UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-21254-BLOOM/Louis

SECURITIES AND EXCHANGE COMMISSION,

Plaintiff,

v.

JUSTIN W. KEENER, d/b/a JMJ Financial,

Defendant.

________________________________/

ORDER

THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss, ECF No. [15] 

(“Motion”). Plaintiff filed a response in opposition, ECF No. [21] (“Response”), to which 

Defendant filed a reply, ECF No. [24] (“Reply”). The Court has considered the Motion, the 

Response, the Reply, the record in this case, the applicable law, and is otherwise fully advised. For 

the reasons set forth below, the Motion is denied.

I. BACKGROUND

This action arises out of Defendant’s alleged violation of Section 15(a)(1) of the Securities 

Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78o(a)(1). According to the Complaint, ECF 

No. [1], between January 2015 and January 2018, Defendant bought and sold billions of newly 

issued shares of microcap securities (penny stocks) and generated millions of dollars of profits 

from those sales, but he failed to comply with dealer registration requirements under the Exchange 

Act. Id. at ¶ 1. Specifically, Defendant’s business model entailed buying convertible notes from 

penny stock issuers, holding the notes for at least six months, converting the notes into newly

issued shares of stock at a deep discount to the prevailing market price (generally ranging between 

35-50% less), and then selling those shares into the public market for a significant profit. Id. at 

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¶¶ 2, 8, 13, 15. Defendant purportedly purchased or converted more than 100 notes from more than 

100 different microcap issuers, and he sold over 17.5 billion newly issued shares into the public 

market generating approximately $21.5 million in profits during the alleged three year period. Id.

at ¶¶ 2, 8, 16. In Plaintiff’s view, Defendant operated as an unregistered securities dealer. Id. at 

¶¶ 3-4, 19, 22.

Plaintiff alleges that Defendant has never been registered with the SEC, and the Financial 

Regulatory Authority (“FINRA”) barred him from associating with any FINRA member in any 

capacity in 2012. Id. at ¶ 5. Defendant at one point employed as many as twenty people even 

though he describes his business as a sole proprietorship. Id. The Complaint alleges that Defendant 

“held himself out to the public as being willing to buy convertible notes at a regular place of 

business[.]” Id. at ¶ 10. In particular, he “operated a website that advertised his business to issuers;” 

“hired employees, who worked on commission, to solicit issuers who were willing to sell 

convertible notes to him;” he and his employees “attended, and sometimes sponsored, conferences 

at which they solicited penny stock issuers in person;” and he gave presentations at conferences 

“that included a notarized affidavit from his accountant stating that he had $20 million ‘committed’ 

to purchase convertible notes from issuers.” Id. Plaintiff allegedly obtained “nearly all of the stock 

that he sold in his business directly from the issuers, through note conversion, and not from 

purchases in the secondary market.” Id. at ¶ 11. 

The Complaint asserts a single count for violation of Section 15(a)(1) of the Exchange Act. 

Id. at ¶¶ 23-26. Plaintiff seeks four forms of relief: (i) a permanent injunction restraining Defendant 

and his agents from acting as an unregistered securities dealer; (ii) an injunction restraining 

Defendant from participating in the offering of any penny stock; (iii) ordering Defendant to pay a 

civil penalty; and (iv) ordering Defendant to disgorge, with prejudgment interest, all ill-gotten

gains derived from the activities set forth in the Complaint. Id. at 11-12.

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Defendant now moves to dismiss the Complaint largely on the basis that he is a “trader” 

and not a “dealer” under the Exchange Act and therefore he does not need to register with the SEC. 

