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Amended MOTION for Leave to File re 57 MOTION for Leave to File Reply Memorandum in… — Agent Fee Litigation (Dkt. 59)
Summary
Defendant Synovus Bank's motion for leave to file a reply memorandum in support of its Motion to Dismiss the Amended Complaint (ECF No. 46), dated June 29, 2020, in Sport & Wheat CPA PA v. ServisFirst Bank Inc. et al., No. 3:20-cv-05425, in the U.S. District Court for the Northern District of Florida, Pensacola Division. Citing Local Rule 7.1(I), Synovus argues that the plaintiff's opposition brief (ECF No. 56) relies on extrinsic evidence, including text messages and deposition excerpts. It also states that the plaintiff reversed its position on whether Section 7(a) SBA requirements and Form 159 apply to agent compensation, relying on a June 8, 2020 bankruptcy court decision. Synovus asks that its reply be due within seven days of the Court granting the motion. The motion includes a 521-word limit certification and a certificate that plaintiff's counsel declined to take a position.
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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.
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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.
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Dated: Washington, D.C.
June 29, 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
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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
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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.
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
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CERTIFICATE PURSUANT TO LOCAL RULES 7.1(B) AND (C)
Pursuant to Local Rules 7.1(B) and (C), I certify that counsel for Synovus
attempted in good faith through a meaningful conference to determine if counsel
for plaintiff consented to the filing of a reply memorandum. Counsel for plaintiff
stated by email that “Sport & Wheat decline[s] to take a position on this motion.”
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
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