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Filing # 191677764 E-Filed 02/09/2024 04:21:14 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
CASE NO.: 2023-020202-CA-01
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.
DEFENDANTS FXWINNING, LTD.’S, DAVID MERINO’S AND RAFAEL BRITO
CUTIE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR EXTENSION
OF THE DEADLINE TO FILE MOTIONS TO AMEND/ADD PARTIES.
Defendants FxWinning, Ltd. (“FX”), David Merino (“Merino”), and Rafael Brito Cutie
(“Brito”) (collectively, “Defendants”), appearing on a limited basis by and through the
undersigned counsel for the sole purpose of challenging the efficacy of service, jurisdiction and
venue and any related hearing, hereby respond in opposition to Plaintiffs Cody Kerns (“Kerns”),
Kerns Capital Management Inc.’s (“Kerns Capital”), and WFTMB Holdings, LLC’s (“WFTMB”)
(collectively, “Plaintiffs”) Motion for Extension of the Deadline to File Motions to Amend/Add
Parties (D.E. No. 158) (the “Motion”), and in support hereof, state as follows:
1. On October 31, 2023, Plaintiffs filed the Amended Complaint consisting of 87
pages and 488 paragraphs, asserting, inter alia, three counts sounding in fraud against FX (Counts
1-3), three counts sounding in fraud against Merino (Counts 10-12), a count sounding in
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the
Deadline to File Motions to Amend/Add Parties
Case No.: 2023-020202-CA-01
Page 2 of 5
conspiracy to commit fraud against Merino and Brito (Count 13), three counts against FX sounding
in negligent misrepresentation (Counts 14-16), three counts against Merino sounding in negligent
misrepresentation (Counts 23-25), a count alleging that Defendants violated Florida’s Deceptive
and Unfair Trade Practices Act (Count 26), a count for breach of contract against FX (Count 27)
and a count for unjust enrichment against Defendants (Count 28).
2. On November 20, 2023, Defendants each filed individual Motions to Quash Service
of Process, to Dismiss Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, For
Failure to State a Claim (each a “Motion to Dismiss” and collectively, the “Motions to Dismiss).
See D.E. Nos. 105-107.
3. On November 30, 2023, Plaintiffs filed their Motion to Compel Jurisdictional
Depositions of Merino and Brito, for these Depositions to be Conducted via Zoom, and for
Attorney’s Fees and Costs Related to this Motion (the “Motion to Compel”). D.E. No. 120.
4. On December 7, 2023, Defendants Brito and Cutie filed their Response in
Opposition to Motion to Compel Jurisdictional Depositions and Motion for Protective Order (the
“Defendants’ Motion for Protective Order”), the gravamen of which concerned the premature
nature of the jurisdictional depositions given that the Court had yet to determine whether Plaintiffs
properly served process on Defendants. See D.E. No. 130.
5. On December 20, 2023, the Court entered its Order Setting Trial and Final Pre-Trial
Conference, setting the deadline to amend/add parties for January 30, 2024. D.E. No. 138
6. On December 27, 2023, the Court entered its Order granting the Motion to Compel
and Denying the Defendants’ Motion for Protective Order. 1 See D.E. No. 143.
1
The Court did not award Plaintiffs their request for attorney’s fees and costs.
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the
Deadline to File Motions to Amend/Add Parties
Case No.: 2023-020202-CA-01
Page 3 of 5
7. Brito and Merino, in accordance with the Court’s Order, sat for their depositions on
January 10 and January 12, respectively.
8. On January 30, 2024, the deadline for amending/adding parties, Plaintiffs filed the
instant Motion, based on nebulous assertions that “[j]urisdictional 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.” See Mot. at ¶ 10.
9. Not one day later, on January 31, 2024, Plaintiffs filed their Motion for Protective
Order and for Briefing Schedule Related to Defendants’ Motions to Dismiss (“Motion for
Protective Order”) (D.E. No. 159), seeking to preclude Defendants from taking Plaintiffs’
jurisdictional depositions and representing to the Court multiple times that “Plaintiffs are prepared
to proceed on the facts adduced through the discovery already taken in this case.” See Mot. for
Protective Ord. at 7.
10. Because Defendants are appearing on a limited basis by and through the
undersigned counsel for the sole purpose of challenging the efficacy of service, jurisdiction and
venue, Defendants oppose the Motion to the extent that Plaintiffs will be granted an extension to
amend the Amended Complaint to assert additional allegations going to the Court’s exercise of
personal jurisdiction over Defendants.
