Transmittal Of Notice Of Appeal: SPORT & WHEAT, CPA, PA, v. Case No. 3
Summary
A Transmittal of Notice of Appeal filed September 10, 2020 as Document 96 in Sport & Wheat CPA PA v. ServisFirst Bank Inc, et al., No. 3:20-cv-05425-TKW-HTC, in the U.S. District Court for the Northern District of Florida, Pensacola Division. The clerk's transmittal to the U.S. Court of Appeals encloses the notice of appeal, the order appealed from and the docket entries. The notice of appeal, dated September 9, 2020, appeals to the Eleventh Circuit from the order denying leave to amend and dismissing the case with prejudice (ECF No. 93) and the earlier order dismissing the amended complaint (ECF No. 87). The enclosed Order Dismissing Amended Complaint addresses whether the plaintiff accounting firm is entitled to agent fees totaling $4,526 from PPP lenders, and the court states the answer is no. The docket report ends with the dismissal order and the notice of appeal.
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Case 3:20-cv-05425-TKW-HTC Document 96 Filed 09/10/20 Page 1 of 32
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT CPA PA
USDC NO. 3:20-cv-05425-TKW-HTC
vs
USCA NO.
SERVISFIRST BANK INC, ET AL
TRANSMITTAL OF NOTICE OF APPEAL
The following documents are hereby transmitted to the Clerk, U. S.
Court of Appeals. A copy of the appeal notice, docket entries, and Order
appealed from is enclosed.
First Appeal Notice: YES
Judge Appealed From: T KENT WETHERELL, II
Appellate Docket Fee: YES
Court Reporters: YES
Other
Please acknowledge receipt on the enclosed copy of this transmittal to: PENSACOLA DIVISION
JESSICA J. LYUBLANOVITS,
CLERK OF COURT
By: Monica Broussard
Deputy Clerk
100 North Palafox Street
September 10, 2020 Pensacola, Florida 32502-5658
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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.
NOTICE OF APPEAL
Sport & Wheat CPA PA now serves its notice of appeal from the Court’s
order denying leave to amend and dismissing this case with prejudice (ECF No.
93), as well as all interlocutory orders that merge into this final order. That includes
the prior order of the Court, dismissing the amended complaint (ECF No. 87).
Appeal is being taken to the United States Court of Appeals for the Eleventh
Circuit.
1
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Dated: September 9, 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
2
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT, CPA, PA,
Plaintiff,
v. Case No. 3:20cv5425-TKW-HTC
SERVISFIRST BANK, INC., et al.,
Defendants.
______________________________/
ORDER DISMISSING AMENDED COMPLAINT
The central issue of first impression in this case is whether Plaintiff and others
like it are entitled to any portion of the fees paid by the federal government to lenders
like Defendants who were tasked with handing out hundreds of billions of dollars of
“loans” under the Paycheck Protection Program (PPP).1 The short answer is “no.”
This issue arises in the context of Defendants’ motions to dismiss Plaintiff’s
amended complaint under Fed. R. Civ. P. 12(b)(6). See Docs. 46, 49, 67, 69. The
motions, responses (Docs. 56, 85), and reply (Doc. 65) were comprehensively (and
ably) briefed, and no hearing is necessary to rule on the motions.
1
This case was apparently the first of what is now at least 50 cases pending around the
country raising the same issue. A motion to transfer these cases into a single MDL proceeding
was denied by the Judicial Panel on Multidistrict Litigation last week. See In re Paycheck
Protection Program (PPP) Agent Fees Litigation, MDL No. 2950 (J.P.M.L. Aug. 5, 2020).
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When ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts the
allegations in the operative complaint (here, the amended complaint, Doc. 21) as
true and construes them in the light most favorable to the plaintiff under the
“plausibility” standard adopted by the Supreme Court. See Ascroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Crespo v.
Coldwell Banker Mortg., 599 F. App’x 868, 874 (11th Cir. 2014). Applying this
standard, the Court finds for the reasons that follow that the motions to dismiss are
due to be granted.
Factual and Procedural Background
Plaintiff is a small accounting firm that assisted its clients (the borrowers) in
obtaining loans from Defendants under the PPP. Plaintiff alleges in the amended
complaint that Defendants did not pay it the “agent fees” (totaling $4,526)2 it was
due under the PPP and its implementing regulation for helping the borrowers obtain
the loans. Plaintiff does not allege that it or the borrowers had agreements with
Defendants regarding payment of Plaintiff’s agent fees.
The amended complaint asserts four counts and seeks monetary damages and
injunctive relief against Defendants (and other “John Doe” lenders) on a class-wide
2
Specifically, the amended complaint alleges that Plaintiff is entitled to $941.65 of the loan
processing fee paid by the Small Business Administration (SBA) to Defendant ServisFirst,
$1,633.03 of the fee paid to Defendant Synovus, $75.75 of the fee paid to Defendant The First,
and $1,875.57 of the fee paid to Defendant Truist. See Doc. 21, at ¶¶ 91, 112, 126, 139.
2
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basis. Count 1 (“unjust enrichment”) and Count 2 (“contract implied in law”) seek
to recover the monetary benefit Plaintiff allegedly conferred on Defendants when it
helped the borrowers obtain PPP loans through Defendants; Count 3 (“conversion”)
alleges the Defendants unlawfully retained the portion of the loan processing fees
that Plaintiff was entitled to under the PPP and its implementing regulation; and
Count 4 (“declaratory relief”) seeks a declaration that Defendants violated federal
law by not paying Plaintiff the portion of the loan processing fee it was entitled to
under the PPP along with appropriate injunctive relief.
Counts 3 and 4 are premised on the assumption that the PPP and its
implementing regulation require lenders to pay the agent’s fee irrespective of
whether there is an agreement between the agent or borrower and the lender to do
so. By contrast, Counts 1 and 2 are premised on equitable principles (rather than
legal entitlement under the PPP and its implementing regulation) under state
common law based on Plaintiff’s allegations that Defendants were aware of and
benefitted from the work Plaintiff did on the borrowers’ PPP loan applications.
Analysis
The crux of this case is in Count 4, which seeks a declaration that Defendants
are required to pay “agent fees” to Plaintiff for the work it performed on behalf of
the borrowers who obtained PPP loans from Defendants. The claim is premised on
3
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the assumption that the CARES Act3 and its implementing regulation require lenders
to pay the borrowers’ agent fees. This assumption, however, finds no support in the
plain language of the statute or the regulation.
Section 1102 of the CARES Act created the PPP as part of the Section 7(a)
Loan Program administered by the SBA. The PPP was intended to help small
businesses impacted by the COVID-19 pandemic by providing loans4 that could be
used to cover payroll and other costs. The loans were administered by the private
sector (e.g., banks, credit unions, existing SBA Section 7(a) lenders), but they were
fully funded and guaranteed by the federal government.
The CARES Act mandated that the SBA Administrator “shall reimburse a
lender authorized to make a covered loan” and it established the fees that the lender
will be paid for making the loans. See Pub. L. No. 116-136, §1102(a)(2) (to be
codified at 15 U.S.C. §636(a)(36)(P)(i)). The Act further provided that “[a]n agent
that assists an eligible recipient to prepare an application for a covered loan may not
3
Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281
(2020).
4
The monies received under the PPP are “loans” in only the loosest sense of that word
because the borrower is not required to make any payments for six months and the full amount of
the principal borrowed and any accrued interest will be forgiven if the borrower uses the loan
proceeds to cover payroll and other approved costs. See Pub. L. No. 116-136, §1102(a)(2) (to be
codified at 15 U.S.C. §636(a)(36)(M)), §1106(b); see also Paycheck Protection Program
Flexibility Act of 2020, Pub L. No. 116-142, §3, 134 Stat. 641, 641-43 (2020) (extending the
deferral period and modifying the criteria for loan forgiveness).
4
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collect a fee in excess of the limits established by the [SBA] Administrator.” Id. (to
be codified at 15 U.S.C. §636(a)(36)(P)(ii)).
In April 2020, pursuant to the authority delegated by the statutory language
quoted above, the SBA issued an interim final rule (IFR) to implement the PPP. See
Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed.
Reg. 20,811 (Apr. 15, 2020).5 The IFR provides in pertinent part:
Agent fees will be paid by the lender out of the fees the
lender receives from SBA. Agents may not collect fees
from the borrower or be paid out of the PPP loan proceeds.
