UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:22-cv-23753-KMM

EDWIN GARRISON, et al., on behalf of

themselves and all others similarly situated,

Plaintiffs,

v.

SAM BANKMAN-FRIED, et al., 

Defendants.

_________________________________________/

PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT

AND INCORPORATED MEMORANDUM OF LAW

Plaintiffs respectfully request the Court grant leave to amend their complaint, in the form 

attached as Exhibit A. (“Am. Complaint”).

The proposed Amended Complaint: (1) includes crucial, new information regarding those

FTX Brand Ambassador Defendants,

1 who argue in their pending Motions to Dismiss that this 

Court has no jurisdiction over them for these claims and that these claims have no relationship to 

Florida, ECF No. 139, (2) is the first one that Plaintiffs seek leave of Court to file; (3) is timely 

(there is no Case Management Schedule with a governing deadline to seek leave to amend and/or 

to complete discovery); (4) includes a new Plaintiff seeking to represent an alternative subclass for 

the state of California; (5) includes an additional Defendant (TSM, the esports company that the 

FTX Group entered into a $210 million partnership with); (6) incudes additional claims against all 

FTX Brand Ambassador Defendants; and (7) includes significant substantive amendments to the 

claims against the FTX Brand Ambassador Defendants to address arguments raised in their 

1 Of the 12 current FTX Brand Ambassador Defendants, Brady, Bündchen, Curry, David, the 

Golden State Warriors, LLC (“GSW”), Haslem, Lawrence, Ohtani, O’Leary, O’Neal, Ortiz, and 

Osaka, five of them contest the Court’s personal jurisdiction: Defendants Curry, David, GSW, 

Ohtani, and Osaka (the “12(b)(2) Defendants”).

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pending motions to dismiss, [ECF Nos. 154–159], clarify facts and bring to light developments 

that have occurred since the last complaint was filed December 16, 2022.

One of the named FTX Defendants, Mr. Daniel Friedberg, former Chief Compliance 

Officer of FTX.US and former Chief Regulatory Officer of FTX International, recently provided 

a Declaration, under penalty of perjury, where he explains his involvement in this litigation and he 

attests to specific arguments raised by the 12(b)(2) Defendants, namely that there is no connection 

between Plaintiffs’ claims and the state of Florida. See Am. Complaint, Ex. A. Mr. Friedberg’s new 

testimony is supported by a plethora of contemporaneous evidence (none of which was produced

by Defendants in this litigation), including a transcript from an in-depth podcast interview of Avi 

Dabir, FTX’s former Vice President of Business Development, who was based in Miami, Florida,

and in charge of the FTX Brand Ambassador Agreements, including those of the 12(b)(2)

Defendants. See Am. Complaint, Ex. B. Based upon this new, extensive evidence, there appears to 

be no state that has more connections to the FTX Brand Ambassador Defendants than the state 

of Florida.

Plaintiffs requested that Defendants stipulate to Plaintiffs filing the Amended Complaint, 

pursuant to Rule 15(a)(2), in that:

(3) the Amendment is timely, because there is no Case Management Order (and therefore 

no current deadline to seek leave amend);

(2) no discovery has been produced by any of the FTX Defendants, nor is there any 

deadline for completing discovery, so there is no way the Amendment could result in any 

“undue prejudice” to any of the Defendants;

(3) the Amendment cannot be “futile,” in that it specifically addresses the purported 

deficiencies raised in Defendants’ pending motions to dismiss, and is the first substantive 

amendment sought after any motions to dismiss were filed; and

(4) the Amendment includes additional claims and parties that Defendants and the Court 

have yet to address.

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With no “substantial reason” to deny amendment at this early stage, this Court has 

previously held that such amendment should be liberally permitted. See Bonilla v. Librati, Case 

No. 1:21-cv-21588-KMM, 2022 WL 4594126, at *2 (S.D. Fla. Feb. 26, 2022). 

I. FACTUAL BACKGROUND

On November 15, 2022, Plaintiff, Garrison filed this original class action lawsuit (the 

“Garrison Lawsuit”). The lawsuit seeks damages relating to the offer and sale of the FTX Trading’s 

and FTX US’s yield-bearing cryptocurrency accounts. [ECF No. 1]. The initial complaint was filed 

two business days after FTX collapsed and sought bankruptcy protection on November 11, 2022.

