Court filing
RESPONSE to Motion re 76 MOTION for Extension of Time to File Response/Reply as to 67… — Agent Fee Litigation (Dkt. 82)
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Defendant ServisFirst Bank's response to the plaintiff's motion for extension of time to prepare an omnibus response, in Sport & Wheat CPA PA v. ServisFirst Bank, Case No. 3:20-cv-05425-TKW-HTC, in the U.S. District Court for the Northern District of Florida, dated July 9, 2020. ServisFirst objects not to more time but to a single omnibus response to the motions to dismiss of ServisFirst, Truist Bank and The First (Dkt. Nos. 49, 67 and 69). It restates its principal argument that under the CARES Act Congress directed the SBA to reimburse lenders in precise amounts, citing a $4,708.25 reimbursement and the plaintiff's demand for $941.65 described in the Amended Complaint. It asks the court to deny the motion to the extent it seeks leave to file an omnibus response. The filing includes a Local Rule 7.1(F) word-limit certification and a certificate of service.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT CPA PA )
)
Plaintiff, )
)
v. ) Case No. 3:20-cv-05425-TKW-HTC
)
SERVISFIRST BANK, )
SYNOVUS BANK, THE FIRST, )
and TRUIST BANK, )
)
Defendants. )
SERVISFIRST BANK’S RESPONSE TO PLAINTIFF’S MOTION FOR
EXTENSION OF TIME TO PREPARE OMNIBUS RESPONSE
Defendant ServisFirst Bank (“ServisFirst”) responds herein to Plaintiff Sport
& Wheat’s Motion for Extension of Time to Prepare an Omnibus Response [Dkt.
No. 76] to the pending Motions to Dismiss of ServisFirst, Truist Bank and The
First. See Dkt. Nos. 49, 67 and 69. Plaintiff has had ample time to respond to
ServisFirst’s motion, but ServisFirst’s objection is to Plaintiff’s request to submit
an omnibus response.
ServisFirst’s concern regarding an omnibus response is that it may give
Plaintiff the opportunity to try to muddy the clear, principal argument ServisFirst
has made and may also permit Plaintiff to gloss over the arguments that only
ServisFirst has made. It would invite Plaintiff to homogenize the three defendants’
arguments and to respond to that homogenized version while sidelining the
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arguments made by only one defendant.
ServisFirst’s principal argument is a simple one – in the CARES Act,
Congress directed the SBA to “reimburse” lenders in precise amounts for their
efforts in making PPP loans. See ServisFirst’s Motion to Dismiss, Dkt. No. 49, at
pp. 1-3, 7. Using the facts Plaintiff included in the Amended Complaint as to
Borrower R, Congress directed the SBA to reimburse ServisFirst in the amount of
$4,708.25 for its efforts in making that loan. See Amended Complaint, Dkt. No. 21,
at ¶ 90. Plaintiff’s demand that this reimbursement amount be reduced by $941.65
to compensate it for its work on Borrower R’s loan application, see id. at ¶ 91,
contravenes federal law. While ServisFirst believes that the First Interim Final Rule
can and should be read consistently with the clear statutory language of the CARES
Act, whether or not it can be is not of particular importance. What is important is
what Congress said, and ServisFirst wants to make certain that Plaintiff responds
directly, if it can, to that simple argument.
Further, ServisFirst makes arguments in seeking dismissal that other
defendants have not made, arguments which it is concerned may get short shrift in
an omnibus filing. For example, ServisFirst has argued that Plaintiff’s unjust
enrichment claim fails because ServisFirst cannot possibly have been unjustly
enriched by being reimbursed in the exact amount that Congress dictated. See Dkt.
No. 49, at pp. 24-25. By way of further example, ServisFirst has argued that
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Plaintiff’s unjust enrichment claims fails because it has not plausibly alleged that
ServisFirst accepted any benefit claimed to have been conferred by Plaintiff. See id.,
at pp. 23-24.
ServisFirst believes that its Motion to Dismiss warrants a separate response.
Plaintiff of course can adopt arguments made in one brief in another to avoid
duplication, but collapsing in one brief the arguments of different defendants simply
because they overlap to some degree is likely to lead to confusion and will not likely
aid the Court in resolving the motions. ServisFirst therefore requests that this Court
deny Plaintiff’s motion to the extent that it seeks leave to file an omnibus response.
This 9thth day of July 2020.
/s/ Logan T. Matthews
Logan T. Matthews
Florida Bar No. 1002506
LIGHTFOOT, FRANKLIN & WHITE, LLC
The Clark Building
400 20th Street North
Birmingham, Alabama 35203
Telephone: (205) 581-0700
Facsimile: (205) 581-0799
One of the Attorneys for Defendant
ServisFirst Bank
OF COUNSEL:
Sara A. Ford
sford@lightfootlaw.com
R. Ashby Pate
apate@lightfootlaw.com
Logan T. Matthews (Florida Bar No. 1002506)
lmatthews@lightfootlaw.com
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LIGHTFOOT, FRANKLIN & WHITE, LLC
The Clark Building
400 20th Street North
Birmingham, Alabama 35203
Telephone: (205) 581-0700
Facsimile: (205) 581-0799
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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
Response to Plaintiff’s Motion for Extension of Time to Prepare Omnibus Response 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 481 words,
exclusive of the case style, signature block, and this certification.
/s/ Logan T. Matthews
One of the Attorneys for Defendant
ServisFirst Bank
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CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that on this 9th day of July, 2020, I served
the foregoing via U electronic mail to the following CM/ ECF registrant(s):
Meredith Laughlin Allen, Esq. (mlallen@mcguirewoods.com)
Kathryn Margaret Barger, Esq. (kbarber@mcguirewoods.com)
Philip A. Bates, Esq. (pbates@philipbates.net)
Virginia M. Buchanan, Esq. (VBuchanan@levinlaw.com)
James E. Butler, Esq. (jim@butlerwooten.com)
William F. Cash, Esq. (bcash@levinlaw.com)
Sara Ford, Esq. (sford@lightfootlaw.com)
Cheryl Haas, Esq. (chaas@mcguirewoods.com)
Antonio M. Haynes, Esq. (Antonio.haynes@davispolk.com)
Paul J. Nathanson, Esq. (paul.nathanson@davispolk.com)
Robert Ashby Pate, Esq. (apate@lightfootlaw.com)
Ramsey Prather, Esq. (ramsey@butlerwooten.com)
Christopher Allen Riley, Esq. (chris.riley@alston.com)
Emily Y. Rottman, Esq. (erottmann@mcguirewoods.com)
Matthew David Shultz, Esq. (mschultz@levinlaw.com)
John Sidney Wirt, Esq. (jwirt@wirtlawfirm.com)
Pamela Cocalas Wirt, Esq. (pcwirt@wirtlaw.com)
/s/ Logan T. Matthews
One of the Attorneys for Defendant
ServisFirst Bank
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