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Filing # 187494096 E-Filed 12/06/2023 02:46:27 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
Company, and WFTMB Holdings, LLC, a Florida CASE NO.: 2023-020202-CA-01
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
MOTION TO BE EXCUSED FROM ATTENDING
INITIAL CASE MANAGEMENT CONFERENCE
Defendants FxWinning Ltd (“FxWinning”), David Merino (“Merino”) and Rafael Brito
Cutie (“Brito”), appearing on a limited basis by and through undersigned counsel for the sole
purpose of responding to this Court’s Order Setting Initial Case Management Conference and to
Prepare a Mandatory Case Management Report, and pursuant to Florida Rules of Civil Procedure,
Rules 1.140(b)(5) and 1.070, and the Fla. R. Gen. Prac. & Jud. Admin., Rule 2.545, hereby
respectfully move this Court for an Order excusing them from attendance at the Case Management
Conference on December 13, 2023, at 9:00 a.m. (the “ICMC””), and state as follows:
1. On November 15, 2023, the Court entered an order resetting the ICMC for
December 13, 2023, at 9:00 a.m. via zoom.
2. In their amended complaint, Plaintiffs allege that FxWinning is an entity organized
Defendants’ Motion to be Excused from CMC
Case No. 2023-020202-CA-01
Page 2 of 3
under the laws of Hong Kong, Mr. Merino is an individual who resides in Spain and Mr. Brito is
an individual who resides in the United Arab Emirates and/or Cyprus (collectively, the “FX
Defendants”).
3. The FX Defendants have contested sufficiency of service of process and personal
jurisdiction and the Court has not yet ruled on whether it can exercise jurisdiction over them.
Additionally, the FX Defendants should not be compelled to attend the ICMC, lest they be deemed
to have waived these defenses and submitted to the Court’s jurisdiction. See Golden State Indus.
v. Cueto, 883 So. 2d 817, 820-21 (Fla. 3d DCA 2004) (“‘a defendant may manifest consent to a
court's in personam jurisdiction in any number of ways, from failure seasonably to interpose a
jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to
submission implied from conduct.’”) (quoting Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla.
1998).
4. The FX Defendants filed motions to quash service of process and to dismiss for
lack of personal jurisdiction. These motions have not yet been fully briefed.
5. Since the non-resident FX Defendants respectfully dispute that they are properly
before this Court, neither the individuals nor a corporate representative for FxWinning should be
compelled to appear at the ICMC until the Court rules on their motions to dismiss for insufficiency
of service of process and lack of personal jurisdiction.
6. Counsel for the FX Defendants will attend the ICMC and will be prepared to
address the issues raised in the proposed case management schedule.
WHEREFORE, Defendants FxWinning Ltd, David Merino and Rafael Brito Cutie
respectfully move for entry of an order excusing them from appearing at the December 13, 2023
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Defendants’ Motion to be Excused from CMC
Case No. 2023-020202-CA-01
Page 3 of 3
ICMC.
CERTIFICATE OF CONFERRAL
Counsel for Defendants, FxWinning Ltd., David Merino and Rafael Brito Cutie certifies
that on December 5 and 6, 2023, his firm conferred with counsel for Plaintiffs and Plaintiffs have
not stated that they agree to the relief sought herein.
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 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
6th day of December 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 # 187494096 E-Filed 12/06/2023 02:46:27 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 Company, and WFTMB Holdings, LLC, a Florida CASE NO.: 2023-020202-CA-01 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 MOTION TO BE EXCUSED FROM ATTENDING INITIAL CASE MANAGEMENT CONFERENCE Defendants FxWinning Ltd (“FxWinning”), David Merino (“Merino”) and Rafael Brito Cutie (“Brito”), appearing on a limited basis by and through undersigned counsel for the sole purpose of responding to this Court’s Order Setting Initial Case Management Conference and to Prepare a Mandatory Case Management Report, and pursuant to Florida Rules of Civil Procedure, Rules 1.140(b)(5) and 1.070, and the Fla. R. Gen. Prac. & Jud. Admin., Rule 2.545, hereby respectfully move this Court for an Order excusing them from attendance at the Case Management Conference on December 13, 2023, at 9:00 a.m. (the “ICMC””), and state as follows: 1. On November 15, 2023, the Court entered an order resetting the ICMC for December 13, 2023, at 9:00 a.m. via zoom. 2. In their amended complaint, Plaintiffs allege that FxWinning is an entity organized Defendants’ Motion to be Excused from CMC Case No. 2023-020202-CA-01 Page 2 of 3 under the laws of Hong Kong, Mr. Merino is an individual who resides in Spain and Mr. Brito is an individual who resides in the United Arab Emirates and/or Cyprus (collectively, the “FX Defendants”). 3. The FX Defendants have contested sufficiency of service of process and personal jurisdiction and the Court has not yet ruled on whether it can exercise jurisdiction over them. Additionally, the FX Defendants should not be compelled to attend the ICMC, lest they be deemed to have waived these defenses and submitted to the Court’s jurisdiction. See Golden State Indus. v. Cueto, 883 So. 2d 817, 820-21 (Fla. 3d DCA 2004) (“‘a defendant may manifest consent to a court's in personam jurisdiction in any number of ways, from failure seasonably to interpose a jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to submission implied from conduct.’”) (quoting Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla. 1998). 4. The FX Defendants filed motions to quash service of process and to dismiss for lack of personal jurisdiction. These motions have not yet been fully briefed. 5. Since the non-resident FX Defendants respectfully dispute that they are properly before this Court, neither the individuals nor a corporate representative for FxWinning should be compelled to appear at the ICMC until the Court rules on their motions to dismiss for insufficiency of service of process and lack of personal jurisdiction. 6. Counsel for the FX Defendants will attend the ICMC and will be prepared to address the issues raised in the proposed case management schedule. WHEREFORE, Defendants FxWinning Ltd, David Merino and Rafael Brito Cutie respectfully move for entry of an order excusing them from appearing at the December 13, 2023 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Defendants’ Motion to be Excused from CMC Case No. 2023-020202-CA-01 Page 3 of 3 ICMC. CERTIFICATE OF CONFERRAL Counsel for Defendants, FxWinning Ltd., David Merino and Rafael Brito Cutie certifies that on December 5 and 6, 2023, his firm conferred with counsel for Plaintiffs and Plaintiffs have not stated that they agree to the relief sought herein. 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 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 6th day of December 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