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Filing # 195371214 E-Filed 04/03/2024 11:03:28 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CODY KERNS, et al., CASE NO.: 2023-020202-CA-01
Plaintiffs
FXWINNING LTD., et al.,
Defendants.
DEFENDANTS RAFAEL BRITO CUTIE, FXWINNING, LTD., AND DAVID MERINO’S
MOTION FOR LEAVE TO FILE OMNIBUS REPLY IN SUPPORT OF THEIR
MOTIONS TO QUASH SERVICE OF PROCESS, TO DISMISS AMENDED
COMPLAINT FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY,
FOR FAILURE TO STATE A CLAIM
-AND-
MOTION TO EXCEED PAGE LIMIT
Defendants Rafael Brito Cutie (“Brito”), FxWinning, Ltd. (“FX”), and David Merino
(“Merino”) (collectively, “FX Defendants”), specially appearing by and through undersigned
counsel for the sole purpose of contesting service of process, jurisdiction, and venue, hereby move
the Court for leave to file an Omnibus Reply in Support of their Motions to Quash Service of
Process, to Dismiss Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for
Failure to State a Claim (D.E. Nos. 105-107) as well as to exceed the page limit of that Reply, and
in support thereof, state as follows:
1 Pursuant to this Court’s Notice and Order of Adherence to Complex Business
Litigation Section and Procedures, Motion and Memorandum Practice, Provisions on Hearings
and Mandatory Conferral Requirements dated September 3, 2023 [D.E 48], the page limit for a
reply is ten (10) pages.
&
BARAKAT.
+BOSSA
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal
FX Defendants’ Motion to Exceed the Page Limit
Case No: 2023-020202-CA-01
Page 2 of 4
2 However, on March 14, 2024, Plaintiffs filed their Motion to Exceed Page Limit
for their Response in Opposition to Defendants’ Motions to Quash Service of Process, to Dismiss
Second Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for Failure to
State a Claim. See D.E. 184.
3 Therein, Plaintiffs provided their intention “to file one omnibus response where all
arguments raised in [FX Defendants’ respective] motions to dismiss are addressed.” Id. at § 4.
Plaintiffs also requested leave to submit one 60-page brief in response in opposition to all three
motions to dismiss. /d. at § 5.
4 Thereafter, on March 15, 2024, the Court entered its Agreed Order, granting the
foregoing Motion and providing Plaintiffs leave to file one 60-page response in opposition to FX
Defendants’ respective Motions to Dismiss. See D.E. 188 at §] 2-3.
5 On March 25, 2024, Plaintiffs filed their Omnibus Response in Opposition to
Defendants’ Motion to Dismiss, consisting of sixty (60) pages without exhibits. See D.E. 199.
6. Accordingly, FX Defendants respectfully request leave to file an Omnibus Reply
and for leave to exceed the page limit of that forthcoming reply by twenty pages (30 pages total).
7
Counsel for Plaintiffs have no objection to the relief requested herein.
WHEREFORE, Defendants Rafael Brito Cutie, FxWinning, Ltd., and David Merino,
respectfully request that this Court enter an Order granting this Motion, allowing FX Defendants
to file an Omnibus Reply in Support of their respective Motions to Dismiss, enlarging the page
limit for that Reply to thirty (30) pages total, and for such other and further relief as this Court
deems just and proper.
&
BARAKAT.
+BOSSA
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal
FX Defendants’ Motion to Exceed the Page Limit
Case No: 2023-020202-CA-01
Page 3 of 4
CERTIFICATE OF CONFERRAL
Counsel for FX Defendants certifies that on March 29, 2024, the undersigned counsel sent
an email to counsel for the Plaintiffs in a good faith effort to obtain their consent to the relief
requested herein. Counsel for the Plaintiffs has no objection to the relief requested herein.
Respectfully submitted,
BARAKAT + BOSSA
Attorneys for FX Defendants for the limited
purpose of challenging the efficacy of
service, jurisdiction, and venue
2701 Ponce de Leon Blvd., Suite 202
Coral Gables, Florida 33134
Tel (305)444-3114
By: _/S/MATTHEW AKIBA
MATTHEW AKIBA
FLORIDA BAR NUMBER 1031198
makiba@b2b.legal
>guzman@b2b.legal
service@b2b.legal
BRIAN BARAKAT
FLORIDA BAR NUMBER 457220
barakat@b2b.legal
JOCELYNE MACELLONI
Florida Bar No. 92092
jmacelloni@b2b.legal
[THIS SPACE IS INTENTIONALLY
LEFT BLANK]
&
BARAKAT.
+BOSSA
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal
FX Defendants’ Motion to Exceed the Page Limit
Case No: 2023-020202-CA-01
Page 4 of 4
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,
service@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
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 3 day of April 2024.
