UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 22-cv-23753-MOORE/BECERRA

EDWIN GARRISON, et al., on behalf of

themselves and all similarly situated,

Plaintiffs,

v.

SAM BANKMAN-FRIED, et al.,

Defendants.

/

UNOPPOSED MOTION BY DEFENDANTS TO CONTINUE MARCH 10, 2023, 

DEADLINE FOR THE PARTIES TO HOLD A SCHEDULING CONFERENCE

Defendants Thomas Brady, Gisele Bündchen, Kevin O’Leary, David Ortiz, and William 

Trevor Lawrence (collectively, “Moving Defendants”) respectfully request that the Court continue 

the March 10, 2023, deadline, set by the Court’s PAPERLESS ORDER [ECF No. 82] (entered 

March 6, 2023) to comply with the Court’s November 16, 2022, PAPERLESS PRETRIAL 

ORDER [ECF No. 5], and permit the parties at least 30 days after Plaintiffs have served all of the 

named defendants to hold the Rule 16 Scheduling Conference, with the joint scheduling report to 

be filed 10 days thereafter. The request to continue the Scheduling Conference deadline beyond 

March 10, 2023, is unopposed by Plaintiffs, with the full details of Plaintiffs’ position set forth in 

the email communications referenced in the Local Rule 7.1(a)(3) Certification below and attached 

as part of the Certification at Plaintiffs’ counsel’s request.

Despite the provision of the PAPERLESS PRETRIAL ORDER requiring service on all 

defendants or an extension to be sought by January 16, 2023, see id. at 1 (requiring a scheduling 

conference “within sixty (60) days after the filing of the complaint” if no responsive pleading was 

Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 1 of 11
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filed), and Rule 4(m), FED. R. CIV. P., which required service by February 13, 2023,1 the docket 

reflects that nine (of eighteen) named defendants were purportedly served within the past two 

weeks – according to the Returns of Service filed by Plaintiffs – and two (Shaquille O’Neal and 

Naomi Osaka) have not yet been served at all.2 Thirteen of eighteen named defendants have not 

yet entered an appearance, and at least five do not yet appear to have counsel retained for this 

action. Moreover, for the defendants who have appeared, initial responses to the Amended 

Complaint [ECF No. 16] are not due until April 14, 2023, see PAPERLESS ORDER [ECF No. 

49] at 1. In the meantime, Plaintiffs’ counsel has sought consolidation and transfer of this case 

with ten other cases, including nine other putative class actions, pending throughout the country.

See Pet’rs’ Mot. for Transfer of Related Actions to S.D. Fla., In re FTX Collapse Litig., MDL No. 

3076 (J.P.M.L. Feb. 10, 2023), ECF No. 1 (attached without exhibits as Exhibit A).

In these circumstances and with so many defendants missing, it is not practical for the 

parties to confer and attempt to agree on a case schedule by March 10, 2023. Accordingly, Moving 

Defendants request the continuance outlined above.

In support of this motion, Defendants state:

1. This action was filed on November 15, 2022. See ECF No. 1. 

2. On November 16, 2022, the Court issued its PAPERLESS PRETRIAL ORDER 

[ECF No. 5], which, inter alia, ordered 

1 Under Rule 4(m), Plaintiffs were required to serve (or obtain a waiver of service from) 

every named defendant “within 90 days after the complaint [wa]s filed” – i.e., by February 13, 

2023. See id.

2 Contrary to Plaintiffs’ March 1, 2023, representation to the Court that “all Defendants are 

properly before the Court” [ECF No. 71], Plaintiffs’ counsel has confirmed that he has not yet 

served Mr. O’Neal. In addition, an attorney for Ms. Osaka has informed counsel for Plaintiffs and 

for the Moving Defendants that Ms. Osaka has not been served, she has not selected counsel for 

this action, and that the discussion of a potential waiver of service first occurred only this past 

Monday (March 6, 2023).

