Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 1 of 11
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
`
`Case No. 22-cv-23753-MOORE/BECERRA
`
`
`
`EDWIN GARRISON, et al., on behalf of
`themselves and all similarly situated,
`
`Plaintiffs,
`
`
`v.
`
`SAM BANKMAN-FRIED, et al.,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`/
`
`
`
`UNOPPOSED MOTION BY DEFENDANTS TO CONTINUE MARCH 10, 2023,
`DEADLINE FOR THE PARTIES TO HOLD A SCHEDULING CONFERENCE
`
`Defendants Thomas Brady, Gisele Bündchen, Kevin O’Leary, David Ortiz, and William
`
`Trevor Lawrence (collectively, “Moving Defendants”) respectfully request that the Court continue
`
`the March 10, 2023, deadline, set by the Court’s PAPERLESS ORDER [ECF No. 82] (entered
`
`March 6, 2023) to comply with the Court’s November 16, 2022, PAPERLESS PRETRIAL
`
`ORDER [ECF No. 5], and permit the parties at least 30 days after Plaintiffs have served all of the
`
`named defendants to hold the Rule 16 Scheduling Conference, with the joint scheduling report to
`
`be filed 10 days thereafter. The request to continue the Scheduling Conference deadline beyond
`
`March 10, 2023, is unopposed by Plaintiffs, with the full details of Plaintiffs’ position set forth in
`
`the email communications referenced in the Local Rule 7.1(a)(3) Certification below and attached
`
`as part of the Certification at Plaintiffs’ counsel’s request.
`
`Despite the provision of the PAPERLESS PRETRIAL ORDER requiring service on all
`
`defendants or an extension to be sought by January 16, 2023, see id. at 1 (requiring a scheduling
`
`conference “within sixty (60) days after the filing of the complaint” if no responsive pleading was
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 2 of 11
`
`filed), and Rule 4(m), FED. R. CIV. P., which required service by February 13, 2023,1 the docket
`
`reflects that nine (of eighteen) named defendants were purportedly served within the past two
`
`weeks – according to the Returns of Service filed by Plaintiffs – and two (Shaquille O’Neal and
`
`Naomi Osaka) have not yet been served at all.2 Thirteen of eighteen named defendants have not
`
`yet entered an appearance, and at least five do not yet appear to have counsel retained for this
`
`action. Moreover, for the defendants who have appeared, initial responses to the Amended
`
`Complaint [ECF No. 16] are not due until April 14, 2023, see PAPERLESS ORDER [ECF No.
`
`49] at 1. In the meantime, Plaintiffs’ counsel has sought consolidation and transfer of this case
`
`with ten other cases, including nine other putative class actions, pending throughout the country.
`
`See Pet’rs’ Mot. for Transfer of Related Actions to S.D. Fla., In re FTX Collapse Litig., MDL No.
`
`3076 (J.P.M.L. Feb. 10, 2023), ECF No. 1 (attached without exhibits as Exhibit A).
`
`In these circumstances and with so many defendants missing, it is not practical for the
`
`parties to confer and attempt to agree on a case schedule by March 10, 2023. Accordingly, Moving
`
`Defendants request the continuance outlined above.
`
`In support of this motion, Defendants state:
`
`1.
`
`2.
`
`This action was filed on November 15, 2022. See ECF No. 1.
`
`On November 16, 2022, the Court issued its PAPERLESS PRETRIAL ORDER
`
`[ECF No. 5], which, inter alia, ordered
`
`
`1 Under Rule 4(m), Plaintiffs were required to serve (or obtain a waiver of service from)
`every named defendant “within 90 days after the complaint [wa]s filed” – i.e., by February 13,
`2023. See id.
`2 Contrary to Plaintiffs’ March 1, 2023, representation to the Court that “all Defendants are
`properly before the Court” [ECF No. 71], Plaintiffs’ counsel has confirmed that he has not yet
`served Mr. O’Neal. In addition, an attorney for Ms. Osaka has informed counsel for Plaintiffs and
`for the Moving Defendants that Ms. Osaka has not been served, she has not selected counsel for
`this action, and that the discussion of a potential waiver of service first occurred only this past
`Monday (March 6, 2023).
`
`- 2 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 3 of 11
`
`that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a
`scheduling conference no later than twenty (20) days after the filing of the first
`responsive pleading by the last responding defendant, or within sixty (60) days after
`the filing of the complaint, whichever occurs first. However, if all defendants have
`not been served by the expiration of this deadline, Plaintiff shall move for an
`enlargement of time to hold the scheduling conference, not to exceed 90 days from
`the filing of the Complaint.