By: /S/MATTHEW AKIBA
MATTHEW AKIBA
&
BARAKAT
+BOSSA
2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal
Preview
Filing # 195371214 E-Filed 04/03/2024 11:03:28 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CODY KERNS, et al., CASE NO.: 2023-020202-CA-01 Plaintiffs FXWINNING LTD., et al., Defendants. DEFENDANTS RAFAEL BRITO CUTIE, FXWINNING, LTD., AND DAVID MERINO’S MOTION FOR LEAVE TO FILE OMNIBUS REPLY IN SUPPORT OF THEIR MOTIONS TO QUASH SERVICE OF PROCESS, TO DISMISS AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, FOR FAILURE TO STATE A CLAIM -AND- MOTION TO EXCEED PAGE LIMIT Defendants Rafael Brito Cutie (“Brito”), FxWinning, Ltd. (“FX”), and David Merino (“Merino”) (collectively, “FX Defendants”), specially appearing by and through undersigned counsel for the sole purpose of contesting service of process, jurisdiction, and venue, hereby move the Court for leave to file an Omnibus Reply in Support of their Motions to Quash Service of Process, to Dismiss Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for Failure to State a Claim (D.E. Nos. 105-107) as well as to exceed the page limit of that Reply, and in support thereof, state as follows: 1 Pursuant to this Court’s Notice and Order of Adherence to Complex Business Litigation Section and Procedures, Motion and Memorandum Practice, Provisions on Hearings and Mandatory Conferral Requirements dated September 3, 2023 [D.E 48], the page limit for a reply is ten (10) pages. & BARAKAT. +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal FX Defendants’ Motion to Exceed the Page Limit Case No: 2023-020202-CA-01 Page 2 of 4 2 However, on March 14, 2024, Plaintiffs filed their Motion to Exceed Page Limit for their Response in Opposition to Defendants’ Motions to Quash Service of Process, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or Alternatively, for Failure to State a Claim. See D.E. 184. 3 Therein, Plaintiffs provided their intention “to file one omnibus response where all arguments raised in [FX Defendants’ respective] motions to dismiss are addressed.” Id. at § 4. Plaintiffs also requested leave to submit one 60-page brief in response in opposition to all three motions to dismiss. /d. at § 5. 4 Thereafter, on March 15, 2024, the Court entered its Agreed Order, granting the foregoing Motion and providing Plaintiffs leave to file one 60-page response in opposition to FX Defendants’ respective Motions to Dismiss. See D.E. 188 at §] 2-3. 5 On March 25, 2024, Plaintiffs filed their Omnibus Response in Opposition to Defendants’ Motion to Dismiss, consisting of sixty (60) pages without exhibits. See D.E. 199. 6. Accordingly, FX Defendants respectfully request leave to file an Omnibus Reply and for leave to exceed the page limit of that forthcoming reply by twenty pages (30 pages total). 7 Counsel for Plaintiffs have no objection to the relief requested herein. WHEREFORE, Defendants Rafael Brito Cutie, FxWinning, Ltd., and David Merino, respectfully request that this Court enter an Order granting this Motion, allowing FX Defendants to file an Omnibus Reply in Support of their respective Motions to Dismiss, enlarging the page limit for that Reply to thirty (30) pages total, and for such other and further relief as this Court deems just and proper. & BARAKAT. +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal FX Defendants’ Motion to Exceed the Page Limit Case No: 2023-020202-CA-01 Page 3 of 4 CERTIFICATE OF CONFERRAL Counsel for FX Defendants certifies that on March 29, 2024, the undersigned counsel sent an email to counsel for the Plaintiffs in a good faith effort to obtain their consent to the relief requested herein. Counsel for the Plaintiffs has no objection to the relief requested herein. Respectfully submitted, BARAKAT + BOSSA Attorneys for FX Defendants for the limited purpose of challenging the efficacy of service, jurisdiction, and venue 2701 Ponce de Leon Blvd., Suite 202 Coral Gables, Florida 33134 Tel (305)444-3114 By: _/S/MATTHEW AKIBA MATTHEW AKIBA FLORIDA BAR NUMBER 1031198 makiba@b2b.legal >guzman@b2b.legal service@b2b.legal BRIAN BARAKAT FLORIDA BAR NUMBER 457220 barakat@b2b.legal JOCELYNE MACELLONI Florida Bar No. 92092 jmacelloni@b2b.legal [THIS SPACE IS INTENTIONALLY LEFT BLANK] & BARAKAT. +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal FX Defendants’ Motion to Exceed the Page Limit Case No: 2023-020202-CA-01 Page 4 of 4 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, service@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 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 3 day of April 2024. By: /S/MATTHEW AKIBA MATTHEW AKIBA & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 * Tel: 305-444-3114 * service@b2b.legal