UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 9:20-cv-81063-RS 

STEVE HARTEL, Individually and On 

Behalf of All Others Similarly Situated, 

Plaintiff, 

v. 

THE GEO GROUP, INC., et al., 

Defendants. 

_____________________________________/ 

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR AN ENLARGEMENT OF TIME TO 

RESPOND TO DEFENDANTS’ MOTION TO DISMISS 

PLAINTIFF’S CLASS ACTION COMPLAINT 

Defendants The GEO Group, Inc. (“GEO Group” or the “Company”), George C. Zoley 

and Brian R. Evans (collectively, “Defendants”) respond in opposition to Plaintiff’s Motion for an 

Enlargement of Time to Respond to Defendants’ Motion to Dismiss Plaintiff’s Class Action 

Complaint [ECF No. 13] (“Plaintiff’s Motion”). 

INTRODUCTION 

Plaintiff wants this Court to treat the filing of his Complaint [ECF No. 1] (“Complaint”) as 

a nullity, even though there is nothing in the Federal Rules of Civil Procedure, or under the federal 

securities laws, that suggests a court should simply ignore the filing of a complaint as though it 

never happened. Plaintiff asserts that, despite the fact that no motions for lead plaintiff have yet 

been filed, the Court should await the appointment of lead plaintiff –– and the potential filing of 

an amended complaint –– prior to ruling on Defendants’ Motion to Dismiss Plaintiff’s Class 

Action Complaint [ECF No. 6] (“Motion to Dismiss”). However, every complaint must comply 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 1 of 11
2 

with the Rules and must state a claim. Defendants have every right to test the sufficiency of this 

Complaint –– the only live pleading filed against them. 

Plaintiff argues that because this case is governed by the Private Securities Litigation 

Reform Act of 1995 (the “PSLRA”), that this Court should not rule on the potentially dispositive 

Motion to Dismiss prior to the appointment of a lead plaintiff. Yet such a concept is not found 

anywhere in the PSLRA. Not only is such a rule not required by the PSLRA, it defies the PSLRA’s 

policy goal of quickly dispensing with costly and unfounded securities lawsuits. 

Even further, Plaintiff’s position is contrary to the federal pleading standards because it 

would allow plaintiffs to file mere “placeholder” complaints which, according to Plaintiff, will 

never have to be defended. Such a policy would only encourage the filing of poor pleadings in a 

race to the courthouse, as is evidenced by the Complaint here. 

In their Motion to Dismiss [ECF No. 6], Defendants outlined at least six compelling 

reasons why Plaintiff’s Complaint [ECF No. 1] (“Complaint”) should be dismissed. These include 

that (1) Plaintiff’s claims are based on non-actionable, forward-looking cautionary statements 

protected by a statutory safe harbor; (2) the Complaint fails to specifically identify actionable 

statements that were alleged to be misleading; (3) the statements quoted in the Complaint are 

accurate and are not actionable; (4) the Company’s public disclosures are fatal to the claims; (5) the 

Complaint fails to allege facts necessary to plead the required strong inference of scienter; and 

(6) the Complaint fails to sufficiently plead loss causation. See Motion to Dismiss [ECF No. 6]. 

Plaintiff does not rebut any of the substantive issues on the merits raised in the Motion to Dismiss. 

Plaintiff has not amended or moved to amend the current Complaint in accordance with Rule 15, 

Federal Rules of Civil Procedure. 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 2 of 11
3 

While Plaintiff argues that responding to the Motion to Dismiss would “threaten to disrupt 

the orderly and efficient litigation process that Congress intended when it enacted the PSLRA,” 

Plaintiff’s Motion at 5, he is wrong. As set forth in more detail below, the PSLRA was enacted to 

deter, or quickly dispose of, meritless or baseless claims at the outset of litigation. Should the 

Court dismiss Plaintiff’s Complaint, the lead plaintiff process would be mooted. 

