Preview
Filing # 182987045 E-Filed 10/02/2023 10:05:04 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CODY KERNS, et al.,
CASE NO.: 2023-020202-CA-01
Plaintiffs
v.
FXWINNING LTD., et al.,
Defendants.
OPPOSED MOTION TO BIFURCATE SERVICE OF PROCESS AND SET A
BRIEFING SCHEDULE OR, ALTERNATIVELY, UNOPPOSED MOTION FOR
EXTENSION OF TIME TO RESPOND TO THE COMPLAINT
Defendants FXWINNING LTD. (“FxWinning”), David Merino (“Mr. Merino”) and Rafael
Brito Cutie (“Mr. Cutie”) (collectively, the “FX Defendants”), by and through the undersigned
counsel who have appeared in this case on a limited basis, 1 and pursuant to Fla. R. Civ. P.
1.090(b)(1), herbey file their Motion for an Extension of Time to Respond to the Complaint, to
Bifurcate Service of Process, and to Set a Briefing Schedule and state:
1. On July 24, 2023, the Plaintiffs filed their complaint.
2. On August 24, 2023, the Plaintiffs filed a Return of Service indicating that:
a. Mr. Merino had been served with several documents, including the complaint and
a request for production, via email and WhatsApp text message on August 16, 2023.
b. FxWinning had been served with several documents, including the complaint and
a request for production, via email on August 22, 2023.
3. On August 29, 2023, the Plaintiffs filed another Return of Service indicating that
1
As set forth in the previously filed Notices of Limited Appearance.
Kerns, et al. vs. FxWinning Ltd., et al.
Miami-Dade Cir. Ct. Case No 2023-020202-CA-01
FX Defendants’ Motion for Extension of Time
Page 2 of 6
Mr. Cutie had been served with several documents, including the complaint and a request for
production, via email and WhatsApp text message on August 24 and 25, 2023.
4. Assuming that service was properly effectuated as to him, the current deadline for
Mr. Merino to respond to the request for production is October 2, 2023.
5. On September 12, 2023, the Court entered an order (D.E. 59) extending Mr.
Merino’s deadline to respond to the complaint until October 5, 2023. The Court’s order further
held that “[c]ounsel for Plaintiffs and Mr. Merino have agreed that there will be no such additional
extensions unless good cause is shown.” Undersigned counsel submits that good cause is shown
herein.
6. On September 17, 2023, the Court entered an order (D.E. 66) extending Mr. Cutie
and FxWinning’s deadline to respond to the complaint until October 5, 2023.
7. The current deadline for Mr. Cutie to respond to the request for production is
October 9, 2023.
8. Since the date on which the undersigned counsel appeared in this case, we have
worked diligently to draft responses to the complaint. Nevertheless, the undersigned counsel
requires an additional extension of twenty (20) days, through and until October 25, 2023 to prepare
a proper response. Further, undersigned counsel submits that the October 25, 2023, response
should be limited to addressing the sufficiency of service of process. This is because it would be
more efficient to bifurcate the issue on service from issues related to jurisdiction, venue, and the
presentation of other Fla. R. Civ. P. 1.140 defenses.
9. An extension of twenty (20) days is warranted for several reasons.
10. First, the FX Defendants’ motions to quash service requires a thorough analysis of
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Kerns, et al. vs. FxWinning Ltd., et al.
Miami-Dade Cir. Ct. Case No 2023-020202-CA-01
FX Defendants’ Motion for Extension of Time
Page 3 of 6
the new Florida statutes on service of process, the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents as well as foreign law.
11. Second, undersigned counsel has been searching for and is in the process of
consulting with foreign counsel to opine on the laws of each FX Defendants’ country of domicile
or residence. The undersigned anticipates that if the consulting expert determines that the FX
Defendants have not been properly served then they would be retained to provide a declaration in
support of the forthcoming motions to quash service of process. Alternatively, if foreign counsel
determines that service has been properly effectuated on any FX Defendant, under the pertinent
country’s laws, then such a motion will not be needed.