The total amount that an agent may collect from the lender
for assistance in preparing an application for a PPP loan
(including referral to the lender) may not exceed:
i. One (1) percent for loans of not more than
$350,000;
ii. 0.50 percent for loans of more than $350,000 and
less than $2 million; and
iii. 0.25 percent for loans of at least $2 million.
Id. at 20,816. The IFR also states that its provisions “temporarily supersede any
conflicting Loan Program Requirement (as defined in 13 CFR 120.10).” Id. at
20,812.
5
The SBA has since adopted other regulations to implement the PPP, see
https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-
program#section-header-9 (list of regulations), but none of those regulations appear to have any
bearing on the issues in this case.
5
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The CARES Act does not require lenders to pay the agent’s fees absent an
agreement to do so (or create a private right of action for payment6) because the
statutory language does not even speak to who pays the agent’s fees; it merely
provides that the agent cannot collect a fee from anyone in excess of the amount
established by the SBA Administrator. Indeed, the different language used by
Congress in mandating payment of lenders (“shall reimburse”) and limiting agent
fees (“may not collect”) is indicative of an intent not to require lenders to pay agent
fees. See In re Failla, 838 F.3d 1170, 1176-77 (11th Cir. 2016) (quoting Antonin
Scalia & Bryan A. Garner, Reading Law 170 (2012)) (“The presumption of
consistent usage instructs that ‘[a] word or phrase is presumed to bear the same
meaning throughout a text’ and that ‘a material variation in terms suggest a variation
in meaning.’”). Thus, if lenders have any legal obligation to pay agent fees absent
an agreement to do so, that obligation must come from the IFR.
The IFR asks—and then answers—the question of “[w]ho pays the fee to an
agent who assists a borrower” by stating that payment is to be made “by the lender
6
Defendants spend a significant amount of their briefing arguing that the CARES Act does
not create an express or implied private right of action as required to bring a claim under the
Declaratory Judgment Act (DJA). Although it is doubtful that such a private right of action exists,
see Profiles, Inc. v. Bank of Am. Corp., 2020 WL 1849710, at *7 (D. Md. Apr. 13, 2020) (“The
Court is not persuaded that the language of the CARES Act evidences the requisite congressional
intent to create a private right of action.); see also United States v. Fid. Capital Corp., 920 F.2d
827, 838 n.39 (11th Cir. 1991) (noting that “no private right of action exists for a violation of the
[Small Business] Act or the regulations”), the Court need not decide that issue because the claim
asserted by Plaintiff under the DJA clearly fails on the merits.
6
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out of the fees the lender receives from SBA” and not “from the borrower or . . . out
of the PPP loan proceeds.” 85 Fed. Reg. 20,816. This language does not require
that lenders share their fees—nor does it (or could it7) create or provide a right of
action for agents to collect fees from the lender; instead, the language simply
explains that, if an agent is to be paid a fee, the fee must be paid by the lender from
the fee it receives from the SBA. This, then, begs the question of whether an
agreement between the lender and the agent is necessary for the lender to be required
to pay the agent fees.
Defendants argue that the existing Section 7(a) regulations require such an
agreement as a prerequisite to the lender’s payment of agent fees. Plaintiff conceded
this point in the amended complaint, but it now argues that an agreement with the
lender is not required under the PPP.8 The Court agrees with Defendants.
The PPP was added to and exists within the framework of Section 7(a) of the
Small Business Act, see Pub. L. No. 116-136, §1102(a), and the IFR states that it
only supersedes “conflicting” Section 7(a) program requirements, see 85 Fed. Reg.
7
See Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“Language in a regulation may
invoke a private right of action that Congress through statutory text created, but it may not create
a right that Congress has not.”).
8
Compare Doc. 21, at ¶ 65 (“Harmonizing these provisions, a Borrower may agree to hire
a PPP Agent, subject to the fee caps set by the SBA in its PPP Interim Final Rule; and to be paid
under 13 CFR § 103.5(a), the PPP Agent must submit the arrangement in writing on SBA’s Form
159.”) with Doc. 56, at 21 (“[Plaintiff] has reconsidered its position and now argues that Form 159
and other SBA formalities are not required”).
7
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20,812. Accordingly, it follows that all non-conflicting program requirements
continue to apply.
The existing Section 7(a) program requirements provide that the fees charged
by an agent must be “reasonable” and they establish presumptively reasonable
amounts for the fees. See 13 C.F.R. §103.5(b). The applicant or agent must execute
a “compensation agreement” and provide it to the SBA on a specific form. See 13
C.F.R. §103.5(a); SBA Form 159 (rev. Apr. 9, 2018).9 The form must identify the
portion of the agent fee to be paid by the borrower and the portion to be paid by the
lender, see SBA Form 159, at 2 (providing separate boxes for these amounts), and
the agent’s fees cannot be contingent upon the loan being approved, id. at 1 (“The
SBA does not allow contingency fees (fees paid only if the loan is approved) . . . .”).
The Court sees no conflict in these requirements and the IFR, except that the
cap on agent fees in the IFR are considerably lower than the presumptively
reasonable amounts in 13 C.F.R. §103.5(b) and agent fees under the PPP are
necessarily contingent because they can only be paid out of the fee received by the
lender and the lender only receives the fee if the loan is funded. Specifically, Form
159 does not conflict with the IFR because (1) there is nothing in the IFR that
prohibits the SBA Administrator from requiring use of the form (or the disclosure of
9
The form is available online at https://www.sba.gov/document/sba-form-159-fee-
disclosure-compensation-agreement.
8
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agent fees) and the form clearly states that it is to be used “whenever an Agent is
paid by either the [borrower] or the SBA Lender in connection with the SBA loan
application” (emphasis added),10 and (2) even though the IFR prohibits agents from
collecting fees from borrowers, there are separate spaces on the form to indicate the
portion of the fee paid by the borrower (which would have to be $0 under the IFR)
and the portion of the fee paid by the lender (which could be whatever the lender
and agent agreed up to the caps in the IFR). Accordingly, because these existing
program requirements do not conflict with the IFR, they apply to agents who assist
borrowers in obtaining loans under the PPP.
Here, it is undisputed that neither Plaintiff nor the borrowers executed Form
159, nor did they have agreements with Defendants regarding payment for the work
Plaintiff performed in assisting borrowers in obtaining PPP loans through
Defendants. Accordingly, Defendants have no legal obligation under the CARES
Act or the IFR to pay Plaintiff an “agent fee” for helping the borrowers get PPP loans
from Defendants, and on that basis, Count 4 of the amended complaint is due to be
dismissed.
10
On this point, the Court did not overlook Plaintiff’s argument that it need not sign Form
159 because the form’s instructions state that the agent’s signature is only required when it is being
paid by the borrower (“Each Agent paid by the Applicant to assist in connection with its application
must also complete and sign the form.”) and the PPP prohibits the agent from collecting a fee from
the borrower. However, the form clearly states that “[w]hen an Agent is paid by the SBA Lender,
the SBA Lender must complete this form and the SBA Lender and Applicant must both sign the
form.” Thus, before the lender can pay the agent’s fee under the PPP, Form 159 must be signed
by at least the lender and the borrower.
9
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The state law conversion claim in Count 3 is due to be dismissed for similar
reasons. Under Florida law, “[t]he gist of a conversion [is] . . . the wrongful
deprivation of a person of property to the possession of which he is entitled.” Star
Fruit Co. v. Eagle Lake Growers, Inc., 33 So. 2d 858, 860 (Fla. 1948). Thus, to
state a claim for conversion, “the plaintiff must have a present or immediate right of
possession of the property in question.” United States v. Bailey, 419 F.3d 1208,
1214 (11th Cir. 2005) (quoting Page v. Matthews, 386 So. 2d 815, 816 (Fla. 5th
DCA 1980)). If the plaintiff has no right to the property in question, it has no
conversion claim. Here, as explained above, Plaintiff had no legal right to any
portion of the fee Defendants received from the SBA for making the loans to the
borrowers assisted by Plaintiff. Accordingly, Count 3 is due to be dismissed.
The state law claims for unjust enrichment and contract implied in law in
Counts 1 and 2 are duplicative11 and fare no better than the other counts. To state a
claim for unjust enrichment and/or contract implied in law, Plaintiff must allege “(1)
plaintiff conferred a benefit upon the defendant, who has knowledge of that benefit;
(2) defendant accepts and retains the conferred benefit; and (3) under the
11
Under Florida law, the elements for a claim for “unjust enrichment” or “contract implied
in law” are the same. See Commerce P’Ship 8098 Ltd. P’ship v. Equity Contr. Co., 695 So. 2d
383, 386 (Fla. 4th DCA 1997) (explaining that Florida courts have synonymously used a number
of different terms, including “unjust enrichment,” to describe the cause of action encompassed by
a contract implied in law); see also Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 n.2 (11th Cir.
