiola Organista Cardenas, et al. v. TCG Capital, LLC, et al., No. 22-022957-CA-01 (11th Cir. Ct. June 15, 2023) (J. Rebull) (granting plaintiffs’ ex parte motion for service of process on foreign defendant residing in Ecuador via email without a hearing); Steven Paul Kowalski v. Binance Holdings, Ltd. et al., No. 21-023426-CA-01 (11th Cir. Ct. Nov. 22, 2021) (J. Hanzman) (granting plaintiff’s motion to serve Russian defendants via email Facebook). Indeed, this Court granted Plaintiffs’ two (2) ex parte motions for an order authorizing alternative service of process on defendant David Merino and Defendant FXWinning on August 12, 2023. CONCLUSION Based on the foregoing, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, request that this Court enter an order pursuant to Section 48.197, Florida Statutes, authorizing them to serve Defendant Rafael Brito Cutie with process by sending copies of the Summons, Complaint, and Plaintiffs’ First Request for Production via email to ceo@fxwinning.net and rafabritocu@gmail.com, and via text message to the following mobile telephone number: +357 95 121396. 10 Dated: August 15, 2023 Respectfully submitted, SANCHEZ FISCHER LEVINE, LLP 1200 Brickell Avenue, Suite 750 Miami, Florida 33131 (305) 925-9947 By: /s/ David M. Levine David M. Levine, Esq. Florida Bar No.: 84431 Email: dlevine@sfl-law.com Secondary: eservice@sfl-law.com Fausto Sanchez, Esq. Florida Bar No.: 86229 Email: fsanchez@sfl-law.com Lauren M. Allen, Esq. Florida Bar No.: 1018424 Email: lallen@sfl-law.com Robert Kemper, Esq. Florida Bar. No.: 1038549 Email: rkemper@sfl-law.com Counsel for Plaintiffs 11 EXHIBIT A DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 2023-020202-CA-01 CODY KERNS, an individual, KERNS CAPITAL MANAGEMENT, INC., a British Virgin Islands Corporation, and WFTMB HOLDINGS, LLC, a Florida Limited Liability Company, Plaintiffs, v. FXWINNING, LTD., a Hong Kong Limited Company, JONATHAN LOPEZ, an individual, JULIAN KUSCHNER, an individual, DAVID MERINO, an individual, RENAN DA ROCHA GOMES BASTOS, an individual, RAFAEL BRITO CUTIE, an individual, BBRC REAL ESTATE, LLC, a Florida Limited Liability Company Defendants. / DECLARATION OF CODY KERNS IN SUPPORT OF PLAINTIFFS’ EX PARTE MOTION FOR AN ORDER AUTHORIZING SERVICE OF PROCESS VIA EMAIL AND TEXT MESSAGE ON DEFENDANT RAFAEL BRITO CUTIE PURSUANT TO SECTION 48.197, FLORIDA STATUTES I, Cody Kerns, declare as follows: 1. My name is Cody Kerns. I am a Plaintiff in this matter, and I am over 18 years of age. 2. I am capable of making this declaration and I make this declaration based on my personal knowledge. DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 3. On or about June 26, 2023, I first contacted Brito through text message. I sent him a text message to his mobile telephone number at: +357 95 121396. A true and correct copy of Brito’s contact information is attached as Exhibit 1. 4. Thereafter, from June 26, 2023 through June 28, 2023, I sent Brito several text messages. None of those text messages returned as undeliverable. Indeed, on or about June 28, 2023, Brito sent me a text message from the mobile telephone number: +357 95 121396, a true and correct copy of which is attached hereto as Exhibit 2. 5. I have no reason to believe that Brito no longer uses the +357 95 121396 mobile telephone number. 6. I do not know exactly where Brito lives because he travels frequently. Brito may live in either Cyprus or the United Arab Emirates. However, Brito also frequently visits Dubai, United Arab Emirates. I only communicated with Brito electronically. Under penalties of perjury, I declare that I have read the foregoing Declaration and that the facts stated in it are true and correct. 15 Executed in Boca Raton, Florida this _______ day of August, 2023. ________________________________ Cody Kerns 2 DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 EXHIBIT 1 DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 EXHIBIT 2 DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 DocuSign Envelope ID: A66CEB2A-2E21-4E80-8B38-2A977E496038 EXHIBIT B Filing # 178619475 E-Filed 07/31/2023 10:54:37 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MIAMI- DADE COUNTY, FLORIDA CFT SOLUTIONS, LLC, a Delaware limited liability company, RENAN DE ROCHA GOMES BASTOS, an individual; ADELANGELA FUMAGALLI, an individual; JAY KATARI, an individual, STEVEN DE LA FE, an individual, and KERIM EDUARDO SALUME BABUN, an individual, COMPLEX BUSINESS DIVISION Plaintiffs, Case No. 2023-016392-CA-01 v. FXWINNING LTD., a Hong Kong limited company, RAFAEL BRITO CUTIE, an