Preview
Filing # 183872440 E-Filed 10/12/2023 04:28:18 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, et al.,
Plaintiffs,
v.
FXWINNING, LTD., et al.,
Defendants.
/
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS, FXWINNING, LTD.,
DAVID MERINO, AND RAFAEL BRITO CUTIE’S, MOTION TO BIFURCATE
SERVICE OF PROCESS OR, ALTERNATIVELY, UNOPPOSED MOTION FOR
EXTENSION OF TIME TO RESPOND TO THE COMPLAINT
Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC
(collectively, “Plaintiffs”), by and through undersigned counsel, file their Response in Opposition
to Defendants, FXWinning, Ltd. (“FXWinning”), David Merino (“Merino”), and Rafael Brito
Cutie’s (“Brito”) (collectively, “Defendants”), Motion to Bifurcate Service of Process or,
alternatively, Unopposed Motion for Extension of Time to Respond to the Complaint (“Motion”),
and state:
INTRODUCTION
Defendants might as well have written “THIS IS A DELAY TACTIC!” at the top of their
Motion. It is nothing more than a transparent effort to set up two separate jurisdictional
appeals back-to-back instead of simultaneously. That is, Defendants want a first appeal as to
service of process, and then, once that is over, they want to start all over for a second appeal as to
1
personal jurisdiction and/or forum non conveniens. That will, of course, require this Court to
double its labor and prolong this case exponentially – not to mention grossly increase the parties’
attorney’s fees and costs.
Remarkably, Defendants’ delay tactic is not only obvious – but touted. See Mot. at ¶
13 (“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.”).
Defendants make a token effort to obfuscate their true purpose with assertions of complex
issues they need to sort through as to service of process. Yet, Plaintiffs do not oppose Defendants’
request for an extension of time to file their response to the Complaint to sort those issues out.
This Court should not bifurcate Defendants’ insufficient service of process defense from
any other of their jurisdictional or venue defenses. Indeed, the Florida Rules of Civil Procedure
require Defendants to raise all defenses available to them under Rule 1.140(b) at the same time.
Instead, Defendants’ suggested procedure makes a mockery of Rule 1.010, which requires that this
Court construe the Rules “to secure the just, speedy, and inexpensive determination of every
action.” Fla. R. Civ. P. 1.010.
This Court should deny the Motion and require Defendants to raise all of their jurisdictional
and venue defenses in one motion, as required by the Rules.
RELEVANT PROCEDURAL FACTS
1. Plaintiffs initiated this Action on July 24, 2023.
2. Plaintiffs served Merino and FXWinning with process on August 16, 2023 and
August 22, 2023, respectively. See Notice of Filing Return of Service, a true and correct copy of
which is attached hereto as Exhibit A.
2
3. Plaintiffs served Brito with process on August 24, 2023. See Notice of Filing Return
of Service, a true and correct copy of which is attached hereto as Exhibit B.
4. On September 12, 2023, this Court entered an Agreed Order granting Merino,
FXWinning, and Brito an extension of time until October 5, 2023 to respond to the Complaint.
5. Rather than file their responses in a timely manner, on October 10, 2023,
Defendants moved for an Order bifurcating their forthcoming arguments regarding the sufficiency
of service of process from their forthcoming arguments “related to jurisdiction, venue, and the
presentation of other Fla. R. Civ. P. 1.140 defenses.” Mot. at ¶ 8.
6. Alternatively, Defendants sought, on an unopposed basis, an extension of time
through October 25, 2023 to respond to the Complaint. 1
7. As explained in more detail below, Defendants’ Motion makes clear that
Defendants’ request to bifurcate is an obvious delay tactic that, contrary to Defendants’ assertions,
will only serve to increase judicial labor, as well as attorney’s fees and costs.
