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Filing # 174515554 E-Filed 06/02/2023 03:51:22 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CHRISTOPHER BERES,
Case No: 50-2023-CA-001936
Plaintiff,
v.
TOYOTA MOTOR CORPORATION,
WILMER, CUTLER, PICKERING, HALE AND
DORR LLP, KASOWITZ BENSON TORRES LLP,
and STEPHANOS ZANNIKOS,
Defendants.
WILMERHALE’S MOTION TO STAY
DISCOVERY AND FOR PROTECTIVE ORDER
Under Florida Rule of Civil Procedure 1.280(c) and this Court’s inherent power to control
these proceedings, Defendant Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) moves
for an order staying discovery and/or a protective order barring the depositions of out-of-state non-
parties Jay Holtmeier, Charlotte Mostertz, and Christopher Cestaro. In support of this motion,
WilmerHale submits the following memorandum of law.
PRELIMINARY STATEMENT
Plaintiff, a lawyer appearing pro se, claims WilmerHale defamed him in New York
litigation, but Plaintiff filed his defamation claims in Florida, where this Court lacks personal
jurisdiction over WilmerHale. Despite the lack of personal jurisdiction and other fatal defects in
Plaintiff’s complaint—all of which are raised in WilmerHale’s pending motion to dismiss—
Plaintiff has unilaterally noticed 13 depositions, including the depositions of three out-of-state
WilmerHale lawyers, seeking information that has nothing to do with the defamation claims at
issue. This Court should stay discovery (and thus these depositions) until it has ruled on
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 06/02/2023 03:51:22 PM ***
WilmerHale’s motion to dismiss. Alternatively, this Court should bar the depositions from going
ahead as noticed because of important defects in the deposition notices. The problems with
Plaintiff’s notices fit into three silos.
First, Plaintiff’s notices are premature given WilmerHale’s pending motion to dismiss,
which asserts that this Court lacks personal jurisdiction over WilmerHale and that Plaintiff’s claims
should be dismissed with prejudice for failure to state a claim. Second, the notices are ineffective;s
the noticed lawyers—all nonparties—are not officers, directors, or managing agents, and must
therefore be subpoenaed for deposition. But Plaintiff has not yet done so. And given that each
person lives outside of Florida, there are several additional steps Plaintiff must take to domesticate
subpoenas and compel their depositions. That, and the fact that Plaintiff failed to confer with
undersigned counsel before issuing the notices, all but guarantees that the depositions cannot go
ahead at the time Plaintiff has chosen.1 Third, even if the notices were procedurally proper, they
seek testimony and documents that are not remotely related to the claims pleaded in Plaintiff’s
complaint.
For all these reasons, this Court should stay these depositions and all other discovery until
the Court has ruled on WilmerHale’s pending motion to dismiss. Alternatively, even if this Court
were not inclined to bar all discovery, it should issue a protective order barring the improperly
noticed depositions from going forward.
BACKGROUND
Plaintiff has sued WilmerHale and others for slander and libel, libel per se, intentional
infliction of emotional distress, and civil conspiracy—all arising from statements made in a federal
1
Had Plaintiff conferred, he would have learned that WilmerHale’s lead counsel is unavailable on the date
Plaintiff noticed these depositions.
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judicial proceeding in the Southern District of New York and in a New York bankruptcy
proceeding. For context, WilmerHale provides this brief summary of the case.
In 2019, WilmerHale—representing Defendant Toyota—engaged a firm called Hire
Counsel (“HC2”) to assist with a document review. (Heyison Aff. ¶ 2).2 HC2 hired an attorney—
Andrew Delaney—to be one of the reviewing attorneys for the New York-based review. (Id. ¶¶ 3–
4). When the COVID-19 pandemic suspended the review project, Delaney—with Plaintiff
eventually acting as his lawyer—sent a series of letters to WilmerHale and Toyota alleging that
Delaney was terminated from the project for raising COVID-19-related safety concerns and
demanding compensation for this alleged retaliation. (Id. ¶¶ 4–6).
After the requests for payment were denied, Delaney—represented by Plaintiff—filed an
action in Florida against Toyota Motor Corporation and others. See John Doe v. Toyota Motor
Corp. et al., No. 05-2020-CA-024281 (Fla. 18th Cir. Ct., filed on April 15, 2020) (the “Florida
Action”); (Heyison Aff. ¶ 7). Later, HC2—represented by Defendant Kasowitz Benson Torres,
LLP—filed suit against its former employee, Delaney, in the Southern District of New York,
alleging that Delaney had attempted to obtain $450,000 from Toyota by threatening to release
Toyota’s confidential information. See HC2, Inc. v. Delaney, No. 1:20-cv-03178 (S.D.N.Y., filed
on April 22, 2020) (the “HC2 Action”); (Heyison Aff. ¶ 8). Delaney later filed for bankruptcy in
the Eastern District of New York. See In re: Delaney, No. 1-20-44372 (Bankr. E.D.N.Y., filed on
Dec. 23, 2020) (the “Bankruptcy Action”); (Heyison Aff. ¶ 9). WilmerHale was not a party to, or
counsel of record in the HC2 Action or the Bankruptcy Action. (See Exs. B & C to Heyison Aff.).
Yet Plaintiff filed the instant lawsuit against WilmerHale and other Defendants alleging that
2
All citations to the Heyison Aff. are to the Amended Affidavit of Michael R. Heyison, WilmerHale’s Co-
General Counsel, together with supporting exhibits, that WilmerHale submitted in support of its motion to
dismiss Plaintiff’s Amended Complaint. WilmerHale’s motion to dismiss, along with its exhibits, are
attached as Exhibit 1 to this motion.
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WilmerHale made a series of defamatory and libelous statements about him in the HC2 Action,
the Bankruptcy Action, and in online news articles published by various legal news media.
Representing himself, Plaintiff has filed over half a dozen cases seeking redress from
various entities, including Toyota, WilmerHale lawyers, and various legal publications. See Beres
v. Toyota Motor N. Am., Inc., 1:22cv5755-VEC-SDA (S.D.N.Y. 2022); Beres v. Daily J. Corp.,
0:22-cv-60123-WPD (S.D. Fla.); Beres v. Nat’l L. F. LLC, 1:22-cv-20273-RKA (S.D. Fla.); Beres
v. RELX Inc., d/b/a LexisNexis USA, et al., 1:22-cv-20429-JEM (S.D. Fla.); Beres, et al. v. Tax
Analysts d/b/a Tax Notes, 0:21-cv-62588-RKA (S.D. Fla.); Doe, et al. v. RELX Inc. d/b/a
LexisNexis USA, et al., 05-2023-CA-016793 (Fla. 18th Cir. Ct.); John Doe et al. v. Tax Analysts et
al., 56-2023-CA-000483A (Fla. 19th Cir. Ct.). Some of these cases have been dismissed for lack
of jurisdiction, others Plaintiff has dismissed himself, and some remain pending.
Plaintiff’s initial Complaint had two defamation counts—slander and libel and libel per se.
Plaintiff then filed an Amended Complaint adding claims for intentional infliction of emotional
distress and civil conspiracy. As for jurisdiction, Plaintiff broadly claims that Florida has personal
jurisdiction over all Defendants—including WilmerHale—for “defam[ing] plaintiff in the State of
Florida” because the statements were accessed online by three Florida residents. (Am. Compl.
¶¶ 4, 27).
Because WilmerHale is a Delaware limited liability partnership headquartered in
Washington, D.C. and Boston, has insufficient contacts with Florida, and did not make any of the
defamatory statements at issue, WilmerHale moved to dismiss for lack of personal jurisdiction.
WilmerHale’s motion to dismiss further asserts that Plaintiff’s claims of defamation—having been
made in litigation in 2020—are otherwise due to be dismissed with prejudice because they are
barred by the statute of limitations and litigation privilege, among other reasons.
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Plaintiff’s opposition to WilmerHale’s motion to dismiss focuses on his complaints that
WilmerHale cited one of Plaintiff’s other failed defamation cases (which was vacated on other
grounds) and that WilmerHale attached extrinsic documents to its motion to dismiss, a necessary
predicate to challenging personal jurisdiction under Venetian Salami Co. v. Parthenais, 554 So. 2d
502 (Fla. 1989).