On December 16, 2022, Plaintiffs complied with the Court’s Order, and filed an Amended 

Complaint (the “First Amended Complaint”) [ECF No. 16] which consolidated this action, with 

the “Podalsky Lawsuit – which the Court found “ha[d] common questions of fact” and therefore 

that “consolidation [was] appropriate.” [Case No. 1:22-cv-23983-KMM, ECF No. 7].2

On April 14, 2023, Defendants filed motions to dismiss the First Amended Complaint:

1. the 12(b)(2) Defendants moved to dismiss the First Amended Complaint, arguing this 

Court lacks specific personal jurisdiction over them for these claims, which they argue 

have no connection to the State of Florida [ECF No. 139]; 

2. the FTX Brand Ambassador Defendants moved to dismiss for failure to state a claim 

[ECF No. 154]; Defendant Haslem moved to dismiss for insufficient service [ECF No. 

156]; 

3. Defendant Ohtani filed a supplemental memorandum of law in support of his motion 

to dismiss, asserting personal jurisdiction arguments [ECF No. 157]; 

4. Defendant Lawrence moved to dismiss pursuant to FRCP 12(b)(6) [ECF No. 158]; and,

2 Plaintiffs complied with the Court’s requirement on font size and spacing, which also greatly

increased the number of pages from the original Complaint.

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5. Defendant GSW filed an individual brief in support of the FTX Brand Ambassador

Defendants’ motion to dismiss and to transfer venue in the alternative.

On April 16, 2023, Plaintiffs served Defendant, Shaquille O’Neal [ECF Nos. 101, 161]. 

On May 8, 2023, the Parties filed a Joint Scheduling Report [ECF No 192] where Plaintiffs 

state their intention to file this Amended Complaint, and Defendants state their opposition. No 

Scheduling Conference with the Court has occurred, nor has a Scheduling Order been entered. 

On April 26, 2023, the Non-FTX Defendants moved to stay discovery (including Initial 

Disclosures) pending the Court’s rulings on the Motions to Dismiss [ECF No. 162]; and Plaintiffs, 

pursuant to Local Rule 7.1(d)(2), moved on an expedited basis to take brief jurisdictional discovery 

from the 12(b)(2) Defendants prior to a ruling on their jurisdictional arguments, and a brief 

opportunity to prepare an amended complaint following that discovery to address their arguments 

and declarations [ECF No. 163]. On May 10, 2023, Defendants filed their responses to Plaintiffs’ 

motion for jurisdictional discovery. ECF Nos. 195, 196. In their responses, Defendants state their 

position that “Plaintiffs should not be allowed to amend their complaint at all with respect to 

personal jurisdiction (or otherwise),” and that “no amendment should be allowed, if at all,

until the Court rules on the Motions to Dismiss” what would become the superseded complaint 

should Plaintiffs be granted leave to amend. ECF No. 195 at 19–20; ECF No. 196 at 2.

Plaintiffs provided Defendants with the proposed Amended Complaint, who informed

Plaintiffs that they are not prepared “at this time” to stipulate to its filing. Mindful of the fact that

this Court disfavors last-minute requests (the deadline for Plaintiffs to oppose the pending motions 

to dismiss is Monday, May 15, 2023, which would be rendered moot if leave to amend is granted), 

this Motion followed, and Plaintiffs hope all Defendants will agree by Monday to an agreed 

Stipulation. 

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II. LEGAL DISCUSSION

A. Legal Standard

“Rule 15(a) of the Federal Rules provides that ‘[a] party may amend its pleading once as a 

matter or course within . . . 21 days after service of a motion under Rule 12(b), (e), or (f).’” Bonilla 

v. Librati, Case No. 1:21-cv-21588-KMM, 2022 WL 4594126, at *2 (S.D. Fla. Feb. 26, 2022) 

(quoting Fed. R. Civ. P. 15(a)(1)(B)). Beyond that, “a party may amend its pleading only with the 

opposing party’s written consent or the court’s leave” and “[t]he court should freely give leave 

when justice so requires.” Bonilla, 2022 WL 4594126, at *2 (quoting Fed. R. Civ. P. 15(a)(2)).

Although “[t]he decision whether to grant leave to amend is committed to the sound 

discretion of the trial court,” “‘[u]nless there is a substantial reason to deny leave to amend, the 

discretion of the district court is not broad enough to permit denial.’” Bonilla, 2022 WL 4594126, 

at *2 (citing Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 622 (11th

Cir. 1983); quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir 1981)); see also

Castros v. Signal Finance Co. LLC, 2018 WL 1137099 (S.D. Fla. Feb. 4, 2018) (Moore, C.J.) 

(citation omitted); SkyHop Techs., Inc. v. Narra, 21-60799-CIV, 2021 WL 4990666, at *2 (S.D. 

Fla. Aug. 3, 2021) ("[T]he Eleventh Circuit has stressed that ‘unless there is a substantial reason 

to deny leave to amend, the discretion of the district court is not broad enough to permit denial.’”)