Plaintiff’s request for a lengthy extension of time (beyond a more reasonable and limited 

extension) to respond to the pending Motion to Dismiss is not well-founded. Plaintiff provides no 

rationale as to why he is unable to respond to the Motion to Dismiss (or amend) within a reasonable 

extension that was proposed. Indeed, Defendants were able to respond to the Complaint and file 

their joint Motion to Dismiss without seeking additional time. Plaintiff’s request for extra time is 

unquestionably unnecessary if, as Plaintiff seems to indicate, he intends to move for an order 

requesting that he be appointed as lead plaintiff in this pending action. And even if he was 

appointed lead plaintiff, Plaintiff does not commit to filing an amended complaint. There is no 

reason to delay review of the sufficiency of the filed Complaint. 

As explained below, the Motion to Dismiss is procedurally proper and ripe for ruling by 

the Court. The PSLRA sanctions no stay of the Motion to Dismiss (as Plaintiff himself has 

acknowledged in correspondence with Defendants). In accordance with the intent of the PSLRA 

–– to quickly dispose of suits like the instant case –– the Court should deem the properly-filed 

Motion to Dismiss as pending, require Plaintiff to respond, and rule accordingly. 

ARGUMENT 

I. DEFENDANTS’ FILING OF THE MOTION TO DISMISS WAS PROPER. 

Contrary to Plaintiff’s assertion, the filing of a motion to dismiss in response to a complaint 

governed by the PSLRA is a perfectly legitimate vehicle for any defendant to employ. Plaintiff 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 3 of 11
4 

has cited no authority that supports Plaintiff’s request to purportedly “harmonize” the PSLRA’s 

lead plaintiff procedure with a motion to dismiss. Nothing in the PSLRA requires the Court to 

first address the appointment of lead plaintiff and lead counsel. Indeed, the PSLRA actually 

encourages the filing of a motion to dismiss and provides that a court must address such a motion 

when filed. See 15 U.S.C. § 78u-4(b)(3). 

The PSLRA is Congress’ “effort to deter or at least quickly dispose of those suits whose 

nuisance value outweighs their merits . . . .” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 

547 U.S. 71, 82 (2006) (emphasis added). “An important component of achieving this goal was 

structuring the legislation to permit the dismissal of frivolous cases at the earliest feasible stage 

of the litigation, thereby reducing the cost to the company, and by derivation, to its shareholders, 

in defending a baseless action.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 

1999) (emphasis added). To that end, the PSLRA explicitly imposes a stay of discovery “during 

the pendency of any motion to dismiss” and mandates that the Court dismiss a complaint that is 

deficient. 15 U.S.C. § 78u-4(b)(3).

(3) Motion to dismiss; stay of discovery 

(A) Dismissal for failure to meet pleading requirements

In any private action arising under this chapter, the court shall, 

on the motion of any defendant, dismiss the complaint if the 

requirements of paragraphs (1) and (2) are not met. 

(B) Stay of discovery

In any private action arising under this chapter, all discovery and 

other proceedings shall be stayed during the pendency of any 

motion to dismiss, unless the court finds upon the motion of any 

party that particularized discovery is necessary to preserve 

evidence or to prevent undue prejudice to that party. 

15 U.S.C. § 78u-4(b)(3) (bold emphasis in original; underlined emphasis added). The statute says 

nothing about waiting for the lead plaintiff process to be completed before so ruling. Thus, 

Defendants timely filing a motion to dismiss does not impede the orderly and efficient conduct of 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 4 of 11
5 

this action (as Plaintiff argues). 

Here, this Court must dismiss Plaintiff’s Complaint, as outlined in the Motion to Dismiss, 

because the pleading requirements –– particularized allegations (1) of misleading statements and 

omissions, (2) giving rise to a strong inference of scienter –– have not been met. 15 U.S.C. § 78u4(b)(1) and (2); see also Motion to Dismiss [ECF No. 6], pp. 9-16. Each deficiency provides an 

independent reason requiring dismissal under the PSLRA. 15 U.S.C. § 78u-4(b)(3) (“the court 

shall, on the motion of any defendant, dismiss the complaint if the requirements of paragraphs 

(1) and (2) are not met”) (emphasis added). The Motion to Dismiss also seeks dismissal for nonPSLRA related reasons, such as the failure to plead fraud with specificity as required under Federal 

Rule of Procedure 9(b). There is no need to await the appointment of lead plaintiff to address the 

merits of the Motion to Dismiss. 

