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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

SPORT & WHEAT CPA PA, 

a Florida corporation, individually and 

on behalf of a class of similarly situated 

businesses and individuals, 

Plaintiff, 

v. 

SERVISFIRST BANK INC.; 

SYNOVUS BANK; 

THE FIRST, A NATIONAL 

BANKING ASSOCIATION; and 

TRUIST BANK,

Defendants. 

Case No. 3:20-cv-5425-TKW-HTC 

MOTION FOR LEAVE TO AMEND THE COMPLAINT 

Sport & Wheat accepts the ruling of the Court, granting the motions to 

dismiss filed by each Defendant. As the Court has anticipated, an appeal is likely to 

be taken to the Eleventh Circuit Court of Appeals. 

Before that appeal proceeds, however, Sport & Wheat seeks leave to file an 

amended complaint. Sport & Wheat anticipates that, following the logic of the 

Court’s Order, this proposed Second Amended Complaint may be subject to 

dismissal again. Sport & Wheat respectfully asks the Court to grant its motion for 

leave to amend. 

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ARGUMENT 

Under Rule 15(a)(2), amendment of a pleading may be granted only with a 

party’s written consent or leave of court. The Court is to “freely give leave when 

justice so requires.” Id. Sport & Wheat submits that justice would require the Court 

to grant leave to amend the complaint, because that would allow Sport & Wheat to 

make its best case on appeal.

In accordance with Loc. R. 15.1(B), the proposed Second Amended 

Complaint is being filed now. As a convenience, a redline comparing the former 

operative complaint with the proposed amendment is attached as an exhibit to this 

motion. 

The proposed Second Amended Complaint: 

 Amends those parts of the former complaint which asserted that Form 

159 and other SBA regulations were still applicable to these 

transactions. As the Court knows, Sport & Wheat receded from these 

positions after intervening caselaw led it to change its position. (ECF 

No. 87, Court’s Order, at 7 & n.8.) The proposed amendments do not 

vary from the legal theory Sport & Wheat advanced in its briefs; they 

just bring the complaint itself into line with those briefs. 

o Locations: Paragraphs 56−57, 64−78; new Ex. A is also attached 

(it is a copy of Form 159). 

 Attaches exhibits and cites to them. These exhibits, two sets of text 

messages and deposition excerpts from Synovus’s Rule 30(b)(6) 

deposition, were previously attached to Sport & Wheat’s response to 

Synovus’s motion to dismiss. The purpose of attaching these exhibits 

to the complaint itself is to ensure that they are in the record as part of 

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the pleadings. The facts shown in these exhibits, such as that bank 

employees communicated directly with Sport & Wheat, were already 

dealt with extensively in the briefing and by the Court. 

o Locations: Exs. B, C, D; paragraphs 110−25. 

 Adds an exhibit that is directly responsive to the Court’s footnote 13. 

(ECF No. 87 at 12, n.13.) The Court wrote in part that “the amended 

complaint does not allege that the other defendant, The First, had any 

communications . . . from which it could be inferred that The First 

knew that Plaintiff conferred a benefit on it.” Id. A proposed exhibit 

and three paragraphs of allegations show that TheFirst did have 

knowledge of Sport & Wheat’s participation in a loan application. This 

exhibit was already discussed in the operative complaint (but it was not 

attached). 

o Locations: Ex. E; paragraphs 137−39. 

 Drops Count 4, the declaratory judgment count. 

 Makes very minor grammatical or technical fixes. 

o Locations: Scattered points. 

Again, the intent of these amendments was to sharpen Sport & Wheat’s legal 

theory—making the complaint conform to the very new caselaw that came down in 

other districts during the pendency of the briefing—and to add factual support to 

existing allegations in the form of documents, exhibits, which the Court has either 

already seen or (in the case of Ex. E) were referred to in the operative complaint. 

No party would suffer prejudice by permitting amendment of the complaint. 

The core legal issues have already been briefed once, and Sport & Wheat is under 

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no illusion that the Court will reverse itself on those matters. This is not a motion 

for reconsideration in the guise of a motion for leave to amend. 

Because nothing is being significantly changed here, Sport & Wheat expects 

that the Court would likely dismiss this complaint again. Sport & Wheat humbly 

suggests that the Court could grant this motion for leave, renew its own order 

dismissing this Second Amended Complaint, and forgo the need for any party to 

deal with new motions to dismiss. That would be consistent with the Court’s 

invitation to have the Court enter judgment dismissing the case with prejudice 

“based on the rulings in this Order,” ECF No. 87 at 13, and it would promote 

efficiency for the Court and the litigants. 

CONCLUSION 

Sport & Wheat would appreciate the Court’s consideration and respectfully 

asks that this motion be granted. 

CERTIFICATE REGARDING LOC. R. 7.1(B) AND 7.1(D) 

This is an outcome-determinative motion under Loc. R. 7.1(D), in that the 

action finally ends if this motion is not granted, and thus an attorney conference is 

not required. Moreover, the Court contemplated that Sport & Wheat might seek 

leave to amend in its last Order. (ECF No. 87 at 13.) Therefore, Sport & Wheat did 

not confer with the Defendants regarding their position on this motion. 

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One Defendant, Synovus, contacted Sport & Wheat on its own to say that it 

would be opposed to any such motion. 

Dated: August 31, 2020 Respectfully submitted, 

 /s/ William F. Cash III 

Virginia M. Buchanan 

 (Fla. Bar No. 793116) 

Matthew D. Schultz (Fla. Bar No. 640328) 

William F. Cash III (Fla. Bar No. 68443) 

LEVIN, PAPANTONIO, THOMAS, 

MITCHELL, RAFFERTY & PROCTOR, 

P.A.

316 South Baylen Street, Suite 600 

Pensacola, FL 32502 

Phone: 850-435-7059 

Email: bcash@levinlaw.com 

 /s/ John S. Wirt 

John S. Wirt, Esq. (Fla. Bar No. 117640) 

Pamela Cocalas Wirt, Esq. (Fla. Bar No. 

109576) 

WIRT & WIRT, P.A. 

5 Calhoun Ave, Suite 306 

Destin, FL 32541 

Tel: 847-323-4082 

Fax: 314-431-6920 

jwirt@wirtlawfirm.com 

Attorneys for the Plaintiff

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