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that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a 

scheduling conference no later than twenty (20) days after the filing of the first 

responsive pleading by the last responding defendant, or within sixty (60) days after 

the filing of the complaint, whichever occurs first. However, if all defendants have 

not been served by the expiration of this deadline, Plaintiff shall move for an 

enlargement of time to hold the scheduling conference, not to exceed 90 days from 

the filing of the Complaint.

Id. at 1 (all emphasis added).

3. As the Court’s March 6, 2023, PAPERLESS ORDER [ECF No. 83] recognizes, 

Plaintiffs did not move for an enlargement of time to hold the scheduling conference. See id. at 1. 

However, the Court recognized that an enlargement of the deadline could still be obtained. See id.

(“the Parties have not filed their joint scheduling report, nor has Plaintiff moved for an enlargement 

of time to hold the scheduling conference”).

4. As reflected in the docket, the status of service3 on the eighteen named defendants 

and appearances of counsel on their behalves is:

Status of Service on Defendants

Defendant

Service Date According to 

Return of Service/Date of 

Filing Waiver of Service

Method of 

Service DE Appearance of Counsel

Golden State Warriors 1/6/2023 Waiver 17 No

Lawrence Gene David 1/17/2023 Waiver 18 No

Thomas Brady 1/17/2023 Waiver 19 Yes

Gisele Bundchen 1/17/2023 Waiver 20 Yes

David Ortiz 1/25/2023 Waiver 24 Yes

Kevin O'Leary 1/31/2023 Waiver 43 Yes

Sam Bankman-Fried 2/8/2023 Waiver 46 Yes

Caroline Ellison 2/22/2023 Summons 74 No

Nishad Singh 2/22/2023 Summons 76 No

Gary Wang 2/23/2023 Summons 75 No

Dan Friedberg 2/23/2023 Summons 78 No

William Trevor Lawrence 2/24/2023 Waiver 66 Yes

3 “Service” as used herein is only based on Plaintiffs’ filing of waivers or returns of service. 

Whether any service via Summons as reflected in a return of service constitutes valid service or 

would be challenged by the “served” defendant is an issue for another day – but also yet another 

impediment to holding a Scheduling Conference and then filing a Scheduling Report at this time.

Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 3 of 11
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Stephen Curry 2/24/2023 Summons 80 No

Sam Trabucco 2/24/2023 Summons 81 No

Udonis Haslem 2/28/2023 Summons 77 No

Shohei Ohtani 3/1/2023 Summons 79 No

Shaquille O'Neal Not Served* - - No

Naomi Osaka Not Served* - - No

*to Defendants’ Knowledge

5. Accordingly, of the eighteen defendants, nine have only been (purportedly) served 

in the past two weeks – long after Plaintiffs were required to serve them under the PAPERLES 

PRETRIAL ORDER and even after the period required by Rule 4(m) – and two have not yet been 

served. This means that over half of the named defendants have either only just been served or 

have not been served.

6. In addition, as shown in the chart, the majority of the named defendants (13 out of 

18) do not have appearances of counsel on their behalves. Of these, two will be represented by 

counsel for Moving Defendants.

4 However, for at least five defendants,5 Moving Defendants are 

not aware of whether counsel has been retained at all.

7. Prior to the issuance of the Court’s order on Monday (March 6), Plaintiffs’ counsel 

had not reached out to counsel for any Moving Defendant to discuss the case schedule. On 

Tuesday, March 7, 2023, Plaintiffs sent by email a proposed Scheduling Order and proposed Joint 

Scheduling Report, and attempted to unilaterally set (i) a Scheduling Conference for Thursday, 

4 Larry David will be represented by Latham & Watkins, LLC and Colson Law Firm, LLC, 

while Udonis Haslem will be represented by Akerman LLP. Moving Defendants are also aware of 

counsel for the Golden State Warriors and Stephen Curry. Counsel for Bankman-Fried noticed 

appearances on March 8, 2023. [ECF Nos. 83 & 84]. Plaintiff has included on correspondence 

with Moving Defendants apparent counsel for Ellison and Singh. Moving Defendants understand 

that certain of the defendants who have counsel have not appeared and/or participated in the 

proceedings to date because they maintain this Court lacks personal jurisdiction over them and 

will be moving to dismiss on that basis at the time a response to the Amended Complaint is due.