Further, Plaintiff served Defendants with a Summons filed in this action, which states: 

Within 21 days after service of this summons on you . . . you must serve 

on the plaintiff an answer to the attached complaint or a motion under 

Rule 12 of the Federal Rules of Civil Procedure. The answer or motion 

must be served on the plaintiff or plaintiff’s attorney . . . If you fail to 

respond, judgment by default will be entered against you for the relief 

demanded in the complaint. You also must file your answer or motion 

with the court. 

[ECF No. 1]. The Summons certainly did not instruct Defendants to refrain from filing a motion 

to dismiss. Apparently, under Plaintiff’s misguided theory, Defendants were expected to simply 

default in response to his Complaint. 

Plaintiff states that this Court should essentially stay a ruling on the Motion to Dismiss 

because Congress’s intent for passing the PSLRA was to ensure that persons with significant 

shareholdings would exercise control over the litigation. Plaintiff’s Motion at 4-6. That oversimplistic characterization sorely misses the mark. Courts have characterized Congress’s “intent” 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 5 of 11
6 

in passing the PSLRA far differently and more broadly –– in a way that supports the view that the 

filing of motions to dismiss is an appropriate response to any complaint. As the First Circuit has 

noted: 

Congress fashioned the PSLRA as a means of combating unfounded 

strike suits against issuers of securities. Consistent with this 

congressional intent, the PSLRA imposed “heightened pleading 

requirements in actions brought pursuant to § 10(b) and Rule 10b-5” 

and contained a gallimaufry of provisions targeting abusive securitiesfraud litigation. 

Hidalgo-Velez v. San Juan Asset Mgt., Inc., 758 F.3d 98, 104 (1st Cir. 2014) (citation omitted) 

(emphasis added); see also In re Galileo Corp. Shareholders Litig., 127 F. Supp. 2d 251, 260 (D. 

Mass. 2001) (“Congress enacted the PSLRA, which amended the Securities Act of 1933 and the 

Exchange Act, in a bipartisan effort to curb abuse in private securities litigation, especially the 

filing of so-called strike suits. In particular, Congress sought to reform private securities litigation 

to discourage unmeritorious class actions, including actions brought because of a decline in stock 

prices.” (citation omitted)). In short, Congress’s focus was not limited to the procedures for 

appointing lead counsel, but rather the primary focus included weeding out unmeritorious 

securities fraud lawsuits. If Plaintiff is urging this Court to focus on Congress’s legislative 

motivation as a whole, then this Court should proceed with ruling on the pending Motion to 

Dismiss. 

B. A STAY OF THE MOTION TO DISMISS IS NOT WARRANTED. 

1. Courts Often Dismiss Complaints Prior to the Appointment of Lead 

Plaintiff. 

The PSLRA explicitly imposes a stay of discovery and other proceedings “during the 

pendency of any motion to dismiss;” it does not impose, implicitly or explicitly, a stay of this 

Court’s adjudication of the motion to dismiss pending appointment of a lead plaintiff. See 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 6 of 11
7 

generally, 15 U.S.C. § 78u-4. Plaintiff instead focuses on the PSLRA provision governing the 

appointment of a lead plaintiff in Section (a)(3), and argues that the provision essentially requires 

that the Motion to Dismiss cannot go forward at least until a lead plaintiff is appointed, because 

only the lead plaintiff can act on behalf of a class. See Plaintiff’s Motion at 4-6. But Plaintiff 

jumps ahead of himself. There is no class to represent at this time. 

Indeed, numerous courts have rejected the argument that an appointment of lead plaintiff 

must occur first. See Grobler v. Neovasc, Inc., Case No. 1:16-cv-11038 (D. Mass. July 26, 2016) 

at [ECF No. 22] (“There is nothing in the PSLRA requiring a district judge to stay a motion to 

dismiss so that a plaintiff can assign lead counsel and file a Consolidated Complaint.”) (attached 

as Exhibit A); see, e.g., Brooks v. Wachovia Bank, N.A., No. Civ. A. 06-00955, 2007 WL 2702949, 

at *1 (E.D. Pa. Sept. 14, 2007) (granting motion to dismiss securities class action and denying as 

moot motion for appointment of lead plaintiff); Hartman v. Pathmark Stores, Inc., No. Civ. A. 05-