2012) (“To the extent Plaintiffs allege a contract implied in law, such contracts must be pled in the
same way as unjust enrichment claims.”).
10
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circumstances, it would be inequitable for the defendant to retain the benefit without
paying for it.” Vibo Corp. v. US Flue-Cured Tobacco Growers, 762 F. App'x 703,
705 (11th Cir. 2019) (quoting Fito v. Attorneys' Title Ins. Fund, Inc., 83 So. 3d 755,
758 (Fla. 3d DCA 2011)). To satisfy the first element, “the plaintiff must directly
confer a benefit to the defendant.” Kopel v. Kopel, 229 So. 3d 812, 818 (Fla. 2017)
(citing Peoples Nat'l Bank of Commerce v. First Union Nat'l Bank of Fla. N.A., 667
So. 2d 876, 879 (Fla. 3d DCA 1996)) (emphasis added); see also Virgilio v. Ryland
Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012) (affirming dismissal of unjust
enrichment claim under Florida law where benefit was indirect); Century Senior
Servs. V. Consumer Health Ben. Ass’n Inc., 770 F. Supp. 2d 1261, 1267 (S.D. Fla.
2011) (“A benefit that a defendant gains that does not come directly from the
plaintiff does not give rise to a claim for unjust enrichment.”); Tilton v. Playboy
Entm’t Grp., Inc., 2007 WL 80858, at *3 (M.D. Fla. Jan. 8, 2007) (explaining, the
plaintiff’s conferral of an indirect benefit upon the defendant is insufficient to
support an unjust enrichment claim); Am. Safety Ins. Serv., Inc. v. Griggs, 959 So.
2d 322, 331-32 (Fla. 5th DCA 2007) (holding that conferral of a direct benefit is
required).
Here, although Plaintiff’s work on the borrowers’ PPP loan applications
directly benefitted the borrowers because it helped them get PPP loans, the benefit
received by Defendants for making the loans to the borrowers (i.e., loan processing
11
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fees from the SBA) was merely an incidental benefit of Plaintiff’s work for the
borrowers.12 Thus, putting aside the question of whether each Defendant had the
requisite knowledge of the benefit allegedly conferred on them by Plaintiff, 13 the
Court finds that Plaintiff’s indirect conferral of a benefit on Defendants is
insufficient to satisfy the first element of a claim for unjust enrichment or contract
implied in law against Defendants. Accordingly, Counts 1 and 2 are due to be
dismissed.14
12
The Court has not overlooked Plaintiff’s argument that the benefit it conferred on
Defendants was the time that Defendants did not need to spend pulling together information to
complete the borrowers’ loan applications. However, as the Court understands Plaintiff’s claims,
it is not suing to recover the value of that work (nor could it because the IFR caps the fee the agent
can receive); rather, Plaintiff is only suing to recover what it considers to be its share of the fee
Defendants received for making the loans, and no matter how you look at that, it is merely an
incidental benefit of Plaintiff’s work on behalf the borrowers.
13
Viewed in the light most favorable to Plaintiff, the amended complaint appears to
sufficiently allege that three of the four defendants—ServisFirst, Synovus, and Truist—were aware
of the work Plaintiff was doing to assist the borrowers in obtaining PPP loans because they
communicated directly with Plaintiff about the loan applications. See E & M Marine Corp. v. First
Union Nat’l Bank, 783 So. 2d 311, 312 (Fla. 3d DCA 2001) (“[A] party is liable for services
rendered only when he requests the other party to perform the services or knowingly and
voluntarily accepts their benefits.”) (quoting Coffee Pot Plaza P’ship v. Arrow Air Conditioning
and Refrigeration, Inc., 412 So. 2d 883, 884 (Fla. 2d DCA 1982)). By contrast, the amended
complaint does not allege that the other defendant, The First, had any communications with
Plaintiff about its work on a borrower’s loan application from which it could be inferred that The
First knew that Plaintiff conferred a benefit on it by performing that work.
14
Even if these counts had survived Defendants’ motions to dismiss (or could somehow be
amended to state a claim), the Court does not see why Plaintiff would want to expend the resources
necessary to pursue these claims in this forum because the claims involve less than $5,000 and
they are not likely to be found suitable for class action treatment. See Vega v. T-Mobile, USA,
Inc., 564 F.3d 1256, 1274 (11th Cir. 2009) (explaining that unjust enrichment claims are not
appropriate for class action treatment because “common questions will rarely, if ever, predominate
an unjust enrichment claim, the resolution of which turns on individualized facts”) (emphasis
added).
12
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The Court finds it highly unlikely that Plaintiff will be able to further amend
the complaint to state a claim against Defendants, but the Court is not yet prepared
to say that amendment would be “futile” and it will keep an open mind if Plaintiff
seeks leave to file a second amended complaint. Alternatively, if Plaintiff would
rather forego further proceedings in this Court and try its luck at the Eleventh Circuit
on the legal issues in this case, the Court will (upon Plaintiff’s request) direct the
Clerk to enter judgment dismissing the amended complaint with prejudice based on
the rulings in this Order.
In sum, for the reasons stated above, it is ORDERED that Defendants’
motions to dismiss (Docs. 46, 49, 67, 69) are GRANTED, and the amended
complaint is DISMISSED. Plaintiff may seek leave to file a second amended
complaint within 14 days of the date of this Order if it can do so in good faith.
DONE and ORDERED this 17th day of August, 2020.
T. Kent Wetherell, II
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT, CPA, PA,
Plaintiff,
v. Case No. 3:20cv5425-TKW-HTC
SERVISFIRST BANK, INC., et al.,
Defendants.
______________________________/
ORDER DENYING LEAVE TO AMEND
AND DISMISSING CASE WITH PREJUDICE
This case is before the Court on Plaintiff’s motion for leave to amend the
complaint (Doc. 89) and Defendants’ responses in opposition (Docs. 91, 92). Upon
due consideration of these filings and the proposed second amended complaint (Doc.
90), the Court finds that the motion to amend is due to be denied because the
proposed amendment would be futile. Accordingly, it is
ORDERED that the motion for leave to amend the complaint is DENIED,
this case is DISMISSED with prejudice, and the Clerk shall close the file.
DONE and ORDERED this 4th day of September, 2020.
T. Kent Wetherell, II
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
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CLOSED,APPEAL,STAY DISC
U.S. District Court
Northern District of Florida (Pensacola)
CIVIL DOCKET FOR CASE #: 3:20-cv-05425-TKW-HTC
SPORT & WHEAT CPA PA v. SERVISFIRST BANK INC. et al Date Filed: 04/26/2020
Assigned to: JUDGE T KENT WETHERELL II Date Terminated: 09/04/2020
Referred to: MAGISTRATE JUDGE HOPE T CANNON Jury Demand: Plaintiff
Cause: 28:1332 Diversity-(Citizenship) Nature of Suit: 370 Other Fraud
Jurisdiction: Diversity
Plaintiff
SPORT & WHEAT CPA PA represented by MATTHEW DAVID SCHULTZ
LEVIN PAPANTONIO - PENSACOLA
FL
316 S BAYLEN ST - STE 600
PENSACOLA, FL 32502
850-435-7000
Fax: 850-497-7095
Email: mschultz@levinlaw.com
ATTORNEY TO BE NOTICED
PAMELA COCALAS WIRT
WIRT & WIRT - WILMETTE IL
PO BOX 13
WILMETTE, IL 60091
847-347-8030
Fax: 314-431-6920
Email: pcwirt@wirtlawfirm.com
ATTORNEY TO BE NOTICED
VIRGINIA M BUCHANAN
LEVIN PAPANTONIO - PENSACOLA
FL
316 S BAYLEN ST - STE 600
PENSACOLA, FL 32502
850/435-7000
Fax: 850/435-7020
Email: VBuchanan@levinlaw.com
ATTORNEY TO BE NOTICED
WILLIAM FRANKLIN CASH , III
LEVIN PAPANTONIO THOMAS ETC
PA - PENSACOLA FL
316 S BAYLEN ST STE 600
PENSACOLA, FL 32502
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850-435-7059
Fax: 850-535-7020
Email: bcash@levinlaw.com
ATTORNEY TO BE NOTICED
JOHN SIDNEY WIRT
WIRT & WIRT - DESTIN FL
5 CALHOUN AVENUE
UNIT 306
DESTIN, FL 32541
847-323-4082
Fax: 314-431-6920
Email: jwirt@wirtlawfirm.com
ATTORNEY TO BE NOTICED
V.