12. It has taken significantly more time to identify potential consulting foreign counsel
than previously anticipated, to clear potential conflicts and to brief consultants on the facts
surrounding service of process so that they are in the position to provide a declaration.
13. Third, whether service of process as to any FX Defendant is quashed or upheld is
an appealable matter of law. Any such appeal would need to be resolved before this Court
conducted further proceedings as to the affected defendant. 2 In that light and in the interest of
judicial economy, the undersigned respectfully suggests that the Court should first consider and
rule on the FX Defendants’ potential motions to quash service of process. After those motions are
resolved, it would then be appropriate for the Court to consider any jurisdiction and venue
challenges that could be raised by the FX Defendants. Thus, the FX Defendants jointly and
severally move for this Court to conduct a bifurcated review of the (a.) sufficiency of service of
process as to each defendant, and (b.) each of their challenges regarding this Court’s jurisdiction.
2
Whether the FX Defendants were properly served is also important for determining the 60-day deadline to dismiss
for forum non conveniens. See Fla. R. Civ. P. 1.061(g).
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Kerns, et al. vs. FxWinning Ltd., et al.
Miami-Dade Cir. Ct. Case No 2023-020202-CA-01
FX Defendants’ Motion for Extension of Time
Page 4 of 6
If an FX Defendant succeeds in contesting the sufficiency of service as to it or him, then the second
part of that review will not be necessary.
14. Bifurcation is further warranted because several of Plaintiffs’ claims accrued before
January 2, 2023 – the effective date of the most recent amendments to Chapter 48 of the Florida
Statutes (Service of Process). Under Florida law, such amendments are not given retroactive
application. The U.S. District Court, Southern District of Florida, recently opined on Florida’s new
service statutes and stated: “‘Florida law provides that the applicable version of a statute is that
which was in effect when a cause of action accrues.’” Angarita v. Hypertoyz, Inc., 2023 U.S. Dist.
LEXIS 143568, at *4 (S.D. Fla. Aug. 16, 2023) (citations omitted). Therefore, the prior version of
the Florida service statutes may apply to some allegations, but not others.
15. Untangling the web of applicable law on service of process may differ between
each FX Defendant and may further differ between each cause of action. This is not an academic
exercise; the outcome of those analyses will have real consequences because “‘valid service of
process is necessary to vest jurisdiction in the trial court,’ and therefore, ‘the court lacks personal
jurisdiction over [a party] until service is perfected.’” Peaceful Paws Mem'l Servs. LLC v. Tarves,
48 Fla. L. Weekly D1503 (Fla. 3d DCA August 2, 2023) (citations omitted).
16. Regarding the pending responses to the requests for production, no FX Defendant
is obligated to respond until the Court has acquired jurisdiction. For that reason, the issues
regarding service of process should be fully briefed and adjudicated before the Court conducts any
further proceedings in this case.
17. The Court has already entered an order to bifurcate these same issues in the parallel
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Kerns, et al. vs. FxWinning Ltd., et al.
Miami-Dade Cir. Ct. Case No 2023-020202-CA-01
FX Defendants’ Motion for Extension of Time
Page 5 of 6
CFT Solutions Case 3 against FxWinning and other defendants. The bifurcation order granted a
joint motion to first consider arguments concerning the sufficiency of service of process prior to
ruling on any other defenses under Fla. R. Civ. P. 1.140 (attached as Exhibit “A”).
18. Therefore, the FX Defendants respectfully propose the following briefing schedule:
a. The deadline for the FX Defendants to file their motions to quash service of process
should be on or before October 25, 2023;
b. The deadline for the Plaintiffs to respond to the motion to quash service of process
shall be on or before October 9, 2023;
c. The deadline for the FX Defendants to file their reply shall be on or before October
16, 2023
19. Following the Court’s ruling on the motion to quash, and only if necessary, the
Court will consider the remaining FX Defendants Fla. R. Civ. P. 1.140 defenses.