Plaintiff later filed a case management plan, erroneously styled as “Agreed”—along with
a proposed order adopting that plan—even though Defendants had repeatedly informed Plaintiff
that they did not agree to his proposed schedule.3 Plaintiff also recently filed a motion for sanctions
against all Defendants—except Zannikos, who filed his motion to dismiss more recently—based
on the allegedly frivolous nature of Defendants’ motions to dismiss.
Now, Plaintiff has unilaterally noticed the depositions of three out-of-state non-party
WilmerHale lawyers for June 13, 2023: Jay Holtmeier, Charlotte Mostertz, and Christopher
Cestaro. In each notice, Plaintiff also seeks documents from each noticed lawyer, including
privileged and confidential materials from the firm’s client files and purported materials in
connection with Mr. Cestaro’s work at the U.S. Department of Justice, where he was Chief of the
Foreign Corrupt Practices Act Unit in the Fraud Section of the Criminal Division before joining
WilmerHale in 2021.
From Jay Holtmeier, Plaintiff seeks:
1. All documents relating to Christopher Beres including payment records.
2. All documents relating to Andrew Delaney including payment records.
3. All documents relating to the Prius tax case.
4. All documents relating to the Agreement dated September 25, 2019 among
Toyota Motor Corporation, Wilmer Hale, and HC2, Inc.
5. All documents relating to your and Wilmer Hale’s activities in Florida including
Brevard County from April 2020 to the present.
3
Defendant Kasowitz filed an objection to the “Agreed” case plan, which WilmerHale joined. A hearing
is currently set for a case management conference for June 20, 2023.
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6. All documents relating to your and Wilmer Hale’s communications with Michael
Posada from April 2020 to the present.
7. All documents relating to Toyota Motor (Thailand) Co., Ltd. Appeal to the Thai
Supreme Court.
8. All documents regarding your communications with Baker McKenzie in Texas
or Thailand, including your travel records and payments.
Holtmeier Notice of Dep. at 2.
From Charlotte Mostertz, Plaintiff seeks:
1. All documents relating to Christopher Beres including payment records.
2. All documents relating to Andrew Delaney including payment records.
3. All documents relating to your involvement with the [sic] Toyota, HC2, Andrew
Delaney, or Christopher Beres.
Mostertz Notice of Dep. at 2.
And from Christopher Cestaro, Plaintiff seeks:
1. All documents relating to Christopher Beres including payment records.
2. All documents relating to Andrew Delaney including payment records.
3. All documents relating to your work or involvement in any Toyota FCPA
investigations at the Department of Justice, Wilmer Hale, or otherwise.
4. All documents regarding your employment around May 2021 by Wilmer Hale.
Cestaro Notice of Dep. at 2.
WilmerHale now moves to stay and/or for a protective order.
LEGAL STANDARD
“A trial court has broad discretion to grant a motion for stay,” which is permissibly
exercised so long as the stay does not cause “excessive delay.” See Shoemaker v. State Farm Mut.
Auto. Ins. Co., 890 So. 2d 1195, 1197 (Fla. 5th DCA 2005). Further, Florida Rule of Civil
Procedure 1.280(c) provides that this Court “for good cause shown” may limit or prohibit
discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense.” In deciding whether a protective order is appropriate, this Court must balance
the competing interests that would be served by granting or denying discovery. See Rasmussen v.
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S. Fla. Blood Serv., Inc., 500 So. 2d 533, 535 (Fla. 1987)); see also Clarke v. Coca-Cola
Refreshments USA, Inc., 282 So. 3d 897, 898 (Fla. 3d DCA 2019) (reversing where the trial judge
had not properly balanced the competing interests).
ARGUMENT
I. This Court should stay discovery pending its decision on WilmerHale’s
motion to dismiss.
This Court should stay discovery pending its decision on WilmerHale’s motion to dismiss.
A court may stay discovery in light of a pending motion to dismiss based on the Court’s balancing
of the “harm produced by a delay in discovery against the possibility that the motion will be
granted and entirely eliminate the need for such discovery.” David v. United States, No. 8:19-CV-
2591-T-36JSS, 2020 WL 1862606, at *1 (M.D. Fla. Apr. 14, 2020) (quotations omitted); see also
Rasmussen, 500 So. 2d at 535 (“In deciding whether a protective order is appropriate in a particular
case, the court must balance the competing interests that would be served by granting discovery or
by denying it.”).
When balancing delay against the harm caused by unnecessary discovery, this Court “may
take a preliminary peek at the merits of the purportedly dispositive motion to determine if, on the
motion’s face, there appears to be an immediate and clear possibility that the Court will grant the
motion, which supports entering a stay.” David, 2020 WL 1862606, at *1 (quotations omitted).
The possibility that the Court may lack jurisdiction favors a stay, see Hetherington v. Lee, No.
3:21-CV-671-MCR-EMT, 2021 WL 7084092, at *1 (N.D. Fla. June 24, 2021), which makes sense,
as this Court’s subpoena power cannot be more extensive than its jurisdiction. See e.g., Sucart v.
Office of the Comm’r, et al., 129 So. 3d 1112, 1114 (Fla. 3d DCA 2013) (favorably comparing Fla.
R. Civ. P. 1.410 to Federal Rule of Civil Procedure 45 to conclude that it would be improper to
subject non-parties to subpoena power where the court lacked subject matter jurisdiction over the
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claim); see also Fountainbleau, LLC v. Hire Us, Inc., 273 So. 3d 1152, 1156 n.2 (Fla. 2d DCA
2019) (holding that it was improper to compel parties to arbitrate before first deciding personal
jurisdiction because “determinations of personal jurisdiction must be made prior to any other
action or order of the court”).
WilmerHale filed a motion to dismiss Plaintiff’s Amended Complaint on May 3, 2023.
WilmerHale demonstrates that this Court lacks general personal jurisdiction over it because
WilmerHale is neither incorporated in Florida nor has its principal place of business here. See
Daimler AG v. Bauman, 571 U.S. 117, 139 n.19 (2014) (holding that only in exceptional cases—
if any at all—will an entity be subject to general personal jurisdiction in a state that is neither the
place of incorporation nor the principal place of business). Moreover, WilmerHale has insufficient
contacts with Florida—maintaining no Florida offices and deriving only 2% of its revenue from
Florida based clients. See, e.g., Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 261 (Fla. 4th DCA
2011) (concluding that a defendant deriving 4.35% of its sales from Florida was “de minimis” and
could not confer general jurisdiction). And this Court lacks specific personal jurisdiction over
WilmerHale because WilmerHale did not make any of the alleged defamatory statements at issue,
and thus could not have directed the statements at Florida. See Walden v. Fiore, 571 U.S. 277, 285
(2014) (explaining that, for specific personal jurisdiction, “the plaintiff cannot be the only link
between the defendant and the forum”). In support of these arguments, WilmerHale offers the
Affidavit of its general counsel, Michael R. Heyison, as required by Venetian Salami, 554 So. 2d
at 502 (providing the framework for challenging personal jurisdiction).
Plaintiff’s response in opposition lacks substance and merit. Plaintiff spends many pages
arguing that WilmerHale’s motion to dismiss is too long and impermissibly attaches extrinsic
documents. See, e.g., Resp. to Am. Mot. to Dismiss ¶¶ 1–10, 30–31. These arguments serve only
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to confirm Plaintiff’s fundamental misunderstanding of the process by which a defendant must
challenge personal jurisdiction in Florida: “A defendant wishing to contest the allegations of the
complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits
in support of his position.” Venetian Salami, 554 So. 2d at 502 (emphasis added). The burden then
shifts back to Plaintiff “to prove by affidavit the basis upon which jurisdiction may be obtained.”
Id. But Plaintiff has not done so. All Plaintiff offers is his—false—ipse dixit statement that “[b]y
WilmerHale’s own admission, it has minimum contacts with Florida” and his unsupported claim
that WilmerHale “committed tortious acts in Florida.” Resp. to Am. Mot. to Dismiss ¶¶ 25–27.
The burden to establish jurisdiction rests with Plaintiff. Venetian Salami, 554 So. 2d at 502.
Because Plaintiff has not even attempted to make the necessary showing to do so, WilmerHale’s
motion to dismiss for lack of personal jurisdiction should be granted, and the Court should stay
discovery pending that determination.
