On July 24, 2023 a
Response: - IN SUPPORT OF THEIR MOTION TO CONSOLIDATE Due Date: Complete Date:
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 # 193480217 E-Filed 03/06/2024 06:03:58 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, et al.,
Plaintiffs,
v.
FXWINNING, LTD., et al.,
Defendants.
/
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO CONSOLIDATE
Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC,
(collectively, “Plaintiffs”) hereby file this reply in support of their Motion for Consolidation (the
“Motion”), and in support, state as follows:
ARGUMENT
Plaintiffs conferred with Defendants, FXWinning, Ltd., David Merino, and Rafael Brito
Cutie (collectively, “Defendants”) on February 20, 2024 regarding the relief requested in the
Motion. A true and correct copy of the conferral email is attached hereto as Exhibit A. In that
exchange, counsel for Defendants stated that Defendants:
have no objection to consolidating the two actions for purposes of discovery only.
We do, however, object to a complete consolidation of the two cases. We
appreciate the complexity of the consolidation, and we will continue to assess
whether we agree to a full consolidation once we see your motion and the grounds
stated therein.
Ex. A (emphasis added).
1
In an about face, Defendants now object to consolidation for any purpose including
discovery. See generally [D.E. 175]. For the reasons stated in the Motion, Plaintiffs submit that
the Kerns Action and the CFT Action should, at the very least, be consolidated for discovery
purposes to avoid the unnecessary duplication of labor, expense, and resources. Additionally,
consolidation of case management hearings, and hearings on substantially similar issues such as,
the upcoming hearing on Defendants’ motions to dismiss for, among other things, lack of personal
jurisdiction, is in the interest of judicial economy and will save the parties from expending
unnecessary time, expense, and resources.
WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB
Holdings, LLC, respectfully request that the Court grant the Motion in its entirety or, alternatively,
enter an Order consolidating the Kerns Action and the CFT Action for discovery purposes and
case management, and for such other and further relief as this Court deems just and appropriate.
Dated: March 6, 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
2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 6, 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.
3
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Filing # 193480217 E-Filed 03/06/2024 06:03:58 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, et al., Plaintiffs, v. FXWINNING, LTD., et al., Defendants. / PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO CONSOLIDATE Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, (collectively, “Plaintiffs”) hereby file this reply in support of their Motion for Consolidation (the “Motion”), and in support, state as follows: ARGUMENT Plaintiffs conferred with Defendants, FXWinning, Ltd., David Merino, and Rafael Brito Cutie (collectively, “Defendants”) on February 20, 2024 regarding the relief requested in the Motion. A true and correct copy of the conferral email is attached hereto as Exhibit A. In that exchange, counsel for Defendants stated that Defendants: have no objection to consolidating the two actions for purposes of discovery only. We do, however, object to a complete consolidation of the two cases. We appreciate the complexity of the consolidation, and we will continue to assess whether we agree to a full consolidation once we see your motion and the grounds stated therein. Ex. A (emphasis added). 1 In an about face, Defendants now object to consolidation for any purpose including discovery. See generally [D.E. 175]. For the reasons stated in the Motion, Plaintiffs submit that the Kerns Action and the CFT Action should, at the very least, be consolidated for discovery purposes to avoid the unnecessary duplication of labor, expense, and resources. Additionally, consolidation of case management hearings, and hearings on substantially similar issues such as, the upcoming hearing on Defendants’ motions to dismiss for, among other things, lack of personal jurisdiction, is in the interest of judicial economy and will save the parties from expending unnecessary time, expense, and resources. WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, respectfully request that the Court grant the Motion in its entirety or, alternatively, enter an Order consolidating the Kerns Action and the CFT Action for discovery purposes and case management, and for such other and further relief as this Court deems just and appropriate. Dated: March 6, 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 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 6, 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. 3