20. Alternatively, if this Court does not grant the relief sought in the FX Defendants’
motion to bifurcate proceedings as to the service of process and jurisdictional issues, then the FX
Defendants respectfully request that the Court grant the unopposed extension of 20 days, through
and including October 25, 2023, to respond to the complaint, by raising all Fla. R. Civ. P. 1.140
and 1.061(g) defenses, and to further extend the deadline to respond to the pending requests for
production until November 1, 2023.
21. This request is made in good faith, is not made for purposes of undue delay, and
will not prejudice any Party and will permit the Parties to properly brief and present the significant
issues that have been raised by Plaintiffs’ purported service on these defendants.
3
CFT Solutions, et al. vs. FxWinning, et al., Miami-Dade Cir Ct. Case No. 2023-016392-CA-01.
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Kerns, et al. vs. FxWinning Ltd., et al.
Miami-Dade Cir. Ct. Case No 2023-020202-CA-01
FX Defendants’ Motion for Extension of Time
Page 6 of 6
WHEREFORE, the FX Defendants, FXWINNING LTD., DAVID MERINO and
RAFAEL BRITO CUTIE, respectfully request this Honorable Court to grant this Motion by
entering the proposed briefing schedule order or, alternatively, to extend the deadline by 20 days,
through and including October 25, 2023, for the FX Defendants to respond to the complaint.
CERTIFICATE OF CONFERRAL
Counsel for FX Defendants, FXWINNING LTD., DAVID MERINO and RAFAEL
BRITO CUTIE certifies that on September 29, 2023, the undersigned counsel conferred with
counsel for Plaintiffs in a good faith effort to resolve this Motion without court intervention.
Counsel for Plaintiffs have agreed to this motion.
Respectfully submitted,
BARAKAT + BOSSA, PLLC
2701 Ponce de Leon Blvd., Suite 202
Coral Gables, Florida 33134
Tel (305) 444-3114
Fax (305) 444-3115
BY: S/BRIAN BARAKAT
BRIAN BARAKAT
FLORIDA BAR NUMBER 457220
barakat@b2b.legal
service@b2b.legal
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that on this 2nd day of October 2023, a true and correct copy of the
foregoing was electronically filed via CM/ECF filing portal, which will serve this document on all
counsel of record via this Court’s e-service system.
BY: S/BRIAN BARAKAT
BRIAN BARAKAT
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Preview
Filing # 182987045 E-Filed 10/02/2023 10:05:04 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CODY KERNS, et al., CASE NO.: 2023-020202-CA-01 Plaintiffs v. FXWINNING LTD., et al., Defendants. OPPOSED MOTION TO BIFURCATE SERVICE OF PROCESS AND SET A BRIEFING SCHEDULE OR, ALTERNATIVELY, UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO THE COMPLAINT Defendants FXWINNING LTD. (“FxWinning”), David Merino (“Mr. Merino”) and Rafael Brito Cutie (“Mr. Cutie”) (collectively, the “FX Defendants”), by and through the undersigned counsel who have appeared in this case on a limited basis, 1 and pursuant to Fla. R. Civ. P. 1.090(b)(1), herbey file their Motion for an Extension of Time to Respond to the Complaint, to Bifurcate Service of Process, and to Set a Briefing Schedule and state: 1. On July 24, 2023, the Plaintiffs filed their complaint. 2. On August 24, 2023, the Plaintiffs filed a Return of Service indicating that: a. Mr. Merino had been served with several documents, including the complaint and a request for production, via email and WhatsApp text message on August 16, 2023. b. FxWinning had been served with several documents, including the complaint and a request for production, via email on August 22, 2023. 3. On August 29, 2023, the Plaintiffs filed another Return of Service indicating that 1 As set forth in the previously filed Notices of Limited Appearance. Kerns, et al. vs. FxWinning Ltd., et al. Miami-Dade Cir. Ct. Case No 2023-020202-CA-01 FX Defendants’ Motion for Extension of Time Page 2 of 6 Mr. Cutie had been served with several documents, including the complaint and a request for production, via email and WhatsApp text message on August 24 and 25, 2023. 4. Assuming that service was properly effectuated as to him, the current deadline for Mr. Merino to respond to the request for production is October 2, 2023. 5. On September 12, 2023, the Court entered an order (D.E. 59) extending Mr. Merino’s deadline to respond to the complaint until October 5, 2023. The Court’s order further held that “[c]ounsel for Plaintiffs and Mr. Merino have agreed that there will be no such additional extensions unless good cause is shown.” Undersigned counsel submits that good cause is shown herein. 