Motion for Protective Order in CODY KERNS ET AL VS FXWINNING, LTD. ET AL| Trellis.Law

On July 24, 2023 a Order was filed involving a dispute between Kerns Capital Management, Inc., Kerns, Cody, Wftmb Holdings Llc, and Bbrc Real Estate, Llc, Brito Cutie, Rafael, Da Rocha Gomes Bastos, Renan, Fxwinning, Ltd., Kuschner, Julian, Lopez, Jonathan, Merino, David, for Business Torts in the District Court of Miami-Dade County.

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Filing # 185288528 E-Filed 11/01/2023 09:12:21 PM

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

FXWINNING LTD., et al.,

Defendants.

MOTION FOR PROTECTIVE ORDER

NOW COMES FXWINNING LTD. (“FX”), 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 Rule

1.280(c), Fla. R. Civ. P., jointly file their Motion for Protective Order and state:

PRELIMINARY STATEMENT ON PROCEDURAL POSTURE REGARDING
CHALLENGES TO SERVICE OF PROCESS AND PERSONAL JURISDICTION

1. On July 24, 2023, Plaintiffs filed their complaint.

2. The Court subsequently entered ex-parte orders permitting Plaintiffs to serve

process on the FX Defendants via email and WhatsApp. See [D.E. 25], [D.E. 26] and [D.E. 34].

3. 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.

1
As set forth in the previously filed Notices of Limited Appearance.

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
Page 2 of 7

4. On August 29, 2023, the Plaintiffs filed another Return of Service indicating that

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.

5. On September 28, 2023, Plaintiffs’ counsel agreed to an extension of time until

November 1, 2023, for FX Defendants to respond to the three requests for production.

6. On October 17, 2023, the Court entered an order granting, in part, the motion to

dismiss of unrelated defendants and provided the Plaintiffs with 14 days to amend their complaint.

7. On October 25, 2023, the FX Defendants filed their Unopposed Motion for

Enlargement of Time to Respond to Plaintiffs’ Complaint. See [D.E. 93]. Therein, the FX

Defendants noted that the undersigned have appeared for the limited purpose of challenging the

efficacy of service, jurisdiction, and venue. See [D.E. 93] at ¶ 1.

8. For that reason, on October 27, 2023, the Court entered an order nullifying the

October 25, 2023, response deadline and gave FX Defendants 20 days from the service date of the

amended complaint to file their response. See [D.E. 94].

9. On October 31, 2023, the Plaintiffs filed their amended complaint, but the Court

has not yet ruled on service of process on the FX Defendants.

10. FX Defendants have consistently maintained and preserved all arguments and

challenges to the validity of service of process as well as personal jurisdiction, prior to moving for

this protective order, and will make said arguments when it responds to the amended complaint

pursuant to the Court’s order. See [D.E. 94].

11. FX Defendants are entitled to protective orders in this instance because they have

not been properly served with the process, the Court lacks jurisdiction and they are not obligated

to respond to the requests for production.

ARGUMENT

I. Legal Standard

This Court possesses broad discretion in the resolution of discovery issues through entry

of protective orders to protect persons from excessive, redundant, repetitive, unnecessary, and

harassing discovery. See, e.g., Waite v. Wellington Boats, Inc., 459 So. 2d 425, 426 (Fla. 1st DCA

1984). Florida Rule of Civil Procedure 1.280(c) states: “Upon motion by a party . . . and for good

cause shown, the court in which the action is pending may make any order to protect a party or

person from annoyance, embarrassment, oppression, or undue burden or expense that justice

requires.”

Challenges to a complaint should be resolved prior to beginning discovery. See Chudasama

v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (“[f]acial challenges to the legal

sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for

relief, should . . . be resolved before discovery begins.” (emphasis added)).

While the party moving for protective order has the burden of showing “good cause,” it is

well within the trial court’s discretion to limit discovery when that burden is carried. See, e.g.,

Citigroup Inc. v. Holtsberg, 915 So. 2d 1265, 1270 (Fla. 4th DCA 2005). In determining whether

good cause has been shown for the issuance of a protective order, “the court must balance the

competing interests that would be served by granting or denying it.” Alterra Healthcare Corp. v.

Estate of Shelley, 827 So. 2d 936, 945 (Fla. 2002) (quoting Rasmussen v. South Florida Blood

Service Inc., 500 So. 2d 533, 535 (Fla. 1987)). Lastly, the relief sought herein does not subject the

FX Defendants to the general jurisdiction of court. See Bornstein v. Bank of N.Y. Mellon, 219 So.

3d 832 (Fla. 4th DCA 2017).

II. Discovery is Premature and Cannot Proceed Until the Court Rules on the Validity of
Service of Process on FX Defendants

Discovery cannot be taken from a defendant until it has been properly served with process.

See Sunseeker Int'l Ltd. v. Devers, 50 So. 3d 715, 716 (Fla. 4th DCA 2010) (the district court of

appeal stayed the case after plaintiff served jurisdictional discovery on foreign corporate defendant

because the motion to quash service of process was on appeal); see also Rizack v. Signature Bank,

N.A., 267 So. 3d 24 (Fla. 4th DCA 2019). The Sunseeker court concluded: “[o]nce service is

perfected, the court may permit discovery on the jurisdictional issue if appropriate.” Id. at 718;

citing Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So. 2d 1282 (Fla. 1992). Thus, under

Gleneagle and its progeny, plaintiffs can only be permitted to conduct limited jurisdictional

discovery after this Court has determined that service has been perfected.

