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Filing # 190878779 E-Filed 01/30/2024 05:12:21 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’ MOTION FOR EXTENSION OF THE DEADLINE TO FILE MOTIONS
TO AMEND/ADD PARTIES
Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and
WFTMB Holdings, LLC (“WFTMB”) (collectively, “Plaintiffs”), pursuant to Florida Rule of Civil
Procedure 1.090(b), hereby move for an extension of the deadline to file motions to amend/add
parties, and in support, state as follows:
1. On December 20, 2023, this Court issued its Order Setting Trial and Final Pre-Trial
Conference (the “Case Management Order”). See [D.E. 138].
2. On November 20, 2023, Defendant FXWinning, Ltd. (“FXWinning”) filed its
Motion to Quash Service of Process and to Dismiss the Amended Complaint for Lack of Personal
Jurisdiction, or Alternatively, for Failure to State a Claim [D.E. 106].
3. On November 20, 2023, Defendant David Merino (“Merino”) filed his Motion to
Quash Service of Process and to Dismiss the Amended Complaint for Lack of Personal
Jurisdiction, or Alternatively, for Failure to State a Claim [D.E. 107].
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4. On November 20, 2023, Defendant Rafael Brito Cutie (“Brito”) filed his Motion to
Quash Service of Process and to Dismiss the Amended Complaint for Lack of Personal
Jurisdiction, or Alternatively, for Failure to State a Claim [D.E. 105].
5. On December 27, 2023, this Court granted Plaintiffs’ Motion to Compel the
jurisdictional depositions of Merino and Brito. See [D.E. 143].
6. Pursuant to that Order, the jurisdictional depositions of Merino and Brito occurred
on January 10, 2024, and January 12, 2024, respectively.
7. Due to the answers of certain questions during Defendant Brito’s and Defendant
Merino’s depositions, Plaintiffs served their First Request for Production on Defendant
FXWinning on January 19, 2024.
8. On January 22, 2024, Defendants, FXWinning, Merino, and Brito, filed notices of
deposition of the Plaintiffs to occur in the month of February. Plaintiffs oppose these depositions
and will be filing a motion for protective order.
9. Pursuant to the Case Management Order, the deadline for the parties to file motions
to amend/add parties is currently January 30, 2024. See [D.E. 138].
10. Jurisdictional discovery and the above related issues have therefore necessitated an
extension of the January 30, 2024 deadline to afford Plaintiffs a meaningful opportunity to amend
the complaint / add parties, should the facts give rise to such a need.
11. Accordingly, Plaintiffs respectfully request that the Court extend the deadline to
file motions to amend/add parties until sixty (60) days following the resolution of FXWinning’s,
Merino’s, and Brito’s respective challenges to personal jurisdiction.
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12. This is Plaintiffs’ first request for an extension of time with respect to the deadline
to amend/add parties, is made in good faith and not for the purposes of delay, and will not prejudice
any party to this action.
WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB
Holdings, LLC, respectfully request that this Court enter an order extending the deadline to file
motions to amend/add parties until sixty (60) days after the resolution of FXWinning’s, Merino’s,
and Brito’s, respective challenges to this Court’s personal jurisdiction over them, and for such
other and further relief as this Court deems just and appropriate.
Dated: January 30, 2024 Respectfully submitted,
SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, Florida 33131
Telephone: (305) 925-9947
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
Robert Kemper, Esq.
Florida Bar. No.: 1038549
Email: rkemper@sfl-law.com
Counsel for Plaintiffs
[Certificate of Conferral and Certificate of Service to Follow]
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CBL RULE 4.3 CERTIFICATE OF CONFERRAL
I HEREBY CERTIFY that on January 26, 2024, counsel for Plaintiffs conferred with
counsel for Defendants, Renan da Rocha Gomes Bastos and BBRC Real Estate, LLC, who stated
that those Defendants have no objection to the relief requested herein. Additionally, on January 26,
2024, counsel for Plaintiffs attempted to confer with counsel for Defendants, FXWinning, Ltd.,
David Merino, and Rafael Brito Cutie, via email. As of the date of the filing of this motion, counsel
for those Defendants has not responded to counsel for Plaintiffs’ attempt to confer.