6. On September 17, 2023, the Court entered an order (D.E. 66) extending Mr. Cutie and FxWinning’s deadline to respond to the complaint until October 5, 2023. 7. The current deadline for Mr. Cutie to respond to the request for production is October 9, 2023. 8. Since the date on which the undersigned counsel appeared in this case, we have worked diligently to draft responses to the complaint. Nevertheless, the undersigned counsel requires an additional extension of twenty (20) days, through and until October 25, 2023 to prepare a proper response. Further, undersigned counsel submits that the October 25, 2023, response should be limited to addressing the sufficiency of service of process. This is because it would be more efficient to bifurcate the issue on service from issues related to jurisdiction, venue, and the presentation of other Fla. R. Civ. P. 1.140 defenses. 9. An extension of twenty (20) days is warranted for several reasons. 10. First, the FX Defendants’ motions to quash service requires a thorough analysis of 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Kerns, et al. vs. FxWinning Ltd., et al. Miami-Dade Cir. Ct. Case No 2023-020202-CA-01 FX Defendants’ Motion for Extension of Time Page 3 of 6 the new Florida statutes on service of process, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents as well as foreign law. 11. Second, undersigned counsel has been searching for and is in the process of consulting with foreign counsel to opine on the laws of each FX Defendants’ country of domicile or residence. The undersigned anticipates that if the consulting expert determines that the FX Defendants have not been properly served then they would be retained to provide a declaration in support of the forthcoming motions to quash service of process. Alternatively, if foreign counsel determines that service has been properly effectuated on any FX Defendant, under the pertinent country’s laws, then such a motion will not be needed. 12. It has taken significantly more time to identify potential consulting foreign counsel than previously anticipated, to clear potential conflicts and to brief consultants on the facts surrounding service of process so that they are in the position to provide a declaration. 13. Third, whether service of process as to any FX Defendant is quashed or upheld is an appealable matter of law. Any such appeal would need to be resolved before this Court conducted further proceedings as to the affected defendant. 2 In that light and in the interest of judicial economy, the undersigned respectfully suggests that the Court should first consider and rule on the FX Defendants’ potential motions to quash service of process. After those motions are resolved, it would then be appropriate for the Court to consider any jurisdiction and venue challenges that could be raised by the FX Defendants. Thus, the FX Defendants jointly and severally move for this Court to conduct a bifurcated review of the (a.) sufficiency of service of process as to each defendant, and (b.) each of their challenges regarding this Court’s jurisdiction. 2 Whether the FX Defendants were properly served is also important for determining the 60-day deadline to dismiss for forum non conveniens. See Fla. R. Civ. P. 1.061(g). 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Kerns, et al. vs. FxWinning Ltd., et al. Miami-Dade Cir. Ct. Case No 2023-020202-CA-01 FX Defendants’ Motion for Extension of Time Page 4 of 6 If an FX Defendant succeeds in contesting the sufficiency of service as to it or him, then the second part of that review will not be necessary. 14. Bifurcation is further warranted because several of Plaintiffs’ claims accrued before January 2, 2023 – the effective date of the most recent amendments to Chapter 48 of the Florida Statutes (Service of Process). Under Florida law, such amendments are not given retroactive application. The U.S. District Court, Southern District of Florida, recently opined on Florida’s new service statutes and stated: “‘Florida law provides that the applicable version of a statute is that which was in effect when a cause of action accrues.’” Angarita v. Hypertoyz, Inc., 2023 U.S. Dist. LEXIS 143568, at *4 (S.D. Fla. Aug. 16, 2023) (citations omitted). Therefore, the prior version of the Florida service statutes may apply to some allegations, but not others. 