WilmerHale also moves to dismiss Plaintiff’s Amended Complaint with prejudice for
failure to state a claim. As set forth more fully in its motion to dismiss, the Amended Complaint
should be dismissed for the following reasons:
Plaintiff’s defamation claim is based upon statements made in the context of
litigation. Plaintiff’s claim is thus barred by the judicial proceedings privilege. See
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co.,
639 So. 2d 606, 607 (Fla. 1994) (“[D]efamatory statements made in the course of
judicial proceedings are absolutely privileged, no matter how false or malicious the
statements may be, so long as the statements are relevant to the subject of inquiry.”);
The allegedly defamatory statements at issue were made more than two years
before this case was filed, and thus Plaintiff’s claims are time barred. Ashraf v.
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Adventist Health Sys./Sunbelt, Inc., 200 So. 3d 173, 174–75 (Fla. 5th DCA 2016)
(holding that the statute of limitations for defamation, libel, and slander in Florida
is two years from the initial publication date);
No reasonable person would conclude that the alleged defamatory statements are
about Plaintiff; thus, Plaintiff fails to satisfy the requirement that the statements are
“of and concerning” Plaintiff. Miami Herald Pub. Co. v. Ane, 423 So. 2d 376, 389
(Fla. 3d DCA 1982) (holding that the “of and concerning” element of a defamation
claim requires allegations sufficient to show that “the average person upon reading
[the] statements could reasonably have concluded that the plaintiff [] was
implicated[.])”;
Plaintiff—alleging only that he was defamed and observed by a private
investigator—has not alleged sufficiently outrageous conduct to support an
intentional infliction of emotional distress claim. See Food Lion, Inc. v. Clifford,
629 So. 2d 201, 202 (Fla. 5th DCA 1993) (holding that a claim of intentional
infliction of emotional distress requires, among other allegations, “deliberate or
reckless infliction of mental suffering” that is caused by “outrageous” conduct);
Plaintiff has failed to allege a conspiracy because he fails to allege an agreement
between WilmerHale and another party to do an unlawful act, see Raimi v. Furlong,
702 So. 2d 1273, 1284 (Fla. 3d DCA 1997), and fails to successfully allege an
underlying claim of defamation supporting that alleged conspiracy, Ovadia v.
Bloom, 756 So. 2d 137, 140 (Fla. 3d DCA 2000) (“The conspiracy to defame claim
cannot stand where . . . the defamation action[] fails.”).
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Beyond characterizing WilmerHale’s motion to dismiss as a “house of cards of lies” and
reiterating his insufficient allegations, Plaintiff has no meaningful response to these arguments.
See Resp. to Am. Mot. to Dismiss ¶¶ 21–24. For this additional reason, WilmerHale’s motion to
dismiss “raises potentially meritorious [and jurisdictional] challenges to the complaint, which
outweigh any harm to Plaintiff that a delay in discovery . . . would cause.” David, 2020 WL
1862606, at *2. Thus, a stay is warranted.
Plaintiff’s passing request for jurisdictional discovery does not change this conclusion. See
Resp. to Am. Mot. to Dismiss ¶ 29. This is because Plaintiff’s request is procedurally improper.
For example, in Gleneagle Ship Management Company v. Leondakos—the case establishing
jurisdictional discovery’s permissibility—the plaintiff moved to continue a ruling on the pending
motion to dismiss on the basis that jurisdictional discovery was required before the plaintiff
responded to the merits of the pending motion to dismiss. 602 So. 2d 1282, 1283 (Fla. 1992). That
is not what occurred here.
As required by Venetian Salami, WilmerHale filed an affidavit rebutting Plaintiff’s
jurisdictional allegations. And rather than file his own affidavit, Plaintiff summarily demanded that
this Court strike WilmerHale’s affidavits and responded in opposition to WilmerHale’s motion to
dismiss on the merits with a host of conclusory and deficient arguments. Because Plaintiff has
already responded in opposition on the merits, jurisdictional discovery would serve no purpose.
Rizack v. Signature Bank, N.A., 267 So. 3d 24, 25 (Fla. 4th DCA 2019) (explaining that
jurisdictional discovery might be appropriate before a Venetian Salami hearing where the opposing
jurisdictional affidavits cannot be reconciled); Estes v. Rodin, 259 So. 3d 183, 199 (Fla. 3d DCA
2018) (“Because Appellants failed to rebut Appellees’ affidavits with Estes’s counter-affidavit, the
trial court did not abuse its discretion by denying limited jurisdictional discovery.”). For these
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reasons, even if this Court construed Plaintiff’s deposition notices as seeking jurisdictional
discovery,4 the Court should nonetheless bar them from going forward.
Thus, for all of the reasons above, this Court should grant a protective order barring the
depositions Plaintiff currently seeks and stay discovery pending its ruling on WilmerHale’s motion
to dismiss.
II. Alternatively, this Court should enter a protective order barring the
depositions from going forward.
Even if this Court were not inclined to stay discovery, it should enter a protective order
barring the depositions from going forward because Plaintiff’s deposition notices are improper.
A. Plaintiff failed to serve the parties with the necessary process for the
depositions and failed to confer.
The deposition notices are ineffective. None of the WilmerHale employees noticed are
officers, directors, or managing agents, and Plaintiff must therefore subpoena them individually to
compel their attendance. See Ghannam v. Shelnutt, 199 So. 3d 295, 298 (Fla. 5th DCA 2016). And
where, as here, the deponents are all located out of state, Plaintiff must also comply with the
requirements of the courts of the applicable jurisdictions to obtain domesticated subpoenas. The
depositions are now only 11 days away, and Plaintiff has not yet properly served process to compel
the attendance of any WilmerHale attorney. Further, Plaintiff has also unilaterally noticed the
depositions. That alone ignores common practice in this State: “It has been the common practice
and courtesy of attorneys throughout the state to cooperate as to the scheduling of depositions, as
it is well their duty to do in the furtherance of justice and as officers of the court.” Canella v.
Bryant, 235 So. 2d 328, 332 (Fla. 4th DCA 1970). Plus, Plaintiff’s actions flout this Circuit’s
4
Based on the topics Plaintiff has identified in the pending deposition notices—and the individuals who
have been noticed—Plaintiff is not seeking jurisdictional discovery but rather seeking discovery either on
the merits of his action or on topics clearly beyond those relevant to the merits.
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Standards of Professional Courtesy and Civility, which provide in Section 1 that “Attorneys should
communicate with opposing counsel prior to scheduling depositions . . . so as to schedule them at
times that are mutually convenient for all interested persons.” Even if each person had been
properly served with a non-party subpoena, Plaintiff was promptly notified via email that counsel
for WilmerHale are unavailable for the depositions on the dates noticed. For these reasons, this
Court should enter a protective order preventing the depositions from proceeding.
B. Plaintiff’s notices and requests for production of documents by each
individual seek irrelevant and privileged communications, work product,
and confidential information.
Finally, setting all of the above issues aside, Plaintiff’s notices seek testimony and
documents that are irrelevant to this action. Privileged information and information that is not
relevant “to the subject matter of the pending litigation” is not subject to discovery, including
information that is not relevant to any claim or defense. Fla. R. Civ. P. 1.280(b)(1); Syken v. Elkins,
644 So. 2d 539, 544 (Fla. 3d DCA 1994), opinion approved of, 672 So. 2d 517 (Fla. 1996). Where
such information is sought, trial courts enjoy “broad discretion in the treatment of discovery
problems through the employment of the protective provisions contemplated by Rule 1.280.” Fla.
Highway Patrol v. Bejarano, 137 So. 3d 619, 622 (Fla. 1st DCA 2014) (quotations omitted).
Here, Plaintiff claims that Defendants conspired to, and did, defame him in a New York
employment case. As to Mr. Holtmeier, documents or testimony relating to (1) “the Prius tax case,”
(2) “Wilmer Hale’s communications with Michael Posada,”5 (3) “Toyota Motor (Thailand) Co.,
Ltd. appeal to the Thai Supreme Court,” and communications with “Baker McKenzie in Texas or
Thailand, including your travel records and payments” are entirely irrelevant to this action. Such
5
Mr. Posada is a former WilmerHale attorney who was called to testify in the Florida Action because he
had personal knowledge of the matters before the Court in the Florida Action.
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topics are not even arguably calculated to lead to the discovery of admissible evidence. See Fla.
R. Civ. P. 1.280(b)(1).
Moreover, information that is privileged is likewise not discoverable. See Elkins, 644 So.