individual, ROMAN CARDENAS, an individual, Defendants. ____________________________________/ MOTION FOR ALTERNATIVE SERVICE ON RAFAEL BRTIO CUTIE Plaintiffs, CFT Solutions, LLC (“CFT”), Renan de Rocha Gomes Bastos (“Bastos”), Adelangela Fumagalli (“Fumagalli”), Steven de la Fe (“de la Fe”), and Kerim Eduardo Salume Babun (“Salume”) (collectively, “Plaintiffs”), respectfully submit this memorandum of law in support of Plaintiffs’ motion for an order authorizing alternate service on Defendant, Rafael Brito Cutie, who is believed to reside in Cyprus and Dubai, whose company, Defendant, FxWinning, Ltd., made an appearance in this case, and who has otherwise communicated with the Plaintiffs in this case, admitting to his knowledge of the lawsuit. See Exhibit A. In support thereof, Plaintiffs state: NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com INTRODUCTION Defendants stole more than Eighty Million Dollars ($80,000,000.00) from Plaintiffs through a fraudulent enterprise held out to be a legitimate online foreign exchange trading platform, FxWinning. Defendant, Brito Cutie, is (or was) the CEO of FxWinning at all times relevant. Brito Cutie is aware of the lawsuit, aware of the claims, and has been in recent direct communication with some of the Plaintiffs herein about this lawsuit. Plaintiffs respectfully move for an order authorizing alternate service on Brito Cutie who is believed to reside in Cyprus and/or Dubai, but whose current address is either unknown or unable to be used to effectuate service. Specifically, Plaintiffs respectfully request that the Court issue an order allowing them to serve the Summons, Amended Complaint, and the Court’s existing Orders upon Brito Cutie via (1) electronic mail; (2) WhatsApp text message; (3) Social Media accounts (Instagram, Facebook, and LinkedIn); (4) FedEx to the three Cyprus addresses associated with Brito Cutie; and (5) electronic mail and FedEx to FxWinning’s counsel of record who appeared in this matter. Furthermore, Plaintiffs respectfully request an order from the Court authorizing Plaintiffs to serve all subsequent motions and pleadings in this action on the Brito Cutie via e-mail until such time as he appears in the action. PRELIMINARY STATEMENT As set forth in the Amended Complaint, Brito Cutie oversaw a conspiracy to steal Plaintiffs’ money and launder it through accounts that Defendants controlled throughout the world. Plaintiffs believe that the evidence will show that Brito Cutie was the individual 2 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com primarily directing FxWinning’s actions and the scheme to steal billions of dollars from customers all over the world—including the dozens of FxWinning clients in the State of Florida. Brito Cutie is believed to be a citizen of Cuba. But, upon information and belief, he is regularly moving between countries—and possibly even continents—including but not limited to Cyprus and Dubai, U.A.E. Despite the diligent efforts of their investigators, Plaintiffs have been unable to identify an address for Brito Cutie in Cuba or the U.A.E.; furthermore, Plaintiffs’ investigation reveals multiple addresses associated with Brito Cutie in Cyprus, but it is not clear if he is residing at any of these locations, and the evidence suggests he is currently moving between countries and continents.1 The three Cyprus addresses, associated with Brito Cutie, that Plaintiffs were able to discovery include: (a) 46 Nicodemou Milona, Petevinos Court, Flat 102, 3095, Limassol, Cyprus; (b) Vasileos Alexandrou 2, 2nd Floor, Flat 202, 3020, Limassol, Cyprus; and (c) Mariou Toka 40, Elder Light Building, Flat 5, 3095, Limassol, Cyprus. In addition, Plaintiffs were able to locate three social media accounts associated with Brito Cutie, including a LinkedIn account which was recently updated in or around May 2023. Brito Cutie’s discovered social media accounts, include: (a) Facebook (https://www.facebook.com/rafael.brito.566/); (b) Instagram (https://www.instagram.com/rafa_cub85/); and (c) LinkedIn (https://cy.linkedin.com/in/rafael-brito-cutie-2ba14261). See Composite Exhibit B. 1 For example, on or around May 9, 2023, Brito Cutie was in Dubai at the Armani Hotel for meetings relating to this lawsuit. 