See generally ECF No. [15]. He maintains that the “distinction between a securities dealer and a 

securities trader is like the distinction between a restaurant and a grocery store—while they may 

both deal with similar products (i.e., securities or food), they are two different entities subject to 

two different regulatory requirements.” Id. at 7; see also id. at 23 (“just as a grocery store does not 

become a restaurant simply by selling a lot of food, a trader does not become a dealer simply by 

selling a lot of stock.”). He makes five overarching arguments: (i) there is extensive legal guidance 

on the definition of a dealer; (ii) Plaintiff fails to allege any facts to show that Defendant was a 

dealer; (iii) the Complaint’s allegations show that Defendant was a trader; (iv) Plaintiff fails to 

state a claim for injunctive relief; and (v) the Complaint alternatively should be dismissed as a due 

process violation because of a lack of fair notice that his conduct could be unlawful.

Plaintiff responds that Defendant’s arguments focus “largely on non-binding factors 

outside of the plain language of the statute, while ignoring binding precedent in this Circuit.” ECF 

No. [21] at 1. According to Plaintiff, the Exchange Act’s definition of a dealer is clear and broad 

in its scope, and “[t]here is substantial case law applying the dealer definition in this Circuit and 

elsewhere[.]” Id. a 4-5. Plaintiff makes four arguments. First, The Complaint properly alleges that 

Defendant was an unregistered dealer. In this respect, it argues that the “unambiguous plain 

language controls,” and the Eleventh Circuit applies the plain language of the dealer registration 

statute. Id. at 7-13. Second, Defendant’s trader exception argument is both premature and 

erroneous. Id. at 13-16. Third, Plaintiff has alleged sufficient facts to support an injunction, id. at 

16-18, and finally, Defendant’s due process argument is meritless because he had “ample notice” 

that he was a “dealer” under the statute. Id. at 18-20.

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Defendant replies that the “question presented is this: can the SEC allege a plausible dealer 

registration claim against Mr. Keener under the Securities Exchange Act of 1934, if (1) it alleges 

no facts to show Mr. Keener is a dealer under the criteria set forth in many court cases and prior 

SEC statements; and (2) it alleges no facts to show that Mr. Keener was more than a trader 

excluded from the statutory dealer definition? The answer is no, and thus the Complaint must be 

dismissed.” ECF No. [24] at 1. He makes four points. First, the dealer factors are “essential to the 

Iqbal analysis;” second, the Complaint fails to allege the dealer factors; third, Plaintiff’s cases are 

“not on point;” and fourth, the request for injunctive relief must be dismissed because Plaintiff 

fails to allege a reasonable likelihood of future violation. 

The Motion, accordingly, is ripe for consideration.

II. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and 

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Although a complaint “does not need detailed factual allegations,” it must provide “more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 

(2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) 

(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on 

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 

1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). “Factual 

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 

U.S. at 555, 127 S.Ct. 1955. These elements are required to survive a motion brought under Rule 

12(b)(6), which requests dismissal for “failure to state a claim upon which relief can be granted.”

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When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the 

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor 

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 

F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, 

and courts “are not bound to accept as true a legal conclusion couched as a factual 

allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see Iqbal, 556 U.S. at 678, 129 S.Ct. 

1937; Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). 

Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative 

explanations,’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would 

ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) 

(quoting Iqbal, 556 U.S. at 682, 129 S.Ct. 1937).

A court considering a Rule 12(b)(6) motion is generally limited to the facts contained in 

the complaint and the attached exhibits, including documents referred to in the complaint that are 

central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 

2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] 

document outside the four corners of the complaint may still be considered if it is central to the 

plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 

1125, 1135 (11th Cir. 2002)). “[W]hen the exhibits contradict the general and conclusory 

allegations of the pleading, the exhibits govern.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 

(11th Cir. 2007). 

It is through these lenses that the Court considers the Motion and the parties’ arguments.

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III. DISCUSSION

Determining whether Defendant is entitled to dismissal of the Complaint raises two 

overarching issues. The first is whether the Complaint alleges a plausible claim that Defendant is 

a “dealer” for purposes of the Exchange Act. And second, if so, whether the Complaint fails to 

state a claim for injunctive relief. The Court will address each issue in turn.

