Court filing
RESPONSE of SYNOVUS BANK'S OPPOSITION TO PLAINTIFF'S 89 MOTION to Amend/Correct 21… — Agent Fee Litigation (Dkt. 91)
Summary
Synovus Bank's opposition to the plaintiff's motion for leave to further amend the 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, Pensacola Division, docketed as Dkt. 91. It responds to the plaintiff's motion (Doc. 89) filed after the court's August 17, 2020 order (Doc. 87) granting the defendants' motions to dismiss the Amended Complaint over claimed PPP agent fees under the CARES Act. Synovus argues that the plaintiff's own motion concedes the proposed Second Amended Complaint would be futile and that denying a futile amendment is not reversible error in the Eleventh Circuit. It asks the court to deny the motion or, if leave is granted, to allow Synovus to refile its motion to dismiss. The filing is signed by counsel for Synovus Bank.
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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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SYNOVUS BANK’S OPPOSITION TO PLAINTIFF’S
MOTION FOR LEAVE TO FURTHER AMEND COMPLAINT
Synovus Bank submits this opposition to plaintiff’s Motion for Leave to
Further Amend the Complaint filed on August 31. Doc. 89. Synovus respectfully
asks the Court to deny plaintiff’s admittedly futile request.
On August 17, this Court granted Defendants’ motions to dismiss plaintiff’s
43-page, 190 paragraph Amended Complaint, filed in response to Defendants’
1
motions to dismiss.1 Doc. 87. The Court held that plaintiff’s claim that it was
“entitled” to “agent fees” under the CARES Act and related SBA regulations
“clearly fails on the merits.” Doc. 87 at 3-4, 6 n. 6 (emphasis added). The Court
likewise disposed of plaintiff’s conversion and quasi-contract claims under Florida
law as utterly meritless. Doc. 87 at 10-13. The Court explained that the claims
asserted by plaintiff “are not likely to be found suitable for class action treatment.”
Doc. 87 at 12 n. 14 (citing Vega v. T-Mobile, USA, Inc. 563 F.3d 1256, 1274 (11th
Cir. 2009)).
Given the Court’s analysis of the legal issues, this Court held it is “highly
unlikely that Plaintiff will be able to further amend the complaint to state a claim
against Defendants.” Doc. 87 at 13 (emphasis added). The Court then gave
plaintiff two options. First, the Court stated that plaintiff “may seek leave to file
an amended complaint . . . if [plaintiff] can do so in good faith.” Doc. 87 at 13
(emphasis added). Second, the Court stated that plaintiff could request that the
Amended Complaint be dismissed with prejudice so that plaintiff could “try its
luck at the Eleventh Circuit.” Doc. 87 at 13.
Disregarding the Court’s Order, plaintiff has now elected a third option of
plaintiff’s own creation. Plaintiff wants this Court to “grant [plaintiff’s] motion for
1
Plaintiff filed its initial complaint on April 26, 2020. After Defendants filed
motions to dismiss that initial complaint, plaintiff filed its Amended Complaint on
May 27, 2020.
2
leave [to file a Second Amended Complaint], renew [the Court’s] own order
dismissing this Second Amended Complaint, and forgo the need for any party to
deal with new motions to dismiss” regarding plaintiff’s Second Amended
Complaint. Doc. 89
Plaintiff’s motion violates this Court’s Order – it is not “in good faith.”
Doc. 89. That is crystal clear from the face of plaintiff’s motion for leave to
amend, which concedes that plaintiff’s proposed Second Amended Complaint
would be futile. The very first sentence of plaintiff’s motion for leave to amend
states that plaintiff “accepts the ruling of the Court, granting the motion to dismiss
filed by each Defendant.” Doc. 89 at 1 (emphasis added). Plaintiff’s motion
concedes that the “proposed Second Amended Complaint may be subject to
dismissal again.” Doc. 89 at 1. Plaintiff’s motion concedes that “the core legal
issues have already been briefed once, and [plaintiff] is under no illusion that the
Court will reverse itself on those matters.” Doc. 89 at 3-4.2 Plaintiff’s motion
even admits that the irrelevant additional material contained in the proposed
Second Amended Complaint add nothing of substance and necessarily will not
change the Court’s ruling on Defendants’ motions to dismiss. Doc. 89 at 4
2
Of course, the resolution of the “core legal issues” (e.g., whether plaintiff could
ever be entitled to so-called “agent fees”) is dispositive of plaintiff’s claims as this
Court held in its Order granting Defendants’ respective Motions to Dismiss. Doc.
87.