(quoting Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir. 1988)).

“A substantial reason could include “undue delay, bad faith or dilatory motive, repeated 

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing 

party, and futility of the amendment.” Castros, 2018 WL 1137099, at *1 (quoting Grayson v. Kmart 

Corp., 79 F.3d 1086, 1110 (11th Cir. 1996)).

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B. There is No Substantial Reason to Deny Leave to Amend

Plaintiffs filed the initial complaint only days after the FTX Entities filed for bankruptcy 

protection. Plaintiffs subsequently amended their complaint a few weeks later, to comply with the 

Court’s Order, to consolidate two separate lawsuits into an amended complaint. Since then, 

Plaintiffs have learned many more important facts and details concerning the specific question of 

personal jurisdiction, FTX implosion and Defendants’ involvement and liability.

For example, Plaintiffs just learned that FTX’s Vice President of Business Development, 

Mr. Avinash Dabir, who was charged with creating, consummating, and implementing the 

partnership agreements between FTX and the Defendants, began operating from FTX’s physical 

offices in Miami, Florida early in 2021. Plaintiffs will supplement their jurisdictional allegations 

with this crucial information – as substantiated through Defendant Friedberg’s Sworn Declaration.

See Am. Complaint, Ex. A. These allegations obviate many of the existing jurisdictional challenges 

Defendants raise in their current motions to dismiss, including the erroneous argument that “no 

conspiracy could have been ‘engineered in Florida’ because FTX did not even plan to move to 

Miami until late September 2022 – after entering the alleged business agreements with the [NonFTX] Defendants.” [ECF No. 139, at p. 10].

Thus, Plaintiffs respectfully seek leave to now amend their complaint, in order to reflect 

these and other new, crucial facts they have learned after filing their original complaint and new 

events which impact the dispute between the parties. Plaintiffs address many of the purported 

pleading and jurisdictional deficiencies that Defendants identify in their pending motions to 

dismiss. “Courts routinely allow such amendments to cure pleading deficiencies in service of the 

general principle that “decisions on the merits are not to be avoided on the basis of ‘mere 

technicalities.’” Castros, 2018 WL 1137099, at *1 (quoting Schiavone v. Fortune, 477 U.S. 21, 27 

(1986)); see also AT&T Mobility, LLC v. Digital Antenna, Inc, No. 09-60639-CIV, 2010 WL 

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3608247, at *3 (S.D. Fla. Sept. 9, 2010) (“Courts liberally allow amendments or supplements 

because ordinarily they are efficient mechanisms to refine the pleadings to reflect the facts that 

diligent parties learn during discovery or to address new events which impact the dispute between 

the parties and that can be efficiently resolve din the course of the litigation.”); see also Crossroads 

Financial, LLC v. Alma-Mater Collection, Inc., No. 15-81095-CIV-MARRA, 2019 WL 13196474 

(S.D. Fla. Dec. 18, 2019) (Marra, J.) (reversing on reconsideration the court’s prior order denying 

belated motion for leave to file second amended counterclaim, filed over 3 years after the deadline 

to amend in the scheduling order, explaining that “it would be in the interest of judicial economy 

to grant the Motion for Leave to File Second Amended Counterclaim, rather than ruling on the 

Motion to Dismiss Amended Counterclaim, and if granted, allow leave to amend (DE 129). This 

is especially appropriate where, as here, [counter-plaintiff] has conceded the Amended 

Counterclaim has multiple ‘technical pleading issues’ that have subsequently been addressed in 

the proposed Second Amended Counterclaim”).

This Motion for leave is timely, especially because the Court has yet to enter a Scheduling 

Order in this case, meaning the Rule 16(b) inquiry does not apply,3 and none of the Defendants 

have filed any responsive pleadings. See ABS Healthcare Services, LLC v. Maxim Health Inc., 20-

CV-61456, 2021 WL 9347051, at *3 (S.D. Fla. Aug. 23, 2021) (granting leave to amend where 

plaintiffs’ motion to amend was timely filed, it was the first proposed amendment, jurisdictional 

discovery was incomplete, and there was no evidence of delay, bad faith, dilatory motive, or 

repeated failure to cure deficiencies by Plaintiffs).

3 As Rule 16(b) does not apply here because Plaintiffs’ motion is timely, Plaintiffs are not required 

to first demonstrate good cause before seeking leave under the liberal standard set forth in Rule 

15(a)(2)—though good cause certainly exists here in light of the circumstances. See Bonilla v. 