Defendant
SERVISFIRST BANK INC. represented by LOGAN T MATTHEWS
LIGHTFOOT FRANKLIN & WHITE
LLC - BIRMINGHAM AL
400 20TH ST N
BIRMINGHAM, AL 35203
205-581-0710
Fax: 205-581-0799
Email: lmatthews@lightfootlaw.com
ATTORNEY TO BE NOTICED
ROBERT ASHBY PATE
LIGHTFOOT FRANKLIN & WHITE
LLC - BIRMINGHAM AL
400 20TH ST N
BIRMINGHAM, AL 35203
205-581-0700
Email: apate@lightfootlaw.com
ATTORNEY TO BE NOTICED
SARA FORD
LIGHTFOOT FRANKLIN & WHITE
LLC - BIRMINGHAM AL
400 20TH ST N
BIRMINGHAM, AL 35203
205-581-0752
Fax: 205-581-0799
Email: sford@lightfootlaw.com
ATTORNEY TO BE NOTICED
Defendant
SYNOVUS TRUST COMPANY, represented by JAMES E BUTLER , JR
NATIONAL ASSOCIATION BUTLER WOOTEN & PEAK LLP -
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COLUMBUS GA
105 13TH STREET
COLUMBUS, GA 31902
706-322-1990
Email: jim@butlerwooten.com
ATTORNEY TO BE NOTICED
PAUL J NATHANSON
DAVIS POLK & WARDWELL LLP -
WASHINGTON DC
901 15TH STREET NW
WASHINGTON, DC 20005
202-450-7000
Email: paul.nathanson@davispolk.com
ATTORNEY TO BE NOTICED
PHILIP A BATES
PHILIP A BATES PA -PENSACOLA, FL
25 W CEDAR ST STE 550
PENSACOLA, FL 32502
850/470-0091
Fax: 470-0441
Email: pbates@philipbates.net
ATTORNEY TO BE NOTICED
RAMSEY PRATHER
BUTLER WOOTEN & PEAK LLP -
ATLANTA GA
2719 BUFORD HWY NE
ATLANTA, GA 30324
404-321-1700
Email: ramsey@butlerwooten.com
ATTORNEY TO BE NOTICED
Defendant
1-100 DOES
Defendant
SYNOVUS BANK represented by ANTONIO M HAYNES
DAVIS POLK & WARDWELL
450 LEXINGTON AVE
NEW YORK, NY 10017
212-450-4000
Email: antonio.haynes@davispolk.com
ATTORNEY TO BE NOTICED
JAMES E BUTLER , JR
(See above for address)
ATTORNEY TO BE NOTICED
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PAUL J NATHANSON
(See above for address)
ATTORNEY TO BE NOTICED
PHILIP A BATES
(See above for address)
ATTORNEY TO BE NOTICED
RAMSEY PRATHER
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
THE FIRST, A NATIONAL BANKING represented by CHRISTOPHER ALLEN RILEY
ASSOCIATION ALSTON & BIRD LLP - ATLANTA GA
1201 W PEACHTREE ST
ONE ATLANTIC CENTER
ATLANTA, GA 30309-3424
404-881-7000
Fax: 404-881-7777
Email: chris.riley@alston.com
ATTORNEY TO BE NOTICED
Defendant
TRUIST BANK represented by MEREDITH LAUGHLIN ALLEN
MCGUIRE WOODS LLP - ATLANTA
GA
1230 PEACHTREE STREET NE
SUITE 2100
ATLANTA, GA 30309
404-443-5738
Email: mlallen@mcguirewoods.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
CHERYL HAAS
MCGUIRE WOODS LLP - ATLANTA
GA
1230 PEACHTREE STREET NE
SUITE 2100
ATLANTA, GA 30309
404-443-5726
Email: chaas@mcguirewoods.com
ATTORNEY TO BE NOTICED
EMILY Y ROTTMANN
MCGUIRE WOODS LLP -
JACKSONVILLE FL
50 N LAURA ST - STE 3300
JACKSONVILLE, FL 32202
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904-798-3200
Fax: 904-798-3207
Email: erottmann@mcguirewoods.com
ATTORNEY TO BE NOTICED
KATHRYN MARGARET BARBER
MCGUIRE WOODS LLP - RICHMOND
VA
800 EAST CANAL STREET
RICHMOND, VA 23219
804-775-1000
Email: kbarber@mcguirewoods.com
ATTORNEY TO BE NOTICED
Date Filed # Docket Text
04/26/2020 1 COMPLAINT VERIFIED EMERGENCY CLASS ACTION FOR INTER ALIA
DECLARATORY AND INJUNCTIVE RELIEF against 1-100 DOES, SERVISFIRST
BANK INC., Synovus Trust Company, National Association ( Filing fee $ 400 receipt
number AFLNDC-5132174.), filed by Sport & Wheat CPA PA. (WIRT, JOHN)
(Entered: 04/26/2020)
04/26/2020 2 CIVIL COVER SHEET. (WIRT, JOHN) (Entered: 04/26/2020)
04/26/2020 3 Corporate Disclosure Statement/Certificate of Interested Persons by Sport & Wheat CPA
PA. (WIRT, JOHN) (Entered: 04/26/2020)
04/26/2020 4 REQUEST FOR CLERK OF COURT TO ISSUE SUMMONSES by Sport & Wheat
CPA PA. (Attachments: # 1 Supplement Request to Clerk to Issue Summons) (WIRT,
JOHN) (Entered: 04/26/2020)
04/27/2020 5 DOCKET ANNOTATION BY COURT: The parties in the above-referenced case were
added to the docket incorrectly and will be corrected by the clerk. Party names are to be
entered in all caps and without punctuation. For future reference: Please review the
procedure for adding/creating new parties in the "Style Guide for Electronic Case
Filing" and/or chapter 10 of the "CM/ECF Attorney User's Guide," available at
www.flnd.uscourts.gov. (mb) (Entered: 04/27/2020)
04/27/2020 6 Summons Issued as to SERVISFIRST BANK INC, (Attachments: # 1 SYNOVUS
TRUST) (mb) (Entered: 04/27/2020)
05/06/2020 7 NOTICE of Appearance by WILLIAM FRANKLIN CASH, III on behalf of SPORT &
WHEAT CPA PA (CASH, WILLIAM) (Entered: 05/06/2020)
05/06/2020 8 NOTICE of Appearance by MATTHEW DAVID SCHULTZ on behalf of SPORT &
WHEAT CPA PA (SCHULTZ, MATTHEW) (Entered: 05/06/2020)
05/06/2020 9 NOTICE of Appearance by VIRGINIA M BUCHANAN on behalf of SPORT &
WHEAT CPA PA (BUCHANAN, VIRGINIA) (Entered: 05/06/2020)
05/07/2020 10 NOTICE of Appearance by PAMELA COCALAS WIRT on behalf of SPORT &
WHEAT CPA PA (WIRT, PAMELA) (Entered: 05/07/2020)
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05/14/2020 11 MOTION to Appear Pro Hac Vice by Paul J. Nathanson.( Filing fee $ 201 receipt
number AFLNDC-5213306.) by SYNOVUS TRUST COMPANY, NATIONAL
ASSOCIATION. (Attachments: # 1 Exhibit Certificate of Good Standing)
(NATHANSON, PAUL) (Entered: 05/14/2020)
05/15/2020 12 ORDER granting 11 MOTION to Appear Pro Hac Vice by Paul J. Nathanson. Signed by
JUDGE T KENT WETHERELL II on 05/15/2020. (sdw) (Entered: 05/15/2020)
05/15/2020 13 Corporate Disclosure Statement/Certificate of Interested Persons by SYNOVUS TRUST
COMPANY, NATIONAL ASSOCIATION identifying Corporate Parent Synovus
Financial Corp. for SYNOVUS TRUST COMPANY, NATIONAL ASSOCIATION..