3 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com Florida law generally requires compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (the "Hague Service Convention") when documents are to be served abroad. But the Hague Service Convention, to which Cyprus is a signatory, does not apply where the address of the person to be served with the document is unknown. Moreover, both Cuba and the U.A.E. are neither signatories of the Hague Service Convention.2 Under these circumstances, service on Brito Cutie via e-mail, WhtasApp, social media, FedEx, and through FxWinning’s lawyers is appropriate. Florida courts may accept any particular method of service as long as it does not contradict any self-executing international agreement or implementing statutes and is not prohibited by the law of the foreign state. Service by e-mail (or similar electronic means) is not prohibited under the Hague Service Convention or any other international treaty or Cuban or Emirate law.3 Moreover, service by electronic means and FedEx is reasonably calculated to provide notice to the Cutie Brito, because he is already aware and communicating about the lawsuit, and therefore the proposed service comports with due process. For these reasons, Plaintiffs respectfully requests that the Court grant this motion. 2 See, e.g., Valero v. De Nevi, No. 17-cv-20745-Moreno, 2017 WL 3917161, at *2 (S.D. Fla. Sept. 6, 2017) (“Cuba, which incidentally is not a signatory to the Hague Convention[.]”); Berdeaux v. OneCoin Ltd., No. 19-cv-4074 (VEC), 2020 WL 409633, at *1 (S.D.N.Y. Jan. 24, 2020) (“[T]he UAE is not a signatory to the Hague Convention.”). 3 See CKR Law LLP v. Anderson Investments Int'l, LLC, 525 F. Supp. 3d 518, 524 (S.D.N.Y. 2021) (“[T]he Court is not aware of any other international agreement to which Dubai is a party that prohibits service by mail, email, or WhatsApp.”). 4 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com MEMORANDUM OF LAW A. Alternate Service on Brito Cutie Is Appropriate Alternate service of process on Brito Cutie is appropriate because his addresses are unknown, or he is currently residing in countries which do not adhere to the Hague Service Convention. “[C]ompliance with the Convention is mandatory in all cases to which it applies.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988); see also Ingenieria Y Exportacion De Tecnologia S.L. v. Freytech, Inc., 210 So. 3d 211, 212 (Fla. 3d DCA 2016) (“[T]he Hague Convention applies in all cases ‘where there is occasion to transmit a judicial or extrajudicial document for service abroad.’”) (quoting Grupo Radio Centro, S.A.B. de C.V. v. Am. Merchant Banking Grp., Inc., 71 So. 3d 151, 151 (Fla. 3d DCA 2011)). Where the defendant resides in a non-signatory to the Hague Convention, then service is valid if it complies with due process and is not in violation of any other international treaty. See, e.g., U.S. Commodity Futures Trading Com'n v. Aliaga, 272 F.R.D. 617, 620 (S.D. Fla. 2011) (“The Dominican Republic is not a signatory to the Hague Convention . . . As such, no international law prohibits the CFTC from serving Defendants and Relief Defendant via e-mail or through service on local counsel in the United States.”). Cuba and the U.A.E. are not signatories to the Hague Service Convention. Valero, 2017 WL 3917161, at *2; Berdeaux, 2020 WL 409633, at *1. Cyprus is a signatory to the Hague Service Convention. See Apaville LLC v. First Citizens Bank, No. 20-cv-80705-Altman, 2020 WL 13348682, at *2 (S.D. Fla. Aug. 11, 2020). However, the Hague Service Convention “is expressly inapplicable in cases where the location of the person to be served is unknown.” Alvarado-Fernandez v. Mazoff, 151 5 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com So. 3d 8, 13 (Fla. 4th DCA 2014); see also Hague Service Convention, art. 1, 20 U. S.T. 361 (1969) (the Convention "shall not apply where the address of the person to be served with the document is not known"); Trapenard v. Clester, No. 6:22-cv-660-RBD, 2023 WL 2264177, at *3 (M.D. Fla. Feb. 28, 2023) (“[T]he Hague Convention does not apply if ‘the address of the person to be served with the document is not known.’” (quoting Hague Convention, art. 1). Because Brito Cutie’s address is unknown despite Plaintiffs’ diligent investigation, the Hague Service Convention does not apply with respect to him. Alvarado-Fernandez, 151 So. 3d at 13; Trapenard, 2023 WL 2264177, at *3 (finding diligent investigation where plaintiff “represents that ‘it appears that Clester is regularly moving between countries, perhaps even continents’ making it impossible for Plaintiff to determine the address for Clester, . . .”). The case at hand is analogous to the recent Trapenard matter, where the complaint brought claims relating to “a nonfungible token purchasing scam, asking for monetary damages and injunctive relief.” Id. at *1. In Trapenard, the plaintiff could not reliably identify a certain