11. As asserted in the Motion for Protective Order, “Plaintiffs are prepared to proceed
on the facts adduced through the discovery already taken in this case” and as such, Plaintiffs have
failed to show the requisite “cause” to allow Plaintiffs to extend the amendment deadline to correct
or otherwise assert additional jurisdictional facts. See Fla R. Civ. P. 1.090(b)(1)(A).
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the
Deadline to File Motions to Amend/Add Parties
Case No.: 2023-020202-CA-01
Page 4 of 5
WHEREFORE, Defendants FxWinning, Ltd., David Merino, and Rafael Brito Cutie
respectfully request that the Court enter an Order denying the Motion and for such other and further
relief that the Court deems proper and just.
Dated: February 9, 2024
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
cguzman@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, and served upon counsel of record for Cody Kerns, Kerns Capital
Management, WFTMB Holdings LLC, David M Levine, Esq., at dlevine@sfl-law.com,
eservice@sfl-law.com, Fausto Sanchez, Esq., at fsanchez@sfl-law.com, Lauren M. Allen., at
lallen@sfl-law.com, Robert Kemper, Esq., at rkemper@sfl-law.com, Spencer Thompson, Esq., at
sthompson@sfl-law.com, and served upon counsel of record for Renan Da Rocha Gomes Bastos
and BBRC Real Estate LLC, Justin B. Kaplan, Esq., at justin.kaplan@nelsonmullins.com,
marisa.armas@nelsonmullins.com, Ryan K. Todd, Esq., at ryan.todd@nelsonmullins.com,
herold.labissiere@nelsonmullins.com; and served upon counsel of record for Julian Kuschner and
Jonathan Lopez, Zachary Brian Dickens, Esq., at zachary.dickens@whitecase.com,
MiamiLitigationFileRoom@whitecase.com, khoward@whitecase.com, Jaime A. Bianchi, Esq., at
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal
Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the
Deadline to File Motions to Amend/Add Parties
Case No.: 2023-020202-CA-01
Page 5 of 5
jbianchi@whitecase.com, Robert DeNault, Esq., at robert.denault@whitecase.com; and Sadena
Blatt Miropol, Esq., at sblattmiropol@whitecase.com, in accordance with Fla. R. Gen. Prac. &
Jud. Admin. 2.516, on this this 9th day of February 2024.
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 # 191677764 E-Filed 02/09/2024 04:21:14 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 CASE NO.: 2023-020202-CA-01 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. DEFENDANTS FXWINNING, LTD.’S, DAVID MERINO’S AND RAFAEL BRITO CUTIE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR EXTENSION OF THE DEADLINE TO FILE MOTIONS TO AMEND/ADD PARTIES. Defendants FxWinning, Ltd. (“FX”), David Merino (“Merino”), and Rafael Brito Cutie (“Brito”) (collectively, “Defendants”), appearing on a limited basis by and through the undersigned counsel for the sole purpose of challenging the efficacy of service, jurisdiction and venue and any related hearing, hereby respond in opposition to Plaintiffs Cody Kerns (“Kerns”), Kerns Capital Management Inc.’s (“Kerns Capital”), and WFTMB Holdings, LLC’s (“WFTMB”) (collectively, “Plaintiffs”) Motion for Extension of the Deadline to File Motions to Amend/Add Parties (D.E. No. 158) (the “Motion”), and in support hereof, state as follows: 1. On October 31, 2023, Plaintiffs filed the Amended Complaint consisting of 87 pages and 488 paragraphs, asserting, inter alia, three counts sounding in fraud against FX (Counts 1-3), three counts sounding in fraud against Merino (Counts 10-12), a count sounding in 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the Deadline to File Motions to Amend/Add Parties Case No.: 2023-020202-CA-01 Page 2 of 5 conspiracy to commit fraud against Merino and Brito (Count 13), three counts against FX sounding in negligent misrepresentation (Counts 14-16), three counts against Merino sounding in negligent misrepresentation (Counts 23-25), a count alleging that Defendants violated Florida’s Deceptive and Unfair Trade Practices Act (Count 26), a count for breach of contract against FX (Count 27) and a count for unjust enrichment against Defendants (Count 28). 2. On November 20, 2023, Defendants each filed individual Motions to Quash Service of Process, to Dismiss Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, For Failure to State a Claim (each a “Motion to Dismiss” and collectively, the “Motions to Dismiss). See D.E. Nos. 105-107. 3. On November 30, 2023, Plaintiffs filed their Motion to Compel Jurisdictional Depositions of Merino and Brito, for these Depositions to be Conducted via Zoom, and for Attorney’s Fees and Costs Related to this Motion (the “Motion to Compel”). D.E. No. 120. 