(NATHANSON, PAUL) (Entered: 05/15/2020)
05/17/2020 14 MOTION to Dismiss by SYNOVUS TRUST COMPANY, NATIONAL
ASSOCIATION. (Internal deadline for referral to judge if response not filed earlier:
6/1/2020). (Attachments: # 1 Exhibit A- Declaration of Robert C. Brand, Jr., # 2 Exhibit
B- 5/1/2020 Email from Paul J. Nathanson to John Wirt) (NATHANSON, PAUL)
(Entered: 05/17/2020)
05/18/2020 15 NOTICE of Appearance by PHILIP A BATES on behalf of SYNOVUS TRUST
COMPANY, NATIONAL ASSOCIATION (BATES, PHILIP) (Entered: 05/18/2020)
05/18/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 15 Notice of Appearance (please see
proposed ISO). (mb) (Entered: 05/18/2020)
05/18/2020 16 INITIAL SCHEDULING ORDER: Fed.R.Civ.P. 7.1 Corporate Disclosure Statement
Deadline set for 6/1/2020. Rule 26 Meeting Report due by 7/1/2020. Discovery due by
9/14/2020. Signed by JUDGE T KENT WETHERELL II on 5/18/2020. (mb) (Entered:
05/18/2020)
05/19/2020 17 First MOTION to Appear Pro Hac Vice by Ramsey B. Prather.( Filing fee $ 201 receipt
number AFLNDC-5235186.) by SYNOVUS TRUST COMPANY, NATIONAL
ASSOCIATION. (Attachments: # 1 Certificate of Good Standing) (PRATHER,
RAMSEY) (Entered: 05/19/2020)
05/20/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 17 First MOTION to Appear Pro
Hac Vice by Ramsey B. Prather.( Filing fee $ 201 receipt number AFLNDC-5235186.)
(mb) (Entered: 05/20/2020)
05/20/2020 18 First MOTION to Appear Pro Hac Vice by James E. Butler, Jr..( Filing fee $ 201 receipt
number AFLNDC-5240461.) by SYNOVUS TRUST COMPANY, NATIONAL
ASSOCIATION. (Attachments: # 1 Certificate of Good Standing) (BUTLER, JAMES)
(Entered: 05/20/2020)
05/20/2020 19 ORDER granting 17 Motion to Appear Pro Hac Vice. Attorney Ramsey B. Prather is
authorized to appear pro hac vice for Defendant Synovus Trust Co., N.A. (Appointed
RAMSEY PRATHER for SYNOVUS TRUST COMPANY, NATIONAL
ASSOCIATION). Signed by JUDGE T KENT WETHERELL II on 5/20/2020. (mb)
(Entered: 05/20/2020)
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05/20/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 18 First MOTION to Appear Pro
Hac Vice by James E. Butler, Jr..( Filing fee $ 201 receipt number AFLNDC-5240461.)
(mb) (Entered: 05/20/2020)
05/21/2020 20 ORDER - That the 18 Motion to Appear Pro Hac Vice is GRANTED. Attorney James E.
Butler, Jr., is authorized to appear pro hac vice for Defendant Synovus Trust Co., N.A.
Signed by JUDGE T KENT WETHERELL II on 5/21/2020. (mb) (Entered: 05/21/2020)
05/27/2020 21 FIRST AMENDED COMPLAINT against SERVISFIRST BANK INC., SYNOVUS
BANK, THE FIRST, A NATIONAL BANKING ASSOCIATION, TRUIST BANK,
filed by SPORT & WHEAT CPA PA. (CASH, WILLIAM) (Entered: 05/27/2020)
05/28/2020 22 ORDER - That Defendant Synovus Trust Company's motion to dismiss (Doc. 14 ) is
DENIED as moot, and Defendants shall respond to the amended complaint within 14
days of the date of this Order (for Defendants who have been served) or within the time
prescribed by Fed. R. Civ. P. 12(a) (for Defendants who have yet to be served). (Internal
deadline for referral to judge if response not filed earlier: 6/11/2020).) Signed by
JUDGE T KENT WETHERELL II on 5/28/2020. (mb) (Entered: 05/28/2020)
05/28/2020 23 REQUEST FOR CLERK OF COURT TO ISSUE SUMMONS by SPORT & WHEAT
CPA PA. (CASH, WILLIAM) (Entered: 05/28/2020)
05/28/2020 24 REQUEST FOR CLERK OF COURT TO ISSUE SUMMONS by SPORT & WHEAT
CPA PA. (CASH, WILLIAM) (Entered: 05/28/2020)
05/29/2020 25 Summons Issued as to TRUIST BANK. (Attachments: # 1 THE FIRST, A NATIONAL
BANKING ASSOCIATION). (mb) (Entered: 05/29/2020)
06/01/2020 26 Corporate Disclosure Statement/Certificate of Interested Persons by TRUIST BANK
identifying Corporate Parent Truist Financial Corporation for TRUIST BANK..
(ROTTMANN, EMILY) (Entered: 06/01/2020)
06/01/2020 27 MOTION to Extend Time to Respond to the Amended Complaint (Unopposed) by
SERVISFIRST BANK INC.. (MATTHEWS, LOGAN) Modified on 6/2/2020 to term
MOTION due to amended correction (mb). (Entered: 06/01/2020)
06/01/2020 28 NOTICE of Appearance by PAUL J NATHANSON on behalf of SYNOVUS BANK
(NATHANSON, PAUL) (Entered: 06/01/2020)
06/01/2020 29 Corporate Disclosure Statement/Certificate of Interested Persons by SYNOVUS BANK
identifying Corporate Parent Synovus Financial Corp. for SYNOVUS BANK..
(NATHANSON, PAUL) (Entered: 06/01/2020)
06/01/2020 30 MOTION to Extend Time (Corrected) (Unopposed) for An Extension of time to Respond
to the Amended Complaint by SERVISFIRST BANK INC.. (MATTHEWS, LOGAN)
(Entered: 06/01/2020)
06/02/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 30 MOTION to Extend Time
(Corrected) (Unopposed) for An Extension of time to Respond to the Amended
Complaint (mb) (Entered: 06/02/2020)
06/02/2020 31 NOTICE of Appearance by RAMSEY PRATHER on behalf of SYNOVUS BANK
(PRATHER, RAMSEY) (Entered: 06/02/2020)
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06/02/2020 32 NOTICE of Appearance by JAMES E BUTLER, JR on behalf of SYNOVUS BANK
(BUTLER, JAMES) (Entered: 06/02/2020)
06/02/2020 33 Corporate Disclosure Statement/Certificate of Interested Persons by SERVISFIRST
BANK INC.. (MATTHEWS, LOGAN) (Entered: 06/02/2020)
06/02/2020 34 ORDER GRANTING EXTENSION OF TIME. Defendant ServisFirst Bank's corrected
unopposed motion for extension of time (Doc. 30 ), is granted, and Defendant
ServisFirst Bank shall have until June 17, 2020, to answer or otherwise respond to the
amended complaint. (Internal deadline for referral to judge if response not filed earlier:
6/17/2020).) Signed by JUDGE T KENT WETHERELL II on 6/2/2020. (mb) (Entered:
06/02/2020)
06/05/2020 35 MOTION to Appear Pro Hac Vice by Antonio Haynes.( Filing fee $ 201 receipt number
AFLNDC-5307941.) by SYNOVUS BANK. (Attachments: # 1 Exhibit Certificate of
Good Standing) (HAYNES, ANTONIO) (Entered: 06/05/2020)
06/05/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 35 MOTION to Appear Pro Hac
Vice by Antonio Haynes. (sdw) (Entered: 06/05/2020)
06/05/2020 36 NOTICE of Appearance by EMILY Y ROTTMANN on behalf of TRUIST BANK
(ROTTMANN, EMILY) (Entered: 06/05/2020)
06/05/2020 37 MOTION to Extend Time Unopposed Motion for an Extension of Time to Respond to
the Amended Complaint by TRUIST BANK. (ROTTMANN, EMILY) (Entered:
06/05/2020)
06/05/2020 38 MOTION to Appear Pro Hac Vice by Cheryl L. Haas.( Filing fee $ 201 receipt number
AFLNDC-5309304.) by TRUIST BANK. (Attachments: # 1 Exhibit A - Certificate of
Good Standing) (HAAS, CHERYL) (Entered: 06/05/2020)
06/05/2020 39 MOTION to Appear Pro Hac Vice by Meredith Laughlin Allen.( Filing fee $ 201 receipt
number AFLNDC-5309652.) by TRUIST BANK. (Attachments: # 1 Exhibit A -
Certificate of Good Standing) (HAAS, CHERYL) (Entered: 06/05/2020)
06/05/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 39 MOTION to Appear Pro Hac
Vice by Meredith Laughlin Allen, 37 MOTION to Extend Time Unopposed Motion for
an Extension of Time to Respond to the Amended Complaint, 38 MOTION to Appear
Pro Hac Vice by Cheryl L. Haas. (sdw) (Entered: 06/05/2020)
06/05/2020 40 MOTION to Appear Pro Hac Vice by Sara A. Ford.( Filing fee $ 201 receipt number
AFLNDC-5312641.) by SERVISFIRST BANK INC.. (FORD, SARA) (Entered:
06/05/2020)
06/05/2020 41 MOTION to Appear Pro Hac Vice by Robert Ashby Pate.( Filing fee $ 201 receipt
number AFLNDC-5312685.) by SERVISFIRST BANK INC.. (PATE, ROBERT)
(Entered: 06/05/2020)
06/08/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 41 MOTION to Appear Pro Hac
Vice by Robert Ashby Pate.( Filing fee $ 201 receipt number AFLNDC-5312685.), 40
MOTION to Appear Pro Hac Vice by Sara A. Ford.( Filing fee $ 201 receipt number
AFLNDC-5312641.) (mb) (Entered: 06/08/2020)
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06/08/2020 42 ORDER GRANTING PRO HAC VICE MOTIONS - That the 35 , 38 , 39 , 40 , 41
motions are GRANTED, and Attorney Antonio M. Haynes is authorized to appear pro
hac vice for Defendant Synovus Bank. Attorneys Cheryl L. Haas and Meredith Laughlin
Allen are authorized to appear pro hac vice for Defendant Truist Bank. Attorneys Sara
A. Ford and R. Ashby Pate are authorized to appear pro hac vice for Defendant
ServisFirst Bank. (Attorney ANTONIO M HAYNES for SYNOVUS BANK added).