defendant’s known address, and instead proffered that said defendant was “regularly moving between foreign countries, and his current location is unknown.” Id. The plaintiff moved the court for service “by alternative means – namely via direct Twitter messaging and by email.” Id. The court noted that “given the lack of evidence as to [the defendant]’s current whereabouts, it is unknown whether the foreign country he may currently be residing in is also a signatory to the Hague Convention.” Id. at *2. The court noted that this “is not fatal to Plaintiff's motion, however, as the Hague Convention does 6 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com not apply if ‘the address of the person to be served with the document is not known.’” Id. at *3 (citing Hague Convention, art. 1). Ultimately, the Trapenard found that “because [the defendant]’s address is unknown, Plaintiff is not required to serve him pursuant to the Hague Convention,” and the court permitted service by e-mail and Twitter. Id. Similarly, because Brito Cutie’s current address is unknown, and he is believed to be traveling between multiple countries and continents, the Hague Convention requirements should not apply. Instead, alternative service via electronic means and FedEx is appropriate under the facts of this case. Therefore, the Plaintiffs’ respectfully request that the Court permit alternate service on Defendant, Brito Cutie. B. Service by Electronic Means and FedEx Is Not Prohibit and Is Reasonably Calculated to Provide Notice to Brito Cutie Plaintiffs proposes to serve the Brito Cutie via (1) electronic mail; (2) WhatsApp text message; (3) Social Media accounts (Instagram and LinkedIn); (4) FedEx to the three Cyprus addresses associated with Brito Cutie; and (5) electronic mail and FedEx to FxWinning’s counsel of record who appeared in this matter. Service of process by electronic means and FedEx is legally permissible and appropriate under these circumstances. "Florida courts may accept any particular method of service, so long as it does not contradict any self-executing international agreement or implementing statutes, or as long as such method is not expressly prohibited by the law of the foreign state." Alvarado-Fernandez, 151 So. 3d at 14; see also Asperbras Tecnologia Industrial v. Good Hope Devel., LLC, 213 So. 3d 1061, 1064 (Fla. 3d DCA 2017). The Hague Service Convention does not prohibit service by e-mail. See, e.g., Richemont Int'l 7 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com SA v. montblanchot.com, No. 20-cv-61941, 2020 WL 5763931, at *2 (S.D. Fla. Sept. 28, 2020) (concluding that “service by e-mail or internet communication does not violate” the Hague Convention); see also Ryder Truck Rental, Inc. v. Chanje Energy, Inc., No. 21-cv- 21044-JLK, 2021 WL 9565825, at *3 (S.D. Fla. Aug. 8, 2021) (collecting service by e- mail cases). Nor is e-mail service expressly prohibited by Cyprus or Emirate law. See Apaville, 2020 WL 13348682, at *2 (“[B]ecause Cyprus, where Redfern apparently resides, [ ] has not objected to any part of the Hague Convention, email service—as to him—is “not prohibited by international agreement.”); CKR Law, 525 F. Supp. 3d at 524 (“[T]he Court is not aware of any other international agreement to which Dubai is a party that prohibits service by mail, email, or WhatsApp.”). Furthermore, service by e-mail also comports with due process. See Trapenard, at *4 (“[C]ourts have found that service by email satisfies due process requirements.”). "The Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond." Rio Props., Inc. v. Rio Intern. Inc., 284 F.3d 1007, 1016-17 (9th Cir. 2002); see also Trapenard, 2023 WL 2264177, at *4 (“Due process requires that the method of service crafted by the district court . . . be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”) (internal quotations and citations omitted). "Generally, courts look for some basis to conclude that the proposed e-mail address is, in fact, associated with the defendant in question," and courts "routinely find that service 8 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com by e-mail comports with due process when the e-mail is directed to an address that has been confirmed.” Taser Int'l, Inc. v. Phazzer Elecs., Inc., 2016 WL 7137699, *2 (M.D. Fla. Nov. 29, 2016). Examples of such confirmation include where the e-mail address is associated with the defendant's business or an e-mail sent to the address has not been returned as undeliverable. See, e.g., Dolphin Cove, 2020 WL 4927590, at *4 (finding service by e-mail reasonably calculated