IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-cv-22318-KMW

KANAYO DERHEM,

Plaintiff,

v.

BAY HOUSE MIAMI CONDOMINIUM

ASSOCIATION, INC., CHARLES BRUMSTED,

JR., SEAN ZAHNISER, MIKE DESIMONE, 

JAMES PINKERT, JOSHUA PAUL, 

ALEJANDRO ENRIQUE UTRERA BADENES, 

JONATHAN FERREIRA, KW PROPERTY 

MANAGEMENT, LLC, and JOSE VIDAL, 

Defendants.

_______________________________________/

DEFENDANTS’ JOINT VERIFIED MOTION FOR CONTINUANCE OF TRIAL

AND CERTAIN PRE-TRIAL DEADLINES

Defendants, BAY HOUSE MIAMI CONDOMINIUM ASSOCIATION, INC. (the 

“Association”), CHARLES BRUMSTED, JR. (“Brumsted”), SEAN ZAHNISER (“Zahniser”), 

MIKE DESIMONE (“Desimone”), JAMES PINKERT (“Pinkert”), JOSHUA PAUL (“Paul”), 

ALEJANDRO ENRIQUE UTRERA BADENES (“Utrera”), JONATHAN FERREIRA, 

(“Ferreira”), KW PROPERTY MANAGEMENT, LLC (“KWP”) and JOSE VIDAL (“Vidal”) 

(collectively referred to hereinafter as “Defendants”), hereby move to continue trial and certain 

pre-trial deadlines, and in support thereof state as follows:

I. PROCEDURAL HISTORY

1. Plaintiff, KANAYO DERHEM, (“Durhem”) filed her Amended Complaint (the 

“Amended Complaint”) on August 14, 2020, for alleged violations of the Fair Housing Act of 

1968, 42 U.S.C. § 3601, et seq., the Civil Rights Act of 1866 and the Civil Rights Act of 1871, 

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Florida Civil Rights Act, Fl. St. § 760.01, et seq., the Florida Condominium Act, Fla. Stat. § 

718.101 et seq. and state common law.

2. On September 8, 2020, the Association, Utrera, Pinkert, Ferreira, KWP and Vidal 

timely moved to dismiss the Amended Complaint with prejudice on grounds that the Amended 

Complaint sought relief for unripe claims, failed to join an indispensable party and otherwise 

neglected to meet basic pleading requirements. [DE 45], [DE 46], [DE 48] and [DE 47]. 

3. On September 14, 2020, Desimone, Paul and Zahniser timely moved to dismiss the 

Amended Complaint for its failure to meet standard pleading requirements in addition to its 

improper attempt at piercing the corporate veil. [DE 51].

4. On November 2, 2020, Brumsted timely moved to dismiss the Amended Complaint 

with Prejudice asserting Plaintiff’s repeated failure to state a cause of action. [DE 70].

5. Plaintiff served Responses in Opposition to the Motions to Dismiss filed by the 

Association, Utrera, Pinkert, Zahniser, Desimone, Ferriera, KWP, Vidal and Brumsted. [DE 61],

[DE 60] and [DE 74]. In turn, the Association, Utrera, Pinkert, Zahniser, DeSimone, and Ferriera, 

KWP and Vidal filed their Responses in Support of their Motions to Dismiss. [DE 66] and [DE 

67]. 

6. In January, this Honorable Court entered a Trial Order setting this matter for the 

two-week trial period commencing on February 28, 2022. [DE 83]. 

7. All named Defendants in this matter respectfully move this Honorable court to 

continue trial and to provide an extension on the following pre-trial deadlines until a decision is 

made on Defendants’ Motions to Dismiss: Dispositive Pre-Trial Motions, Motion to Strike and 

Exclude Expert Testimony (November 5, 2021); Motion in Limine addressing evidentiary issues

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(November 5, 2011); All other Motions in Limine (November 11, 2021) and Joint Pre-Trial 

Stipulation (January 14, 2022).

8. However, the Defendants are not seeking an extension of the discovery completion 

deadline as the current deadline of October 22, 2021 has provided the parties more than enough 

time to engage in meaningful discovery.

9. It is imperative that the above referenced trial and pre-trial deadlines are continued 

to allow for the disposal of insufficient claims to avoid undue prejudice to Defendants, superfluous 

costs to all litigants and the unnecessary waste of limited judicial resources. 

10. As such, Defendants request this Honorable Court to, pending the resolution of their 

Motion to Dismiss, extend the continuance of trial and certain Dispositive Pre-Trial Motions 

deadlines. 