A. Defendant is alleged to be a “dealer” under the Exchange Act

The parties dispute whether Defendant is subject to the “onerous requirements that come 

with” being a securities dealer. ECF No. [15] at 6. Under the Exchange Act, a “dealer” is “any 

person engaged in the business of buying and selling securities . . . for such person’s own account 

through a broker or otherwise.” 15 U.S.C. § 78c(5)(A). A dealer, however, does not include a 

trader, a “person that buys or sells securities . . . for such person’s own account, either individually 

or in a fiduciary capacity, but not as a part of a regular business.” Id. at § 78(c)(5)(B). The 

Exchange Act requires “dealers” to register with the SEC. Id. at § 78o(a)(1). 

Defendant contends that he is a trader, and not a dealer, based on various factors mentioned 

in the SEC’s Guide to Broker-Dealer Registration.1 ECF No. [15] at 12-13 (listing nine factors). 

According to Defendant, the statutory language defining a dealer “would cast too broad a net” if

taken literally and would “broadly cover” anyone that buys and sells securities. Id. at 12, 14. In his 

view, Plaintiff “does not allege that [Defendant] possessed a single one of the attributes the SEC 

has itself identified as characteristic of a dealer, and consequently, the Complaint must be 

dismissed.” Id. at 6. Plaintiff, conversely, argues that the Exchange Act’s language is “clear,” and 

the statutory definition was “drawn broadly by Congress to encompass a wide range of activities 

1

See Guide to Broker-Dealer Registration, U.S. Securities and Exchange Commission, Division 

of Trading and Markets, April 2008, https://www.sec.gov/reportspubs/investorpublications/divisionsmarketregbdguidehtm.html (last visited August 13, 2020) (“SEC Guide”).

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involving investors and securities markets.” ECF No. [21] at 4-5 (citing Registration Requirements 

for Foreign Broker-Dealers, 54 Fed. Reg. 30013, 30015). See also Roth v. SEC, 22 F.3d 1108, 

1109 (D.C. Cir. 1994) (“The broker-dealer registration requirement serves as the ‘keystone of the 

entire system of broker-dealer regulation.’”) (citation omitted). It contends that the Complaint 

alleges sufficient facts to show that Defendant was a dealer under the statute’s explicit terms. 

Accordingly, the parties disagree regarding whether the Court should apply the statutory language 

or the non-binding factors when assessing the Complaint’s allegations.

Upon review and consideration, the Court need not ultimately resolve at this stage whether 

Defendant is a dealer or a trader—a legal determination better suited for a complete factual record. 

Instead, the Court must ascertain simply whether the Complaint alleges that Defendant is a dealer, 

subject to the Exchange Act’s provisions, based on the underlying allegations. In this setting, 

Plaintiff has carried his burden to set forth a plausible claim that Defendant is a “dealer” under 15 

U.S.C. § 78c(5)(a). First, the Court is unconvinced that it should overlook the actual statutory 

language and instead perform a holistic factorial analysis based on various “characteristics” of a 

dealer. ECF No. [15] at 11-12. Not only is such a fact-intensive analysis ill-suited for a motion to 

dismiss setting, it is unclear how the Court is to weigh each factor. See SEC v. River N. Equity

LLC, 415 F. Supp. 3d 853, 858 (N.D. Ill. 2019) (denying motion to dismiss, and noting that “these 

factors (and any decisions construing them) are not controlling. They are neither exclusive, nor 

function as a checklist through which a court must march to resolve a dispositive motion. And 

whether and which are met is necessarily a fact-based inquiry best reserved for summary judgment 

or trial”). Indeed, the SEC Guide provides that a “yes” answer to any one of the referenced factors 

“indicates that you may need to register as a dealer.” Under that same reasoning, a “no” answer to 

one or even all of the factors does not foreclose the possibility that someone is a “dealer.”