By: /s/ David M. Levine
David M. Levine, Esq.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 30, 2024 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.
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Filing # 190878779 E-Filed 01/30/2024 05:12:21 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’ MOTION FOR EXTENSION OF THE DEADLINE TO FILE MOTIONS TO AMEND/ADD PARTIES Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and WFTMB Holdings, LLC (“WFTMB”) (collectively, “Plaintiffs”), pursuant to Florida Rule of Civil Procedure 1.090(b), hereby move for an extension of the deadline to file motions to amend/add parties, and in support, state as follows: 1. On December 20, 2023, this Court issued its Order Setting Trial and Final Pre-Trial Conference (the “Case Management Order”). See [D.E. 138]. 2. On November 20, 2023, Defendant FXWinning, Ltd. (“FXWinning”) filed its Motion to Quash Service of Process and to Dismiss the Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for Failure to State a Claim [D.E. 106]. 3. On November 20, 2023, Defendant David Merino (“Merino”) filed his Motion to Quash Service of Process and to Dismiss the Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for Failure to State a Claim [D.E. 107]. 1 4. On November 20, 2023, Defendant Rafael Brito Cutie (“Brito”) filed his Motion to Quash Service of Process and to Dismiss the Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for Failure to State a Claim [D.E. 105]. 5. On December 27, 2023, this Court granted Plaintiffs’ Motion to Compel the jurisdictional depositions of Merino and Brito. See [D.E. 143]. 6. Pursuant to that Order, the jurisdictional depositions of Merino and Brito occurred on January 10, 2024, and January 12, 2024, respectively. 7. Due to the answers of certain questions during Defendant Brito’s and Defendant Merino’s depositions, Plaintiffs served their First Request for Production on Defendant FXWinning on January 19, 2024. 8. On January 22, 2024, Defendants, FXWinning, Merino, and Brito, filed notices of deposition of the Plaintiffs to occur in the month of February. Plaintiffs oppose these depositions and will be filing a motion for protective order. 9. Pursuant to the Case Management Order, the deadline for the parties to file motions to amend/add parties is currently January 30, 2024. See [D.E. 138]. 10. Jurisdictional discovery and the above related issues have therefore necessitated an extension of the January 30, 2024 deadline to afford Plaintiffs a meaningful opportunity to amend the complaint / add parties, should the facts give rise to such a need. 11. Accordingly, Plaintiffs respectfully request that the Court extend the deadline to file motions to amend/add parties until sixty (60) days following the resolution of FXWinning’s, Merino’s, and Brito’s respective challenges to personal jurisdiction. 2 12. This is Plaintiffs’ first request for an extension of time with respect to the deadline to amend/add parties, is made in good faith and not for the purposes of delay, and will not prejudice any party to this action. WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, respectfully request that this Court enter an order extending the deadline to file motions to amend/add parties until sixty (60) days after the resolution of FXWinning’s, Merino’s, and Brito’s, respective challenges to this Court’s personal jurisdiction over them, and for such other and further relief as this Court deems just and appropriate. Dated: January 30, 2024 Respectfully submitted, SANCHEZ FISCHER LEVINE, LLP 1200 Brickell Avenue, Suite 750 Miami, Florida 33131 Telephone: (305) 925-9947 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 Robert Kemper, Esq. Florida Bar. No.: 1038549 Email: rkemper@sfl-law.com Counsel for Plaintiffs [Certificate of Conferral and Certificate of Service to Follow] 3 CBL RULE 4.3 CERTIFICATE OF CONFERRAL I HEREBY CERTIFY that on January 26, 2024, counsel for Plaintiffs conferred with counsel for Defendants, Renan da Rocha Gomes Bastos and BBRC Real Estate, LLC, who stated that those Defendants have no objection to the relief requested herein. Additionally, on January 26, 2024, counsel for Plaintiffs attempted to confer with counsel for Defendants, FXWinning, Ltd., David Merino, and Rafael Brito Cutie, via email. As of the date of the filing of this motion, counsel for those Defendants has not responded to counsel for Plaintiffs’ attempt to confer. By: /s/ David M. Levine David M. Levine, Esq. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 30, 2024 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. 4