UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

RYAN SHINN, individually and on behalf 

of all others similarly situated,

Plaintiff

v.

VAN DYK MORTGAGE CORPORATION, 

a foreign corporation

Defendant.

CASE NO.: 2020-cv-61152-AHS

CLASS ACTION

JURY TRIAL DEMANDED

DEFENDANT VANDYK MORTGAGE CORPORATION’S MOTION FOR LEAVE 

TO FILE SUR-REPLY IN SUPPORT OF

ITS OPPOSITION TO PLAINTIFF’S MOTION TO REMAND

Pursuant to Local Rule 7.1 and the Court’s discretion under the Federal Rules of Civil 

Procedure, Defendant VanDyk Mortgage Corporation (“VanDyk”) submits this motion for leave 

to file a sur-reply to Plaintiff Ryan Shinn’s (“Plaintiff”) Motion to Remand (Dkt. 7, “Motion”) to 

address Plaintiff’s Notice of Supplemental Authority (see Dkt. 25, “Notice”) of no more than

four (4) pages in length and within no later than two (2) business days after the Court grants 

VanDyk’s request for leave. In support thereof, VanDyk further states as follows:

INTRODUCTORY STATEMENT

VanDyk is aware of and respects the Court’s limitations on briefing. In this instance, the 

purpose of VanDyk’s requested sur-reply will be to address the purported supplemental authority 

attached as Exhibit A to Plaintiff’s Notice, which was not available at the time VanDyk filed its 

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response to Plaintiff’s Motion and is readily distinguishable, both factually and legally, from the 

issues in the present case and in the Motion. Accordingly, for the reasons discussed below, 

VanDyk respectfully requests leave to file a short sur-reply in support of its opposition to 

Plaintiff’s Motion to address this recent filing.

PROCEDURAL HISTORY AND BASIS FOR RELIEF

On May 11, 2020, Plaintiff filed his initial one-count complaint in this matter in Florida 

state court, seeking relief under the Telephone Consumer Protection Act (“TCPA”). On June 11, 

2020, VanDyk timely filed its Notice of Removal with this Court pursuant to 28 U.S.C. §§ 1331, 

1332, 1441, 1446 and 1453, asserting federal question subject matter jurisdiction because the 

Complaint seeks relief under the federal TCPA (see Dkt. 1 at ¶¶ 6-8) and under the Class Action 

Fairness Act of 2005 (“CAFA”) (see id. at ¶¶ 9-13).

On June 15, 2020, Plaintiff filed his Motion seeking remand back to state court, arguing, 

inter alia, VanDyk failed to demonstrate that the United States Constitution’s Article III standing 

requirements are met. See Motion at 1-4. The Motion is silent with respect to VanDyk’s CAFA 

basis for removal. See generally id. VanDyk responded to the Motion on June 29, 2020 arguing 

that VanDyk has no obligation to allege Article III standing in a notice of removal in accordance 

with this Court’s precedent and that Plaintiff failed to address, let alone challenge, VanDyk’s 

alternate CAFA basis for removal. See generally Dkt. 13. Plaintiff filed his reply memorandum

that same day. See Dkt. 14. 

On July 8, 2020, Plaintiff filed a first amended complaint (“FAC”) in which he added a 

new party defendant, Thecia Maurone-Toth, who has not been served as of the date of this filing, 

despite arguing in connection with his Motion that he lacks Article III standing. See Dkts. 20 

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and 21. In his FAC, Plaintiff alleges that he suffered injuries “resulting” from “Defendants’ 

advertisement and telemarketing message.” Dkt 20 ¶¶ 5, 10. As a result of the FAC filing, the 

Court denied VanDyk’s then-pending dispositive motion to dismiss Plaintiff’s original complaint 

as moot but granted VanDyk’s motion to temporarily stay discovery, noting inter alia that 

discovery should be stayed because Plaintiff’s amended pleading would likely be subject to 

another motion to dismiss and that Plaintiff’s Motion seeking remand was still pending. See 

Dkts. 22 and 24.

On July 14, 2020, after briefing had completed, Plaintiff notified the Court of purported 

supplemental authority in support of his Motion, identifying and attaching a July 14, 2020 

decision titled Mittenhal, et al. v. Florida Panthers Hockey Club, Ltd., Case No. 0:20-cv-60734-

RKA (S.D. Fla. Jul. 14, 2020) (Altman, J.) (hereinafter “Mittenhal”). 