2d at 544; see also Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So. 3d 620, 623
(Fla. 4th DCA 2009) (explaining that “a protective order,” and not a privilege log, “is the available
remedy for non-parties” when a discovery request seeks privileged information). Yet many of
Plaintiff’s requests seek just such information. Topics like “[a]ll documents relating to your and
Wilmer Hale’s activities in Florida” (presumably referring to the Florida Action involving Toyota);
all of WilmerHale’s “communications with Michael Posada from April 2020 to the present,” “[a]ll
documents relating to your involvement with the [sic] Toyota, HC2, Andrew Delaney, or
Christopher Beres,” and “[a]ll documents relating to Toyota Motor (Thailand) Co., Ltd. Appeal to
the Thai Supreme Court”—to name just a few—plainly seek (in part if not entirely) documents
protected by the attorney client privilege involving WilmerHale’s representation of Toyota. For
this additional reason, the depositions cannot go forward.
Further, Mr. Holtmeier is not WilmerHale’s corporate custodian, and cannot be compelled
to testify as WilmerHale’s corporate representative and personally produce WilmerHale’s
documents. See U.S. Bank Nat’l Ass’n as Tr. for Certificateholders of Structured Asset Mortg. Invs.
II, Inc., Bear Stearns Arm Tr., Mortg. Pass-Through Certificates, Series 2006-2 v. Williamson, 273
So. 3d 190, 192 (Fla. 5th DCA 2019) (holding that a company, not the party seeking to depose it,
“has the authority to designate one or more of its officers, directors, managing agents, or other
persons as its corporate representative to testify at deposition on its behalf”); Fritz v. Norflor Const.
Co., 386 So. 2d 899, 900 (Fla. 5th DCA 1980) (quashing subpoena issued to company employees
“requiring them to produce certain documents prepared by the corporation and currently in its
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custody”); United States v. S. Capital Constr., Inc., 8:16-CV-705-T-24JSS, 2018 WL 7017412, at
*3 (M.D. Fla. Sept. 24, 2018) (holding that subpoena was unenforceable to the extent it required
individual—subpoenaed in individual capacity—to produce documents of his company). And at
any rate, a subpoena duces tecum “is not the equivalent of a search warrant, and should not be used
as a fishing expedition to require a witness to produce broad categories of documents which the
party can search to find what may be wanted.” Walter v. Page, 638 So. 2d 1030, 1031 (Fla. 2d
DCA 1994). Ms. Mostertz also is not the firm’s corporate custodian, and in any event none of those
documents described in her notice are relevant this case—which, again, is whether Defendants
conspired to, and did, defame Plaintiff in a New York lawsuit. Finally, Mr. Cestaro also is not a
WilmerHale corporate custodian, is not in possession of the Department of Justice documents
Plaintiff seeks, and his time at the U.S. Department of Justice and his hiring by WilmerHale are
irrelevant in this action.6
Thus, even to the extent Plaintiff’s procedurally invalid notices of deposition were valid,
this Court should enter a protective order barring them from going forward.
CONCLUSION
For the above reasons, this Court should stay all discovery against WilmerHale in this
action or, in the alternative enter a protective order barring the depositions of Jay Holtmeier,
Charlotte Mostertz, and Christopher Cestaro from going forward.
6
To the extent Plaintiff seeks documents and testimony from Mr. Cestaro regarding his time at the
Department of Justice, Plaintiff’s request raises a host of additional issues on which the Department of
Justice must first weigh in. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); 28 C.F.R.
§§ 16.21 et seq. Mr. Cestaro has, as provided in the federal regulations, informed the Department of Justice
of Plaintiff’s deposition notice. For this additional reason, this Court should enter a protective order barring
Mr. Cestaro’s deposition from moving forward until the Department of Justice has had an opportunity to
review and respond.
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Respectfully submitted this 2nd day of June, 2023.
/s/ Dustin Mauser-Claassen
Thomas A. Zehnder
Florida Bar No.: 0063274
Dustin Mauser-Claassen
Florida Bar No.: 119289
Quinn B. Ritter
Florida Bar No: 1018135
KING, BLACKWELL, ZEHNDER
& WERMUTH, P.A.
P.O. Box 1631
Orlando, FL 32802-1631
Telephone: (407) 422-2472
Facsimile: (407) 648-0161
tzehnder@kbzwlaw.com (Primary)
dmauser@kbzwlaw.com (Primary)
qritter@kbzwlaw.com (Primary)
aprice@kbzwlaw.com (Secondary)
courtfilings@kbzwlaw.com (Secondary)
Counsel for Defendant
Wilmer Cutler Pickering Hale and Dorr LLP
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 2, 2023 I electronically filed the foregoing using the
State of Florida ePortal Filing System, which will serve an electronic copy to counsel in the Service
List below.
/s/ Dustin Mauser-Claassen
Dustin Mauser-Claassen
Florida Bar No.: 119289
SERVICE LIST
Christopher Beres Maria H. Ruiz
1600 Sarno Road Ste. 1 Ann M. St. Peter-Griffith
Melbourne, FL 32935 Kasowitz Benson Torres LLP
chistopherberes8@gmail.com 1441 Brickell Avenue, Suite 1420
Miami, FL 33131
Plaintiff mruiz@kasowitz.com
astpetergriffith@kasowitz.com
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courtnotices@kasowitz.com
nrojas@kasowitz.com
Counsel for Defendant
Kasowitz Benson Torres LLP
James H. Fallace Vincent A. Citro
Andrew J. Williams Law Offices of Horwitz & Citro, P.A.
Fallace & Larkin, L.C. 17 East Pine Street
1900 Hickory Street, Suite A Orlando, FL 32801
Melbourne, FL 32901 vince@horwitzcitrolaw.com
jim@fallacelarkinlaw.com sue@horwitzcitrolaw.com
drew@fallacelarkinlaw.com
eservice@fallacelarkinlaw.com Counsel for Defendant
Toyota Motor Corporation
Counsel for Defendant
Toyota Motor Corporation
Christopher P. Hammon
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
9310 S. Dadeland Boulevard
Suite 1635
Miami, FL 33156
chris.hammon@ogletreedeakins.com
robert.borroto@ogletreedeakins.com
beran.nar@ogletreedeakins.com
Counsel for Defendant
Stephanos Zannikos
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EXHIBIT 1
Filing # 172384364 E-Filed 05/03/2023 04:35:58 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CHRISTOPHER BERES,
Case No: 50-2023-CA-001936
Plaintiff,
v.
TOYOTA MOTOR CORPORATION,
WILMER, CUTLER, PICKERING, HALE AND
DORR LLP, KASOWITZ BENSON TORRES LLP,
and STEPHANOS ZANNIKOS,
Defendants.
WILMERHALE’S MOTION TO DISMISS AMENDED COMPLAINT,
MOTION TO STRIKE, AND INCORPORATED MEMORANDUM OF LAW
Defendant Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) moves to dismiss
Plaintiff’s Amended Complaint for lack of personal jurisdiction pursuant to Rule 1.140(b)(2),
Florida Rules of Civil Procedure and—alternatively—for failure to state a claim pursuant to Rule
1.140(b)(6), Florida Rules of Civil Procedure. WilmerHale further moves to strike improper
requests for punitive damages and attorney’s fees pursuant to Rule 1.140(f), Florida Rules of Civil
Procedure. In support of its motion, WilmerHale files this memorandum of law.
PRELIMINARY STATEMENT
Plaintiff claims WilmerHale and others1 defamed him in New York litigation. But rather
than file this case in New York—where the alleged defamatory statements were made—Plaintiff
filed in Florida, where this Court lacks personal jurisdiction over WilmerHale. WilmerHale did not
1
This is Plaintiff’s seventh defamation action against various entities. See Beres v. Daily J. Corp., 0:22-cv-
60123-WPD (S.D. Fla.); Beres v. Nat’l L. F. LLC, 1:22-cv-20273-RKA (S.D. Fla.); Beres v. RELX Inc.,
d/b/a LexisNexis USA, et al., 1:22-cv-20429-JEM (S.D. Fla.); Beres, et al. v. Tax Analysts d/b/a Tax Notes,
0:21-cv-62588-RKA (S.D. Fla.); Doe, et al. v. RELX Inc. d/b/a LexisNexis USA, et al., 05-2023-CA-016793
(Fla. 18th Cir. Ct.); John Doe et al. v. Tax Analysts et al., 56-2023-CA-000483A (Fla. 19th Cir. Ct.).
make the statements and it was not a party to, or counsel of record in, any of the New York
litigations. Moreover, WilmerHale is a Delaware limited liability partnership headquartered in
Washington, D.C. and Boston; it has no office in Florida and is not registered to do business here.