to apprise defendant e-mails sent to that address had not been returned as undeliverable); Lifted Research Grp., Inc. v. Bbhats.net, 2013 WL 12086772, *2 (S.D. Fla. Nov. 27, 2013) (concluding that service by e-mail would comport with due process because plaintiff had submitted evidence that contact e-mails it had for defendants were valid and operational). Here, service by e-mail is reasonably calculated to provide actual notice to the Brito Cutie, who has already admitted that he is aware of this lawsuit, see Exhibit A. Brito Cutie is a technologically savvy users of online forex and cryptocurrency trading accounts. The e-mail addresses that Plaintiffs proposes to use are Brito Cutie’s personal e-mail and his personal social media handles. Under similar circumstances, courts have found that service by e-mail and social media handles was likely to provide actual notice. See, e.g., Birmingham v. Doe, 593 F. Supp. 3d 1151, 1162 (S.D. Fla. 2022) (permitted alternative service via “social media direct messaging (i.e., Facebook or LinkedIn)”); Oueiss v. Al Saud, No. 1:20-cv-25022-Moore, 2021 WL 5088942, at *8 (S.D. Fla. Jan. 18, 2021) (permitting “service via Twitter” on various individuals located in Dubai); Trapenard, 2023 WL 2264177, at *4 (permitting service via e-mail and Twitter, particularly when “it 9 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com is clear from the email communications to date that [defendant] is well aware of the present lawsuit”). The matter at hand is analogous to the case of Kowalski v. Binance Holdings Ltd., No. 2021-023426-CA-01 (Fla. 11th Jud. Cir. Nov. 22, 2021), where the Hon. J. Hanzman, presiding as the Court, granted alternative service under a similar set of facts. See Kowalski Order, attached as Exhibit C. In Kowalski, the “[p]laintiff move[d] for entry of an order authorizing alternate service of process on two individual defendants who are believed to reside in Russia, but whose addresses are either unknown or unable to be used to effectuate legal service in Russia.” Id. at *1. The Court found that because the defendant’s “address is unknown despite [p]laintiff’s diligent investigation, the Hague Service Convention does not apply[.]” Id. at *2. The Court further found that “service by e-mail is reasonably calculated to provide actual notice to the Foreign Defendants,” noting that the “individuals are technologically savvy.” Id. at *3. The Court found that service via e-mail and “via the Facebook accounts that [p]laintiff’s investigators have identified and reasonably believe to be owned by the Foreign Defendants is an appropriate backstop to service by e- mail.” Id. at *4. Similarly, Plaintiffs here seek leave to serve Defendant by electronic means and FedEx, which will reasonably provide notice to Brito Cutie—who has already shown his awareness of his lawsuit. See Exhibit A. CONCLUSION Because it is not prohibited by international agreement or relevant law and is reasonably calculated under the circumstances to provide the Defendant, Rafael Brito 10 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com Cutie, with further actual notice of this action and an opportunity to respond, Plaintiffs requests that the Court authorize service of process on the Defendant, Brito Cutie, via the following methods: 1. Electronic mail at Brito Cutie’s personal e-mail address: rafabritocu@gmail.com; 2. Electronic transmission at Brito Cutie’s last known WhatsApp number; 3. Electronic transmission to Brito Cutie’s social media handles, including: a. Facebook: https://www.facebook.com/rafael.brito.566/; b. Instagram: https://www.instagram.com/rafa_cub85/; and c. LinkedIn: https://cy.linkedin.com/in/rafael-brito-cutie-2ba14261. 4. FedEx to the three Cyprus addresses associated with Brito Cutie, including: a. 46 Nicodemou Milona, Petevinos Court, Flat 102, 3095, Limassol, Cyprus; b. Vasileos Alexandrou 2, 2nd Floor, Flat 202, 3020, Limassol, Cyprus; and c. Mariou Toka 40, Elder Light Building, Flat 5, 3095, Limassol, Cyprus. 5. Electronic mail and FedEx to FxWinning’s counsel of record, including: a. jmacelloni@b2b.legal; barakat@b2b.legal; and service@b2b.legal; and b. BARAKAT + BOSSA, 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, Florida 33134. Dated: July 31, 2023 Respectfully submitted, NELSON MULLINS /s/ Ryan K. Todd Justin Kaplan | Fla. Bar No. 33725 justin.kaplan@nelsonmullins.com 11 NELSON MULLINS RILEY & SCARBOROUGH | ATTORNEYS AND COUNSELORS AT LAW One Biscayne Tower | 2 South Biscayne Blvd. 21st Floor Miami, FL 33131 | T: 305.373.9400 | F: 305.373.9443 | nelsonmullins.com