`
`Id. at 1 (all emphasis added).
`
`3.
`
`As the Court’s March 6, 2023, PAPERLESS ORDER [ECF No. 83] recognizes,
`
`Plaintiffs did not move for an enlargement of time to hold the scheduling conference. See id. at 1.
`
`However, the Court recognized that an enlargement of the deadline could still be obtained. See id.
`
`(“the Parties have not filed their joint scheduling report, nor has Plaintiff moved for an enlargement
`
`of time to hold the scheduling conference”).
`
`4.
`
`As reflected in the docket, the status of service3 on the eighteen named defendants
`
`and appearances of counsel on their behalves is:
`
`Defendant
`
`Golden State Warriors
`Lawrence Gene David
`Thomas Brady
`Gisele Bundchen
`David Ortiz
`Kevin O'Leary
`Sam Bankman-Fried
`Caroline Ellison
`Nishad Singh
`Gary Wang
`Dan Friedberg
`William Trevor Lawrence
`
`Method of
`Service
`
`Status of Service on Defendants
`Service Date According to
`Return of Service/Date of
`Filing Waiver of Service
`1/6/2023
`1/17/2023
`1/17/2023
`1/17/2023
`1/25/2023
`1/31/2023
`2/8/2023
`2/22/2023
`2/22/2023
`2/23/2023
`2/23/2023
`2/24/2023
`
`Waiver
`Waiver
`Waiver
`Waiver
`Waiver
`Waiver
`Waiver
`Summons
`Summons
`Summons
`Summons
`Waiver
`
`DE Appearance of
`Counsel
`
`17
`18
`19
`20
`24
`43
`46
`74
`76
`75
`78
`66
`
`No
`No
`Yes
`Yes
`Yes
`Yes
`Yes
`No
`No
`No
`No
`Yes
`
`
`3 “Service” as used herein is only based on Plaintiffs’ filing of waivers or returns of service.
`Whether any service via Summons as reflected in a return of service constitutes valid service or
`would be challenged by the “served” defendant is an issue for another day – but also yet another
`impediment to holding a Scheduling Conference and then filing a Scheduling Report at this time.
`
`- 3 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 4 of 11
`
`Stephen Curry
`Sam Trabucco
`Udonis Haslem
`Shohei Ohtani
`Shaquille O'Neal
`Naomi Osaka
`
`
`2/24/2023
`2/24/2023
`2/28/2023
`3/1/2023
`Not Served*
`Not Served*
`*to Defendants’ Knowledge
`
`Summons
`Summons
`Summons
`Summons
`-
`-
`
`
`
`80
`81
`77
`79
`-
`-
`
`
`
`
`
`No
`No
`No
`No
`No
`No
`
`5.
`
`Accordingly, of the eighteen defendants, nine have only been (purportedly) served
`
`in the past two weeks – long after Plaintiffs were required to serve them under the PAPERLES
`
`PRETRIAL ORDER and even after the period required by Rule 4(m) – and two have not yet been
`
`served. This means that over half of the named defendants have either only just been served or
`
`have not been served.
`
`6.
`
`In addition, as shown in the chart, the majority of the named defendants (13 out of
`
`18) do not have appearances of counsel on their behalves. Of these, two will be represented by
`
`counsel for Moving Defendants.4 However, for at least five defendants,5 Moving Defendants are
`
`not aware of whether counsel has been retained at all.
`
`7.
`
`Prior to the issuance of the Court’s order on Monday (March 6), Plaintiffs’ counsel
`
`had not reached out to counsel for any Moving Defendant to discuss the case schedule. On
`
`Tuesday, March 7, 2023, Plaintiffs sent by email a proposed Scheduling Order and proposed Joint
`
`Scheduling Report, and attempted to unilaterally set (i) a Scheduling Conference for Thursday,
`
`
`4 Larry David will be represented by Latham & Watkins, LLC and Colson Law Firm, LLC,
`while Udonis Haslem will be represented by Akerman LLP. Moving Defendants are also aware of
`counsel for the Golden State Warriors and Stephen Curry. Counsel for Bankman-Fried noticed
`appearances on March 8, 2023. [ECF Nos. 83 & 84]. Plaintiff has included on correspondence
`with Moving Defendants apparent counsel for Ellison and Singh. Moving Defendants understand
`that certain of the defendants who have counsel have not appeared and/or participated in the
`proceedings to date because they maintain this Court lacks personal jurisdiction over them and
`will be moving to dismiss on that basis at the time a response to the Amended Complaint is due.
