REPLY TO OPPOSITION TO MOTION FOR LEAVE TO FILE 

PLAINTIFF’S SECOND AMENDED COMPLAINT, Page 1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION

EFD SPORTS, LLC

v.

BALLY’S CORPORATION

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 CIVIL NO. 4:24-CV-87-SDJ

REPLY TO OPPOSITION OF MOTION FOR LEAVE TO FILE PLAINTIFF’S 

SECOND AMENDED COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Plaintiff in the above entitled and numbered cause of action and files its 

Motion for Leave to File Plaintiff’s Second Amended Complaint, and would respectfully show 

unto the Court as follows: 

I. MOTION FOR LEAVE

1.1 Plaintiff seeks leave to file its Second Amended Complaint pursuant to Federal 

Rule of Civil Procedure 15(a)(2). Plaintiff conferred with counsel for Defendant prior to filing 

this Motion. Counsel for Defendant believes the Second Amended Complaint would be futile 

given the Motion to Dismiss and therefore opposes the request for leave.

1.2 Defendant’s Opposition demonstrates that Leave to File the Second Amended 

Complaint should be Granted as Defendant claims that regardless of the Amendment, the Second 

Amended Complaint would not save Plaintiff from dismissal. Defendant states the filing is 

“futile”.

1.3 In other words, Defendant admits that it would not be prejudiced by the Second 

Amended Complaint and in fact both in its Reply to Plaintiff’s Response to Motion to Dismiss 

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PLAINTIFF’S SECOND AMENDED COMPLAINT, Page 2

and in its Opposition to the Motion for Leave points to claims and evidence attached to the 

Motion to further its argument for dismissal.

1.4 Plaintiff takes issue with on particular claim made by Defendant related to Wes 

Elliot’s email at Exhibit 5. [ECF No. 18 at p. 53, Exhibit 5]. Wes states to Soo Kim that “nobody 

seems to know what we agreed or didn’t agree upon”. Defendant argues that this statement 

proves no meeting of the minds. To the contrary, Wes Elliot is simply referencing the fact that 

Soo Kim and Wes Elliot did come to an agreement as alleged in the Second Amended Complaint 

and that Sam Miri, and others were attempting to change the terms, as alleged in the Second 

Amended Complaint. The statement is not dispositive of meeting of the minds, but in fact 

supports Plaintiff’s allegation that an agreement was reached prior to Bally’s backing out of the

Agreement. Regardless, this is a factual determination left for the fact finder.

1.5 Furthermore, additional proof of the Agreement is found by Bally’s statement it 

was willing to “release” Plaintiff and that Sam Miri would get with his team about payment for 

work provided under the SOW(s). If there was no Agreement, there would be no need to release 

Plaintiff from any obligations and no statement for Sam Miri about payment. No payment was 

ever received.

1.6 In conclusion, Defendant argues that the Second Amendment of the Complaint is 

futile and does not change their argument for dismissal. On this logic, then there is no reason to 

deny Leave for the Amendment. Defendant will not be prejudiced. Furthermore, the Second 

Amended Complaint provides statements made by the Defendant and the terms of the agreement 

for context, including some of the who, what, when, of the agreement(s), the fraudulent 

statements, and the timeline for events in this case that provides context and support for the

Plaintiff’s claims. The parties have now exchanged initial disclosures including documents and 

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PLAINTIFF’S SECOND AMENDED COMPLAINT, Page 3

recordings of phone conversations that further supports Plaintiff’s claims. Defendant’s 

documents, which were not available previously, supports Plaintiff’s claims, including internal 

communications never before disclosed.

WHEREFORE PREMISES CONSIDERED, Plaintiff prays that the Court find that 

justice so requires this Court to GRANT Plaintiff’s Motion for Leave to file Plaintiff’s Second 

Amended Complaint and direct the filing of same.

CERTIFICATE OF SERVICE

This is to certify that, on May 20, 2024, a true and correct copy of this document has 

been served on counsel of record in accordance with the Federal Rules of Civil Procedure.

/s/Donald M. Kaiser Jr.

Donald M. Kaiser Jr.

Respectfully submitted,

/s/Donald M. Kaiser Jr.

Donald M. Kaiser Jr.

Texas State Bar No. 24025466 

dkaiser@attorneysforbusiness.com

KAISER LEGAL SOLUTIONS, PLLC

5440 Harvest Hill Road

Suite 201

Dallas, Texas 75203

(214) 441-3000

(214) 441-3001 (fax) 

COUNSEL FOR PLAINTIFF 

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