Securities and Exchange Commission v. Nadel et al
MOTION for leave to file Reply in Support of its Dec. 1, 2017 Motion for Payment of Certain Fees and Costs as Administrative Expenses [Doc. 1334] by Wells Fargo Bank, N.A.. (Wirth, Steven)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SECURITIES AND EXCHANGE
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.,
CASE NO.: 8:09-0087-T-26TBM
SCOOP REAL ESTATE, L.P.,
VALHALLA INVESTMENT PARTNERS, L.P.,
VALHALLA MANAGEMENT, INC.,
VICTORY IRA FUND, LTD.,
VICTORY FUND, LTD.,
VIKING IRA FUND, LLC.,
VIKING FUND, LLC., and
VIKING MANAGEMENT, LLC.
WELLS FARGO'S MOTION FOR LEAVE TO FILE A REPLY
AND INCORPORATED MEMORANDUM OF LAW
Wells Fargo Bank, N.A., pursuant to Local Rules 3.01(c)-(d), respectfully
requests leave to file a reply in support of its Dec. 1, 2017 Motion for Payment of Certain
Fees and Costs as Administrative Expenses [Doc. 1334] (the "Fees Motion") and states:
Wells Fargo seeks leave to file a reply to address various issues raised in
the Receiver's December 22, 2017 Response [Doc. 1343] because Wells Fargo believes
that additional briefing will assist the Court with resolving the Fees Motion. Specifically,
Defendants would like the opportunity to address the following non-exclusive issues:
The Receiver’s erroneous argument regarding the “American Rule” and
the exceptions to it, including the contract exception and the common fund
exception, which are both applicable in this case;
The Receiver's interpretation of and reliance upon Magistrate Judge
Jenkins's Report and Recommendation in Wiand v. Wells Fargo Bank,
N.A., 8:12-cv-00557-JDW-EAJ, 2015 WL 12839237 (M.D. Fla. June 10,
2015), which, along with the District Court's decision adopting that
recommendation,1 actually supports Wells Fargo’s request for fees; and
The Eleventh Circuit's observations regarding the unreasonableness of the
Receiver's actions as to Wells Fargo, and how that unreasonableness
pertains to the fundamental fairness of Wells Fargo’s request for fees.2
Wells Fargo is prepared to address these issues in a reply of no more than
five (5) pages, which will be filed and served no later than ten (10) days after the Court
enters an Order granting this motion, or January 12, 2018, whichever comes first.
No prejudice will occur to any party by allowing a complete briefing of all
issues to the Court.
Pursuant to Local Rules 3.01(c)-(d), a movant may request leave to file a
reply in support of its motion. Leave should be granted where the response raises new
questions of fact or law. See, e.g., Ottaviano v. Nautilus Ins. Co., 8:08-cv-2204-VMC-
See Case No. 8:12-cv-00557-JDW-EAJ; Doc. No. 340, p. 7.
The Eleventh Circuit's observations are contained in the transcript of the December 8, 2016 oral argument
in the appellate proceeding captioned SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339 (11th Cir. 2017), a
copy of which is attached to Wells Fargo's Request for Judicial Notice [Doc. No. 1345].
TGW, Doc. 27 (finding sufficient grounds and granting leave to file a reply because,
according to the movant, the respondent had “misstated the facts" and "defendant’s case
law should not be applied to the facts of the present case”). Here, the issues raised in the
response warrant a short reply.
COMPLIANCE WITH LOCAL RULE 3.01(g)
Well Fargo's counsel has conferred with the Receiver's counsel who indicated that
she cannot agree to the relief sought in this Motion because she has not heard back from
the Receiver. Well Fargo's counsel has attempted to confer with the SEC's counsel, but
Well Fargo's counsel understands that the SEC’s counsel is unavailable.
WHEREFORE, Wells Fargo Bank, N.A. respectfully requests leave to file a fivepage reply on or before January 12, 2018.
/s/ Steven R. Wirth
L. Joseph Shaheen, Jr.
Florida Bar No.: 212385
Steven R. Wirth
Florida Bar No.: 170380
401 East Jackson Street, Suite 1700
Tampa, Florida 33602
Telephone: (813) 223-7333
Facsimile: (813) 223-2837
Counsel for Wells Fargo, N.A
CERTIFICATE OF SERVICE
I hereby certify that on December 27, 2017, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system.
Steven R. Wirth
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