ARGUMENT
I. Defendants’ Request to Bifurcate Runs Afoul of Multiple Rules of Civil Procedure
Incredibly, Defendants want to raise their service of process defense, have a hearing,
receive an order, take an appeal, and then – and only then – proceed to raise their personal
jurisdiction and/or forum non conveniens defenses. That, of course, will only result in two rounds
of briefing, two hearings, two orders, and potentially two appeals before they ever file an answer.
It also violates Rules 1.140 and 1.010.
1
On October 2, 2023, this Court entered an Order on Defendants Julian Kuschner and
Jonathan Lopez’s motion to dismiss which dismissed, in part, the Complaint with leave to amend.
Defendants’ response to the forthcoming amended complaint will be due 10-days after its filing.
See Fla. R. Civ. P. 1.190(a). The issues and arguments raised herein apply with equal force to
Defendants’ response to the forthcoming amended complaint.
3
Florida Rule of Civil Procedure 1.140(h) requires that all defenses under Florida Rule of
Civil Procedure 1.140(b) – including insufficient service of process, venue, and personal
jurisdiction – be raised at the same time or not at all. 2 See Fla. R. Civ. P. 1.140(h)(1) (“A party
waives all defenses and objections that the party does not present either by motion under
subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading
. . . .”); Fla. R. Civ. P. 1.140(b) (“Any ground not stated must be deemed to be waived except any
ground showing that the court lacks jurisdiction of the subject matter.”).
Furthermore, under Rule 1.010, the “[R]ules shall be construed to secure a just, speedy,
and inexpensive determination in every action.” Fla. R. Civ. P. 1.010 (emphasis added).
Defendants’ request to bifurcate service of process from personal jurisdiction and/or forum
non conveniens seeks an end run around Rule 1.140 that will only lead to a slow, expensive, and
unjust process. This Court should reject it.
II. Defendants’ “Grounds” to Bifurcate Only Reveal Their True Goal – Delaying These
Proceedings
Next, Defendants contend service of process should be bifurcated from personal
jurisdiction and/or forum non conveniens because service “requires a thorough analysis of the new
Florida statutes on service of process, the Hague Convention on the Service Abroad of Judicial
and Extrajudical Documents as well as foreign law.” Mot. at ¶ 10. They also claim they need to
consult with “foreign counsel” on the subject. Id. at ¶ 11.
2
These defenses include “(1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of
service of process, (6) failure to state a cause of action, and (7) failure to join an indispensable
parties.” Fla. R. Civ. P. 1.140(b).
4
Yet, the complexity of the issues involved has nothing to do with whether Defendants’
service of process defenses should be bifurcated from their other defenses. That is what an
extension of time – which Plaintiffs do not oppose – is for.
Defendants reveal their true purpose in filing their Motion when they argue that bifurcation
is warranted because “whether service of process as to any FX Defendant is quashed or upheld is
an appealable matter of law [and] [a]ny such appeal would need to be resolved before this Court
conducted further proceedings as to the affected defendant.” Mot. at ¶ 13. Thus, Defendants
outright concede they are trying to set up a procedure whereby they raise their service of process
defense, have a hearing, receive an order, take an appeal, and then – and only then – proceed to
raise their personal jurisdiction and/or forum non conveniens defenses. Needless to say, orders
determining jurisdiction over the person, orders that concern venue, and orders that determine the
issue of forum non conveniens are all also appealable non-final orders. See Fla. R. App. P.
9.130(3)(A); (3)(C)(i); (3)(C)(viii).
Thus, Defendants suggested procedure will only result in two rounds of briefing, two
hearings, two orders, and potentially two appeals before they ever file an answer. That is
untenable. 3
3
This Court should grant no deference to the agreed order allowing a bifurcated briefing
schedule in CFT Solutions, et al v. FXWinning, Ltd., et al, Miami-Dade Cir. Ct. Case No. 2023-
016392-CA-01 (the “CFT Solutions Case”). Two of the plaintiffs in that case are Renan da Rocha
Gomes Bastos (“Renan”) and CFT Solutions, LLC (Renan’s company). Renan is a defendant in
this action and Defendants’ alleged co-conspirator. CFT Solutions was Renan’s transparent,
preemptive maneuver to act like a victim himself. It is, therefore, no surprise that he would agree
to a very, very slow walk of pre-answer motions against his claims. He does not want to get to the
merits in his case. Plaintiffs here do.