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Against this backdrop, the Court notes that while factors are relevant for assessing and 

ultimately concluding whether a party is a dealer, they do not supplant the statute’s plain language, 

especially at this stage. This conclusion is strengthened following review of Defendant’s case 

authorities applying factors that did not take place in a motion to dismiss posture. See SEC v. 

Federated Alliance Grp., Case No. 93-cv-0895E(F), 1996 WL 484036 (W.D.N.Y. Aug. 21, 1996) 

(summary judgment); Chapel Investments, Inc. v. Cherubim Interests, Inc., 177 F. Supp. 3d 981 

(N.D. Tex. 2016) (motion for approval of stipulation of settlement); Oceana Capitol Grp. Ltd. v.

Red Giant Entm’t, Inc., 150 F. Supp. 3d 1219 (D. Nev. 2015) (same). As recognized in River 

North, “there’s a reason most opinions the parties cite were decided at later stages.” 415 F. Supp. 

3d at 858.

Further, the Court notes that the SEC has previously represented that “the primary indicia 

in determining that a person has ‘engaged in the business’ within the meaning of the term ‘dealer’

is that the level of participation in purchasing and selling securities involves more than a few 

isolated transactions.” In the Matter of Gordon Wesley Sodorff, Jr., 50 S.E.C. 1249, 1992 WL 

224082, at *4-5 (Sept. 2, 1992). Under the Complaint’s allegations, Defendant engaged in buying 

and converting over 100 convertible notes securities from more than 100 different microcap issuers 

during the three year period. ECF No. [1] at ¶¶ 2, 8, 16. He sold into the public market 

approximately 17.5 billion shares of newly issued stock derived from the converted notes, and he 

made a $21.5 million profit. These allegations suggest that Defendant’s “level of participation in 

purchasing and buying securities involves more than a few isolated transactions.” See River North, 

415 F. Supp. 3d at 858 (“The SEC alleges that during the relevant period River North bought and 

sold over 10 billion shares of stock from more than 62 microcap issuers, and then quickly resold 

them to the investing public, receiving some $31 million in profit. From this, it is more than 

plausible that River North meets the statutory ‘dealer’ definition.”); Sodorff, Jr., 1992 WL 224082, 

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at *5 (“Sodorff’s participation in the Buffalo transactions was sufficient to establish that he 

engaged in the securities business. Over the course of approximately a two-month period, Sodorff 

sold 556,227 shares of Buffalo stock to 17 investors, hardly an instance of isolated activity.”).

The Court notes that Plaintiff did allege facts that come within the ambit of certain of the 

factors listed in the SEC Guide. For instance, apart from alleging that Defendant operated a 

business to purchase debt securities directly from issuers, which were later converted into stock at 

a deeply discounted price compared to prevailing market prices and then resold on the public 

market for a sizeable profit, the Complaint alleges that Defendant held himself out to the public as 

being willing to buy convertible notes at a regular place of business. ECF No. [1] at ¶ 10. See also 

See River North, 415 F. Supp. 3d at 858-59 (rejecting defendant’s argument that the SEC failed to 

allege that defendant was a “dealer” because the complaint did not allege “the presence of a laundry 

list of factors set forth in various SEC no-action letters and other guidance,” and finding it 

“particularly significant” that defendant purchased stocks at a discounted price directly from 

numerous issuers). Specifically, he allegedly operated a website advertising his business to issuers, 

he hired employees to solicit issuers who were willing to sell convertible notes to him, he 

sponsored conferences in which he and his employees solicited penny stock issuers in person, and 

he made PowerPoint presentations at conferences representing that he had $20 million 

“committed” to purchase convertible notes from issuers. See SEC Guide (noting as a consideration 

whether one “advertise[s] or otherwise let[s] other know that you are in the business of buying and 

selling securities”). These allegations further permit the Court to reasonably conclude that the 

Complaint adequately alleges that Defendant was a dealer under the Exchange Act.