In Gleneagle, the plaintiff served discovery on defendants after they had been served with

the complaint and had filed an answer. See Gleneagle, 602 So. 2d at 1283. For that reason, the

Gleneagle court permitted discovery, limited to jurisdiction, to proceed while a decision on

jurisdiction was pending. In the present action, we are not yet at that stage in Gleneagle because

Plaintiffs have not yet perfected service of process on FX Defendants. Therefore, no discovery

should be allowed to proceed. Because the plaintiffs have now filed an amended complaint, the

Court granted FX Defendants 20 days to respond to that amended complaint, which was only filed

yesterday. The Court must rule on the validity of service of process on each of the FX Defendants

prior to Plaintiffs obtaining discovery. If the Court denies FX Defendants’ motion to quash service

of process, then and only then can limited discovery proceed on jurisdictional issues.

III. The Venetian Salami Decision Dictates the Procedure for the Parties to Follow Before
Plaintiffs can take Discovery
In Gleneagle, the court cited to its ruling in Venetian Salami Co. v. Parthenais, 554 So. 2d

499 (Fla. 1989) for the procedure to follow prior to initiating jurisdictional discovery and stated:

A defendant wishing to contest the allegations of the complaint concerning
jurisdiction or to raise a contention of minimum contacts must file affidavits in
support of his position. The burden is then placed upon the plaintiff to prove by
affidavit the basis upon which jurisdiction may be obtained. In most cases, the
affidavits can be harmonized, and the court will be in a position to make a decision
based upon facts which are essentially undisputed. Gleneagle, 602 So. 2d at 1284.

If the parties’ respective affidavits cannot be reconciled, then an evidentiary hearing must

be held and “[l]imited jurisdictional on jurisdictional issues will assist the trial court in answering

the question of whether to grant or deny jurisdiction. Id. “Discovery to determine the jurisdictional

issue should not be broad, onerous or expansive, nor should it address the merits of the case. Also,

where possible, the discovery should be carried out so as to minimize expense to the defendant.”

Id. at 1282. Again, FX Defendants have already indicated and preserved their right to contest

service of process of the original complaint and jurisdiction on November 20, 2023, pursuant to

the Court’s recent order. See [D.E. 94]. The forthcoming motions to quash and to dismiss will

contain affidavits concerning the lack of minimum contacts with Florida, among other

jurisdictional defenses.

Nevertheless, even if the Court is inclined to permit jurisdictional discovery to take place,

the current three requests for production prepared by Plaintiffs all seek discovery on the merits of

the case. 2 That discovery is unduly burdensome, expensive, and oppressive; it requires the FX

2
FX Defendants reserve the right to make objections each of the requests for production if merits
discovery is ordered to take place by the Court.

Defendants to respond to three requests for production prior to the Court ruling on an upcoming

motion to quash service of process and before determining whether it can even exercise

jurisdiction. Also, none of the individual requests are narrowly tailored to seek discovery

concerning jurisdictional issues.

Plaintiffs will not be prejudiced by a protective order or stay of discovery by the Court. FX

Defendants know of no pending deadline in this action requiring imminent document production

by the Plaintiffs. This action is still in the very early stages and the case management conference

is currently set for the end of this month. Further, Plaintiffs have had notice of FX Defendants’

forthcoming challenges to service of process and jurisdiction for months.

CONCLUSION

WHEREFORE, Defendants FXWINNING LTD., DAVID MERINO, and RAFAEL

BRITO CUTIE respectfully request that this Court enter a protective order prohibiting production

of documents or evidence as set forth in Plaintiffs three Requests for Production until after the

Court rules on service of process and determines the need for jurisdictional discovery and for any

other and further relief this Court deems just and appropriate.

CERTIFICATE OF CONFERRAL

Counsel for FX Defendants, FXWINNING LTD., DAVID MERINO and RAFAEL BRITO

CUTIE, certifies that on November 1, 2023, their office conferred with Plaintiff’s counsel over the

phone in a good faith effort to resolve this motion without Court intervention, but were unable to

reach an agreement.

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
barakat@b2b.legal
service@b2b.legal

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that on this 1st day of November 2023, a true and correct copy of

the foregoing was electronically filed via the Florida Courts e-Filing Portal, which will serve this

motion on all counsel of record via this Court’s e-service system.

/s/Brian Barakat
Brian Barakat

2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal

Case Info

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CA44 - Downtown Miami - Judge Walsh, Lisa S Track Judge’s New Case

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Document Filed Date

November 01, 2023

Case Filing Date

July 24, 2023

County

Parties

Barakat, Brian Attorney for the Defendant
BBRC Real Estate, LLC Defendant
Bianchi, Jaime Augusto Attorney for the Defendant
Brito Cutie, Rafael Defendant
da Rocha Gomes Bastos, Renan Defendant
FXWinning, Ltd. Defendant
Kaplan, Justin B Attorney for the Defendant
Kerns Capital Management, Inc. Plaintiff
Kerns, Cody Plaintiff
Kuschner, Julian Defendant
Levine David M Attorney for the Plaintiff
Lopez, Jonathan Defendant
Merino, David Defendant
WFTMB Holdings LLC Plaintiff
Fausto Sanchez Attorneys for Plaintiffs
Lauren Allen Attorneys for Plaintiffs
Ryan Todd Attorney
Elaine Kussurelis Attorney
Grant Smith Attorneys for Defendants
Jocelyne Macelloni Attorneys for Defendants
Jo-Jean Figueira Attorney
Spencer Thompson Attorney
Matthew Akiba Attorney
Michael Sontag Attorney
Zachary Dickens Attorneys for Defendants

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Order: CODY KERNS ET AL VS FXWINNING, LTD. ET AL

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