II. MEMORANDUM OF LAW

District courts enjoy broad discretion in deciding how best to manage the cases before them 

and to set and enforce scheduling deadlines, see Chudasama v. Mazda Motor Corp., 123 F.3d 

1353, 1366 (11th Cir. 1997); See Abdullah v. City of Jacksonville, 242 Fed. Appx. 661, 664 (11th 

Cir. 2007) (finding that the district court did not abuse its discretion in vacating the original 

scheduling order for a pretrial conference due to numerous motions that were still pending before 

it); See Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir.2002) (heart of litigation 

is the authority of the district court to control the pace of litigation before it which includes 

scheduling); See Johnson v. Bd. of Regents of Univ. of Georgia, 263 F.3d 1234, 1269 (11th Cir. 

2001) (holding that district courts have broad discretion over the management of pretrial activities 

which includes scheduling.)

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The Eleventh Circuit has articulated strong policy reasons as to why they grant discretion 

to the district courts over scheduling matters:

Allowing a case to proceed through the pretrial process with an 

invalid claim that increases the costs of the case does nothing but 

waste the resources of the litigants in the action before the court, 

delay resolution of the disputes between other litigants, squander 

scarce judicial resources, and damage the integrity and the public’s 

perception of the federal judicial system. 

Id. at 1367–68 (internal citations omitted). 

Where a preliminary motion may dispose of the entire action, a court has good cause to 

extend the trial and its pre-trial deadlines until resolution of the dispositive motion. See Patterson 

v. United States Postal Service, 901 F.2d 927, 929 (11th Cir. 1990); Nankivil v. Lockheed Martin 

Corp., 216 F.R.D. 689, 692 (M.D. Fla. 2003); See, e.g., Coastal Wellness Ctrs., Inc. v. Progressive 

Am. Ins. Co., No. 17-cv-61951-WPD, 2018 U.S. Dist. LEXIS 197100, at *2 (S.D. Fla. May 15, 

2018); Safeco Ins. Co. of Am. v. Amerisure Ins. Co., No. 8:14-cv-774-T-35MAP, 2014 U.S. Dist. 

LEXIS 192459 (M.D. Fla. Sep. 9, 2014); Piderit Corp. v. Hartford Cas. Ins. Co., No. 14-20002-

CIV-SEITZ, 2014 U.S. Dist. LEXIS 193062 (S.D. Fla. Apr. 9, 2014); Koger v. Circuit Cty. Court, 

No. 06-61655-CIV-MARRA/JOHNSON, 2007 U.S. Dist. LEXIS 62542, at *3 (S.D. Fla. Aug. 24, 

2007). 

Facial challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss, 

should be resolved before Dispositive Pre-Trial Motions deadlines—especially when the 

challenged claim will significantly expand the scope of litigation. Chudasama, 123 F.3d at 1367–

68. This is so because every claim has the potential to enlarge the scope and cost of litigation. 

Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1292 (11th Cir. 2005); Chudasama at 

1368 (finding that motions to dismiss enlarge the scope of litigation and the district court should 

rule on the motion before entering orders). 

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Additionally, pursuant to Fla. R. Civ. P. 1.440 a case must be “at issue” to be scheduled 

for trial, this rule focuses on the completion of the pleading process. A case will be deemed to be 

at issue when “the pleadings phase of the case is over ... or if there has been a motion directed at 

the last pleading, for such further time until that motion is determined.” Id. Therefore, until the 

subject case is “at issue”, it would be an error to schedule a trial. See Int’l Jai-Alai Players Ass’n 

v. Dania Jai-Alai Div. of the Aragon Grp., Inc., 563 So. 2d 1117, 1118 (Fla. 4th DCA 1990) (finding 

that at the time of the “final” hearing the cause was not at issue since there were pending motions 

and that the order setting the final hearing seven days before the answer was filed violated Fla. R. 

Civ. P. 1.440); Ludeca v. Alignment & Cond. Monitoring, Inc., 276 So.3d 475, 478 (Fla. 3d DCA 

2019)(“A case is at issue ‘after any motions directed to the last pleading served have been disposed 

of or, if no such motions are served, [twenty] days after service of the last pleading’. . . Further, 

rule 1.440 ‘prescribes a minimum interval of fifty days between service of the last pleading and 

commencement of trial.’”) citing Gawker Media, LLC v. Bollea, 170 So.3d 125, 129.

Defendants request that this Honorable Court, pending the resolution of their Motions to 

Dismiss, extend the trial period and certain dispositive pre-trial motions deadlines. Good cause 

exists here for the reasons more fully discussed herein below. 