Further, the alleged defamatory statements—having been made in litigation in 2020—are
privileged and barred by the statute of limitations. For these reasons and others, the Amended
Complaint must be dismissed.
BACKGROUND
In 2019, WilmerHale—representing Toyota—engaged a firm called Hire Counsel (“HC2”)
to conduct a document review. (Heyison Aff. ¶ 2).2 HC2 hired an attorney—Andrew Delaney—to
be one of the reviewing attorneys for the New York-based review. (Id. ¶¶ 3–4). When the COVID-
19 pandemic suspended the review project, Delaney—with Plaintiff eventually acting as his
lawyer—sent a series of letters to WilmerHale and Toyota, alleging that Delaney was terminated
from the project for raising COVID-19-related safety concerns and demanding compensation for
this alleged retaliation. (Id. ¶¶ 4–6).
After the requests for payment were denied, Delaney—represented by Plaintiff—filed an
action in Florida against Toyota Motor Corporation and others. See John Doe v. Toyota Motor
Corp. et al., No. 05-2020-CA-024281 (Fla. 18th Cir. Ct., filed on April 15, 2020) (the “Florida
Action”); (Heyison Aff. ¶ 7). Later, HC2—represented by Defendant Kasowitz Benson Torres,
LLP—filed suit against its former employee, Delaney, in the Southern District of New York,
alleging that Delaney had attempted to obtain $450,000 from Toyota by threatening to release
2
In support of this motion, WilmerHale submits the Amended Affidavit of Michael R. Heyison,
WilmerHale’s Co-General Counsel, together with supporting exhibits, attached as Exhibit 2. (“Heyison
Affidavit” or “Heyison Aff.”). Affidavits are properly considered in a challenge to personal jurisdiction.
WilmerHale presents such extrinsic facts for that limited purpose only. WilmerHale’s remaining dismissal
arguments for failure to state a cause of action pursuant to Rule 1.140(b)(6) rely on the four corners of the
Amended Complaint.
-2-
Toyota’s confidential information. See HC2, Inc. v. Delaney, No. 1:20-cv-03178 (S.D.N.Y., filed
on April 22, 2020) (the “HC2 Action”); (Heyison Aff. ¶ 8). Delaney later filed for bankruptcy in
the Eastern District of New York. See In re: Delaney, No. 1-20-44372 (Bankr. E.D.N.Y., filed on
Dec. 23, 2020) (the “Bankruptcy Action”); (Heyison Aff. ¶ 9).
WilmerHale was not a party to, or counsel of record in the HC2 Action or the Bankruptcy
Action. (See Exs. B & C to Heyison Aff.). Yet Plaintiff implausibly claims that all Defendants—
including WilmerHale—made a series of defamatory and libelous statements about him in the HC2
Action, the Bankruptcy Action, and in online news articles published by various legal news media.
Plaintiff recounts the alleged defamatory statements with confusing repetition and
inconsistent or incorrect citations to sources, dates, and speakers. At bottom, however, Plaintiff
asserts that Defendants made defamatory statements in seven court documents and five news
articles.3 The statements in court documents were filed in the HC2 Action and the Bankruptcy
Action and assert that Delaney made demands for payment from Toyota and WilmerHale for his
alleged wrongful termination and “threats” to publicly disclose Toyota’s confidential information
if his demands were not met.4 (Am. Compl. ¶¶ 31, 33–34, 36–39). WilmerHale did not make any
of the statements. (Heyison Aff. ¶ 11). Further, the statements concern Delaney, not Plaintiff, and
to the extent the statements mention Delaney’s “counsel,” Plaintiff is not identified as Delaney’s
counsel. Plaintiff also accuses Defendants of causing defamatory articles to be published about
him. Save for one, the news articles at issue were published at the latest on May 6, 2020—over
two years before Plaintiff filed the Complaint—by news outlets including Law 360, Staffing
3
Plaintiff attaches to his Amended Complaint four exhibits, marked as Exhibits A–D. Four days later,
Plaintiff separately filed several additional exhibits, marked as Exhibits 1–9. All of the litigation documents
filed as exhibits to the Amended Complaint are excerpts that, among other things, do not include the
signature pages. The full versions of each document are attached to the Heyison Affidavit.
4
One statement was filed by the Chapter 7 Trustee in the Bankruptcy Action. (Am. Compl. ¶ 41).
-3-
Industry Analysts, and TaxNotes. (Am. Compl. ¶¶ 42–43, 46 n.8). The articles generally report on
the HC2 Action and the dispute between Delaney and HC2. (See generally Ex. K to Heyison Aff.).
WilmerHale is not quoted in any of the articles and did not author or initiate publication or printing
of the articles. (Heyison Aff. ¶ 12; see generally Ex. K to Heyison Aff.). A list of all alleged
defamatory statements, along with their source, is attached hereto as Exhibit 1.
Plaintiff’s initial Complaint had two defamation counts—Slander and Libel and Libel Per
Se. The Amended Complaint retains those two counts and adds claims for intentional infliction of
emotional distress and civil conspiracy. As for jurisdiction, Plaintiff broadly claims that Florida
has personal jurisdiction over all Defendants—including WilmerHale—for “defam[ing] plaintiff
in the State of Florida” because the statements were accessed online by three Florida residents.
(Am. Compl. ¶¶ 4, 27). Because WilmerHale did not make any of the alleged defamatory
statements about Plaintiff, and it otherwise lacks sufficient minimum contacts with Florida,
WilmerHale moves to dismiss for lack of personal jurisdiction and for failure to state a claim and,
additionally, to strike improper requests for attorney’s fees and punitive damages.
ARGUMENT
This Court lacks jurisdiction over WilmerHale because Plaintiff cannot show that the
exercise of jurisdiction over WilmerHale satisfies the Due Process Clause. Alternatively, Plaintiff
has failed to state a claim for several additional independent reasons: (1) Plaintiff repeatedly lumps
together and commingles allegations of defamation against all Defendants; (2) the statements made
in litigation are absolutely privileged; (3) the statute of limitations bars claims based on statements
made more than two years before Plaintiff filed his initial Complaint; (4) several of the statements
facially do not concern Plaintiff; (5) the intentional infliction of emotional distress claim does not
allege “outrageous” conduct; and (6) the civil conspiracy claim fails to allege an agreement to
-4-
commit an unlawful act. Additionally, Plaintiff impermissibly pleads entitlement to punitive
damages and attorney’s fees and costs, which should be stricken.
I. This Court lacks personal jurisdiction over WilmerHale.
To establish personal jurisdiction, Plaintiff must both satisfy Florida’s long arm statute and
the “more restrictive” constitutional due process requirement of “minimum contacts.” Execu-Tech
Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So. 2d 582, 584 (Fla. 2000). To satisfy due process,
this Court must “determine whether the defendant has availed itself of the privilege of doing
business in Florida or has committed acts with an effect in Florida such that it would anticipate
being haled into Florida’s courts.” Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955
So. 2d 598, 601 (Fla. 2d DCA 2007). WilmerHale may challenge the Amended Complaint’s
allegations by “fil[ing] affidavits in support of its position.” Venetian Salami Co. v. Parthenais,
554 So. 2d 499, 502 (Fla. 1989). The burden then shifts to Plaintiff to file an affidavit showing
personal jurisdiction exists. Id. If Plaintiff fails to offer “sworn proof” that refutes WilmerHale’s
affidavit and establishes personal jurisdiction, his claims must be dismissed.5 Extendicare, Inc. v.
Estate of McGillen, 957 So. 2d 58, 63 (Fla. 5th DCA 2007).
The Due Process analysis recognizes two varieties of personal jurisdiction: (1) general
jurisdiction and (2) specific jurisdiction. General jurisdiction subjects nonresident defendants to
“any and all claims” in the forum where their contacts are “so continuous and systematic as to
render them essentially at home in the forum State,” while specific jurisdiction applies only when
“the suit arises out of or relates to the defendant’s contacts with the forum.” Daimler AG v.
Bauman, 571 U.S. 117, 127 (2014) (cleaned up). Here, this Court lacks both.
5
However, if the affidavits raise genuine disputes of fact, there must be “an evidentiary hearing to resolve
all disputed facts essential to determining the jurisdictional issue.” Venetian Salami Co., 554 So. 2d at 503.
