Motion,Ex Parte: CODY KERNS ET AL VS FXWINNING, LTD. ET AL

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                                Filing # 191987517 E-Filed 02/14/2024 05:20:49 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’ REPLY IN SUPPORT OF THEIR 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”), hereby file their reply in support

        of their Motion for Extension of The Deadline to File Motions to Amend/Add Parties (the

        “Motion”), and in support, state as follows:

               1.      Defendants, FXWinning, Ltd., David Merino, and Rafael Brito Cutie (collectively,

        “Defendants”), want the Court to foreclose Plaintiffs’ ability to request leave to amend in the event

        the Court grants Defendants’ motions to dismiss on personal jurisdiction grounds. See [DE 162].

        That is not how litigation works in Florida. Unless Plaintiffs have abused the privilege to amend,

        amendment would prejudice Defendants, or an amendment would be futile, they should be given

        an opportunity to amend their pleadings. See Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co.,

        Inc., 917 So. 2d 964, 968 (Fla. 3d DCA 2005) (finding dismissal with prejudice improper where

        amendment of jurisdictional allegations would not be futile).



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       2.      Indeed, the “liberal policy” governing amendments of pleadings stems from

“Florida’s strong public policy favoring resolution of disputes on their merits . . . .” Intego, 198

So. 3d at 897. And this applies whether the amendment relates to the merits or to the facts

supporting personal jurisdiction. See id. (“[T]he trial court abused its discretion in refusing to

allow Plaintiff to amend its complaint. This was Plaintiff’s first request for leave to amend, which

was not abusive. The amendment would not have been futile because the additional factual

allegations of the witness declarations would have bolstered the factual basis for finding that

personal jurisdiction existed.”).

       3.      Here, the requested extension is necessary given the delay in these proceedings

because of the jurisdictional dispute. Plaintiffs have yet to obtain any merits discovery from

Defendants given their position that they are not subject to such discovery until the Court rules on

their challenges to personal jurisdiction and service. And Plaintiffs should be permitted to request

leave if Defendants’ motions to dismiss are granted. The Court can decide then whether such

proposed amendment is appropriate or not. See Lewis v. Morgan, 79 So. 3d 926, 930 (Fla. 1st

DCA 2012) (“Public Policy favors the liberal amendment of pleadings, and court should resolve

all doubts in favor of allowing amendment of pleadings to allow cases to be decided on their

merit.”) (quoting Laurencio v. Beutsche Nat. Trust Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011)).

       WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB

Holdings, LLC, respectfully request that the Court grant the Motion and enter an Order extending

this Court’s deadline to file motions to amend / add parties until sixty (60) days following the

resolution of Defendants’ respective challenges to personal jurisdiction, and for such other and

further relief as this Court deems just and proper.




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Dated: February 14, 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 SERVICE

       I HEREBY CERTIFY that on February 14, 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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