3
(“Because nothing is being significantly changed here, [plaintiff] expects that the
Court would likely dismiss this complaint again.”).
Why in the world would plaintiff seek leave to file a Second Amended
Complaint that the plaintiff knows is futile and that plaintiff admits “changes
nothing significant” about the Amended Complaint? The answers to that question
are simple.
First, in light of the multiple defeats suffered by those advancing these
“agent fee” cases,3 the only tactic available to plaintiffs’ counsel is to try to
unreasonably and vexatiously multiply these proceedings in the hopes of forcing
some sort of nuisance settlement.4
3
First, on August 5, 2020, the Judicial Panel on Multidistrict Litigation denied
plaintiffs’ counsel’s request to centralize dozens of so-called PPP “agent fee” cases
pending around the country into an MDL. Then, on August 17, 2020, in the first of
the some 70 such cases filed, this Court granted Defendants’ motions to dismiss,
rejecting the plaintiffs’ claims of ‘entitlement’ to agent fees, which this Court held
was the “central issue” in such cases. Then, on August 25 and 26, to avoid similar
orders in the three cases against Synovus in which motions to dismiss had been
filed, plaintiffs’ counsel in those cases dismissed Synovus from those cases.
Williams & Haupt, P.C. v. Synovus Bank, et al., No. 4:20-cv-00160-RSB (S.D. Ga.
Aug. 26, 2020), Dkt. No. 41; Barrena v. Ameris Bank, et al., 4:20-CV-00166-MHC
(N.D. Ga. Aug. 25, 2020), Dkt. No. 27; Alliant CPA Grp. LLC v. Synovus Bank, et
al., No. 1:20-cv-02026-MLB (N.D. Ga. Aug. 25, 2020), Dkt. No. 121. Then, on
September 1, just four days after Synovus filed its motion to dismiss, plaintiff’s
counsel dismissed yet another lawsuit against Synovus, that one pending in the
Western District of Virginia. Accountek Financial Management Ltd. v. Synovus,
Case No. 5:20-cv-47-EKD (W.D. Va.).
4
That is a vain hope: Synovus will not settle baseless lawsuits.
4
Second, plaintiff is trying to change the record on appeal. Plaintiff had a
chance to file its Amended Complaint after reading Defendants’ motions to
dismiss. This Court dismissed that Amended Complaint. Now plaintiff wants to
put in to the Record yet another amended complaint without giving Defendants an
opportunity to make a record in response to it before the Court dismisses it too, as
plaintiff asks. Plaintiff’s counsel apparently hopes to be able to inject new
arguments into the appeal, in addition to those made to the Court.
It is black-letter law in the Eleventh Circuit that a District Court cannot
commit reversible error by denying a futile request for leave to amend a complaint.
See, e.g., Johnson v. Ga. Dept. of Veterans Serv., 791 F. App’x 113, 116 (11th Cir.
2019) (affirming the district court’s denial of the plaintiff’s motion for leave to
amend where the amendment would be futile); Broughton v. U.S. Bank, N.A., 571
F. App’x 891, 892 (11th Cir. 2014) (affirming the district court’s dismissal for
failure to state a claim and denial of the plaintiff’s motion for leave to amend
complaint where plaintiff conceded that his prior complaint was “rendered futile”
by precedent); Patel v. Ga. Dept. BHDD, 485 F. App’x 982, 983 (11th Cir. 2012)
(affirming the district court’s order granting the defendant’s motion to dismiss and
denying the plaintiff’s motion for leave to amend where the amendment would be
futile); Travelers Cas. & Sur. Co. of Am. v. Reznick Grp., P.C., 271 F. App’x 833,
836 (11th Cir. 2008) (same); Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263
5
(11th Cir. 2004) (same). Because plaintiff admits that the amendment is futile, the
Court should deny plaintiff’s request.
If the Court grants plaintiff’s motion for leave to amend, Synovus requests
that the Court give Synovus the opportunity to refile its motion to dismiss and
require plaintiff to respond to that motion to dismiss before dismissing plaintiff’s
proposed Second Amended Complaint.
CONCLUSION
Synovus respectfully requests that the Court deny plaintiff’s Motion for
Leave to Further Amend the Complaint.
—Signatures on following page—
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By: /s/ Philip A. Bates
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
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
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 to Dismiss the Amended Complaint and Memorandum of Law in Support
Thereof 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 1,572 words.
By: /s/ Ramsey B. Prather
BUTLER WOOTEN & PEAK LLP
105 Thirteenth Street
P.O. Box 2766
Columbus, GA 31902
jim@butlerwooten.com
ramsey@butlerwooten.com
(404) 321-1700
8
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