Signed by JUDGE T KENT WETHERELL II on 6/8/2020. (mb) (Entered: 06/08/2020)
06/08/2020 43 ORDER GRANTING EXTENSION OF TIME. Defendant Truist Bank's unopposed
motion for extension of time (Doc. 37 ) is GRANTED, and Defendant Truist Bank shall
have until July 3, 2020, to answer or otherwise respond to the amended complaint.
(Internal deadline for referral to judge if response to Complaint not filed earlier:
7/3/2020).) Signed by JUDGE T KENT WETHERELL II on 6/8/2020. (mb) (Entered:
06/08/2020)
06/09/2020 44 SUMMONS Returned Executed by SPORT & WHEAT CPA PA. THE FIRST, A
NATIONAL BANKING ASSOCIATION served on 6/4/2020, answer due 6/25/2020.
(CASH, WILLIAM) (Entered: 06/09/2020)
06/10/2020 45 NOTICE of Appearance by PHILIP A BATES on behalf of SYNOVUS BANK
(BATES, PHILIP) (Entered: 06/10/2020)
06/10/2020 46 MOTION to Dismiss First Amended Complaint by SYNOVUS BANK. (Internal
deadline for referral to judge if response not filed earlier: 6/24/2020). (Attachments: # 1
Exhibit A, # 2 Certificate of Service) (NATHANSON, PAUL) (Entered: 06/10/2020)
06/16/2020 47 NOTICE of Appearance by CHRISTOPHER ALLEN RILEY on behalf of THE FIRST,
A NATIONAL BANKING ASSOCIATION (RILEY, CHRISTOPHER) (Entered:
06/16/2020)
06/16/2020 48 Corporate Disclosure Statement/Certificate of Interested Persons by THE FIRST, A
NATIONAL BANKING ASSOCIATION identifying Corporate Parent The First
Bancshares, Inc. for THE FIRST, A NATIONAL BANKING ASSOCIATION.. (RILEY,
CHRISTOPHER) (Entered: 06/16/2020)
06/17/2020 49 MOTION to Dismiss Amended Complaint and Supporting Memorandum of Law by
SERVISFIRST BANK INC.. (Internal deadline for referral to judge if response not filed
earlier: 7/1/2020). (MATTHEWS, LOGAN) (Entered: 06/17/2020)
06/17/2020 50 MOTION to Appear Pro Hac Vice( Filing fee $ 201 receipt number AFLNDC-
5358666.) by TRUIST BANK. (Attachments: # 1 Exhibit Exhibit A - Certificate of
Good Standing) (BARBER, KATHRYN) (Entered: 06/17/2020)
06/18/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 50 MOTION to Appear Pro Hac
Vice( Filing fee $ 201 receipt number AFLNDC-5358666.) (mb) (Entered: 06/18/2020)
06/18/2020 51 ORDER - That the motion is GRANTED 50 , and attorney Kathryn M. Barber is
authorized to appear pro hac vice for Defendant Truist Bank. (Appointed KATHRYN
MARGARET BARBER for TRUIST BANK). Signed by JUDGE T KENT
WETHERELL II on 6/18/2020. (mb) (Entered: 06/18/2020)
06/22/2020 52 First MOTION for Protective Order To Terminate Rule 30(b)(6) Deposition by
SYNOVUS BANK. (Attachments: # 1 Exhibit Adams Transcript Excerpts, # 2 Exhibit
2020-06-15 Bates to Cash email, # 3 Exhibit 2020-05-29 Cash email, # 4 Exhibit
2020-05-29 Discovery Excerpt, # 5 Exhibit 2020-06-02 Nathanson to Cash email, # 6
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Exhibit Butler Cash email exchange) (PRATHER, RAMSEY) (Entered: 06/22/2020)
06/23/2020 ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE
JUDGE HOPE T CANNON notified that action is needed Re: 52 First MOTION for
Protective Order To Terminate Rule 30(b)(6) Deposition. Referred to HOPE T
CANNON. (mb) (Entered: 06/23/2020)
06/23/2020 53 MOTION to Extend Time to Respond to the Amended Complaint by THE FIRST, A
NATIONAL BANKING ASSOCIATION. (RILEY, CHRISTOPHER) (Entered:
06/23/2020)
06/24/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 53 MOTION to Extend Time to
Respond to the Amended Complaint (mb) (Entered: 06/24/2020)
06/24/2020 54 ORDER GRANTING EXTENSION OF TIME. Defendant, The First, A National
Banking Association's unopposed motion for extension of time (Doc. 53 ) is
GRANTED, and Defendant The First, A National Banking Association shall have until
July 9, 2020, to answer or otherwise respond to the amended complaint. (Internal
deadline for referral to judge if response not filed earlier: 7/9/2020).) Signed by JUDGE
T KENT WETHERELL II on 6/24/2020. (mb) (Entered: 06/24/2020)
06/24/2020 55 ORDER SETTING HEARING. The Court will conduct a hearing on Defendant's
motion on Thursday, July 9, 2020, at 2:00 p.m. (CDT) in Courtroom 3 of the United
States District Courthouse, 1 North Palafox Street, Pensacola, Florida, 32502, before
MAGISTRATE JUDGE HOPE T CANNON. (mb) (Entered: 06/24/2020)
06/24/2020 56 RESPONSE in Opposition re 46 MOTION to Dismiss First Amended Complaint filed
by SPORT & WHEAT CPA PA. (Attachments: # 1 Exhibit A - Texts, # 2 Exhibit B -
Texts, # 3 Exhibit C - Adams deposition, # 4 Exhibit D - SBA notice, # 5 Exhibit E -
Form 159, # 6 Exhibit F - Forgiveness application, # 7 Exhibit G - Forgiveness
instructions) (CASH, WILLIAM) (Entered: 06/24/2020)
06/25/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 56 RESPONSE in Opposition re 46
MOTION to Dismiss First Amended Complaint filed by SPORT & WHEAT CPA PA.
(Attachments: # 1 Exhibit A - Texts, # 2 Exhibit B - Texts, # 3 Exhibit C - Adams
deposition, # 4 Exhibit D - SBA notice, # 5 Exhibit E - Form 159, # 6 Exhibit F -
Forgiveness application, # 7 Exhibit G - Forgiveness instructions), 46 MOTION to
Dismiss First Amended Complaint. (mb) (Entered: 06/25/2020)
06/26/2020 57 MOTION for Leave to File Reply Memorandum in Support of its Motion to Dismiss the
Amended Complaint by SYNOVUS BANK. (Attachments: # 1 Exhibit A- [Proposed]
Order) (NATHANSON, PAUL) (Entered: 06/26/2020)
06/26/2020 58 Consent MOTION for Extension of Time to File Response/Reply as to 49 MOTION to
Dismiss Amended Complaint and Supporting Memorandum of Law (respond by July 8)
by SPORT & WHEAT CPA PA. (CASH, WILLIAM) (Entered: 06/26/2020)
06/29/2020 59 Amended MOTION for Leave to File re 57 MOTION for Leave to File Reply
Memorandum in Support of its Motion to Dismiss the Amended Complaint by
SYNOVUS BANK. (Attachments: # 1 Exhibit A- [Proposed] Order) (NATHANSON,
PAUL) (Entered: 06/29/2020)
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06/29/2020 60 ORDER GRANTING EXTENSION OF TIME. That the motion is GRANTED 58 , and
Plaintiff shall have until July 8, 2020, to respond to ServisFirst's motion to dismiss.