`5 These are defendants Trabucco, Wang, O’Neal, Ohtani, and Osaka. In addition, while
`Plaintiff has included defendant Friedberg directly on correspondence, Moving Defendants do not
`have an understanding as to whether he intends to represent himself or retain counsel.
`
`- 4 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 5 of 11
`
`March 9, 2023, at 1:00 p.m., and (ii) a deadline for filing the Scheduling Report of Friday, March
`
`10, 2023. Plaintiffs’ proposed schedule is not workable, particularly for a case in which half of the
`
`named defendants have not yet appeared and where the deadline to respond to the Amended
`
`Complaint is April 14, 2023. See PAPERLESS ORDER [ECF No. 49] at 1.
`
`8.
`
`At the most basic, due process level, this expedited time table – which is a time
`
`crunch of Plaintiffs’ creation alone because they failed to move to extend the deadline for a
`
`scheduling conference, see PAPERLESS PRETRIAL ORDER at 1, failed to timely (and,
`
`apparently, properly) serve all defendants, and failed to even communicate with Moving
`
`Defendants about a scheduling conference until this week – unfairly prejudices all defendants
`
`because not all counsel who have appeared are available at the time unilaterally set by Plaintiffs.
`
`Even were counsel available, counsel will not have sufficient time to consult with their clients
`
`regarding the schedule and other issues raised by Plaintiffs’ counsel before Plaintiffs’ proposed
`
`next-day deadline to file a Scheduling Report. And, of course, it makes little sense – and would be
`
`unfair, at best – to hold a Scheduling Conference and then immediately file a “Joint” Scheduling
`
`Report to govern this action where a sizable number of named defendants appear to not yet have
`
`counsel involved.
`
`9.
`
`Given the status of service and counsel appearances alone, Moving Defendants
`
`submit that the deadline for holding the initial Scheduling Conference should be extended.
`
`However, as the Court is well aware, there are additional procedural complexities to this action
`
`which further militate against holding a Scheduling Conference at this time.
`
`10.
`
`First, and foremost, several named defendants appear to have strong personal
`
`jurisdiction defenses because the Amended Complaint fails to reflect any activity by any defendant
`
`in Florida. A Scheduling Conference should not be held until this Court determines whether these
`
`defendants are even subject to jurisdiction in this Court. See, e.g., Teran v. GB Int’l S.P.A., No.
`
`- 5 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 6 of 11
`
`11-CV-2236-JAR-DJW, 2011 WL 5005997, at *3 (D. Kan. Oct. 20, 2011) (“any discovery
`
`conference pursuant to Rule 26(f) should be stayed pending the outcome of the Court’s ruling on
`
`Defendants’ Motion to Dismiss Plaintiff’s Complaint for Lack of Personal Jurisdiction and for
`
`Failure to State a Claim”); see also Jackson-Bear Grp., Inc. v. Amirjazil, No. 2:10-CV-332-FTM-
`
`29, 2011 WL 720462, at *1 (M.D. Fla. Feb. 22, 2011) (granting a motion to stay discovery because
`
`defendants raised meritorious challenges based on lack of personal jurisdiction).
`
`11.
`
`Second, although Moving Defendants are aware that the regular practice in this
`
`Court is that dispositive motions to dismiss are not a basis to stay discovery, they submit that this
`
`action is one where such a stay would be warranted. Moving Defendants submit that Plaintiffs’
`
`claims – seeking to hold “Celebrity Defendants,” who allegedly engaged in paid advertising for
`
`the FTX brand, responsible for the alleged sale of a specific kind of product offered by FTX that
`
`no Celebrity Defendant is alleged to have ever discussed – is an unsupportable legal theory that
`
`should be tested on the merits prior to the initiation of discovery. See Chudasama v. Mazda Motor
`
`Corp., 123 F.3d 1353, 1368 (11th Cir. 1997) (“If the district court dismisses a non-meritorious
`
`claim before discovery has begun, unnecessary costs to the litigants and to the court system can be
`
`avoided.”).6
`
`12.