5
Beyond that, their assertion that the service of process “appeal would need to be resolved
before this Court conducted further proceedings” is simply false. There is no automatic stay
pending the outcome of an interlocutory appeal. See Fla. R. App. P. 9.130(f) (“In the absence of a
stay, during the pendency of a review of a nonfinal order, the lower tribunal may proceed with all
matters, including trial or final hearing, except that the lower tribunal may not render a final order
disposing of the cause pending such review absent leave of court.”).
Simply put, Defendants’ Motion is nothing but a delay tactic and this Court should deny
the invitation to create a procedure that would delay the proceeding and only serve to increase
judicial labor and the costs incurred by the parties. 4
WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB
Holdings, LLC, respectfully request that this Court deny Defendants, FXWinning, Ltd., David
Merino, and Rafael Brito Cutie’s, Motion to Bifurcate Service of Process and Set a Briefing
Schedule; order these Defendants to respond to Plaintiffs’ Amended Complaint on a date certain
with all of their Rule 1.140(b) defenses at the same time; and enter such other and further relief as
this Court deems proper and just.
4
Plaintiffs are amenable to coordinating a briefing schedule on Defendants’ motion to
dismiss, raising all Rule 1.140(b) and forum non-conveniens defenses, that accounts for
jurisdictional and venue-based discovery. See, e.g., Gleneagle Ship Mgmt. Co. Leondakos, 602
So. 2d 1282, 1284 (Fla. 1992) (“[A] plaintiff should be able to conduct limited discovery on the
jurisdictional question in order to gather facts and file an opposing affidavit.”); Asperbras
Tecnologia Indus. v. Good Hope Dev., LLC, 213 So. 3d 1061, 1064 (Fla. 3d DCA 2017) (holding
that the trial court correctly allowed for discovery relating to forum non conveniens issues).
6
Dated: October 12, 2023 Respectfully submitted,
SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, FL 33131
Tel: (305) 942-9947
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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 12, 2023 a true and correct copy of the foregoing
was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts
eFiling Portal.
By: /s/ David M. Levine
David M. Levine, Esq.
7
EXHIBIT A
Filing # 180442196 E-Filed 08/24/2023 01:44:22 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
Company, 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.
/
NOTICE OF FILING
Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, by
and through their undersigned counsel, hereby give notice of filing the following documents:
1. Return of Service on David Merino, attached hereto as Exhibit 1.
2. Return of Service on FXWinning, Ltd., attached hereto as Exhibit 2.
[remainder of page intentionally left blank]
DATED : August 24, 2023 Respectfully submitted,
SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, FL 33131
Tel: (305) 942-9947
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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 24, 2023, a true and correct copy of the foregoing
was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts
eFiling Portal and the following Defendants:
David Merino
ddmmqq30@gmail.com
Rafael Brito Cutie
ceo@fxwinning.net
rafabritocu@gmail.com
FxWinning, Ltd.
support@fxwinning.info
By: /s/ David M. Levine
David M. Levine, Esq.
2
EXHIBIT 1
EXHIBIT 2
EXHIBIT B
Filing # 180744152 E-Filed 08/29/2023 01:04:46 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
Company, 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.
/
NOTICE OF FILING
Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, by
and through their undersigned counsel, hereby give notice of filing the following document:
1. Return of Service on Rafael Brito Cutie, attached hereto as Exhibit 1.
[remainder of page intentionally left blank]
DATED : August 29, 2023 Respectfully submitted,
SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, FL 33131
Telephone: (305) 942-9947
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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 29, 2023 a true and correct copy of the foregoing
was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts
eFiling Portal.