III. LEGAL ARGUMENT

A. RECEIVING A RULING ON THE MOTION TO DISMISS WILL LIKELY 

LIMIT THE SCOPE OF LITIGATION AND PRESERVE JUDICIAL 

RESOURCES AND RESOURCES OF THE PARTIES. 

The very concerns over waste of resources and damage to the integrity of the judicial 

system in Chudasama exist in the present case. As stated above, the Amended Complaint in this 

matter consists of 13 counts: Housing Harassment and Hostile Work Environment on the Basis of 

Race and Sex 42 U.S.C. § 3601 (Count I); Discrimination in Contracts on the Basis of Race and 

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Sex under 42 U.S.C. § 1981 (Count II); Discrimination in Property on the Basis of Race and Sex 

under 42 U.S.C. § 1982 (Count III); Conspiracy to Deny Equal Protection of the Laws on the Basis 

of Race and Sex under 42 § U.S.C. § 1985(3) (Count IV); Neglect to Present Conspiracy to Deny 

Equal Protection of the Laws on the Basis of Race and Sex under 42 § U.S.C. 1986 (Count V); 

Discrimination in Housing on the Basis of Race and Sex under Fla. Stat. § 760.01, et. seq. (Count 

VI); Violation of Rights of Condominium Owner under Fla. Stat. §718. 101, et seq (Count VII); 

Violation of Rights of Condominium Owner under Fla. Stat. § 718. 303 (Count VIII); Violation 

of Rights of Condominium Owner under Fla. Stat. § 760.37 (Count IX); Violation of Rights of 

Condominium Owner Supplemental under Fla. Stat. § 718. 110 and § 718. 123 (Count X); Breach 

of Fiduciary Duty under Florida Common Law (Count XI); Breach of Fiduciary Duty under 

Florida Common Law (Count XII); Gross Negligence under Florida Common Law (Count XIII). 

[DE 35]. The nature of the claims notwithstanding the number of Defendants involved, make this 

matter expensive to litigate. 

Defendants seek a continuance of the aforementioned deadlines because the resolution of 

the Motions to Dismiss could dispose of several of the counts alleged or possibly the entire case, 

thus dramatically limiting the scope of litigation on matters for trials and the conserve court 

resources. In this case, the pre-trial motion deadline is in six (6) weeks. That means that the 

parties have just over a month to determine all the summary judgment issues and timely file the 

appropriate motions despite that many, if not all, of the claims asserted in Plaintiff’s Amended 

Complaint are subject to dismissal, thus resulting in undue prejudice to each of the ten (10) named 

Defendants in this action who would be unfairly prejudiced by having to prepare dispositive 

motions for summary judgment on any of Plaintiff’s thirteen (13) causes of action. Moreover, there 

are pending discovery matters which may impede the parties from meeting this November 5, 2021, 

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deadline. Granting a continuance of trial and certain dispositive pre-trial deadlines while the parties 

await the Court’s ruling on the pending dispositive motions before it will safeguard against the 

parties needlessly incurring time and expenses in preparation of avoidable litigation. 

B. WITHOUT HAVING RECEIVED A RULING ON THE MOTIONS TO DISMISS, 

DEFENDANTS ARE UNFAIRLY PREJUDICED BECAUSE THEY ARE 

PRECLUDED FROM SEEKING JUDGMENT ON THE PLEADINGS GIVEN THE 

MATTER IS NOT AT ISSUE.

Defendants are unfairly prejudiced by not having received a ruling on their Motions to 

Dismiss because without any such ruling, they are precluded from seeking a judgment on the 

pleadings as a matter of law. Pursuant to Federal Rule of Civil Procedure, 12(c) a motion for 

judgment on the pleadings is only ripe once the pleadings are closed. Perez v. Wells Fargo, N.A., 

774 F.3d 1329, 1337 (11th Cir. 2014)(“When a defendant fails to answer, Rule 12(c) precludes a 

judgment on the pleadings because the pleadings have not yet closed, and competing pleadings do 

not exist.”). With no ruling on the pending Motions to Dismiss, Defendants have not yet filed their 

answer or raised necessary affirmative defenses. With no answers filed, there are no competing 

pleadings, and Defendants are prevented from utilizing a Motion for Judgment on the Pleadings 

as a means of disposing of Plaintiff’s thirteen (13) legally insufficient claims, which as it currently 

stands, is by the November 3, 2021 dispositive pre-trial motion deadline.