-5-
A. There is no general jurisdiction over WilmerHale.
Rarely, if ever, will general personal jurisdiction be appropriate in a state where a company
is neither incorporated nor maintains its primary place of business. See, e.g., Daimler AG, 571 U.S.
at 139 n.19 (hypothesizing the possibility of an “exceptional case” where a company’s “operations
in a forum other than its formal place of incorporation or principal place of business may be so
substantial and of such a nature as to render the corporation at home in that State”); BNSF Ry. Co.
v. Tyrrell, 581 U.S. 402, 417 (2017) (Sotomayor, J. concurring) (concluding that, based on the
majority’s reasoning, “it is virtually inconceivable that [large multistate or multinational]
corporations will ever be subject to general jurisdiction in any location other than their principal
places of business or of incorporation.”). This case is no exception. WilmerHale is a limited
liability partnership headquartered in Washington, D.C., and Boston, and organized under
Delaware law. (Heyison Aff. ¶¶ 1, 13). It has thirteen offices in five countries, but none in Florida.
(Id. ¶ 13). WilmerHale has no Florida address or telephone number, no property, assets or accounts
in Florida, is not registered to do business in Florida, and does not direct advertisements at residents
of Florida. (Id.). Only one of WilmerHale’s 1,141 lawyers is licensed to practice law in Florida,
and that lawyer is located in the firm’s Washington, D.C. office.6 (Id.). WilmerHale also does not
generally conduct business in Florida. For example, since 2020, WilmerHale has generated only
2% of its revenue from Florida-based clients and it has represented clients in Florida courts in a de
minimis 1.3% of its cases. (Id. ¶¶ 14–15).
Because the general jurisdiction inquiry examines a company’s “activities in their entirety,”
BNSF Ry. Co., 581 U.S. at 414 (citation
Preview
Filing # 174515554 E-Filed 06/02/2023 03:51:22 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER BERES, Case No: 50-2023-CA-001936 Plaintiff, v. TOYOTA MOTOR CORPORATION, WILMER, CUTLER, PICKERING, HALE AND DORR LLP, KASOWITZ BENSON TORRES LLP, and STEPHANOS ZANNIKOS, Defendants. WILMERHALE’S MOTION TO STAY DISCOVERY AND FOR PROTECTIVE ORDER Under Florida Rule of Civil Procedure 1.280(c) and this Court’s inherent power to control these proceedings, Defendant Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) moves for an order staying discovery and/or a protective order barring the depositions of out-of-state non- parties Jay Holtmeier, Charlotte Mostertz, and Christopher Cestaro. In support of this motion, WilmerHale submits the following memorandum of law. PRELIMINARY STATEMENT Plaintiff, a lawyer appearing pro se, claims WilmerHale defamed him in New York litigation, but Plaintiff filed his defamation claims in Florida, where this Court lacks personal jurisdiction over WilmerHale. Despite the lack of personal jurisdiction and other fatal defects in Plaintiff’s complaint—all of which are raised in WilmerHale’s pending motion to dismiss— Plaintiff has unilaterally noticed 13 depositions, including the depositions of three out-of-state WilmerHale lawyers, seeking information that has nothing to do with the defamation claims at issue. This Court should stay discovery (and thus these depositions) until it has ruled on *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 06/02/2023 03:51:22 PM *** WilmerHale’s motion to dismiss. Alternatively, this Court should bar the depositions from going ahead as noticed because of important defects in the deposition notices. The problems with Plaintiff’s notices fit into three silos. First, Plaintiff’s notices are premature given WilmerHale’s pending motion to dismiss, which asserts that this Court lacks personal jurisdiction over WilmerHale and that Plaintiff’s claims should be dismissed with prejudice for failure to state a claim. Second, the notices are ineffective;s the noticed lawyers—all nonparties—are not officers, directors, or managing agents, and must therefore be subpoenaed for deposition. But Plaintiff has not yet done so. And given that each person lives outside of Florida, there are several additional steps Plaintiff must take to domesticate subpoenas and compel their depositions. That, and the fact that Plaintiff failed to confer with undersigned counsel before issuing the notices, all but guarantees that the depositions cannot go ahead at the time Plaintiff has chosen.1 Third, even if the notices were procedurally proper, they seek testimony and documents that are not remotely related to the claims pleaded in Plaintiff’s complaint. For all these reasons, this Court should stay these depositions and all other discovery until the Court has ruled on WilmerHale’s pending motion to dismiss. Alternatively, even if this Court were not inclined to bar all discovery, it should issue a protective order barring the improperly noticed depositions from going forward. BACKGROUND Plaintiff has sued WilmerHale and others for slander and libel, libel per se, intentional infliction of emotional distress, and civil conspiracy—all arising from statements made in a federal 1 Had Plaintiff conferred, he would have learned that WilmerHale’s lead counsel is unavailable on the date Plaintiff noticed these depositions. -2- judicial proceeding in the Southern District of New York and in a New York bankruptcy proceeding. For context, WilmerHale provides this brief summary of the case. In 2019, WilmerHale—representing Defendant Toyota—engaged a firm called Hire Counsel (“HC2”) to assist with a document review. (Heyison Aff. ¶ 2).2 HC2 hired an attorney— Andrew Delaney—to be one of the reviewing attorneys for the New York-based review. (Id. ¶¶ 3– 4). When the COVID-19 pandemic suspended the review project, Delaney—with Plaintiff eventually acting as his lawyer—sent a series of letters to WilmerHale and Toyota alleging that Delaney was terminated from the project for raising COVID-19-related safety concerns and demanding compensation for this alleged retaliation. (Id. ¶¶ 4–6). After the requests for payment were denied, Delaney—represented by Plaintiff—filed an action in Florida against Toyota Motor Corporation and others. See John Doe v. Toyota Motor Corp. et al., No. 05-2020-CA-024281 (Fla. 18th Cir. Ct., filed on April 15, 2020) (the “Florida Action”); (Heyison Aff. ¶ 7). Later, HC2—represented by Defendant Kasowitz Benson Torres, LLP—filed suit against its former employee, Delaney, in the Southern District of New York, alleging that Delaney had attempted to obtain $450,000 from Toyota by threatening to release Toyota’s confidential information. See HC2, Inc. v. Delaney, No. 1:20-cv-03178 (S.D.N.Y., filed on April 22, 2020) (the “HC2 Action”); (Heyison Aff. ¶ 8). Delaney later filed for bankruptcy in the Eastern District of New York. See In re: Delaney, No. 1-20-44372 (Bankr. E.D.N.Y., filed on Dec. 23, 2020) (the “Bankruptcy Action”); (Heyison Aff. ¶ 9). WilmerHale was not a party to, or counsel of record in the HC2 Action or the Bankruptcy Action. (See Exs. B & C to Heyison Aff.). Yet Plaintiff filed the instant lawsuit against WilmerHale and other Defendants alleging that 2 All citations to the Heyison Aff. are to the Amended Affidavit of Michael R. Heyison, WilmerHale’s Co- General Counsel, together with supporting exhibits, that WilmerHale submitted in support of its motion to dismiss Plaintiff’s Amended Complaint. WilmerHale’s motion to dismiss, along with its exhibits, are attached as Exhibit 1 to this motion. -3- WilmerHale made a series of defamatory and libelous statements about him in the HC2 Action, the Bankruptcy Action, and in online news articles published by various legal news media. Representing himself, Plaintiff has filed over half a dozen cases seeking redress from various entities, including Toyota, WilmerHale lawyers, and various legal publications. See Beres v. Toyota Motor N. Am., Inc., 1:22cv5755-VEC-SDA (S.D.N.Y. 2022); Beres v. Daily J. Corp., 0:22-cv-60123-WPD (S.D. Fla.); Beres v. Nat’l L. F. LLC, 1:22-cv-20273-RKA (S.D. Fla.); Beres v. RELX Inc., d/b/a LexisNexis USA, et al., 1:22-cv-20429-JEM (S.D. Fla.); Beres, et al. v. Tax Analysts d/b/a Tax Notes, 0:21-cv-62588-RKA (S.D. Fla.); Doe, et al. v. RELX Inc. d/b/a LexisNexis USA, et al., 05-2023-CA-016793 (Fla. 18th Cir. Ct.); John Doe et al. v. Tax Analysts et al., 56-2023-CA-000483A (Fla. 19th Cir. Ct.). Some of these cases have been dismissed for lack of jurisdiction, others Plaintiff has dismissed himself, and some remain pending. Plaintiff’s initial Complaint had two defamation counts—slander and libel and libel per se. Plaintiff then filed an Amended Complaint adding claims for intentional infliction of emotional distress and civil conspiracy. As for jurisdiction, Plaintiff broadly claims that Florida has personal jurisdiction over all Defendants—including WilmerHale—for “defam[ing] plaintiff in the State of Florida” because