5 These are defendants Trabucco, Wang, O’Neal, Ohtani, and Osaka. In addition, while 

Plaintiff has included defendant Friedberg directly on correspondence, Moving Defendants do not 

have an understanding as to whether he intends to represent himself or retain counsel.

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March 9, 2023, at 1:00 p.m., and (ii) a deadline for filing the Scheduling Report of Friday, March 

10, 2023. Plaintiffs’ proposed schedule is not workable, particularly for a case in which half of the 

named defendants have not yet appeared and where the deadline to respond to the Amended 

Complaint is April 14, 2023. See PAPERLESS ORDER [ECF No. 49] at 1.

8. At the most basic, due process level, this expedited time table – which is a time 

crunch of Plaintiffs’ creation alone because they failed to move to extend the deadline for a 

scheduling conference, see PAPERLESS PRETRIAL ORDER at 1, failed to timely (and, 

apparently, properly) serve all defendants, and failed to even communicate with Moving 

Defendants about a scheduling conference until this week – unfairly prejudices all defendants 

because not all counsel who have appeared are available at the time unilaterally set by Plaintiffs. 

Even were counsel available, counsel will not have sufficient time to consult with their clients 

regarding the schedule and other issues raised by Plaintiffs’ counsel before Plaintiffs’ proposed 

next-day deadline to file a Scheduling Report. And, of course, it makes little sense – and would be 

unfair, at best – to hold a Scheduling Conference and then immediately file a “Joint” Scheduling 

Report to govern this action where a sizable number of named defendants appear to not yet have 

counsel involved.

9. Given the status of service and counsel appearances alone, Moving Defendants 

submit that the deadline for holding the initial Scheduling Conference should be extended.

However, as the Court is well aware, there are additional procedural complexities to this action 

which further militate against holding a Scheduling Conference at this time.

10. First, and foremost, several named defendants appear to have strong personal 

jurisdiction defenses because the Amended Complaint fails to reflect any activity by any defendant 

in Florida. A Scheduling Conference should not be held until this Court determines whether these 

defendants are even subject to jurisdiction in this Court. See, e.g., Teran v. GB Int’l S.P.A., No. 

Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 5 of 11
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11-CV-2236-JAR-DJW, 2011 WL 5005997, at *3 (D. Kan. Oct. 20, 2011) (“any discovery 

conference pursuant to Rule 26(f) should be stayed pending the outcome of the Court’s ruling on 

Defendants’ Motion to Dismiss Plaintiff’s Complaint for Lack of Personal Jurisdiction and for 

Failure to State a Claim”); see also Jackson-Bear Grp., Inc. v. Amirjazil, No. 2:10-CV-332-FTM29, 2011 WL 720462, at *1 (M.D. Fla. Feb. 22, 2011) (granting a motion to stay discovery because 

defendants raised meritorious challenges based on lack of personal jurisdiction).

11. Second, although Moving Defendants are aware that the regular practice in this 

Court is that dispositive motions to dismiss are not a basis to stay discovery, they submit that this 

action is one where such a stay would be warranted. Moving Defendants submit that Plaintiffs’

claims – seeking to hold “Celebrity Defendants,” who allegedly engaged in paid advertising for 

the FTX brand, responsible for the alleged sale of a specific kind of product offered by FTX that 

no Celebrity Defendant is alleged to have ever discussed – is an unsupportable legal theory that 

should be tested on the merits prior to the initiation of discovery. See Chudasama v. Mazda Motor 

Corp., 123 F.3d 1353, 1368 (11th Cir. 1997) (“If the district court dismisses a non-meritorious 

claim before discovery has begun, unnecessary costs to the litigants and to the court system can be 

avoided.”).6

12. Third, Plaintiffs have petitioned the Judicial Panel on Multidistrict Litigation to 

have this action transferred and consolidated with ten other cases pending in this Court and the 

Northern District of California. See Ex. A. Although Moving Defendants (and others) will oppose 

that petition (the responses to the petition are due Friday, March 10), the petition may be granted. 