IV. CONCLUSION

This is the first time this matter is set for trial, and the Motion is not being made to delay 

or avoid the commencement of trial. Defendants will be prejudiced in their defense of this matter 

if the trial and pretrial deadlines are not extended for the reasons discussed herein above. This 

Honorable Court has broad discretion to alter trial deadlines. Good cause exists here given the 

pendency of the Motions to Dismiss, most of which have been pending for more than a year’s 

time, the required preparation for trial and preparation of pre-trial dispositive motions on thirteen 

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separate claims which ultimately may be deemed to have no legal merit, as well as the resulting 

cost to the parties and waste of limited judicial resources. 

WHEREFORE, Defendants, BAY HOUSE MIAMI CONDOMINIUM ASSOCIATION, 

INC., CHARLES BRUMSTED, JR., SEAN ZAHNISER, MIKE DESIMONE, JAMES 

PINKERT, JOSHUA PAUL, ALEJANDRO ENRIQUE UTRERA BADENES, JONATHAN 

FERREIRA, KW PROPERTY MANAGEMENT, LLC and JOSE VIDAL, for good cause shown, 

respectfully requests this Honorable Court to continue trial and pre-trial deadlines, and grant such 

other relief as deemed just and proper.

Certification Pursuant to S.D. Fla. L.R. 7.1.(a)(3)

Pursuant to Local Rule 7.1(a)(3), the undersigned certifies that she conferred with counsel 

for Defendant, Charles Brumsted and counsel for Defendants, KW Property Management, Jose 

Vidal and Jonathan Ferreira who join in this motion. Defense counsel also conferred 

with Plaintiff’s counsel in a good faith effort to resolve the issues raised in this motion,

and Plaintiff’s counsel informed the undersigned that she does not oppose the relief requested 

herein. Plaintiff’s counsel, however, did indicate her intent to seek an extension of the discovery 

cutoff date, which the instant Motion does not seek.

Verification Pursuant to 28 U.S.C. § 1746

Additionally, the undersigned certifies under penalties of perjury that the facts 

and positions stated above are true and correct in all material respects

Respectfully submitted,

/s/ Waynice Green-Musgrove

Evelyn Greenstone Kammet, Esq.

egreenstone@florida-law.com

Waynice Green-Musgrove, Esq. 

Wgreen-musgrove@florida-law.com

egkfiling@florida-law.com

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 yordaz@florida-law.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served via CM/ECF on 

September 28, 2021 on all counsel or parties of record on the attached Service List.

Vernis & Bowling of Miami, P.A.

1680 N.E. 135th Street

Miami, FL 33181

Tel: 305-895-3035

Fax: 305-892-1260 

By: /s/ Waynice Green-Musgrove

Evelyn Greenstone Kammet, Esq.

Florida Bar No. 0044060

egreenstone@florida-law.com 

Waynice Green-Musgrove, Esq.

Florida Bar No. 0116175

Wgreen-musgrove@florida-law.com

egkfiling@florida-law.com 

yordaz@florida-law.com

By: /s/ Jeannie A. Hanrahan

Jeannie A. Hanrahan, Esq.

Joelle J. Vogel, Esq.

Marshal, Dennehey, Warner, Coleman & Goggin

100 N.E. Third Avenue, 11th Floor

Fort Lauderdale, Florida 33301

jahanrahan@mdwcg.com

jjvogel@mdwcg.com

Counsel to Defendant, KW Property Management,

LLC, Jose Vidal and Jonathan Ferreira

By: /s/ Craig Shankman

Craig Shankman, Esq.

Boyd Richards Parker & Colonnelli, P.L

100 S.E. Second Street, Suite 2600

Miami, Florida 33131

cshankman@boydlawgroup.com

Counsel to Defendant, Charles Brumsted

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SERVICE LIST

Marlin S. Muller, Esq. Jillian T. Weiss, Esq.

The Hidalgo Law Firm Pro Hac Vice

25 SE 2nd Ave Suite 1235 Law Office of Jillian T. Weiss, P.C.

Miami, FL 33131 527 Hudson Street

marlin@thehidalgolaw.com P.O. Box 20169

Co-Counsel to Plaintiff New York, New York 10014

jweiss@jtweisslaw.com

Co-Counsel to Plaintiff

Jeannie A. Hanrahan, Esq. Craig Shankman, Esq.

Joelle J. Vogel, Esq. Boyd Richards Parker & Colonnelli, P.L.

Marshal, Dennehey, Warner, Coleman & Goggin 100 S.E. Second Street, Suite 2600

100 N.E. Third Avenue, 11th Floor Miami, Florida 33131

Fort Lauderdale, Florida 33301 cshankman@boydlawgroup.com

jahanrahan@mdwcg.com Counsel to Defendant, Charles Brumsted

jjvogel@mdwcg.com

Counsel to Defendant, KW Property Management,

LLC, Jose Vidal and Jonathan Ferreira

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