The Eleventh Circuit has examined the explicit statutory language defining a “dealer” 

without referencing factors when evaluating whether a party is subject to securities registration 

requirements. See SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786, 809-10 (11th Cir. 2015) 

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(explaining that the “centerpiece” of the definition of a “dealer” is the word “business,” and noting 

that defendants were dealers where their “entire business model was predicated on the purchase 

and sale of securities” and where they bought “stocks at deep discounts” by contractual agreement 

and “then resold those stocks for profit”) (emphasis in original).2See also Eastside Church of 

Christ v. Nat’l Plan, Inc., 391 F.2d 357, 361 (5th Cir. 1968) (determining that defendant was a 

dealer under the explicit terms of the Exchange Act because defendant purchased church bonds 

“for its own account as part of its regular business and sold some of them”);

3

SEC v. Offill, No. 

3:07-CV-1643-D, 2012 WL 246061, at *8-9 (N.D. Tex. Jan. 26, 2012) (granting summary 

judgment in favor of the SEC, explaining that while “there is not an abundance of binding case 

law defining broker and dealer,” Eastside Church, 391 F.2d at 361, is “illustrative,” and 

determining that defendant was a dealer under the Exchange Act because he “bought and sold 

securities as part of his regular business”).

Finally, the Court does not agree with Defendant that the Complaint should be dismissed 

because of a due process violation. The Complaint’s allegations support the inference that 

Defendant is not a novice investor that occasionally dabbles in securities trading. See, e.g., ECF 

No. [1] at ¶¶ 5, 12, 15. Defendant asserts that unless the lawsuit is dismissed, he will be penalized 

for conduct he “had no way of knowing could be unlawful,” ECF No. [15] at 23. However, he 

overlooks the express language of the Exchange Act, decisions from this circuit applying the 

2 Although Defendant stresses that Big Apple does not apply because that court interpreted the 

Securities Act of 1933 rather than the Exchange Act, ECF No. [24] at 1, the Court is not persuaded. 

The Eleventh Circuit panel noted that the definition of a “dealer” under both statutes is “very

similar” and it found the district court’s analysis to be “sound” where the district court “analyzed 

the definition of dealer as it related to the SEC’s [Exchange Act] claims and generally applied that 

analysis to the [Securities Act of 1933] exception.” 783 F.3d at 809 n.11. 

3 The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit 

handed down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 

F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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definition of “dealer,” and the SEC Guide itself, which sets forth instances in which a party can be 

deemed a dealer. Defendant failes to point to any particular aspect of the Exchange Act that is 

ambiguous. Further, at least one other court has rejected an analogous due process challenge at the 

motion to dismiss stage. River North, 415 F. Supp. 3d at 859 (“[Defendants] argue that allowing 

the claims against them to go forward would violate their due process rights . . . But while the 

Court agrees that formal SEC guidance on these matters would be helpful, it cannot conclude that 

the SEC’s claims fail as a matter of law for lack of it. The definition at issue is broad. The factors 

for the Court’s consideration are merely factors. And the players in this case are not new to this 

field.”). Accordingly, the Motion is denied on this basis.

B. Injunctive relief

Defendant contends that the Complaint’s claim for injunctive relief is inadequate because 

“[i]njunctions such as penny stock bars and obey-the-law injunctions are proper only to prevent 

imminent harm, not to punish the defendant.” ECF No. [15] at 20 (emphasis in original). According 

to Defendant, the Complaint has not alleged any ongoing violations. 

Plaintiff is entitled to injunctive relief when it establishes (1) a prima facie case of previous 

violations of federal securities laws, and (2) a reasonable likelihood that the wrong will be 

repeated. SEC v. Calvo, 378 F.3d 1211, 1216 (11th Cir. 2004). “Indicia that a wrong will be 

repeated include the ‘egregiousness of the defendant’s actions, the isolated or recurrent nature of 

the infraction, the degree of scienter involved, the sincerity of the defendant’s assurances against 

future violations, the defendant’s recognition of the wrongful nature of the conduct, and the 

likelihood that the defendant’s occupation will present opportunities for future violations.’” Id.