`
`Third, Plaintiffs have petitioned the Judicial Panel on Multidistrict Litigation to
`
`have this action transferred and consolidated with ten other cases pending in this Court and the
`
`Northern District of California. See Ex. A. Although Moving Defendants (and others) will oppose
`
`that petition (the responses to the petition are due Friday, March 10), the petition may be granted.
`
`
`6 A district court has ample power to control its docket and enjoys broad discretion to stay
`proceedings and discovery pending resolution of a case-dispositive motion. See Fed. R. Civ. P.
`26(b)(1), (2)(A)-(C); Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002) (“At
`the outset, we stress the broad discretion district courts have in managing their cases.”); Johnson
`v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001) (“a district court is entitled
`to establish proper pre-trial procedures and set an appropriate pre-trial schedule . . . .”).
`
`- 6 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 7 of 11
`
`In that event, the judge overseeing such litigation should set the schedule for the consolidated
`
`litigation. See Samuel v. Fam. Dollar Stores of Fla., Inc., No. 11-62560-CIV, 2012 WL 231251,
`
`at *1 (S.D. Fla. Jan. 25, 2012) (postponing scheduling conference and staying discovery pending
`
`decision by MDL panel).
`
`13.
`
`Fourth, the Court has determined in the related Norris action,7 which was filed by
`
`the same Plaintiffs’ counsel against three of the defendants in this action (Brady, O’Leary, and
`
`Ortiz) and raising on an individualized basis the identical putative class claims asserted by
`
`Plaintiffs in this action, that the proper procedure is to first address the Norris Plaintiffs’ request
`
`to remand, then whether to stay the action pending this first-filed action, and then for the Norris
`
`Defendants to respond to the operative pleading. See Order [Norris ECF No. 24] at 1 (“The time
`
`for Defendants to file a response to the Amended Complaint [ECF No. 1-2] is stayed until the
`
`Motion to Remand and any renewed motion to stay are resolved.”). Moreover, because of the
`
`procedural complexities of Norris – i.e., its intertwined nature with the instant action – the Court
`
`deferred the Norris parties’ obligation to file a Scheduling Report pending a future order of the
`
`Court. See Order [Norris ECF No. 28] at 1.
`
`14.
`
`The same principle applies here. This action is nowhere near a posture where a
`
`Scheduling Conference is viable – especially on such short notice – and is one where a variety of
`
`issues are properly addressed before a Scheduling Report should be required.
`
`15.
`
`Therefore, Moving Defendants submit that the March 10, 2023, deadline for
`
`holding a Scheduling Conference should be extended to, at minimum, 30 days after the two
`
`remaining defendants have been properly served, if not deferred until further order of the Court.
`
`
`7 Norris v. Brady, No. 23-cv-20439-KMM (S.D. Fla.).
`
`- 7 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 8 of 11
`
`CONCLUSION
`
`WHEREFORE, Moving Defendants respectfully request that the Court continue the March
`
`10, 2023, deadline for the parties to hold a Scheduling Conference until thirty (30) days after all
`
`named defendants have been served, with a Scheduling Report due 10 days thereafter, and grant
`
`such other and further relief as the Court deems just and proper.
`
`Local Rule 7.1(a)(3) Certification
`
`Pursuant to Local Rule 7.1(a)(3), undersigned counsel certify that Zachary Lipshultz,
`
`counsel for Defendants Brady and Bündchen, conferred with Adam Moskowitz, lead counsel for
`
`Plaintiffs, with respect to the relief requested in this motion via email on March 8, 2023, and
`
`counsel for Moving Defendants and Plaintiffs continued the email communications into March 9,
`
`2023. Based on those communications, which are attached as Exhibit B at Plaintiffs’ counsel’s
`
`request, undersigned counsel state that Plaintiffs do not oppose the request that the deadline for
`
`the Scheduling Conference be continued until after March 10, 2023; however, the extent of such a
`
`continuance is an issue to be determined by the Court.
`
`Dated: March 9, 2023
`
`
`
`Respectfully submitted,
`
`COLSON HICKS EIDSON, P.A.