6 A district court has ample power to control its docket and enjoys broad discretion to stay 

proceedings and discovery pending resolution of a case-dispositive motion. See Fed. R. Civ. P. 

26(b)(1), (2)(A)-(C); Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002) (“At 

the outset, we stress the broad discretion district courts have in managing their cases.”); Johnson 

v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001) (“a district court is entitled 

to establish proper pre-trial procedures and set an appropriate pre-trial schedule . . . .”). 

Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 6 of 11
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In that event, the judge overseeing such litigation should set the schedule for the consolidated 

litigation. See Samuel v. Fam. Dollar Stores of Fla., Inc., No. 11-62560-CIV, 2012 WL 231251, 

at *1 (S.D. Fla. Jan. 25, 2012) (postponing scheduling conference and staying discovery pending 

decision by MDL panel).

13. Fourth, the Court has determined in the related Norris action,7 which was filed by 

the same Plaintiffs’ counsel against three of the defendants in this action (Brady, O’Leary, and 

Ortiz) and raising on an individualized basis the identical putative class claims asserted by 

Plaintiffs in this action, that the proper procedure is to first address the Norris Plaintiffs’ request 

to remand, then whether to stay the action pending this first-filed action, and then for the Norris

Defendants to respond to the operative pleading. See Order [Norris ECF No. 24] at 1 (“The time 

for Defendants to file a response to the Amended Complaint [ECF No. 1-2] is stayed until the 

Motion to Remand and any renewed motion to stay are resolved.”). Moreover, because of the 

procedural complexities of Norris – i.e., its intertwined nature with the instant action – the Court 

deferred the Norris parties’ obligation to file a Scheduling Report pending a future order of the 

Court. See Order [Norris ECF No. 28] at 1.

14. The same principle applies here. This action is nowhere near a posture where a 

Scheduling Conference is viable – especially on such short notice – and is one where a variety of 

issues are properly addressed before a Scheduling Report should be required.

15. Therefore, Moving Defendants submit that the March 10, 2023, deadline for 

holding a Scheduling Conference should be extended to, at minimum, 30 days after the two 

remaining defendants have been properly served, if not deferred until further order of the Court.

7 Norris v. Brady, No. 23-cv-20439-KMM (S.D. Fla.).

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CONCLUSION

WHEREFORE, Moving Defendants respectfully request that the Court continue the March 

10, 2023, deadline for the parties to hold a Scheduling Conference until thirty (30) days after all 

named defendants have been served, with a Scheduling Report due 10 days thereafter, and grant 

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

Local Rule 7.1(a)(3) Certification

Pursuant to Local Rule 7.1(a)(3), undersigned counsel certify that Zachary Lipshultz,

counsel for Defendants Brady and Bündchen, conferred with Adam Moskowitz, lead counsel for 

Plaintiffs, with respect to the relief requested in this motion via email on March 8, 2023, and 

counsel for Moving Defendants and Plaintiffs continued the email communications into March 9, 

2023. Based on those communications, which are attached as Exhibit B at Plaintiffs’ counsel’s 

request, undersigned counsel state that Plaintiffs do not oppose the request that the deadline for 

the Scheduling Conference be continued until after March 10, 2023; however, the extent of such a 

continuance is an issue to be determined by the Court.

Dated: March 9, 2023 Respectfully submitted,

COLSON HICKS EIDSON, P.A.

