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MOTION to Amend/Correct 21 Amended Complaint (proposed Second Amended Complaint) by… — Agent Fee Litigation (Dkt. 89)
Summary
A motion for leave to amend the complaint filed August 31, 2020 by plaintiff Sport & Wheat CPA PA in Sport & Wheat CPA PA v. ServisFirst Bank Inc., Synovus Bank, The First and Truist Bank, Case No. 3:20-cv-05425-TKW-HTC, in the U.S. District Court for the Northern District of Florida, as Document 89. The motion states that the plaintiff accepts the Court's order granting the motions to dismiss (ECF No. 87) but seeks, under Rule 15(a)(2), to file a proposed Second Amended Complaint before an appeal. It lists the changes: revised allegations about Form 159, exhibits of text messages and Synovus deposition excerpts, a new Ex. E responding to the Court's footnote 13, and dropping Count 4. The motion suggests the Court could grant leave and renew its dismissal order, and notes that Synovus said it would oppose.
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No. 3:20-cv-05425-TKW-HTC · Doc. 89 · Docket on CourtListener
Full text
Case 3:20-cv-05425-TKW-HTC Document 89 Filed 08/31/20 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT CPA PA,
a Florida corporation, individually and
on behalf of a class of similarly situated
businesses and individuals,
Plaintiff,
Case No. 3:20-cv-5425-TKW-HTC
v.
SERVISFIRST BANK INC.;
SYNOVUS BANK;
THE FIRST, A NATIONAL
BANKING ASSOCIATION; and
TRUIST BANK,
Defendants.
MOTION FOR LEAVE TO AMEND THE COMPLAINT
Sport & Wheat accepts the ruling of the Court, granting the motions to
dismiss filed by each Defendant. As the Court has anticipated, an appeal is likely to
be taken to the Eleventh Circuit Court of Appeals.
Before that appeal proceeds, however, Sport & Wheat seeks leave to file an
amended complaint. Sport & Wheat anticipates that, following the logic of the
Court’s Order, this proposed Second Amended Complaint may be subject to
dismissal again. Sport & Wheat respectfully asks the Court to grant its motion for
leave to amend.
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Case 3:20-cv-05425-TKW-HTC Document 89 Filed 08/31/20 Page 2 of 5
ARGUMENT
Under Rule 15(a)(2), amendment of a pleading may be granted only with a
party’s written consent or leave of court. The Court is to “freely give leave when
justice so requires.” Id. Sport & Wheat submits that justice would require the Court
to grant leave to amend the complaint, because that would allow Sport & Wheat to
make its best case on appeal.
In accordance with Loc. R. 15.1(B), the proposed Second Amended
Complaint is being filed now. As a convenience, a redline comparing the former
operative complaint with the proposed amendment is attached as an exhibit to this
motion.
The proposed Second Amended Complaint:
Amends those parts of the former complaint which asserted that Form
159 and other SBA regulations were still applicable to these
transactions. As the Court knows, Sport & Wheat receded from these
positions after intervening caselaw led it to change its position. (ECF
No. 87, Court’s Order, at 7 & n.8.) The proposed amendments do not
vary from the legal theory Sport & Wheat advanced in its briefs; they
just bring the complaint itself into line with those briefs.
o Locations: Paragraphs 56−57, 64−78; new Ex. A is also attached
(it is a copy of Form 159).
Attaches exhibits and cites to them. These exhibits, two sets of text
messages and deposition excerpts from Synovus’s Rule 30(b)(6)
deposition, were previously attached to Sport & Wheat’s response to
Synovus’s motion to dismiss. The purpose of attaching these exhibits
to the complaint itself is to ensure that they are in the record as part of
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Case 3:20-cv-05425-TKW-HTC Document 89 Filed 08/31/20 Page 3 of 5
the pleadings. The facts shown in these exhibits, such as that bank
employees communicated directly with Sport & Wheat, were already
dealt with extensively in the briefing and by the Court.
o Locations: Exs. B, C, D; paragraphs 110−25.
Adds an exhibit that is directly responsive to the Court’s footnote 13.
(ECF No. 87 at 12, n.13.) The Court wrote in part that “the amended
complaint does not allege that the other defendant, The First, had any
communications . . . from which it could be inferred that The First
knew that Plaintiff conferred a benefit on it.” Id. A proposed exhibit
and three paragraphs of allegations show that TheFirst did have
knowledge of Sport & Wheat’s participation in a loan application. This
exhibit was already discussed in the operative complaint (but it was not
attached).
o Locations: Ex. E; paragraphs 137−39.
Drops Count 4, the declaratory judgment count.
Makes very minor grammatical or technical fixes.
o Locations: Scattered points.
Again, the intent of these amendments was to sharpen Sport & Wheat’s legal
theory—making the complaint conform to the very new caselaw that came down in
other districts during the pendency of the briefing—and to add factual support to
existing allegations in the form of documents, exhibits, which the Court has either
already seen or (in the case of Ex. E) were referred to in the operative complaint.
No party would suffer prejudice by permitting amendment of the complaint.
The core legal issues have already been briefed once, and Sport & Wheat is under
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Case 3:20-cv-05425-TKW-HTC Document 89 Filed 08/31/20 Page 4 of 5
no illusion that the Court will reverse itself on those matters. This is not a motion
for reconsideration in the guise of a motion for leave to amend.
Because nothing is being significantly changed here, Sport & Wheat expects
that the Court would likely dismiss this complaint again. Sport & Wheat humbly
suggests that the Court could grant this motion for leave, renew its own order
dismissing this Second Amended Complaint, and forgo the need for any party to
deal with new motions to dismiss. That would be consistent with the Court’s
invitation to have the Court enter judgment dismissing the case with prejudice
“based on the rulings in this Order,” ECF No. 87 at 13, and it would promote
efficiency for the Court and the litigants.
CONCLUSION
Sport & Wheat would appreciate the Court’s consideration and respectfully
asks that this motion be granted.
CERTIFICATE REGARDING LOC. R. 7.1(B) AND 7.1(D)
This is an outcome-determinative motion under Loc. R. 7.1(D), in that the
action finally ends if this motion is not granted, and thus an attorney conference is
not required. Moreover, the Court contemplated that Sport & Wheat might seek
leave to amend in its last Order. (ECF No. 87 at 13.) Therefore, Sport & Wheat did
not confer with the Defendants regarding their position on this motion.
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Case 3:20-cv-05425-TKW-HTC Document 89 Filed 08/31/20 Page 5 of 5
One Defendant, Synovus, contacted Sport & Wheat on its own to say that it
would be opposed to any such motion.
Dated: August 31, 2020 Respectfully submitted,
/s/ William F. Cash III
Virginia M. Buchanan
(Fla. Bar No. 793116)
Matthew D. Schultz (Fla. Bar No. 640328)
William F. Cash III (Fla. Bar No. 68443)
LEVIN, PAPANTONIO, THOMAS,
MITCHELL, RAFFERTY & PROCTOR,
P.A.
316 South Baylen Street, Suite 600
Pensacola, FL 32502
Phone: 850-435-7059
Email: bcash@levinlaw.com
/s/ John S. Wirt
John S. Wirt, Esq. (Fla. Bar No. 117640)
Pamela Cocalas Wirt, Esq. (Fla. Bar No.
109576)
WIRT & WIRT, P.A.
5 Calhoun Ave, Suite 306
Destin, FL 32541
Tel: 847-323-4082
Fax: 314-431-6920
jwirt@wirtlawfirm.com
Attorneys for the Plaintiff
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