(citation omitted). See also SEC v. Blatt, 583 F.2d 1325, 1334 (5th Cir. 1978) (“The critical 

question in issuing the injunction and also the ultimate test on review is whether defendant’s past 

conduct indicates that there is a reasonable likelihood of further violations in the future.”).

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Upon review, although the Court agrees that the Complaint does not allege an ongoing 

violation of securities laws after January 2018, dismissing an injunctive relief claim at this early 

stage is unwarranted, especially as liability has not been established and evidence has not been 

presented. See, e.g., SEC v. Gabelli, 653 F.3d 49, 61 (2d Cir. 2011), rev’d on other grounds, 568 

U.S. 442 (2013) (“[I]t is most unusual to dismiss a prayer for injunctive relief at this preliminary 

stage of the litigation, since determining the likelihood of future violations is almost always a factspecific inquiry.”); SEC v. Melvin, No. 1:12-CV-2984-CAP, 2013 WL 12062834, at *6 (N.D. Ga. 

June 26, 2013) (“Determining whether to grant injunctive relief is fact-specific. . . . The court does 

not believe this is the appropriate time to consider whether to dismiss the SEC’s request for 

injunctive relief.”) (quoting Gabelli, 653 F.3d at 61); SEC v. C. Jones & Co., 312 F. Supp. 2d 

1375, 1382 (“Although [defendant] is correct that the SEC must eventually prove a reasonable 

likelihood of future violations, that does not mean ‘the SEC is subject to a higher standard of 

pleading when it seeks injunctive relief.’ . . . I find [defendant’s] argument premature. [] This issue 

must await resolution until after the SEC has had the opportunity to present evidence supporting 

its claims.”).

Based on the Complaint’s allegations, Plaintiff has pled sufficient facts to obtain injunctive 

relief. Defendant was previously barred by FINRA from associating with any FINRA member in 

any capacity after 2012, his alleged instant securities violations spanned three years and involved 

selling over 17.5 billion shares, he employed twenty people working on commission at one point, 

sponsored conferences and gave presentations as part of his business, and he dealt with over 100 

different microcap issuers. Although none of these features alone demonstrate a reasonable 

likelihood of future violations, together they permit an inference that Defendant’s alleged 

misconduct will be repeated if not enjoined. Indeed, they illustrate that by skirting dealer 

registration requirements, Defendant could conduct a highly lucrative business in a relatively short 

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period of time and can enlist numerous people to assist him. Therefore, because it is premature at 

this stage to dismiss this claim for relief, Defendant’s Motion is also denied on this ground.4

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [15], is 

DENIED. Defendant shall answer the Complaint by August 27, 2020.

DONE AND ORDERED in Chambers at Miami, Florida, on August 13, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

4

In the Reply, Defendant argues for the first time (in a concluding three sentence paragraph) that 

the Complaint’s request for disgorgement is not plausibly alleged. ECF No. [24] at 10. It is 

improper to raise an argument for the first time in a reply. See, e.g., Herring v. Secretary, Dep’t 

of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, arguments 

raised for the first time in a reply brief are not properly before a reviewing court.”) (internal 

quotations omitted); Willis v. DHL Global Customer Sols. (USA), Inc., No. 10-62464-CIV, 2011 

WL 4737909, at *3 (S.D. Fla. Oct. 07, 2011) (collecting cases and noting that “[j]udges in this 

district . . . have repeatedly rejected attempts by parties to raise new arguments in reply 

memoranda”). Further, “[i]ssues adverted to in a perfunctory manner, unaccompanied by some 

effort at developed argumentation, are deemed waived.” Melford v. Kahane and Assocs., 371 F. 

Supp. 3d 1116, 1126 n.4 (S.D. Fla. 2019). Because this argument is raised for the first time in the 

Reply and is undeveloped, it is waived and not considered by the Court.

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