255 Alhambra Circle, Penthouse

Coral Gables, Florida 33134

Telephone: (305) 476-7400

Facsimile: (305) 476-7444

By: /s/ Roberto Martínez

Roberto Martínez

Florida Bar No. 305596

bob@colson.com

Stephanie A. Casey

Florida Bar No. 97483

scasey@colson.com

Zachary Lipshultz

Florida Bar No. 123594

zach@colson.com

LATHAM & WATKINS LLP

Andrew Clubok (pro hac vice)

 andrew.clubok@lw.com

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Susan E. Engel (pro hac vice) susan.engel@lw.com

Brittany M.J. Record (pro hac vice) brittany.record@lw.com

555 Eleventh Street, N.W., Suite 1000

Washington, D.C. 20004-1304

Tel: +1.202.637.2200

Fax: +1.202.637.2201

LATHAM & WATKINS LLP

Marvin S. Putnam (pro hac vice)

 marvin.putnam@lw.com

Jessica Stebbins Bina (pro hac vice)

 jessica.stebbinsbina@lw.com

Elizabeth A. Greenman (pro hac vice)

 elizabeth.greenman@lw.com

10250 Constellation Blvd., Suite 1100

Los Angeles, California 90067

Tel: +1.424.653.5500

Fax: +1.424.653.5501

LATHAM & WATKINS LLP

Michele D. Johnson (pro hac vice)

 michele.johnson@lw.com

650 Town Center Drive, 20th Floor

Costa Mesa, California 92626-1925

Tel: +1.714.540.1235

Fax: +1.714.755.8290

Attorneys for Defendants Thomas Brady and Gisele 

Bündchen

AKERMAN LLP

201 East Las Olas Boulevard – Suite 1800

Ft. Lauderdale, FL 33301

Tel.: 954-463-2700

Fax: 954-468-2454

By: /s/ Christopher S. Carver

Christopher S. Carver

Florida Bar No. 993580

christopher.carver@akerman.com

Jason S. Oletsky, Esq.

Florida Bar No. 9301

jason.oletsky@akerman.com

Katherine A Johnson

Florida Bar No. 1040357

katie.johnson@akerman.com

Attorneys for Defendant David Ortiz

MARCUS NEIMAN RASHBAUM 

& PINEIRO LLP

100 Southeast Third Avenue, Suite 805

Fort Lauderdale, Florida 33394

Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 9 of 11
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Tel: (954) 462-1200

2 South Biscayne Blvd., Suite 2530

Miami, Florida 33131

Tel: (305)-400-4260

By: /s/ Jeffrey Neiman

Jeffrey Neiman 

jneiman@mnrlawfirm.com

Fla Bar. No. 544469

Jeffrey Marcus 

jmarcus@mnrlawfirm.com

Fla. Bar No. 310890

Michael Pineiro

mpineiro@mnrlawfirm.com

Fla. Bar No. 041897

Brandon Floch

bfloch@mnrlawfirm.com

Fla. Bar No. 125218

BERK BRETTLER LLP

9119 Sunset Boulevard

West Hollywood, CA 90069

Tel.: (310) 278-2111

Andrew B. Brettler (pro hac vice)

abrettler@berkbrettler.com

Attorneys for Defendant Kevin O’Leary

DIMOND KAPLAN & ROTHSTEIN, P.A.

Offices at Grand Bay Plaza

2665 South Bayshore Drive, PH-2B

Miami, Florida 33133

Telephone: (305) 374-1920

Facsimile: (305) 374-1961

By: /s/ David A. Rothstein

David A. Rothstein, Esq.

Fla. Bar No. 995762

DRothstein@dkrpa.com 

Alexander M. Peraza, Esq.

Fla. Bar No. 107044

APeraza@dkrpa.com

Eshaba Jahir-Sharuz, Esq.

Fla. Bar No. 1038846

Eshaba@dkrpa.com 

MCANGUS GOUDELOCK & COURIE LLC

2000 Market Street, Suite 780

Philadelphia, PA 19103

(484) 406-4334

Eric A. Fitzgerald (pro hac vice)

eric.fitzgerald@mgclaw.com

Hillary N. Ladov (pro hac vice)

Case 1:22-cv-23753-KMM Document 87 Entered on FLSD Docket 03/09/2023 Page 10 of 11
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hillary.ladov@mgclaw.com

Attorneys for Defendant William Trevor Lawrence

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