15. Untangling the web of applicable law on service of process may differ between each FX Defendant and may further differ between each cause of action. This is not an academic exercise; the outcome of those analyses will have real consequences because “‘valid service of process is necessary to vest jurisdiction in the trial court,’ and therefore, ‘the court lacks personal jurisdiction over [a party] until service is perfected.’” Peaceful Paws Mem'l Servs. LLC v. Tarves, 48 Fla. L. Weekly D1503 (Fla. 3d DCA August 2, 2023) (citations omitted). 16. Regarding the pending responses to the requests for production, no FX Defendant is obligated to respond until the Court has acquired jurisdiction. For that reason, the issues regarding service of process should be fully briefed and adjudicated before the Court conducts any further proceedings in this case. 17. The Court has already entered an order to bifurcate these same issues in the parallel 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Kerns, et al. vs. FxWinning Ltd., et al. Miami-Dade Cir. Ct. Case No 2023-020202-CA-01 FX Defendants’ Motion for Extension of Time Page 5 of 6 CFT Solutions Case 3 against FxWinning and other defendants. The bifurcation order granted a joint motion to first consider arguments concerning the sufficiency of service of process prior to ruling on any other defenses under Fla. R. Civ. P. 1.140 (attached as Exhibit “A”). 18. Therefore, the FX Defendants respectfully propose the following briefing schedule: a. The deadline for the FX Defendants to file their motions to quash service of process should be on or before October 25, 2023; b. The deadline for the Plaintiffs to respond to the motion to quash service of process shall be on or before October 9, 2023; c. The deadline for the FX Defendants to file their reply shall be on or before October 16, 2023 19. Following the Court’s ruling on the motion to quash, and only if necessary, the Court will consider the remaining FX Defendants Fla. R. Civ. P. 1.140 defenses. 20. Alternatively, if this Court does not grant the relief sought in the FX Defendants’ motion to bifurcate proceedings as to the service of process and jurisdictional issues, then the FX Defendants respectfully request that the Court grant the unopposed extension of 20 days, through and including October 25, 2023, to respond to the complaint, by raising all Fla. R. Civ. P. 1.140 and 1.061(g) defenses, and to further extend the deadline to respond to the pending requests for production until November 1, 2023. 21. This request is made in good faith, is not made for purposes of undue delay, and will not prejudice any Party and will permit the Parties to properly brief and present the significant issues that have been raised by Plaintiffs’ purported service on these defendants. 3 CFT Solutions, et al. vs. FxWinning, et al., Miami-Dade Cir Ct. Case No. 2023-016392-CA-01. 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Kerns, et al. vs. FxWinning Ltd., et al. Miami-Dade Cir. Ct. Case No 2023-020202-CA-01 FX Defendants’ Motion for Extension of Time Page 6 of 6 WHEREFORE, the FX Defendants, FXWINNING LTD., DAVID MERINO and RAFAEL BRITO CUTIE, respectfully request this Honorable Court to grant this Motion by entering the proposed briefing schedule order or, alternatively, to extend the deadline by 20 days, through and including October 25, 2023, for the FX Defendants to respond to the complaint. CERTIFICATE OF CONFERRAL Counsel for FX Defendants, FXWINNING LTD., DAVID MERINO and RAFAEL BRITO CUTIE certifies that on September 29, 2023, the undersigned counsel conferred with counsel for Plaintiffs in a good faith effort to resolve this Motion without court intervention. Counsel for Plaintiffs have agreed to this motion. Respectfully submitted, BARAKAT + BOSSA, PLLC 2701 Ponce de Leon Blvd., Suite 202 Coral Gables, Florida 33134 Tel (305) 444-3114 Fax (305) 444-3115 BY: S/BRIAN BARAKAT BRIAN BARAKAT FLORIDA BAR NUMBER 457220 barakat@b2b.legal service@b2b.legal CERTIFICATE OF SERVICE I HEREBY CERTIFY, that on this 2nd day of October 2023, a true and correct copy of the foregoing was electronically filed via CM/ECF filing portal, which will serve this document on all counsel of record via this Court’s e-service system. BY: S/BRIAN BARAKAT BRIAN BARAKAT 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal