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Filing # 184765731 E-Filed 10/25/2023 04:50:20 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CODY KERNS, an individual, KERNS CAPITAL
MANAGEMENT, INC., a British Virgin Islands
CASE NO.: 2023-020202-CA-01
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.
DEFENDANTS, FXWINNING, LTD., DAVID MERINO, AND RAFAEL BRITO
CUTIE’S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME
TO RESPOND TO PLAINTIFFS’ COMPLAINT
Defendants FXWINNING LTD. (“FX”), DAVID MERINO (“Mr. Merino”) and RAFAEL
BRITO CUTIE (“Mr. Cutie”) (collectively, the “FX Defendants”), by and through undersigned
counsel, and pursuant to Florida Rule of Civil Procedure 1.090(b)(1), hereby file this Unopposed
Motion for Enlargement of Time to Respond to Plaintiffs’ Complaint and in support thereof state
as follows:
1. This firm has entered a limited notice of appearance on behalf of the FX Defendants
to contest the efficacy of service, jurisdiction, and venue.
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
FX Defendants’ Motion for Enlargement of Time to Respond to Complaint
Case No. 2023-020202-CA-01
Page 2 of 4
2. Per agreement with Plaintiffs’ counsel, the FX Defendants deadline to respond to
Plaintiff’s original complaint was October 25, 2023.
3. In the interim, the Court ruled on Defendants Jonathan Lopez and Julian Kuschner’s
Motion to Dismiss the original complaint (the “Motion to Dismiss”). [See D.E. 35].
4. The Court granted in part, and denied in part, the Motion to Dismiss “for the
reasons stated on the record.” [See D.E. 88]
5. On October 2, 2023, at hearing on the Motion to Dismiss, the Court ruled:
THE COURT: All right. So as far as the fraud and conspiracy
counts, I'm granting leave to amend to include more specificity
with respect to the specific acts that would constitute a fraud
and would also constitute the agreement satisfying the elements
set forth in Eagle Tech.
I'm also generally granting the motion with respect to lumping
the defendants together, especially in the fraud counts. And
furthermore, more specificity on how it is that the defendants
knew and when they knew the misrepresentations were false.
As far as the fraudulent transfer claim on paragraph 157 on that, it
does need to be a bit more clear. So the source of these funds can't
just be a general ill-gotten gains that -- you know, to satisfy the
elements of the statute on fraudulent transfer, okay.
[…]
MR. LEVINE: With respect to the other counts, is the motion
denied?
THE COURT: Yes.
Mot. Dismiss Hr’g Tr. 26:23-27:19 (emphasis added.)
6. As a result of the Court’s ruling, Plaintiffs will likely revise part, or all, of the
allegations and/or causes of action against the FX Defendants in their forthcoming amended
complaint.
7. October 30, 2023 is the Plaintiffs current deadline to file their amended complaint.
8. It is unclear whether the October 25, 2023 deadline for the FX Defendants to
respond to the original complaint stands in light of the Court’s ruling on the motion to dismiss.
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
FX Defendants’ Motion for Enlargement of Time to Respond to Complaint
Case No. 2023-020202-CA-01
Page 3 of 4
9. Out of an abundance of caution, and for the purpose of preserving all defenses, the
FX Defendants request an extension of time from the current October 25, 2023 deadline, plus 20
days from service of the amended complaint, so that the FX Defendants can review and timely
respond to the operative pleading.
10. This request is being made for good cause shown, is not filed for the purposes of
delay, and no party will be prejudiced by the relief sought herein.
WHEREFORE, Defendants FXWINNING LTD., DAVID MERINO, and RAFAEL
BRITO CUTIE respectfully requests that this Honorable Court grant this Motion, enlarge the
deadline for the FX Defendants to respond to the original complaint and permit FX Defendants to
have 20 days from the service date of the amended complaint to respond to the operative pleading
and for any further relief that this Court deems just and proper. A proposed order will be submitted
on CourtMap.
CERTIFICATE OF CONFERRAL
Undersigned counsel for the FX Defendants, certifies that on October 25, 2023, his office,
specifically, Grant Smith, Esq. conferred with counsel for Plaintiffs, Robert Kemper, Esq. in a
good faith effort to resolve this Motion and Plaintiffs’ counsel do not oppose the relief sought in
this Motion.
Respectfully submitted,
BARAKAT + BOSSA
2701 Ponce de Leon Blvd., Suite 202
Coral Gables, Florida 33134
Tel (305)444-3114
BY: /S/ BRIAN BARAKAT
BRIAN BARAKAT
FLORIDA BAR NUMBER 457220
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
FX Defendants’ Motion for Enlargement of Time to Respond to Complaint
Case No. 2023-020202-CA-01
Page 4 of 4
barakat@b2b.legal
service@b2b.legal
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was filed and served upon all counsel of record
via the Court’s e-Filing Portal, in accordance with Fla. R. Gen. Prac. & Jud. Admin. 2.516, on this
25th day of October 2023.