4. On December 7, 2023, Defendants Brito and Cutie filed their Response in Opposition to Motion to Compel Jurisdictional Depositions and Motion for Protective Order (the “Defendants’ Motion for Protective Order”), the gravamen of which concerned the premature nature of the jurisdictional depositions given that the Court had yet to determine whether Plaintiffs properly served process on Defendants. See D.E. No. 130. 5. On December 20, 2023, the Court entered its Order Setting Trial and Final Pre-Trial Conference, setting the deadline to amend/add parties for January 30, 2024. D.E. No. 138 6. On December 27, 2023, the Court entered its Order granting the Motion to Compel and Denying the Defendants’ Motion for Protective Order. 1 See D.E. No. 143. 1 The Court did not award Plaintiffs their request for attorney’s fees and costs. 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the Deadline to File Motions to Amend/Add Parties Case No.: 2023-020202-CA-01 Page 3 of 5 7. Brito and Merino, in accordance with the Court’s Order, sat for their depositions on January 10 and January 12, respectively. 8. On January 30, 2024, the deadline for amending/adding parties, Plaintiffs filed the instant Motion, based on nebulous assertions that “[j]urisdictional 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.” See Mot. at ¶ 10. 9. Not one day later, on January 31, 2024, Plaintiffs filed their Motion for Protective Order and for Briefing Schedule Related to Defendants’ Motions to Dismiss (“Motion for Protective Order”) (D.E. No. 159), seeking to preclude Defendants from taking Plaintiffs’ jurisdictional depositions and representing to the Court multiple times that “Plaintiffs are prepared to proceed on the facts adduced through the discovery already taken in this case.” See Mot. for Protective Ord. at 7. 10. Because Defendants are appearing on a limited basis by and through the undersigned counsel for the sole purpose of challenging the efficacy of service, jurisdiction and venue, Defendants oppose the Motion to the extent that Plaintiffs will be granted an extension to amend the Amended Complaint to assert additional allegations going to the Court’s exercise of personal jurisdiction over Defendants. 11. As asserted in the Motion for Protective Order, “Plaintiffs are prepared to proceed on the facts adduced through the discovery already taken in this case” and as such, Plaintiffs have failed to show the requisite “cause” to allow Plaintiffs to extend the amendment deadline to correct or otherwise assert additional jurisdictional facts. See Fla R. Civ. P. 1.090(b)(1)(A). 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the Deadline to File Motions to Amend/Add Parties Case No.: 2023-020202-CA-01 Page 4 of 5 WHEREFORE, Defendants FxWinning, Ltd., David Merino, and Rafael Brito Cutie respectfully request that the Court enter an Order denying the Motion and for such other and further relief that the Court deems proper and just. Dated: February 9, 2024 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 cguzman@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, and served upon counsel of record for Cody Kerns, Kerns Capital Management, WFTMB Holdings LLC, David M Levine, Esq., at dlevine@sfl-law.com, eservice@sfl-law.com, Fausto Sanchez, Esq., at fsanchez@sfl-law.com, Lauren M. Allen., at lallen@sfl-law.com, Robert Kemper, Esq., at rkemper@sfl-law.com, Spencer Thompson, Esq., at sthompson@sfl-law.com, and served upon counsel of record for Renan Da Rocha Gomes Bastos and BBRC Real Estate LLC, Justin B. Kaplan, Esq., at justin.kaplan@nelsonmullins.com, marisa.armas@nelsonmullins.com, Ryan K. Todd, Esq., at ryan.todd@nelsonmullins.com, herold.labissiere@nelsonmullins.com; and served upon counsel of record for Julian Kuschner and Jonathan Lopez, Zachary Brian Dickens, Esq., at zachary.dickens@whitecase.com, MiamiLitigationFileRoom@whitecase.com, khoward@whitecase.com, Jaime A. Bianchi, Esq., at 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal Defendants’ Response in Opposition to Plaintiffs’ Motion for Extension of the Deadline to File Motions to Amend/Add Parties Case No.: 2023-020202-CA-01 Page 5 of 5 jbianchi@whitecase.com, Robert DeNault, Esq., at robert.denault@whitecase.com; and Sadena Blatt Miropol, Esq., at sblattmiropol@whitecase.com, in accordance with Fla. R. Gen. Prac. & Jud. Admin. 2.516, on this this 9th day of February 2024. By: /s/ Brian Barakat BRIAN BARAKAT 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal