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IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 13-28368 CA 25
PFS INVESTMENTS, INC. and
LAWRENCE M. COOK,,
eS 5 3 a
3383
Petitioners, 32 4 on
Vv. 295 LQ
ges OOD
ES 2
BERNETTA DESHAZIOR, ae em
ae 2
arn QO
Respondent. Po 2 Dp
/ 2ae Q4
RESPONDENT BERNETTA DESHAZIOR’S EMERGENCY MOTION TO PERMIT
DEPOSITION OF ARBITRATOR AND BRIEFING OR STATUS CONFERENCE
Respondent Bernetta DeShazior (“DeShazior”), through her undersigned counsel,
respectfully files herein her “Emergency Motion to Permit Deposition of Arbitrator and Briefing or
Status Conference,” and in support hereof states:
1. On October 4, 2013, at the end of the hearing on the Motion to Vacate filed by
Petitioners PFS Investments, Inc. and Lawrence Cook (collectively, “Primerica”), the Court told the
parties that it would allow until noon on Wednesday, October 9, to file any additional memoranda
of law in support of their respective positions. Additionally, after DeShazior’s counsel asked the
Court if it would allow the parties to depose Arbitrator Paul Chernis or Arbitrator-Chair William
Alheim, the Court appeared to express its approval but, at the same time, suggested that the parties
should try to reach an agreement with respect to the taking of such depositions.
2.
Later that evening, DeShazior’s counsel served a Notice of Taking Deposition and
Subpoena by email on Arbitrator Chernis, setting his deposition by telephone (Mr. Chernis resides
in New York) for October 9" at 10 a.m. Mr. Chernis then contacted DeShazior’s counsel and said
that he would be willing to sit for his telephonic deposition at that date and time, although he would
have to leave at 1 pm for a doctor’s appointment.
3.
DeShazior’s purpose in taking Mr. Chernis’s deposition is very limited. Specifically,
DeShazior will inquire whether Mr. Chemis has any knowledge and/or recollection of a meetingCASE NO.: 13-28368 CA 25
having taken place during a break in the underlying arbitration between him, Mr. Alheim,
DeShazior’s counsel and Primerica’s counsel. As the Court no doubt recalls, DeShazior’s counsel,
Frank Rodriguez, testified that following Mr. Alheim’s conversation with Primerica’s expert, Mr.
Alheim disclosed to both Mr. Rodriguez (as well as the undersigned counsel Andrew Tramont) and
Primerica’s counsel, Mark Raymond, what he had discussed with that expert. Mr. Rodriguez
testified that Mr. Chernis was part of that group conversation. However, Primerica’s counsel, Mr.
Raymond, testified that either no such group meeting occurred, or, if it did, neither he nor his co-
counsel, Rick Martens, was present.
4. Mr. Chernis’s testimony may be critical to the resolution of Primerica’s Motion to
Vacate. Although DeShazior does not believe that what Mr. Alheim allegedly failed to disclose -
his alleged regret over his FRS pension plan option choice - has any relation to the issues in the
underlying arbitration, there can be no doubt that if Mr. Alheim did in fact disclose this to the
parties’ counsels, including Mr. Raymond, then Primerica will not be able to argue credibly that
there was a lack of disclosure by Mr. Alheim sufficient to support vacatur of the arbitration award
in favor of DeShazior.
5. From DeShazior’s point of view, this deposition will take no longer than 15
minutes, as her counsel will limit the questions to whether Mr. Chernis recalls this meeting and what
he recalls about it, including who was present. Thus it should take no longer than the testimony of
Frank Rodriguez, or Rick Martens and Mark Raymond, each of which only took about 15 minutes.
Nevertheless, DeShazior does not in any way seek to limit whatever questioning Primerica wants
to conduct of Mr. Chernis. Mr. Chernis has also advised that, although he understands that
DeShazior’s testimony will not take long, if Primerica believe that its questioning will require him
to sit past his 1 pm deadline, he is willing to reschedule his deposition for another date and time.
6. Over this past weekend, DeShazior’s counsel attempted to reach agreement on the
taking of this deposition and keeping the case open for that limited purpose. Primerica’s counsel,
however, would not agree, saying that they “view the hearing closed...[and] oppose any depositions.”
Primerica’s counsel also claimed that DeShazior’s notice of deposition “is untimely [and they] do
|CASE NO.: 13-28368 CA 25
AND CASSEL, 2 S Biscayne Blvd., Suite 2100, Miami, Florida 33131.
RODRIGUEZ TRAMONT GUERRA & NUNEZ, P.A.
ANDREW V. TRAMONT, ESQ.
Florida Bar No.: 322830
Email: avt@rtgn-law.com
FRANK R. RODRIGUEZ, ESQ.
Florida Bar No.: 348988
Email: fir@rtgn-law.com
255 Alhambra Circle, Suite 1150
Coral Gables, Florida 33134
Telephone: 305-350-2300
Facsimile: 305-350-2525
LEVINE KELLOGG LEHMAN SCHNEIDER +
GROSSMAN LLP
LAWRENCE A. KELLOGG, ESQ.
Florida Bar No.: 328601
Email: lak@Islsg.com
JASON KELLOGG, ESQ.
Florida Bar No.: 578401
Email: jk@Islsg.com
201 South Biscayne Boulevard
22nd Floor, Miami Center
Miami, FL 33131
Telephone: 305-403-8788
Facsimile: 305-403-8789
Attorneys for RespondentCASE NO.: 13-28368 CA 25
not consent to a shortening of time.”
7. Upon hearing of Primerica’s objection, DeShazior’s counsel suggested that the
parties have a short hearing in the morning of October 7, at which time they could state their
respective positions to the Court. Respondent’s counsel, however, stated that “Amy [Steele Donner]
and [Mark Raymond] have many conflicts making a hearing anytime this week impossible.”
8. DeShazior respectfully states that what Mr. Chernis has to say on the subject of
whether Mr. Alheim disclosed to Primerica’s counsel his discussion with Primerica’s expert, is
potentially of huge importance. The burden or: Primerica and/or their counsel is non-existent, since
they will suffer no prejudice as a result of the deposition going forward, and allowing the deposition
will only delay by a few days a process that Primerica has already itself delayed.'
9. Finally, given Mr. Chernis’s willingness to testify on this subject, there is no valid
reason to deny DeShazior this opportunity.
WHEREFORE, DeShazior respectfully requests that the Court permit this deposition to
proceed on Wednesday, October 9, 2013 at 10 a.m. or at such other time as is convenient for Mr.
Chernis, DeShazior’s counsel and Primerica’s counsel, and that it allows the parties an additional
two days following the deposition to complete their final briefing on the motion to vacate.
Alternatively, if the Court believes that argument is necessary on this request, that it hold an
emergency status conference today, October 7".
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7" day of October, 2013, a true and correct copy of the
above and foregoing was sent via email to: MARK F. RAYMOND, ESQ.
(mraymond@broadandcassel.com and ssmith@broadandcassel.com), AMY STEELE DONNER,
ESQ. (adonner@broadandcassel.com and Ischwartz@broadandcassel.com) and SHANE P.
MARTIN, ESQ. (smartin@broadandcassel.com and msanchez@broadandcassel.com), BROAD
' Primerica did not file its Motion to Vacate until the last day to do so, and then set
the hearing thereon for three months later.
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IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 13-28368 CA 25 PFS INVESTMENTS, INC. and LAWRENCE M. COOK,, eS 5 3 a 3383 Petitioners, 32 4 on Vv. 295 LQ ges OOD ES 2 BERNETTA DESHAZIOR, ae em ae 2 arn QO Respondent. Po 2 Dp / 2ae Q4 RESPONDENT BERNETTA DESHAZIOR’S EMERGENCY MOTION TO PERMIT DEPOSITION OF ARBITRATOR AND BRIEFING OR STATUS CONFERENCE Respondent Bernetta DeShazior (“DeShazior”), through her undersigned counsel, respectfully files herein her “Emergency Motion to Permit Deposition of Arbitrator and Briefing or Status Conference,” and in support hereof states: 1. On October 4, 2013, at the end of the hearing on the Motion to Vacate filed by Petitioners PFS Investments, Inc. and Lawrence Cook (collectively, “Primerica”), the Court told the parties that it would allow until noon on Wednesday, October 9, to file any additional memoranda of law in support of their respective positions. Additionally, after DeShazior’s counsel asked the Court if it would allow the parties to depose Arbitrator Paul Chernis or Arbitrator-Chair William Alheim, the Court appeared to express its approval but, at the same time, suggested that the parties should try to reach an agreement with respect to the taking of such depositions. 2. Later that evening, DeShazior’s counsel served a Notice of Taking Deposition and Subpoena by email on Arbitrator Chernis, setting his deposition by telephone (Mr. Chernis resides in New York) for October 9" at 10 a.m. Mr. Chernis then contacted DeShazior’s counsel and said that he would be willing to sit for his telephonic deposition at that date and time, although he would have to leave at 1 pm for a doctor’s appointment. 3. DeShazior’s purpose in taking Mr. Chernis’s deposition is very limited. Specifically, DeShazior will inquire whether Mr. Chemis has any knowledge and/or recollection of a meetingCASE NO.: 13-28368 CA 25 having taken place during a break in the underlying arbitration between him, Mr. Alheim, DeShazior’s counsel and Primerica’s counsel. As the Court no doubt recalls, DeShazior’s counsel, Frank Rodriguez, testified that following Mr. Alheim’s conversation with Primerica’s expert, Mr. Alheim disclosed to both Mr. Rodriguez (as well as the undersigned counsel Andrew Tramont) and Primerica’s counsel, Mark Raymond, what he had discussed with that expert. Mr. Rodriguez testified that Mr. Chernis was part of that group conversation. However, Primerica’s counsel, Mr. Raymond, testified that either no such group meeting occurred, or, if it did, neither he nor his co- counsel, Rick Martens, was present. 