BY: S/BRIAN BARAKAT
BRIAN BARAKAT
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
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Filing # 184765731 E-Filed 10/25/2023 04:50:20 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CODY KERNS, an individual, KERNS CAPITAL MANAGEMENT, INC., a British Virgin Islands CASE NO.: 2023-020202-CA-01 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. DEFENDANTS, FXWINNING, LTD., DAVID MERINO, AND RAFAEL BRITO CUTIE’S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO PLAINTIFFS’ COMPLAINT Defendants FXWINNING LTD. (“FX”), DAVID MERINO (“Mr. Merino”) and RAFAEL BRITO CUTIE (“Mr. Cutie”) (collectively, the “FX Defendants”), by and through undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.090(b)(1), hereby file this Unopposed Motion for Enlargement of Time to Respond to Plaintiffs’ Complaint and in support thereof state as follows: 1. This firm has entered a limited notice of appearance on behalf of the FX Defendants to contest the efficacy of service, jurisdiction, and venue. 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal FX Defendants’ Motion for Enlargement of Time to Respond to Complaint Case No. 2023-020202-CA-01 Page 2 of 4 2. Per agreement with Plaintiffs’ counsel, the FX Defendants deadline to respond to Plaintiff’s original complaint was October 25, 2023. 3. In the interim, the Court ruled on Defendants Jonathan Lopez and Julian Kuschner’s Motion to Dismiss the original complaint (the “Motion to Dismiss”). [See D.E. 35]. 4. The Court granted in part, and denied in part, the Motion to Dismiss “for the reasons stated on the record.” [See D.E. 88] 5. On October 2, 2023, at hearing on the Motion to Dismiss, the Court ruled: THE COURT: All right. So as far as the fraud and conspiracy counts, I'm granting leave to amend to include more specificity with respect to the specific acts that would constitute a fraud and would also constitute the agreement satisfying the elements set forth in Eagle Tech. I'm also generally granting the motion with respect to lumping the defendants together, especially in the fraud counts. And furthermore, more specificity on how it is that the defendants knew and when they knew the misrepresentations were false. As far as the fraudulent transfer claim on paragraph 157 on that, it does need to be a bit more clear. So the source of these funds can't just be a general ill-gotten gains that -- you know, to satisfy the elements of the statute on fraudulent transfer, okay. […] MR. LEVINE: With respect to the other counts, is the motion denied? THE COURT: Yes. Mot. Dismiss Hr’g Tr. 26:23-27:19 (emphasis added.) 6. As a result of the Court’s ruling, Plaintiffs will likely revise part, or all, of the allegations and/or causes of action against the FX Defendants in their forthcoming amended complaint. 7. October 30, 2023 is the Plaintiffs current deadline to file their amended complaint. 8. It is unclear whether the October 25, 2023 deadline for the FX Defendants to respond to the original complaint stands in light of the Court’s ruling on the motion to dismiss. 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal FX Defendants’ Motion for Enlargement of Time to Respond to Complaint Case No. 2023-020202-CA-01 Page 3 of 4 9. Out of an abundance of caution, and for the purpose of preserving all defenses, the FX Defendants request an extension of time from the current October 25, 2023 deadline, plus 20 days from service of the amended complaint, so that the FX Defendants can review and timely respond to the operative pleading. 10. This request is being made for good cause shown, is not filed for the purposes of delay, and no party will be prejudiced by the relief sought herein. WHEREFORE, Defendants FXWINNING LTD., DAVID MERINO, and RAFAEL BRITO CUTIE respectfully requests that this Honorable Court grant this Motion, enlarge the deadline for the FX Defendants to respond to the original complaint and permit FX Defendants to have 20 days from the service date of the amended complaint to respond to the operative pleading and for any further relief that this Court deems just and proper. A proposed order will be submitted on CourtMap. CERTIFICATE OF CONFERRAL Undersigned counsel for the FX Defendants, certifies that on October 25, 2023, his office, specifically, Grant Smith, Esq. conferred with counsel for Plaintiffs, Robert Kemper, Esq. in a good faith effort to resolve this Motion and Plaintiffs’ counsel do not oppose the relief sought in this Motion. Respectfully submitted, BARAKAT + BOSSA 2701 Ponce de Leon Blvd., Suite 202 Coral Gables, Florida 33134 Tel (305)444-3114 BY: /S/ BRIAN BARAKAT BRIAN BARAKAT FLORIDA BAR NUMBER 457220 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal FX Defendants’ Motion for Enlargement of Time to Respond to Complaint Case No. 2023-020202-CA-01 Page 4 of 4 barakat@b2b.legal service@b2b.legal CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed and served upon all counsel of record via the Court’s e-Filing Portal, in accordance with Fla. R. Gen. Prac. & Jud. Admin. 2.516, on this 25th day of October 2023. BY: S/BRIAN BARAKAT BRIAN BARAKAT 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal