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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

(MIAMI)

CASE NO. 20-23402-CIV-MARTINEZ-BECERRA

LEON GOLDSTEIN,

Plaintiff,

v. 

OLEG FIRER, IGOR “GARY” GELMAN, and

STAR EQUITIES, LLC

Defendants.

____________________________________/ 

OLEG FIRER, and IGOR “GARY” GELMAN, 

Counter-Plaintiffs, 

v. 

LEON GOLDSTEIN, 

Counter-Defendant, 

____________________________________/ 

DEFENDANTS’ EXPEDITED MOTION TO DISMISS PLAINTIFF’S COMPLAINT 

AND UNOPPOSED MOTION FOR CONTINUANCE OF TRIAL

Defendants OLEG FIRER (“Firer”), IGOR “GARY” GELMAN (“Gelman”), and STAR 

EQUITIES, LLC (“Star Equities”) (collectively “Defendants”), by and through their 

undersigned counsel, hereby file this Expedited Motion to Dismiss Plaintiff’s Complaint (the

“Complaint”) filed by Leon Goldstein (“Goldstein”) and for Unopposed Motion for Continuance 

of Trial, pursuant to S.D. Fla. L.R. 7.1(d)(2), S.D. Fla. L.R. 7.6, Fed. R. Civ. P. 12(b)(1), and Fed. 

R. Civ. P. 12(h)(3), and in support, state as follows: 

STATEMENT OF FACTS

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Plaintiff’s Amended Complaint (ECF No. 26) asserts two federal law claims (Count I for 

“Violation of the Securities Exchange Act of 1934 15 U.S.C. § 78j(b); Rule 10b-5; 17 C.F.R. 

§240.10b-5” and Count II for “Liability of Controlling Persons, 15 U.S.C. § 78t”). Id. Plaintiff’s 

remaining claims in this case are state law claims. ECF No. 26 at Counts III-IV. Plaintiff asserted 

this Court has pendent jurisdiction over Plaintiff’s state law claims. ECF No. 26 ¶ 26. CounterPlaintiff’s counterclaims are state law claims. ECF No. 66. 

On June 25, 2021, Defendants filed a Motion to Dismiss Plaintiff’s Amended Complaint. 

ECF No. 31. That Motion sought to dismiss Goldstein’s Amended Complaint based on, among 

other things, that Goldstein’s federal securities claims (Counts I and II) were seeking an 

impermissible extraterritorial application. Id. at 11-14. However, based on the allegations in the 

Amended Complaint, Defendant’s Motion to Dismiss was denied on May 2, 2022. ECF No. 74.

On July 15, 2022, Defendants filed a Motion for Summary Judgment that sought summary 

judgment as to Plaintiff’s securities claims because they seek an impermissible extraterritorial

application. ECF No. 89 at 4.

On November 16, 2022, the Magistrate Judge entered a Report and Recommendation that 

recommends, among other things, that Defendants’ Motion for Summary Judgment be GRANTED 

as to Counts I and II on the ground that they exert an impermissible extraterritorial application of 

the federal securities laws. ECF No. 111 at 15 (“Report and Recommendation”). On November 

23, 2022, Plaintiff filed an Objection to the Report and Recommendation that asks the Court to 

retain Counts I and 2 and permit this case to proceed to trial. ECF No. 112 (“Objection”).

Trial is scheduled to commence on December 5, 2022. ECF No. 105. 

As correctly noted by the Magistrate Judge, if the Court adopts the Report and 

Recommendation, the only remaining claims in this case would be state law claims. ECF No. 111 

at 15 fn 3. Plaintiff’s Objection acknowledges that if his federal claims remain dismissed, then the 

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law “strongly encourage” that the remaining state law claims be dismissed without prejudice rather 

than be tried in this Court. ECF No. 112 at 8. 

As set forth below, Defendants request an expedited ruling on their Motion for Continuance

by November 28, 2022. Defendants request a continuance of the trial presently scheduled for 

December 5, until after the Court decides whether to adopt the Report and Recommendation. 

Plaintiff does not oppose this request for a continuance because they do not object to a motion for 

continuance pending resolution of their objection to the Report and Recommendation. 

STANDARD OF REVIEW

If “the court determines at any time that it lacks subject-matter jurisdiction, the court must 

dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added). “[C]ourts may dismiss cases for 

‘lack of subject-matter jurisdiction’ at any time.” Reboot Macon, LLC v. United States, No. 5:21-

CV-221 (MTT), 2022 WL 4872480, at *2 (M.D. Ga. Oct. 3, 2022) (citing Fed. R. Civ. P. 12(b)(1)); 

see also Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S. Ct. 1235, 1240, 163 L. Ed. 2d 1097 

(2006)(“The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. 

Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the 

litigation, even after trial and the entry of judgment”).

This Court’s Local Rules provide that a party who “requires an expedited ruling by a date 

certain may file an expedited motion in lieu of an emergency motion. The motion must include the 

words ‘Expedited Motion’ in the title and must set forth in detail the date by which an expedited 

ruling is needed and the reason the ruling is needed by the stated date.” S.D. Fla. L.R. 7.1(d)(2). 

Federal Rule of Civil Procedure 16 states that a court may include dates for pretrial 

conference and for trial and other appropriate matters, and explicitly permits that “[a] schedule 

may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “ 

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This Court’s Local Rule 7.6 states that “A continuance of any trial, pretrial conference, or 

other hearing will be granted only on exceptional circumstances. No such continuance will be 

granted on stipulation of counsel alone. However, upon written notice served and filed at the 

earliest practical date prior to the trial, pretrial conference, or other hearing, and supported by 

affidavit setting forth a full showing of good cause, a continuance may be granted by the Court.” 

I. DEFENDANTS’ MOTION TO DISMISS SHOULD BE GRANTED ON 

THE BASIS OF LACK OF SUBJECT MATTER JURISDICTION. 

United States Code section 1367 provides that “in any civil action of which the district 

courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all 

other claims that are so related to claims in the action within such original jurisdiction that they 

form part of the same case or controversy.” 28 U.S.C §1367(a). However, the district courts “may 

decline to exercise supplemental jurisdiction over a claim...if...the claim substantially 

predominates over the claim or claims over which the district court has original jurisdiction...[or] 

the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C 

§1367(c)(2)(3).

The Supreme Court of the United States of America has declared that “if the federal claims 

are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims 

should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 

1130, 1139, 16 L. Ed. 2d 218 (1966). The Eleventh Circuit has “encouraged district courts to 

dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to 

trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004); Perez v. Midland Nat'l Life 

Ins. Co., No. 1:19-CV-23650, 2021 WL 1558646, at *2 (S.D. Fla. Apr. 21, 2021). “Federal courts 

are (and should be) loath to wade into uncharted waters of state law, and should only do so when 

absolutely necessary to the disposition of a case.” Ameritox, Ltd. v. Millennium Lab'ys, Inc., 803 

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F.3d 518, 540 (11th Cir. 2015). This is because “[s]tate courts, not federal courts, should be the 

final arbiters of state law in our federalist system.” Id. 

In this case, it is undisputed that if the Court adopts the Magistrate Judge’s Report and 

Recommendation, the only remaining claims in this case would be state law claims. ECF No. 111 

at 15 fn 3. Plaintiff’s Objection acknowledges that if his federal claims remain dismissed, then the 

law “strongly encourage” that the remaining state law claims be dismissed without prejudice rather 

than be tried in this Court. ECF No. 112 at 8. 

Accordingly, as guided by the Eleventh Circuit, this Court should “dismiss any remaining 

state claims when, as here, the federal claims have been dismissed prior to trial.” Raney v. Allstate 

Ins. Co., 370 F.3d at 1089; see also Walker v. Sun Tr. Bank of Thomasville, GA, 363 F. App’x 11, 

16 (11th Cir. 2010) (finding that the court could properly sua sponte dismiss claims for lack of 

subject matter jurisdiction because the court dismissed the only claim over which it had original 

jurisdiction); Fed. R. Civ. P. 12(h)(3) (if “the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”) (emphasis added).

II. DEFENDANTS’ REQUEST FOR CONTINUANCE SHOULD BE 

GRANTED. 

An expedited ruling is needed by November 28, 2022. The reason an expedited ruling is 

needed by November 28, 2022, is because the parties have calendar call scheduled for December 

1, 2022, trial is scheduled to commence on December 5, 2022 (ECF No. 105), and there are 

deadlines associated with calendar call and trial. As set forth above in Section I, if the Court adopts 

the Report and Recommendation, then the Court should dismiss the case and the case should not 

proceed to trial with this Court. It is in the best interests of the parties, justice, and judicial 

economy for Plaintiff and Defendants to know whether this Court will dismiss this case, and there 

will not be a trial on December 5, because this Court lacks subject matter jurisdiction. 

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In the case of Davis v. Princeton Homes, Inc., No. 09-14162, 2009 WL 10666938, at *2 

(S.D. Fla. Aug. 10, 2009), the Court granted a party’s request for a continuance of a statute 

conference based on the party’s argument that a pending motion for summary judgment may 

dispose of the case. See, Davis v. Princeton Homes, Inc., No. 09-14162, 2009 WL 10666938, at 

*2 (S.D. Fla. Aug. 10, 2009). Similarly, good cause for a continuance of the trial exists here, 

because if the Court adopts the Report and Recommendation (which it should), then the Court 

should dismiss the case and the case should not proceed to trial because this Court lacks subject 

matter jurisdiction. Accordingly, Defendants respectfully request that the Court grant this motion 

for a continuance, and rule on it in an expedited manner, such that the parties may avoid fees, 

costs, time, and effort preparing for trial in a potentially improper forum. 

Local Rule 7.01(a)(3) Certification

Defendants sought to confer with Plaintiff by email on November 21, 2022, November 22, 

2022, and then conferred by email on November 23, 2022. 

In response, on November 23, 2022, Plaintiff stated, by email, that they will not object to 

a motion for continuance pending resolution of Plaintiff’s Objection to the Report and 

Recommendation. On November 23, 2022, Plaintiff stated, by email, that they believe the Court 

has discretion to dismiss the case if the Report and Recommendation is adopted. 

WHEREFORE, Defendants respectfully request that this Court enter an order (1) 

dismissing this case and/or (2) continuing and canceling the trial scheduled for December 5, 2022, 

and rescheduling the trial to a date after disposition of Plaintiff’s Objection, if appropriate, and 

such other and further relief as this Court deems just and proper.

Dated: November 23, 2022 Respectfully submitted,

By: s/Steven D. Weber 

 Steven D. Weber

 Fla. Bar. No.: 47543 

WEBER LAW P.A

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Attorneys for Defendants / Counter-Plaintiffs

777 Brickell Avenue 

Suite 500 

Miami, FL 33131 

Tel: (305) 377-8788 

steve@weberlawpa.com

 service@weberlawpa.com 

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 23rd day November, 2022, a copy of the foregoing has 

been served via the Court’s CM/ECF Portal to: 

Sergiu Gherman 

Fla. Bar No. 37031 

sgherman@ghermanlaw.com 

Gherman Legal Pllc

25 SE 2nd Ave. Ste. 808 

Miami FL 33131-1603 

Attorney for Plaintiff

Paul Aiello

Florida Bar No. 0909033 

BENNETT & AIELLO

3471 Main Highway, Suite 206 

Coconut Grove, Florida 33133-5929 

Phone: (305) 358-9011 

Facsimile: (305) 358-9012 

paiello@bennettaiello.com

Attorney for Plaintiff

 By: s/Steven D. Weber 

 Steven D. Weber

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