4. Mr. Chernis’s testimony may be critical to the resolution of Primerica’s Motion to Vacate. Although DeShazior does not believe that what Mr. Alheim allegedly failed to disclose - his alleged regret over his FRS pension plan option choice - has any relation to the issues in the underlying arbitration, there can be no doubt that if Mr. Alheim did in fact disclose this to the parties’ counsels, including Mr. Raymond, then Primerica will not be able to argue credibly that there was a lack of disclosure by Mr. Alheim sufficient to support vacatur of the arbitration award in favor of DeShazior. 5. From DeShazior’s point of view, this deposition will take no longer than 15 minutes, as her counsel will limit the questions to whether Mr. Chernis recalls this meeting and what he recalls about it, including who was present. Thus it should take no longer than the testimony of Frank Rodriguez, or Rick Martens and Mark Raymond, each of which only took about 15 minutes. Nevertheless, DeShazior does not in any way seek to limit whatever questioning Primerica wants to conduct of Mr. Chernis. Mr. Chernis has also advised that, although he understands that DeShazior’s testimony will not take long, if Primerica believe that its questioning will require him to sit past his 1 pm deadline, he is willing to reschedule his deposition for another date and time. 6. Over this past weekend, DeShazior’s counsel attempted to reach agreement on the taking of this deposition and keeping the case open for that limited purpose. Primerica’s counsel, however, would not agree, saying that they “view the hearing closed...[and] oppose any depositions.” Primerica’s counsel also claimed that DeShazior’s notice of deposition “is untimely [and they] do |CASE NO.: 13-28368 CA 25 AND CASSEL, 2 S Biscayne Blvd., Suite 2100, Miami, Florida 33131. RODRIGUEZ TRAMONT GUERRA & NUNEZ, P.A. ANDREW V. TRAMONT, ESQ. Florida Bar No.: 322830 Email: avt@rtgn-law.com FRANK R. RODRIGUEZ, ESQ. Florida Bar No.: 348988 Email: fir@rtgn-law.com 255 Alhambra Circle, Suite 1150 Coral Gables, Florida 33134 Telephone: 305-350-2300 Facsimile: 305-350-2525 LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LLP LAWRENCE A. KELLOGG, ESQ. Florida Bar No.: 328601 Email: lak@Islsg.com JASON KELLOGG, ESQ. Florida Bar No.: 578401 Email: jk@Islsg.com 201 South Biscayne Boulevard 22nd Floor, Miami Center Miami, FL 33131 Telephone: 305-403-8788 Facsimile: 305-403-8789 Attorneys for RespondentCASE NO.: 13-28368 CA 25 not consent to a shortening of time.” 7. Upon hearing of Primerica’s objection, DeShazior’s counsel suggested that the parties have a short hearing in the morning of October 7, at which time they could state their respective positions to the Court. Respondent’s counsel, however, stated that “Amy [Steele Donner] and [Mark Raymond] have many conflicts making a hearing anytime this week impossible.” 8. DeShazior respectfully states that what Mr. Chernis has to say on the subject of whether Mr. Alheim disclosed to Primerica’s counsel his discussion with Primerica’s expert, is potentially of huge importance. The burden or: Primerica and/or their counsel is non-existent, since they will suffer no prejudice as a result of the deposition going forward, and allowing the deposition will only delay by a few days a process that Primerica has already itself delayed.' 9. Finally, given Mr. Chernis’s willingness to testify on this subject, there is no valid reason to deny DeShazior this opportunity. WHEREFORE, DeShazior respectfully requests that the Court permit this deposition to proceed on Wednesday, October 9, 2013 at 10 a.m. or at such other time as is convenient for Mr. Chernis, DeShazior’s counsel and Primerica’s counsel, and that it allows the parties an additional two days following the deposition to complete their final briefing on the motion to vacate. Alternatively, if the Court believes that argument is necessary on this request, that it hold an emergency status conference today, October 7". CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7" day of October, 2013, a true and correct copy of the above and foregoing was sent via email to: MARK F. RAYMOND, ESQ. (mraymond@broadandcassel.com and ssmith@broadandcassel.com), AMY STEELE DONNER, ESQ. (adonner@broadandcassel.com and Ischwartz@broadandcassel.com) and SHANE P. MARTIN, ESQ. (smartin@broadandcassel.com and msanchez@broadandcassel.com), BROAD ' Primerica did not file its Motion to Vacate until the last day to do so, and then set the hearing thereon for three months later.