(Response to motion due by 7/8/2020.) Signed by JUDGE T KENT WETHERELL II on
6/29/2020. (mb) (Entered: 06/29/2020)
06/29/2020 61 REPORT of Rule 26(f) Planning Meeting. (CASH, WILLIAM) (Entered: 06/29/2020)
06/30/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 59 Amended MOTION for Leave to
File re 57 MOTION for Leave to File Reply Memorandum in Support of its Motion to
Dismiss the Amended Complaint by SYNOVUS BANK. (Attachments: # 1 Exhibit A-
[Proposed] Order) (mb) (Entered: 06/30/2020)
06/30/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 61 Report of Rule 26(f) Planning
Meeting (mb) (Entered: 06/30/2020)
06/30/2020 62 ORDER GRANTING LEAVE TO FILE REPLY. Defendant Synovus Bank's amended
motion for leave to file a reply in support of its motion to dismiss (Doc. 59 ) is granted.
On or before Tuesday, July 7, 2020, Defendant Synovus Bank may file a reply of not
more than 1600 words addressing only the second issue in its amended motion. (Reply
to Motion due by 7/7/2020.) Signed by JUDGE T KENT WETHERELL II on
6/30/2020. (mb) (Entered: 06/30/2020)
06/30/2020 63 MOTION for Leave to File text messages under seal by SPORT & WHEAT CPA PA.
(CASH, WILLIAM) (Entered: 06/30/2020)
06/30/2020 64 ORDER. Discovery is stayed pending further Order. Any additional motions to dismiss
shall be filed as soon as practical. The Court will set a case management conference
after ruling on the motions to dismiss, if necessary. The parties shall promptly advise the
Court of any material developments in the MDL or rulings in the other related cases.
Signed by JUDGE T KENT WETHERELL II on 6/30/2020. (mb) (Entered: 07/01/2020)
07/01/2020 ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE
JUDGE HOPE T CANNON notified that action is needed Re: 63 MOTION for Leave to
File text messages under seal. Referred to HOPE T CANNON. (mb) (Entered:
07/01/2020)
07/02/2020 65 REPLY to Response to Motion re 46 MOTION to Dismiss First Amended Complaint
filed by SYNOVUS BANK. (PRATHER, RAMSEY) (Entered: 07/02/2020)
07/02/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 65 Reply to Response to Motion 56
Response in Opposition to Motion, 46 MOTION to Dismiss First Amended Complaint,
(mb) (Entered: 07/02/2020)
07/02/2020 66 ORDER re 63 MOTION for Leave to File text messages under seal filed by SPORT &
WHEAT CPA PA. Signed by MAGISTRATE JUDGE HOPE T CANNON on
07/02/2020. (HTC) (Entered: 07/02/2020)
07/03/2020 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by TRUIST BANK.
(Attachments: # 1 Exhibit Exhibit A - AICPA Special Report dated April 22, 2020)
(HAAS, CHERYL) (Entered: 07/03/2020)
07/03/2020 Set Deadlines re 67 MOTION to Dismiss for Failure to State a Claim (Internal deadline
for referral to judge if response not filed earlier: 7/17/2020). (mb) (Entered: 07/06/2020)
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07/06/2020 68 RULE 26 Disclosures by TRUIST BANK. (ALLEN, MEREDITH) (Entered:
07/06/2020)
07/06/2020 69 MOTION to Dismiss the Amended Complaint and Memorandum of Law in Support
Thereof by THE FIRST, A NATIONAL BANKING ASSOCIATION. (Internal deadline
for referral to judge if response not filed earlier: 7/20/2020). (RILEY, CHRISTOPHER)
(Entered: 07/06/2020)
07/06/2020 70 RULE 26 Disclosures by SYNOVUS BANK. (PRATHER, RAMSEY) (Entered:
07/06/2020)
07/06/2020 71 RULE 26 Disclosures by THE FIRST, A NATIONAL BANKING ASSOCIATION.
(RILEY, CHRISTOPHER) (Entered: 07/06/2020)
07/06/2020 72 RESPONSE in Opposition re 63 MOTION for Leave to File text messages under seal
filed by SYNOVUS BANK. (PRATHER, RAMSEY) (Entered: 07/06/2020)
07/06/2020 73 RESPONSE in Opposition re 52 First MOTION for Protective Order To Terminate Rule
30(b)(6) Deposition filed by SPORT & WHEAT CPA PA. (Attachments: # 1 Exhibit A -
Deposition notice, # 2 Exhibit B - Deposition of Synovus 30(b)(6), # 3 Exhibit C -
E-mail, # 4 Exhibit D - E-mail, # 5 Exhibit E - Texts, # 6 Exhibit F - Photo, # 7 Exhibit
G - E-mail, # 8 Exhibit H - E-mail, # 9 Exhibit I - E-mail, # 10 Exhibit J - E-mail)
(CASH, WILLIAM) (Entered: 07/06/2020)
07/07/2020 ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE
JUDGE HOPE T CANNON notified that action is needed Re: 72 RESPONSE in
Opposition re 63 MOTION for Leave to File text messages under seal filed by
SYNOVUS BANK. Referred to HOPE T CANNON. (mb) (Entered: 07/07/2020)
07/07/2020 ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE
JUDGE HOPE T CANNON notified that action is needed Re: 73 Response in
Opposition to Motion, 52 First MOTION for Protective Order To Terminate Rule
30(b)(6) Deposition by SYNOVUS BANK. (Attachments: # 1 Exhibit Adams Transcript
Excerpts, # 2 Exhibit 2020-06-15 Bates to Cash email, # 3 Exhibit 2020-05-29 Cash
email, # 4 Exhibit 2020-05-29 Discovery Excerpt, # 5 Exhibit 2020-06-02 Nathanson to
Cash email, # 6 Exhibit Butler Cash email exchange) Referred to HOPE T CANNON.
(mb) (Entered: 07/07/2020)
07/07/2020 74 MOTION for Leave to File re 52 First MOTION for Protective Order To Terminate Rule
30(b)(6) Deposition by SYNOVUS BANK. (PRATHER, RAMSEY) (Entered:
07/07/2020)
07/07/2020 75 RESPONSE to Motion re 74 MOTION for Leave to File re 52 First MOTION for
Protective Order To Terminate Rule 30(b)(6) Deposition filed by SPORT & WHEAT
CPA PA. (Attachments: # 1 Exhibit A) (CASH, WILLIAM) (Entered: 07/07/2020)
07/07/2020 76 MOTION for Extension of Time to File Response/Reply as to 67 MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM , 69 MOTION to Dismiss the
Amended Complaint and Memorandum of Law in Support Thereof (motion seeking
extension to file omnibus response to 3 MTDs) by SPORT & WHEAT CPA PA. (CASH,
WILLIAM) (Entered: 07/07/2020)
07/07/2020 77 NOTICE (defendants declined to consent to motion) by SPORT & WHEAT CPA PA re
76 MOTION for Extension of Time to File Response/Reply as to 67 MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM , 69 MOTION to Dismiss the
Amended Complaint and Memorandum of Law in Support Thereof (motion seeking
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Case 3:20-cv-05425-TKW-HTC Document 96 Filed 09/10/20 Page 30 of 32
extension to (CASH, WILLIAM) (Entered: 07/07/2020)
07/07/2020 ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE
JUDGE HOPE T CANNON notified that action is needed Re: 75 RESPONSE to Motion
re 74 MOTION for Leave to File re 52 First MOTION for Protective Order To
Terminate Rule 30(b)(6) Deposition filed by SPORT & WHEAT CPA PA. (Attachments:
# 1 Exhibit A), 74 MOTION for Leave to File re 52 First MOTION for Protective Order
To Terminate Rule 30(b)(6) Deposition . Referred to HOPE T CANNON. (mb) (Entered:
07/07/2020)
07/07/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 76 MOTION for Extension of Time
to File Response/Reply as to 67 MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM , 69 MOTION to Dismiss the Amended Complaint and Memorandum of Law in
Support Thereof (motion seeking extension to, 77 NOTICE (defendants declined to
consent to motion) by SPORT & WHEAT CPA PA re 76 MOTION for Extension of Time
to File Response/Reply as to 67 MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM, 69 MOTION to Dismiss the Amended Complaint and Memorandum of Law in
Support Thereof (motion seeking extension (mb) (Entered: 07/07/2020)
07/07/2020 78 ORDER re 63 MOTION for Leave to File text messages under seal filed by SPORT &
WHEAT CPA PA. Signed by MAGISTRATE JUDGE HOPE T CANNON on 7/7/2020.