`255 Alhambra Circle, Penthouse
`Coral Gables, Florida 33134
`Telephone: (305) 476-7400
`Facsimile: (305) 476-7444
`
`By: /s/ Roberto Martínez
`Roberto Martínez
`Florida Bar No. 305596
`bob@colson.com
`Stephanie A. Casey
`Florida Bar No. 97483
`scasey@colson.com
`Zachary Lipshultz
`Florida Bar No. 123594
`zach@colson.com
`
`
`
`LATHAM & WATKINS LLP
`Andrew Clubok (pro hac vice)
` andrew.clubok@lw.com
`
`
`
`- 8 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 9 of 11
`
`
`
`
`
`Susan E. Engel (pro hac vice)
` susan.engel@lw.com
`Brittany M.J. Record (pro hac vice)
` brittany.record@lw.com
`555 Eleventh Street, N.W., Suite 1000
`Washington, D.C. 20004-1304
`Tel: +1.202.637.2200
`Fax: +1.202.637.2201
`
`LATHAM & WATKINS LLP
`Marvin S. Putnam (pro hac vice)
` marvin.putnam@lw.com
`Jessica Stebbins Bina (pro hac vice)
` jessica.stebbinsbina@lw.com
`Elizabeth A. Greenman (pro hac vice)
` elizabeth.greenman@lw.com
`10250 Constellation Blvd., Suite 1100
`Los Angeles, California 90067
`Tel: +1.424.653.5500
`Fax: +1.424.653.5501
`LATHAM & WATKINS LLP
`Michele D. Johnson (pro hac vice)
` michele.johnson@lw.com
`650 Town Center Drive, 20th Floor
`Costa Mesa, California 92626-1925
`Tel: +1.714.540.1235
`Fax: +1.714.755.8290
`Attorneys for Defendants Thomas Brady and Gisele
`Bündchen
`
`AKERMAN LLP
`201 East Las Olas Boulevard – Suite 1800
`Ft. Lauderdale, FL 33301
`Tel.: 954-463-2700
`Fax: 954-468-2454
`By: /s/ Christopher S. Carver
`Christopher S. Carver
`Florida Bar No. 993580
`christopher.carver@akerman.com
`Jason S. Oletsky, Esq.
`Florida Bar No. 9301
`jason.oletsky@akerman.com
`Katherine A Johnson
`Florida Bar No. 1040357
`katie.johnson@akerman.com
`
`Attorneys for Defendant David Ortiz
`
`MARCUS NEIMAN RASHBAUM
`& PINEIRO LLP
`100 Southeast Third Avenue, Suite 805
`Fort Lauderdale, Florida 33394
`
`
`
`- 9 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 10 of 11
`
`
`
`
`
`
`
`Tel: (954) 462-1200
`2 South Biscayne Blvd., Suite 2530
`Miami, Florida 33131
`Tel: (305)-400-4260
`
`By: /s/ Jeffrey Neiman
`
`Jeffrey Neiman
`jneiman@mnrlawfirm.com
`Fla Bar. No. 544469
`Jeffrey Marcus
`jmarcus@mnrlawfirm.com
`Fla. Bar No. 310890
`Michael Pineiro
`mpineiro@mnrlawfirm.com
`Fla. Bar No. 041897
`Brandon Floch
`bfloch@mnrlawfirm.com
`Fla. Bar No. 125218
`
`BERK BRETTLER LLP
`9119 Sunset Boulevard
`West Hollywood, CA 90069
`Tel.: (310) 278-2111
`Andrew B. Brettler (pro hac vice)
`abrettler@berkbrettler.com
`
`Attorneys for Defendant Kevin O’Leary
`
`DIMOND KAPLAN & ROTHSTEIN, P.A.
`Offices at Grand Bay Plaza
`2665 South Bayshore Drive, PH-2B
`Miami, Florida 33133
`Telephone: (305) 374-1920
`Facsimile: (305) 374-1961
`
`By: /s/ David A. Rothstein
`David A. Rothstein, Esq.
`Fla. Bar No. 995762
`DRothstein@dkrpa.com
`Alexander M. Peraza, Esq.
`Fla. Bar No. 107044
`APeraza@dkrpa.com
`Eshaba Jahir-Sharuz, Esq.
`Fla. Bar No. 1038846
`Eshaba@dkrpa.com
`
`
`
`
`MCANGUS GOUDELOCK & COURIE LLC
`2000 Market Street, Suite 780
`Philadelphia, PA 19103
`(484) 406-4334
`Eric A. Fitzgerald (pro hac vice)
`eric.fitzgerald@mgclaw.com
`Hillary N. Ladov (pro hac vice)
`
`- 10 -
`
`

`

`Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 11 of 11
`
`hillary.ladov@mgclaw.com
`
`Attorneys for Defendant William Trevor Lawrence
`
`
`- 11 -
`
`