By: /s/ David M. Levine
David M. Levine, Esq.
2
EXHIBIT 1
Preview
Filing # 183872440 E-Filed 10/12/2023 04:28:18 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, et al., Plaintiffs, v. FXWINNING, LTD., et al., Defendants. / PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS, FXWINNING, LTD., DAVID MERINO, AND RAFAEL BRITO CUTIE’S, MOTION TO BIFURCATE SERVICE OF PROCESS OR, ALTERNATIVELY, UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO THE COMPLAINT Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC (collectively, “Plaintiffs”), by and through undersigned counsel, file their Response in Opposition to Defendants, FXWinning, Ltd. (“FXWinning”), David Merino (“Merino”), and Rafael Brito Cutie’s (“Brito”) (collectively, “Defendants”), Motion to Bifurcate Service of Process or, alternatively, Unopposed Motion for Extension of Time to Respond to the Complaint (“Motion”), and state: INTRODUCTION Defendants might as well have written “THIS IS A DELAY TACTIC!” at the top of their Motion. It is nothing more than a transparent effort to set up two separate jurisdictional appeals back-to-back instead of simultaneously. That is, Defendants want a first appeal as to service of process, and then, once that is over, they want to start all over for a second appeal as to 1 personal jurisdiction and/or forum non conveniens. That will, of course, require this Court to double its labor and prolong this case exponentially – not to mention grossly increase the parties’ attorney’s fees and costs. Remarkably, Defendants’ delay tactic is not only obvious – but touted. See Mot. at ¶ 13 (“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.”). Defendants make a token effort to obfuscate their true purpose with assertions of complex issues they need to sort through as to service of process. Yet, Plaintiffs do not oppose Defendants’ request for an extension of time to file their response to the Complaint to sort those issues out. This Court should not bifurcate Defendants’ insufficient service of process defense from any other of their jurisdictional or venue defenses. Indeed, the Florida Rules of Civil Procedure require Defendants to raise all defenses available to them under Rule 1.140(b) at the same time. Instead, Defendants’ suggested procedure makes a mockery of Rule 1.010, which requires that this Court construe the Rules “to secure the just, speedy, and inexpensive determination of every action.” Fla. R. Civ. P. 1.010. This Court should deny the Motion and require Defendants to raise all of their jurisdictional and venue defenses in one motion, as required by the Rules. RELEVANT PROCEDURAL FACTS 1. Plaintiffs initiated this Action on July 24, 2023. 2. Plaintiffs served Merino and FXWinning with process on August 16, 2023 and August 22, 2023, respectively. See Notice of Filing Return of Service, a true and correct copy of which is attached hereto as Exhibit A. 2 3. Plaintiffs served Brito with process on August 24, 2023. See Notice of Filing Return of Service, a true and correct copy of which is attached hereto as Exhibit B. 4. On September 12, 2023, this Court entered an Agreed Order granting Merino, FXWinning, and Brito an extension of time until October 5, 2023 to respond to the Complaint. 5. Rather than file their responses in a timely manner, on October 10, 2023, Defendants moved for an Order bifurcating their forthcoming arguments regarding the sufficiency of service of process from their forthcoming arguments “related to jurisdiction, venue, and the presentation of other Fla. R. Civ. P. 1.140 defenses.” Mot. at ¶ 8. 6. Alternatively, Defendants sought, on an unopposed basis, an extension of time through October 25, 2023 to respond to the Complaint. 1 7. As explained in more detail below, Defendants’ Motion makes clear that Defendants’ request to bifurcate is an obvious delay tactic that, contrary to Defendants’ assertions, will only serve to increase judicial labor, as well as attorney’s fees and costs. ARGUMENT I. Defendants’ Request to Bifurcate Runs Afoul of Multiple Rules of Civil Procedure Incredibly, Defendants want to raise their service of process defense, have a hearing, receive an order, take an appeal, and then – and only then – proceed to raise their personal jurisdiction and/or forum non conveniens defenses. That, of course, will only result in two rounds of briefing, two hearings, two orders, and potentially two appeals before they ever file an answer. It also violates Rules 1.140 and 1.010. 