ARGUMENT

As noted, VanDyk contends that Mittenhal is readily distinguishable from this case in a 

number of ways and, therefore, that a sur-reply to address those pertinent differences is necessary 

and would be helpful to assist the Court with properly understanding the parties’ positions and to 

adjudicate the Motion. The Eleventh Circuit has held that “[a] district court’s decision to permit 

the filing of a surreply is purely discretionary” and is generally permissible when “a valid reason 

for such additional briefing exists, such as where the movant raises new arguments in its reply 

brief.” First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 F.App’x 777, 788 (11th Cir. 2008)

(per curiam) (quoting Federick v. Mercedes-Benz USA, LCC, 366 F. Supp. 2d 1190, 1197 (N.D. 

Ga. 2005)). Such a “valid reason” exists here as VanDyk should be permitted the opportunity to 

respond to the new filing presented for the first time in Plaintiff’s Notice, which was unavailable 

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at the time VanDyk filed its response in opposition to Plaintiff’s Motion but yet is misleading 

and readily distinguishable, prior to the Court deciding the Motion.

More specifically, VanDyk’s anticipated sur-reply will address the distinctions between 

Mittenhal and this case, including inter alia, that the Mittenhal complaint did not allege any

tangible or intangible injury in fact the plaintiffs may have suffered, merely referring to a “legal 

injury” and general “impact[] and harm[]”; whereas here, Plaintiff’s FAC alleges that Plaintiff 

suffered “resulting injuries caused to Plaintiff by Defendants’ advertisement and telemarketing 

message” and that Plaintiff and other putative class members were “harmed” (see ¶¶ 10, 57). 

Moreover, in filing his FAC in this case, Plaintiff tellingly removed his allegation that he merely 

“suffered a legal injury.” Compare Dkt. 1 ¶ 9 with Dkt. 20 generally. For these reasons and 

others, as VanDyk’s anticipated sur-reply will show, Mittenhal is clearly distinguishable from 

the present case and the Court should exercise its discretion to permit VanDyk to file a sur-reply. 

Further, VanDyk respectfully submits that the filing of a sur-reply will not unfairly

prejudice Plaintiff and indeed would prejudice VanDyk by depriving it of an opportunity to 

address Plaintiff’s new filing. Moreover, the filing of a brief sur-reply will not unduly delay 

these proceedings. 

WHEREFORE, pursuant to Local Rule 7.1, VanDyk respectfully requests that this 

motion be granted and that VanDyk be permitted to file a sur-reply, of no more than four pages 

and within two business days after the Court rules on this request. 

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CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to Local Rule 7.1(a)(3), I hereby certify that that counsel for the movant has 

conferred with all parties who may be affected by the relief sought in this motion in a good faith 

effort to resolve the issues but that Plaintiff noted his objections to the filing of a sur-reply 

regarding Plaintiff’s Motion to Remand.

Dated: July 14, 2020 Respectfully submitted,

By: s/ Yaniv Adar

Yaniv Adar (Florida Bar No. 63804) 

MARK MIGDAL & HAYDEN 

Brickell City Tower 

80 SW 8th Street, 

Suite 1999, Miami, Florida 33130

Tel: (305) 374-6623 

Email: yaniv@markmigdal.com

John W. McGuinness (pro hac vice)

MANATT, PHELPS & PHILLIPS, LLP

1050 Connecticut Avenue, NW, Ste. 600

Washington, D.C., 20036

Tel: (202) 585-6500

Email: jmcguinness@manatt.com

A. Paul Heeringa (pro hac vice)

MANATT, PHELPS & PHILLIPS, LLP

151 North Franklin Street, Ste. 2600

Chicago, IL 60606

Tel.: (312) 529-6300

Email: pheeringa@manatt.com

Attorneys for Defendant 

VanDyk Mortgage Corporation

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CERTIFICATE OF SERVICE

I hereby certify that, on July 14, 2020, I filed the foregoing electronically through the 

Court’s CM/ECF system, which caused the following parties or counsel to be served by 

electronic means:

Manuel S. Hiraldo, Esq.

Hiraldo P.A.

401 E. Las Olas Boulevard, Suite 1400

Fort Lauderdale, Florida 33301

Email: mhiraldo@hiraldolaw.com

Jibreal S. Hindi, Esq.

Thomas Patti, III, Esq.

The Law Offices of Jibreal S. Hindi

110 SE 6th Street, Suite 1744

Fort Lauderdale, Florida 33301

E-mail: jibreal@jibreallaw.com

s/ Yaniv Adar

Yaniv Adar, Esq. 

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