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MOTION for Leave to File Reply Memorandum in Support of its Motion to Dismiss the… — Agent Fee Litigation (Dkt. 57)

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Defendant Synovus Bank's motion for leave to file a reply memorandum supporting its Motion to Dismiss the Amended Complaint in Sport & Wheat CPA PA v. ServisFirst Bank Inc., Case No. 3:20-cv-05425, in the U.S. District Court for the Northern District of Florida, dated June 26, 2020. Citing Local Rule 7.1(I), Synovus argues that the plaintiff's opposition, ECF No. 56, relies on extrinsic evidence, including 20 pages of text messages and deposition testimony. It also argues that the plaintiff reversed its position that SBA Form 159 and Section 7(a) requirements apply to the Paycheck Protection Program. Synovus asks that its reply be due within seven days of the Court granting the motion, with a proposed order attached as Exhibit A. The motion is signed by counsel from Davis Polk & Wardwell LLP, Butler Wooten & Peak LLP and Philip A. Bates, P.A.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
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:
SPORT & WHEAT CPA PA, a Florida :
corporation, individually and on behalf of :
Case No. 3:20-cv-05425-
a class of similarly situated businesses and :
TKW-HTC
individuals, :
:
Plaintiff, :
:
:
v. :
:
SERVISFIRST BANK INC.; SYNOVUS :
BANK; THE FIRST, A NATIONAL :
BANKING ASSOCIATION; and :
TRUIST BANK, :
:
Defendants. :
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DEFENDANT SYNOVUS BANK’S
MOTION FOR LEAVE TO FILE A REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS THE AMENDED COMPLAINT

Pursuant to Local Rule 7.1(I), Defendant Synovus Bank (“Synovus”)

respectfully seeks leave to file a reply memorandum in support of its Motion to

Dismiss the Amended Complaint, ECF No. 46. Plaintiff Sport & Wheat CPA PA’s

(“S&W”) improper reliance on extrinsic evidence, which it has appended to its

opposition brief, ECF No. 56 (“Opp. Br.”), and admitted reversal from the legal

positions advanced in its Amended Complaint constitute “extraordinary

circumstances” sufficient to permit Synovus an opportunity to respond.
First, Synovus seeks to address S&W’s improper reliance on extrinsic

evidence in violation of the rule that “[a] court’s review on a motion to dismiss is

limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc.,

555 F.3d 949, 959 (11th Cir. 2009); Hayes v. U.S. Bank Nat’l Ass’n, 648 F. App’x

883, 887 (11th Cir. 2016). S&W has filed with its opposition brief 20 pages of

previously unproduced text messages, ECF Nos. 56-1, -2, upon which it relies “[t]o

add substance to [S&W’s] allegation[s]” and “present additional context,” Opp. Br.

at 4, 9. S&W has also attached to its opposition brief excerpts of a recent Rule

30(b)(6) deposition, ECF No. 56-3, which is currently the subject of a Motion to

Terminate based on S&W’s misconduct during the deposition. See ECF No. 52.

That matter is before Magistrate Judge Cannon, with a hearing scheduled for July

9, 2020. In a reply memorandum, Synovus seeks the opportunity to address the

impropriety of S&W’s reliance on this extrinsic evidence, particularly given its

disputed nature, at the motion to dismiss stage.

Second, after stating in the Amended Complaint that the Paycheck

Protection Program is subject to the regulations governing the Section 7(a) loan

program and, in particular, that Small Business Administration Form 159 “must”

be submitted as a precondition to agent compensation, Am. Compl. ¶¶ 43, 65-67,

S&W in its opposition reverses course and explicitly states it “recedes from its

position that the general Section 7(a) SBA requirements apply.” Opp. Br. 28.

2
S&W states that it “has reconsidered its position and now argues that Form 159

and other SBA formalities are not required.” Id. at 21-22. To justify this blatant

about face, S&W purports to rely on “extremely recent authority”—namely a June

8, 2020 bankruptcy court decision striking down an SBA rule that debtors in

bankruptcy are not eligible to receive loans under the Paycheck Protection

Program. See id. at 28 (citing In re Gateway Radiology Consultants, P.A., 2020

WL 3048197 (Bankr. M.D. Fla. June 8, 2020)). In a reply memorandum, Synovus

seeks to explain why this new authority is inapposite and why S&W’s original

position on this issue is correct.

For these reasons, Synovus respectfully requests leave to file a memorandum

replying to S&W’s opposition brief and in support of its Motion to Dismiss the

Amended Complaint. As set out in the proposed order attached hereto as Exhibit

A, Synovus respectfully requests that such reply memorandum be required to be

filed within seven days of the Court’s granting this Motion.

3
Dated: Washington, D.C.

June 26, 2020

By: /s/ Paul J. Nathanson

Paul J. Nathanson (pro hac vice)
District of Columbia Bar #982269
DAVIS POLK & WARDWELL LLP
901 15th Street, N.W.
Washington, D.C. 20005
paul.nathanson@davispolk.com
(202) 962-7000

Antonio M. Haynes (pro hac vice)
New York Bar #5151816
DAVIS POLK & WARDWELL LLP
450 Lexington Ave.
New York, NY 10017
antonio.haynes@davispolk.com
(212) 450-4000

James E. Butler, Jr. (pro hac vice)
Georgia Bar #099625
Ramsey B. Prather (pro hac vice)
Georgia Bar #658395
BUTLER WOOTEN & PEAK LLP
105 Thirteenth Street
P.O. Box 2766
Columbus, GA 31902
jim@butlerwooten.com
ramsey@butlerwooten.com
(404) 321-1700

4
Philip A. Bates
Florida Bar #228354
PHILIP A. BATES, P.A.
25 West Cedar Street, Suite 550 (32502)
Post Office Box 1390
Pensacola, FL 32591
pbates@philipbates.net
(850) 470-0091

Attorneys for Defendant
Synovus Bank

5
LOCAL RULE 7.1(F) WORD LIMIT CERTIFICATION

Pursuant to Northern District of Florida Local Rule 7.1(F), I certify that this

Motion for Leave to File a Reply Memorandum is in compliance with the Court’s

word limit. According to the word processing program used to prepare this motion

and memorandum, the document contains 521 words, exclusive of the case style,

signature block, and this certification.