(Weidow, Taylor) (Entered: 07/07/2020)
07/07/2020 Set Deadlines re 78 ORDER. The documents are due to the Court by close of business
July 8, 2020. Upon review, the Court will enter a ruling on the motion to seal. (Notify
Chambers on 7/8/2020). (mb) (Entered: 07/07/2020)
07/08/2020 79 ORDER. Defendants shall have until noon (central time) on July 10, 2020, to respond to
Plaintiff's 76 motion for extension of time. The deadline for Plaintiff to respond to
ServisFirst's motion to dismiss is tolled pending disposition of the motion for extension
of time. (Response to motion due by 7/10/2020.) Signed by JUDGE T KENT
WETHERELL II on 7/8/2020. (mb) (Entered: 07/08/2020)
07/09/2020 80 RESPONSE to Motion re 76 MOTION for Extension of Time to File Response/Reply as
to 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 69 MOTION to
Dismiss the Amended Complaint and Memorandum of Law in Support Thereof (motion
seeking extension to filed by TRUIST BANK. (HAAS, CHERYL) (Entered: 07/09/2020)
07/09/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 80 RESPONSE to Motion re 76
MOTION for Extension of Time to File Response/Reply as to 67 MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM, 69 MOTION to Dismiss the Amended
Complaint and Memorandum of Law in Support Thereof (motion seeking extension to
filed by TRUIST BANK. (mb) (Entered: 07/09/2020)
07/09/2020 81 Minute Entry for Motion hearing on Defendant Synovus Bank's Motion to Terminate
Rule 30(b)(6) Deposition 52 filed June 22, 2020 held before MAGISTRATE JUDGE
HOPE T CANNON. (Court Reporter Wierzbicki Court Reporters.) (kli) (Entered:
07/09/2020)
07/09/2020 82 RESPONSE to Motion re 76 MOTION for Extension of Time to File Response/Reply as
to 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 69 MOTION to
Dismiss the Amended Complaint and Memorandum of Law in Support Thereof (motion
seeking extension to filed by SERVISFIRST BANK INC.. (MATTHEWS, LOGAN)
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Case 3:20-cv-05425-TKW-HTC Document 96 Filed 09/10/20 Page 31 of 32
(Entered: 07/09/2020)
07/10/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 82 Response to Motion. (sdw)
(Entered: 07/10/2020)
07/10/2020 83 ORDER GRANTING 76 EXTENSION OF TIME. Plaintiff shall have until July 20,
2020, to respond to the motions to dismiss filed by Defendants ServisFirst, Truist, and
The First. (Responses due by 7/20/2020).) Signed by JUDGE T KENT WETHERELL II
on 07/10/2020. (sdw) (Entered: 07/10/2020)
07/14/2020 84 ORDER. Synovus's motion to terminate deposition at ECF Doc. 52 is DENIED. S&W's
motion to seal at ECF Doc. 63 is GRANTED, to the extent that S&W is directed to file
under seal the copies of screenshots from Jill Sport's phone that Plaintiff's counsel
submitted to the Court for in camera review on Wednesday, July 8, 2020 ("the
Screenshots"). Synovus's motion for leave to file a reply brief in support of its motion to
terminate at ECF Doc. 74 is DENIED as moot. Signed by MAGISTRATE JUDGE
HOPE T CANNON on 7/14/2020. (mb) (Entered: 07/14/2020)
07/20/2020 85 RESPONSE in Opposition re 49 MOTION to Dismiss Amended Complaint and
Supporting Memorandum of Law, 67 MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM , 69 MOTION to Dismiss the Amended Complaint and Memorandum
of Law in Support Thereof (omnibus opp to 3 MTDs) filed by SPORT & WHEAT CPA
PA. (CASH, WILLIAM) (Entered: 07/20/2020)
07/21/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 85 RESPONSE in Opposition re 49
MOTION to Dismiss Amended Complaint and Supporting Memorandum of Law, 67
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 69 MOTION to
Dismiss the Amended Complaint and Memorandum of Law in Support Thereof
(omnibus opp to 3 MTDs) filed by SPORT & WHEAT CPA PA. (mb) (Entered:
07/21/2020)
08/05/2020 86 NOTICE Regarding the Judicial Panel on Multidistrict Litigation's Order Denying
Centralization by SYNOVUS BANK (Attachments: # 1 Exhibit A) (BATES, PHILIP)
(Entered: 08/05/2020)
08/05/2020 88 NOTICE to Court RE: MDL No. 2950. ORDER DENYING TRANSFER. (mb)
(Entered: 08/18/2020)
08/17/2020 87 ORDER DISMISSING AMENDED COMPLAINT - That Defendants' motions to
dismiss (Docs. 46 , 49 , 67 , 69 ) are GRANTED, and the amended complaint is
DISMISSED. Plaintiff may seek leave to file a second amended complaint within 14
days of the date of this Order if it can do so in good faith. (Amended Complaint due by
8/31/2020.) Signed by JUDGE T KENT WETHERELL II on 8/17/2020. (mb) (Entered:
08/17/2020)
08/31/2020 89 MOTION to Amend/Correct 21 Amended Complaint (proposed Second Amended
Complaint) by SPORT & WHEAT CPA PA. (Attachments: # 1 Exhibit Comparison
between 1AC and 2AC) (CASH, WILLIAM) (Entered: 08/31/2020)
08/31/2020 90 SECOND AMENDED COMPLAINT against SERVISFIRST BANK INC., SYNOVUS
BANK, THE FIRST, A NATIONAL BANKING ASSOCIATION, TRUIST BANK,
filed by SPORT & WHEAT CPA PA. (Attachments: # 1 Exhibit A - Form 159, # 2
Exhibit B - Texts, # 3 Exhibit C - Adams deposition, # 4 Exhibit D - Texts, # 5 Exhibit E
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- E-mail) (CASH, WILLIAM) (Entered: 08/31/2020)
09/01/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 89 MOTION to Amend/Correct 21
Amended Complaint (proposed Second Amended Complaint), 90 Second Amended
Complaint. (mb) (Entered: 09/01/2020)
09/01/2020 91 RESPONSE of SYNOVUS BANK'S OPPOSITION TO PLAINTIFF'S 89 MOTION to
Amend/Correct 21 Amended Complaint (proposed Second Amended Complaint) filed by
SYNOVUS BANK. (PRATHER, RAMSEY) Modified on 9/2/2020 (mb). (Entered:
09/01/2020)
09/02/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 91 RESPONSE of SYNOVUS
BANK'S OPPOSITION TO PLAINTIFF'S 89 MOTION to Amend/Correct 21 Amended
Complaint (proposed Second Amended Complaint). (mb) (Entered: 09/02/2020)
09/02/2020 92 RESPONSE in Opposition re 89 MOTION to Amend/Correct 21 Amended Complaint
(proposed Second Amended Complaint) (Defendants' Opposition to Plaintiff's Motion
for Leave to Amend The Complaint) filed by TRUIST BANK. (HAAS, CHERYL)
(Entered: 09/02/2020)
09/02/2020 ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT
WETHERELL II notified that action is needed Re: 92 Response in Opposition to
Motion for Leave to Amend. (alb) (Entered: 09/02/2020)
09/04/2020 93 ORDER DENYING LEAVE TO AMEND AND DISMISSING CASE WITH
PREJUDICE re 89 Plaintiff's motion for leave to amend the complaint. That the motion
for leave to amend the complaint is DENIED, this case is DISMISSED with prejudice,
and the Clerk shall close the file. Signed by JUDGE T KENT WETHERELL II on
9/4/2020. (mb) (Entered: 09/04/2020)
09/09/2020 94 NOTICE OF APPEAL as to 87 Order,, Set Deadlines/Hearings, 93 Order Dismissing
Case, by SPORT & WHEAT CPA PA. ( Filing fee $505 Receipt Number AFLNDC-
5641253.) (CASH, WILLIAM) (Entered: 09/09/2020)
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