1 On October 2, 2023, this Court entered an Order on Defendants Julian Kuschner and Jonathan Lopez’s motion to dismiss which dismissed, in part, the Complaint with leave to amend. Defendants’ response to the forthcoming amended complaint will be due 10-days after its filing. See Fla. R. Civ. P. 1.190(a). The issues and arguments raised herein apply with equal force to Defendants’ response to the forthcoming amended complaint. 3 Florida Rule of Civil Procedure 1.140(h) requires that all defenses under Florida Rule of Civil Procedure 1.140(b) – including insufficient service of process, venue, and personal jurisdiction – be raised at the same time or not at all. 2 See Fla. R. Civ. P. 1.140(h)(1) (“A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading . . . .”); Fla. R. Civ. P. 1.140(b) (“Any ground not stated must be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter.”). Furthermore, under Rule 1.010, the “[R]ules shall be construed to secure a just, speedy, and inexpensive determination in every action.” Fla. R. Civ. P. 1.010 (emphasis added). Defendants’ request to bifurcate service of process from personal jurisdiction and/or forum non conveniens seeks an end run around Rule 1.140 that will only lead to a slow, expensive, and unjust process. This Court should reject it. II. Defendants’ “Grounds” to Bifurcate Only Reveal Their True Goal – Delaying These Proceedings Next, Defendants contend service of process should be bifurcated from personal jurisdiction and/or forum non conveniens because service “requires a thorough analysis of the new Florida statutes on service of process, the Hague Convention on the Service Abroad of Judicial and Extrajudical Documents as well as foreign law.” Mot. at ¶ 10. They also claim they need to consult with “foreign counsel” on the subject. Id. at ¶ 11. 2 These defenses include “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join an indispensable parties.” Fla. R. Civ. P. 1.140(b). 4 Yet, the complexity of the issues involved has nothing to do with whether Defendants’ service of process defenses should be bifurcated from their other defenses. That is what an extension of time – which Plaintiffs do not oppose – is for. Defendants reveal their true purpose in filing their Motion when they argue that bifurcation is warranted because “whether service of process as to any FX Defendant is quashed or upheld is an appealable matter of law [and] [a]ny such appeal would need to be resolved before this Court conducted further proceedings as to the affected defendant.” Mot. at ¶ 13. Thus, Defendants outright concede they are trying to set up a procedure whereby they raise their service of process defense, have a hearing, receive an order, take an appeal, and then – and only then – proceed to raise their personal jurisdiction and/or forum non conveniens defenses. Needless to say, orders determining jurisdiction over the person, orders that concern venue, and orders that determine the issue of forum non conveniens are all also appealable non-final orders. See Fla. R. App. P. 9.130(3)(A); (3)(C)(i); (3)(C)(viii). Thus, Defendants suggested procedure will only result in two rounds of briefing, two hearings, two orders, and potentially two appeals before they ever file an answer. That is untenable. 3 3 This Court should grant no deference to the agreed order allowing a bifurcated briefing schedule in CFT Solutions, et al v. FXWinning, Ltd., et al, Miami-Dade Cir. Ct. Case No. 2023- 016392-CA-01 (the “CFT Solutions Case”). Two of the plaintiffs in that case are Renan da Rocha Gomes Bastos (“Renan”) and CFT Solutions, LLC (Renan’s company). Renan is a defendant in this action and Defendants’ alleged co-conspirator. CFT Solutions was Renan’s transparent, preemptive maneuver to act like a victim himself. It is, therefore, no surprise that he would agree to a very, very slow walk of pre-answer motions against his claims. He does not want to get to the merits in his case. Plaintiffs here do. 5 Beyond that, their assertion that