Librati, 2022 WL 4594126, at *2 (S.D. Fla. Feb. 26, 2022) (Moore, C.J.) (“The Court must first 

determine whether the instant Motion for Leave to File Second Amended Counterclaim . . . is 

timely filed pursuant to the Courts scheduling order, as this determines whether [movants] must 

first demonstrate good cause under Rule 16(b)”). 

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Any potential arguments Defendants may raise regarding the futility of the proposed 

amended complaint are more appropriately addressed in a renewed motion to dismiss the amended 

complaint. Bonilla v. Librati. See 2022 WL 4594126, at *4 (holding that arguments challenging 

leave to amend based on the futility of the proposed amended complaint would more appropriately 

be addressed upon adjudication of a renewed motion to dismiss the amended complaint); see also

Montes v. M & M Mgmt. Co., 15-80142-CIV, 2015 WL 11254703, at *1 (S.D. Fla. May 12, 2015)

(“[L]eave to amend should not be denied on the ground of futility unless the proposed amendment 

is clearly insufficient or frivolous on its face.”).

Notably, discovery has not even begun, precluding any argument that the proposed 

amendment would result in any additional or expanded discovery, such that allowing Plaintiffs to 

amend their complaint will not delay resolution of this case or prejudice any party. Courts deem 

amendments prejudicial when:

the opponent would be required to engage in significant new preparation at a late 

stage of the proceedings, the defendant would be put to added expense and the 

burden of a more complicated and lengthy trial, or if the issues raised by the 

amendment are remote from the other issues in the case and might confuse or 

mislead the jury. The fact that the amendment might increase the defendant’s 

potential liability is generally not a sufficient reason to deny leave to amend.

Bonilla v. Librati, 1:21-CV-21588-KMM, 2022 WL 4594126, at *4 (S.D. Fla. Feb. 26, 2022) 

(Moore, C.J.) (quoting Dannebrog Rederi AS v. M/Y True Dream, 146 F. Supp. 2d 1307, 1315 (S.D. 

Fla. 2001).

III. CONCLUSION

For the reasons set forth above, Plaintiffs very respectfully request that the Court grant 

Plaintiffs leave to file their proposed Amended Complaint by Monday’s deadline, attached hereto 

as Exhibit A.

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S.D. FLA. L.R. 7.1 CERTIFICATION

Plaintiffs’ Counsel certify that they have conferred with Defendants’ Counsel over the past 

two weeks, in a good faith effort to resolve the issues raised in this Motion, and report that 

Defendants “at this time,” oppose the requested relief of agreeing to a Stipulation for the proposed 

Amendment, asserting that “Plaintiffs should not be allowed to amend their complaint at all with 

respect to personal jurisdiction (or otherwise),” and that “no amendment should be allowed, if at 

all, until the Court rules on the Motions to Dismiss” what would become the superseded complaint 

should Plaintiffs be granted leave to amend. ECF No. 195 at 19–20; ECF No. 196 at 2. Plaintiffs 

intend to continue discussing these specific issues with all Defendants.

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Dated: May 11, 2023 Respectfully submitted,

By: /s/ Adam Moskowitz

Adam M. Moskowitz

Florida Bar No. 984280

adam@moskowitz-law.com 

Joseph M. Kaye

Florida Bar No. 117520

joseph@moskowitz-law.com

THE MOSKOWITZ LAW FIRM, PLLC

3250 Mary Street, Suite 202

Coconut Grove, FL 33133

Telephone: (305) 740-1423

By: /s/ David Boies

David Boies

(Pro Hac Vice)

Alex Boies

(Pro Hac Vice)

BOIES SCHILLER FLEXNER LLP

333 Main Street

Armonk, NY 10504

Phone: (914) 749–8200

dboies@bsfllp.com

By: /s/ Stephen Neal Zack

Stephen Neal Zack

Florida Bar No. 145215

BOIES SCHILLER FLEXNER LLP

100 SE 2nd St., Suite 2800

Miami, FL 33131

Office: 305-539-8400

szack@bsfllp.com

By: /s/Jose M. Ferrer

Jose Ferrer

Florida Bar No. 173746

Michelle Genet Bernstein

Florida Bar No. 1030736

MARK MIGDAL HAYDEN LLP

8 SW 8th Street, Suite 1999

Miami, FL 33130

Office: 305-374-0440

jose@markmigdal.com

michelle@markmigdal.com

eservice@markmigdal.com

Co-Counsel for Plaintiff and the Class

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing was filed on May 11, 2023, via 

the Court’s CM/ECF system, which will send notification of such filing to all attorneys of record. 

By: /s/ Adam M. Moskowitz__

 ADAM M. MOSKOWITZ

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