403-JJF, 2006 WL 571852, at *1 (D. Del. Mar. 8, 2006) (same); Walker v. Shield Acquisition 

Corp., 145 F. Supp. 2d 1360, 1361 (N.D. Ga. 2001) (same); Recupito v. Prudential Secs., Inc., 112 

F. Supp. 2d 449, 451 (D. Md. 2000) (same); Berkowitz v. Conrail, Inc., No. Civ. A. 97–1214, 1997 

WL 611606, at *1 n.1 (E.D. Pa. Sept. 25, 1997) (in Section 10(b) case under PSLRA, “[b]ecause 

Defendant’s motion to dismiss will be granted, Plaintiff’s pending motions to be appointed lead 

plaintiff, for appointment of lead and co-lead counsel, and for class certification will be denied as 

moot”). 

As explained above, Plaintiff’s proposed deferral of the motion to dismiss directly conflicts 

with the PSLRA’s stated goal of dismissing frivolous cases at the “earliest feasible stage of the 

litigation.” Bryant, 187 F.3d at 1278. This Court should likewise not delay ruling on the Motion 

to Dismiss, but rather require full briefing so that it can address the merits at this time. 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 7 of 11
8 

2. Plaintiff’s Position is Inconsistent with Federal Pleading Standards. 

Plaintiff’s position also makes no logical sense. In effect, Plaintiff argues that a plaintiff 

can file a facially deficient complaint (like here), as a mere “placeholder” and nullity to be ignored 

until a court-appointed lead plaintiff files an amended complaint –– even where the lead plaintiff 

appointed was the party who filed the initial complaint to begin with. 

That position of course ignores Federal Rule of Civil Procedure 11’s requirements. 

Pursuant to Rule 11, when a party files a pleading, it is certifying that, inter alia, “the claims, 

defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument 

for extending, modifying, or reversing existing law or for establishing new law” and that “the 

factual contentions have evidentiary support or, if specifically so identified, will likely have 

evidentiary support after a reasonable opportunity for further investigation or discovery.” Rule 11 

is not designed to permit plaintiffs to file “placeholder” complaints which a defendant is not 

permitted to challenge. See In re Engle Cases, 767 F.3d 1082, 1113 (11th Cir. 2014) (noting that 

the filing of “placeholder actions” “would run counter” to Rule 11); Kennedy v. PanicciaIndialantic, LLC, 616CV2208ORL31DCI, 2017 WL 5178182, at *4 (M.D. Fla. Nov. 8, 2017) 

(criticizing the practice of filing insufficient ADA complaints which are “nothing more than a 

placeholder,” followed by an amended pleading with more detail). Plaintiff should not be allowed 

to skirt around his own deficient filing. 

Under Plaintiff’s view, this Court should never rule on a motion to dismiss the original 

complaint in a securities class action prior to the appointment of lead plaintiff. This directly 

conflicts with the PSLRA’s mandate requiring dismissal for failure to meet its pleading standards, 

and conflicts with the PSLRA’s goal of assessing the pleading requirements at the “earliest feasible 

stage of the litigation.” Bryant, 187 F.3d at 1278. Thus, no stay should be imposed here. 

Finally, any proposed amendment of Plaintiff’s Complaint is governed by Federal Rule of 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 8 of 11
9 

Civil Procedure 15. As the First Circuit has held, the PSLRA does not modify Federal Rule of 

Civil Procedure 15. In re Genzyme Corp. Secs. Litig., 754 F.3d 31, 47 (1st Cir. 2014); ACA Fin. 

Guar. Corp. v. Advest, Inc., 512 F.3d 46, 56 (1st Cir. 2008). Under Rule 15, Plaintiff here has –– 

or had –– several options. He could have amended within 21 days after serving his Complaint. 

Fed. R. Civ. P. 15(a)(1)(A). That time has passed. He can still amend within 21 days after the 

service of a motion under Rule 12(b), Federal Rule of Civil Procedure 15(a)(1)(B), and has until 

September 2, 2020 to do so. Otherwise, “a party may amend its pleading only with the opposing 

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Thus, there is no absolute 

“entitlement” to amend. As it stands now, the only pleading before this Court is Plaintiff’s 

Complaint. 

Contrary to Plaintiff’s suggestion, Plaintiff does not get a “free pass” or a “mulligan” with 

respect to his Complaint. Any complaint is subject to dismissal under the PSLRA. See 15 U.S.C. 

§ 78u-4(b)(3)(A); Teachers’ Retirement Sys. of La. v. Hunter, 477 F.3d 162, 172 (4th Cir. 2007) 

(“The PSLRA also directs that any complaint not meeting the pleading requirements be 

dismissed.”). 

C. DEFENDANTS WOULD BE PREJUDICED BY ANY DELAY IN RULING 

ON THE MOTION TO DISMISS. 

The pendency of this action and the defamatory allegations in the Complaint are prejudicial 

to the Defendants, both in terms of the damage to their reputation and in terms of the costs of 

defending this litigation. Defendants have responded to the Complaint, pursuant to the 

requirements of Rule 12, Federal Rules of Civil Procedure, explaining in detail why the Complaint 

must be dismissed. Delaying resolution of that motion pending this Court’s determination of 

which potential lead plaintiff should be charged with pursuing the allegations in the Complaint 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 9 of 11
10 

will prolong this case, increasing the reputation damages and litigation costs.1

Courts have long recognized that these types of allegations of fraud can be damaging, and 

in fact, that is one reason such allegations are required to meet a heightened pleading requirement, 

even outside of securities litigation. Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985) 

(explaining that courts have long recognized that damage to individual reputation can be caused 

by unfounded accusations of fraud); In re Comshare, Inc. Sec. Litig., No. 96-73711-DT, 1997 WL 

1091468, at *5 (E.D. Mich. Sept. 18, 1997) (quoting H.R. Conf. Rep. No. 104-369, at 41 (1995), 

reprinted in 1995 U.S.C.C.A.N. at 740) (“Unwarranted fraud claims can lead to serious injury to 

reputation for which our legal system effectively offers no redress.”). 

CONCLUSION 

There is nothing under the PSLRA (and Section 78u-4, in particular) that precludes this 

Court from entertaining a motion to dismiss directed to the operative Complaint. For the foregoing 

reasons, and the reasons set forth in the Motion to Dismiss, the Court should proceed with ruling 

on the Motion to Dismiss and dismiss the Complaint in its entirety, and awarding Defendants such 

other and further relief as the Court deems just and proper. 

1

 And, as noted above, if this Court were to dismiss the Complaint with prejudice, the lead plaintiff 

process would be mooted. 

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 10 of 11
Dated: August 25, 2020 

Respectfully submitted, 

AKERMAN LLP

Three Brickell City Centre 

98 Southeast Seventh Street 

Suite 1100 

Miami, FL 33131 

Telephone: (305) 374-5600 

Facsimile: (305) 374-5095 

By: /s/ Brian P. Miller 

Brian P. Miller, Esq. 

Florida Bar No. 0980633 

brian.miller@akerman.com

Samantha J. Kavanaugh, Esq. 

Florida Bar No. 0194662 

samantha.kavanaugh@akerman.com 

Counsel for Defendant The GEO Group, Inc.

GUNSTER, YOAKLEY & STEWART, P. A. 

600 Brickell Avenue, 35th Floor 

Miami, FL 33131 

Telephone: 305-376-6000 

Facsimile: 786 425-4090 

By: /s/ William K. Hill 

William K. Hill, Esq. 

Florida Bar Number: 747180 

Primary: whill@gunster.com

Secondary: mmotola@gunster.com

George S. LeMieux, Esq. 

Florida Bar Number: 16403 

Primary: glemieux@gunster.com

Secondary: alevene@gunster.com

Secondary: eservice@gunster.com

Ernest “EJ” A. Cox IV, Esq. 

Florida Bar Number: 124652 

Primary: ecox@gunster.com

Secondary: mmargolese@gunster.com

Counsel for Defendants George C. Zoley and 

Brian R. Evans

Case 9:20-cv-81063-RS Document 17 Entered on FLSD Docket 08/25/2020 Page 11 of 11