the service of process “appeal would need to be resolved before this Court conducted further proceedings” is simply false. There is no automatic stay pending the outcome of an interlocutory appeal. See Fla. R. App. P. 9.130(f) (“In the absence of a stay, during the pendency of a review of a nonfinal order, the lower tribunal may proceed with all matters, including trial or final hearing, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of court.”). Simply put, Defendants’ Motion is nothing but a delay tactic and this Court should deny the invitation to create a procedure that would delay the proceeding and only serve to increase judicial labor and the costs incurred by the parties. 4 WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, respectfully request that this Court deny Defendants, FXWinning, Ltd., David Merino, and Rafael Brito Cutie’s, Motion to Bifurcate Service of Process and Set a Briefing Schedule; order these Defendants to respond to Plaintiffs’ Amended Complaint on a date certain with all of their Rule 1.140(b) defenses at the same time; and enter such other and further relief as this Court deems proper and just. 4 Plaintiffs are amenable to coordinating a briefing schedule on Defendants’ motion to dismiss, raising all Rule 1.140(b) and forum non-conveniens defenses, that accounts for jurisdictional and venue-based discovery. See, e.g., Gleneagle Ship Mgmt. Co. Leondakos, 602 So. 2d 1282, 1284 (Fla. 1992) (“[A] plaintiff should be able to conduct limited discovery on the jurisdictional question in order to gather facts and file an opposing affidavit.”); Asperbras Tecnologia Indus. v. Good Hope Dev., LLC, 213 So. 3d 1061, 1064 (Fla. 3d DCA 2017) (holding that the trial court correctly allowed for discovery relating to forum non conveniens issues). 6 Dated: October 12, 2023 Respectfully submitted, SANCHEZ FISCHER LEVINE, LLP 1200 Brickell Avenue, Suite 750 Miami, FL 33131 Tel: (305) 942-9947 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 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 12, 2023 a true and correct copy of the foregoing was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts eFiling Portal. By: /s/ David M. Levine David M. Levine, Esq. 7 EXHIBIT A Filing # 180442196 E-Filed 08/24/2023 01:44:22 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 Company, 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. / NOTICE OF FILING Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, by and through their undersigned counsel, hereby give notice of filing the following documents: 1. Return of Service on David Merino, attached hereto as Exhibit 1. 2. Return of Service on FXWinning, Ltd., attached hereto as Exhibit 2. [remainder of page intentionally left blank] DATED : August 24, 2023 Respectfully submitted, SANCHEZ FISCHER LEVINE, LLP 1200 Brickell Avenue, Suite 750 Miami, FL 33131 Tel: (305) 942-9947 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 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 24, 2023, a true and correct copy of the foregoing was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts eFiling Portal and the following Defendants: David Merino ddmmqq30@gmail.com Rafael Brito Cutie ceo@fxwinning.net rafabritocu@gmail.com FxWinning, Ltd. support@fxwinning.info By: /s/ David M. Levine David M. Levine, Esq. 2 EXHIBIT 1 EXHIBIT 2 EXHIBIT B Filing # 180744152 E-Filed 08/29/2023 01:04:46 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 Company, 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. / NOTICE OF FILING Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, by and through their undersigned counsel, hereby give notice of filing the following document: 1. Return of Service on Rafael Brito Cutie, attached hereto as Exhibit 1. [remainder of page intentionally left blank] DATED : August 29, 2023 Respectfully submitted, SANCHEZ FISCHER LEVINE, LLP 1200 Brickell Avenue, Suite 750 Miami, FL 33131 Telephone: (305) 942-9947 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 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 29, 2023 a true and correct copy of the foregoing was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts eFiling Portal. By: /s/ David M. Levine David M. Levine, Esq. 2 EXHIBIT 1