the statements were accessed online by three Florida residents. (Am. Compl. ¶¶ 4, 27). Because WilmerHale is a Delaware limited liability partnership headquartered in Washington, D.C. and Boston, has insufficient contacts with Florida, and did not make any of the defamatory statements at issue, WilmerHale moved to dismiss for lack of personal jurisdiction. WilmerHale’s motion to dismiss further asserts that Plaintiff’s claims of defamation—having been made in litigation in 2020—are otherwise due to be dismissed with prejudice because they are barred by the statute of limitations and litigation privilege, among other reasons. -4- Plaintiff’s opposition to WilmerHale’s motion to dismiss focuses on his complaints that WilmerHale cited one of Plaintiff’s other failed defamation cases (which was vacated on other grounds) and that WilmerHale attached extrinsic documents to its motion to dismiss, a necessary predicate to challenging personal jurisdiction under Venetian Salami Co. v. Parthenais, 554 So. 2d 502 (Fla. 1989). Plaintiff later filed a case management plan, erroneously styled as “Agreed”—along with a proposed order adopting that plan—even though Defendants had repeatedly informed Plaintiff that they did not agree to his proposed schedule.3 Plaintiff also recently filed a motion for sanctions against all Defendants—except Zannikos, who filed his motion to dismiss more recently—based on the allegedly frivolous nature of Defendants’ motions to dismiss. Now, Plaintiff has unilaterally noticed the depositions of three out-of-state non-party WilmerHale lawyers for June 13, 2023: Jay Holtmeier, Charlotte Mostertz, and Christopher Cestaro. In each notice, Plaintiff also seeks documents from each noticed lawyer, including privileged and confidential materials from the firm’s client files and purported materials in connection with Mr. Cestaro’s work at the U.S. Department of Justice, where he was Chief of the Foreign Corrupt Practices Act Unit in the Fraud Section of the Criminal Division before joining WilmerHale in 2021. From Jay Holtmeier, Plaintiff seeks: 1. All documents relating to Christopher Beres including payment records. 2. All documents relating to Andrew Delaney including payment records. 3. All documents relating to the Prius tax case. 4. All documents relating to the Agreement dated September 25, 2019 among Toyota Motor Corporation, Wilmer Hale, and HC2, Inc. 5. All documents relating to your and Wilmer Hale’s activities in Florida including Brevard County from April 2020 to the present. 3 Defendant Kasowitz filed an objection to the “Agreed” case plan, which WilmerHale joined. A hearing is currently set for a case management conference for June 20, 2023. -5- 6. All documents relating to your and Wilmer Hale’s communications with Michael Posada from April 2020 to the present. 7. All documents relating to Toyota Motor (Thailand) Co., Ltd. Appeal to the Thai Supreme Court. 8. All documents regarding your communications with Baker McKenzie in Texas or Thailand, including your travel records and payments. Holtmeier Notice of Dep. at 2. From Charlotte Mostertz, Plaintiff seeks: 1. All documents relating to Christopher Beres including payment records. 2. All documents relating to Andrew Delaney including payment records. 3. All documents relating to your involvement with the [sic] Toyota, HC2, Andrew Delaney, or Christopher Beres. Mostertz Notice of Dep. at 2. And from Christopher Cestaro, Plaintiff seeks: 1. All documents relating to Christopher Beres including payment records. 2. All documents relating to Andrew Delaney including payment records. 3. All documents relating to your work or involvement in any Toyota FCPA investigations at the Department of Justice, Wilmer Hale, or otherwise. 4. All documents regarding your employment around May 2021 by Wilmer Hale. Cestaro Notice of Dep. at 2. WilmerHale now moves to stay and/or for a protective order. LEGAL STANDARD “A trial court has broad discretion to grant a motion for stay,” which is permissibly exercised so long as the stay does not cause “excessive delay.” See Shoemaker v. State Farm Mut. Auto. Ins. Co., 890 So. 2d 1195, 1197 (Fla. 5th DCA 2005). Further, Florida Rule of Civil Procedure 1.280(c) provides that this Court “for good cause shown” may limit or prohibit discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” In deciding whether a protective order is appropriate, this Court must balance the competing interests that would be served by granting or denying discovery. See Rasmussen v. -6- S. Fla. Blood Serv., Inc., 500 So. 2d 533, 535 (Fla. 1987)); see also Clarke v. Coca-Cola Refreshments USA, Inc., 282 So. 3d 897, 898 (Fla. 3d DCA 2019) (reversing where the trial judge had not properly balanced the competing interests). ARGUMENT I. This Court should stay discovery pending its decision on WilmerHale’s motion to dismiss. This Court should stay discovery pending its decision on WilmerHale’s motion to dismiss. A court may stay discovery in light of a pending motion to dismiss based on the Court’s balancing of the “harm produced by a delay in discovery against the possibility that the motion will be granted and entirely eliminate the need for such discovery.” David v. United States, No. 8:19-CV- 2591-T-36JSS, 2020 WL 1862606, at *1 (M.D. Fla. Apr. 14, 2020) (quotations omitted); see also Rasmussen, 500 So. 2d at 535 (“In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it.”). When balancing delay against the harm caused by unnecessary discovery, this Court “may take a preliminary peek at the merits of the purportedly dispositive motion to determine if, on the motion’s face, there appears to be an immediate and clear possibility that the Court will grant the motion, which supports entering a stay.” David, 2020 WL 1862606, at *1 (quotations omitted). The possibility that the Court may lack jurisdiction favors a stay, see Hetherington v. Lee, No. 3:21-CV-671-MCR-EMT, 2021 WL 7084092, at *1 (N.D. Fla. June 24, 2021), which makes sense, as this Court’s subpoena power cannot be more extensive than its jurisdiction. See e.g., Sucart v. Office of the Comm’r, et al., 129 So. 3d 1112, 1114 (Fla. 3d DCA 2013) (favorably comparing Fla. R. Civ. P. 1.410 to Federal Rule of Civil Procedure 45 to conclude that it would be improper to subject non-parties to subpoena power where the court lacked subject matter jurisdiction over the -7- claim); see also Fountainbleau, LLC v. Hire Us, Inc., 273 So. 3d 1152, 1156 n.2 (Fla. 2d DCA 2019) (holding that it was improper to compel parties to arbitrate before first deciding personal jurisdiction because “determinations of personal jurisdiction must be made prior to any other action or order of the court”). WilmerHale filed a motion to dismiss Plaintiff’s Amended Complaint on May 3, 2023. WilmerHale demonstrates that this Court lacks general personal jurisdiction over it because WilmerHale is neither incorporated in Florida nor has its principal place of business here. See Daimler AG v. Bauman, 571 U.S. 117, 139 n.19 (2014) (holding that only in exceptional cases— if any at all—will an entity be subject to general personal jurisdiction in a state that is neither the place of incorporation nor the principal place of business). Moreover, WilmerHale has insufficient contacts with Florida—maintaining no Florida offices and deriving only 2% of its revenue from Florida based clients. See, e.g., Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 261 (Fla. 4th DCA 2011) (concluding that a defendant deriving 4.35% of its sales from Florida was “de minimis” and could not confer general jurisdiction). And this Court lacks specific personal jurisdiction over WilmerHale because WilmerHale did not make any of the alleged defamatory statements at issue, and thus could not have directed the statements at Florida. See Walden v. Fiore, 571 U.S. 277, 285 (2014) (explaining that, for specific personal jurisdiction, “the plaintiff cannot be the only link between the defendant and the forum”). In support of these arguments, WilmerHale offers the Affidavit of its general counsel, Michael R. Heyison, as required by Venetian Salami, 554 So. 2d at 502 (providing the framework for challenging personal jurisdiction). Plaintiff’s response in opposition lacks substance and merit. Plaintiff spends many pages arguing that WilmerHale’s motion to dismiss is too long and impermissibly attaches extrinsic documents. See, e.g., Resp. to Am. Mot. to Dismiss ¶¶ 1–10, 30–31. These arguments serve only -8- to confirm Plaintiff’s fundamental misunderstanding of the process by which a defendant must challenge personal jurisdiction in Florida: “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position.” Venetian Salami, 554 So. 2d at 502 (emphasis added). The burden then shifts back to Plaintiff “to prove by affidavit the basis upon which jurisdiction may be obtained.” Id. But Plaintiff has not done so. All Plaintiff offers is his—false—ipse dixit statement that “[b]y WilmerHale’s own admission, it has minimum contacts with Florida” and his unsupported claim that WilmerHale “committed tortious acts in Florida.” Resp. to Am. Mot. to Dismiss ¶¶ 25–27. The burden to establish jurisdiction rests with Plaintiff. Venetian Salami, 554 So. 2d at 502. Because Plaintiff has not even attempted to make the necessary showing to do so, WilmerHale’s motion to dismiss for lack of personal jurisdiction should be granted, and the Court should stay discovery pending that determination. WilmerHale also moves to dismiss Plaintiff’s Amended Complaint with prejudice for failure to state a claim. As set forth more fully in its motion to dismiss, the Amended Complaint should be dismissed for the following reasons: Plaintiff’s defamation claim is based upon statements made in the context of litigation. Plaintiff’s claim is thus barred by the judicial proceedings privilege. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 607 (Fla. 1994) (“[D]efamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry.”); The allegedly defamatory statements at issue were made more than two years before this case was filed, and thus Plaintiff’s claims are time barred. Ashraf v. -9- Adventist Health Sys./Sunbelt, Inc., 200 So. 3d 173, 174–75 (Fla. 5th DCA 2016) (holding that the statute of limitations for defamation, libel, and slander in Florida is two years from the initial publication date); No reasonable person would conclude that the alleged defamatory statements are about Plaintiff; thus, Plaintiff fails to satisfy the requirement that the statements are “of and concerning” Plaintiff. Miami Herald Pub. Co. v. Ane, 423 So. 2d 376, 389 (Fla. 3d DCA 1982) (holding that the “of and concerning” element of a defamation claim requires allegations sufficient to show that “the average person upon reading [the] statements could reasonably have concluded that the plaintiff [] was implicated[.])”; Plaintiff—alleging only that he was defamed and observed by a private investigator—has not alleged sufficiently outrageous conduct to support an intentional infliction of emotional distress claim. See Food Lion, Inc. v. Clifford, 629 So. 2d 201, 202 (Fla. 5th DCA 1993) (holding that a claim of intentional infliction of emotional distress requires, among other allegations, “deliberate or reckless infliction of mental suffering” that is caused by “outrageous” conduct); Plaintiff has failed to allege a conspiracy because he fails to allege an agreement between WilmerHale and another party to do an unlawful act, see Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997), and fails to successfully allege an underlying claim of defamation supporting that alleged conspiracy, Ovadia v. Bloom, 756 So. 2d 137, 140 (Fla. 3d DCA 2000) (“The conspiracy to defame claim cannot stand where . . . the defamation action[] fails.”). - 10 - Beyond characterizing WilmerHale’s motion to dismiss as a “house of cards of lies” and reiterating his insufficient allegations, Plaintiff has no meaningful response to these arguments. See Resp. to Am. Mot. to Dismiss ¶¶ 21–24. For this additional reason, WilmerHale’s motion to dismiss “raises potentially meritorious [and jurisdictional] challenges to the complaint, which outweigh any harm to Plaintiff that a delay in discovery . . . would cause.” David, 2020 WL 1862606, at *2. Thus, a stay is warranted. Plaintiff’s passing request for jurisdictional discovery does not change this conclusion. See Resp. to Am. Mot. to Dismiss ¶ 29. This is because Plaintiff’s request is procedurally improper. For example, in Gleneagle Ship Management Company v. Leondakos—the case establishing jurisdictional discovery’s permissibility—the plaintiff moved to continue a ruling on the pending motion to dismiss on the basis that jurisdictional discovery was required before the plaintiff responded to the merits of the pending motion to dismiss. 602 So. 2d 1282, 1283 (Fla. 1992). That is not what occurred here. As required by Venetian Salami, WilmerHale filed an affidavit rebutting Plaintiff’s jurisdictional allegations. And rather than file his own affidavit, Plaintiff summarily demanded that this Court strike WilmerHale’s affidavits and responded in opposition to WilmerHale’s motion to dismiss on the merits with a host of conclusory and deficient arguments. Because Plaintiff has already responded in opposition on the merits, jurisdictional discovery would serve no purpose. Rizack v. Signature Bank, N.A., 267 So. 3d 24, 25 (Fla. 4th DCA 2019) (explaining that jurisdictional discovery might be appropriate before a Venetian Salami hearing where the opposing jurisdictional affidavits cannot be reconciled); Estes v. Rodin, 259 So. 3d 183, 199 (Fla. 3d DCA 2018) (“Because Appellants failed to rebut Appellees’ affidavits with Estes’s counter-affidavit, the trial court did not abuse its discretion by denying limited jurisdictional discovery.”). For these - 11 - reasons, even if this Court construed Plaintiff’s deposition notices as seeking jurisdictional discovery,4 the Court should nonetheless bar them from going forward. Thus, for all of the reasons above, this Court should grant a protective order barring the depositions Plaintiff currently seeks and stay discovery pending its ruling on WilmerHale’s motion to dismiss. II. Alternatively, this Court should enter a protective order barring the depositions from going forward. Even if this Court were not inclined to stay discovery, it should enter a protective order barring the depositions from going forward because Plaintiff’s deposition notices are improper. A. Plaintiff failed to serve the parties with the necessary process for the depositions and failed to confer. The deposition notices are ineffective. None of the WilmerHale employees noticed are officers, directors, or managing agents, and Plaintiff must therefore subpoena them individually to compel their attendance. See Ghannam v. Shelnutt, 199 So. 3d 295, 298 (Fla. 5th DCA 2016). And where, as here, the deponents are all located out of state, Plaintiff must also comply with the requirements of the courts of the applicable jurisdictions to obtain domesticated subpoenas. The depositions are now only 11 days away, and Plaintiff has not yet properly served process to compel the attendance of any WilmerHale attorney. Further, Plaintiff has also unilaterally noticed the depositions. That alone ignores common practice in this State: “It has been the common practice and courtesy of attorneys throughout the state to cooperate as to the scheduling of depositions, as it is well their duty to do in the furtherance of justice and as officers of the court.” Canella v. Bryant, 235 So. 2d 328, 332 (Fla. 4th DCA 1970). Plus, Plaintiff’s actions flout this Circuit’s 4 Based on the topics Plaintiff has identified in the pending deposition notices—and the individuals who have been noticed—Plaintiff is not seeking jurisdictional discovery but rather seeking discovery either on the merits of his action or on topics clearly beyond those relevant to the merits. - 12 - Standards of Professional Courtesy and Civility, which provide in Section 1 that “Attorneys should communicate with opposing counsel prior to scheduling depositions . . . so as to schedule them at times that are mutually convenient for all interested persons.” Even if each person had been properly served with a non-party subpoena, Plaintiff was promptly notified via email that counsel for WilmerHale are unavailable for the depositions on the dates noticed. For these reasons, this Court should enter a protective order preventing the depositions from proceeding. B. Plaintiff’s notices and requests for production of documents by each individual seek irrelevant and privileged communications, work product, and confidential information. Finally, setting all of the above issues aside, Plaintiff’s notices seek testimony and documents that are irrelevant to this action. Privileged information and information that is not relevant “to the subject matter of the pending litigation” is not subject to discovery, including information that is not relevant to any claim or defense. Fla. R. Civ. P. 1.280(b)(1); Syken v. Elkins, 644 So. 2d 539, 544 (Fla. 3d DCA 1994), opinion approved of, 672 So. 2d 517 (Fla. 1996). Where such information is sought, trial courts enjoy “broad discretion in the treatment of discovery problems through the employment of the protective provisions contemplated by Rule 1.280.” Fla. Highway Patrol v. Bejarano, 137 So. 3d 619, 622 (Fla. 1st DCA 2014) (quotations omitted). Here, Plaintiff claims that Defendants conspired to, and did, defame him in a New York employment case. As to Mr. Holtmeier, documents or testimony relating to (1) “the Prius tax case,” (2) “Wilmer Hale’s communications with Michael Posada,”5 (3) “Toyota Motor (Thailand) Co., Ltd. appeal to the Thai Supreme Court,” and communications with “Baker McKenzie in Texas or Thailand, including your travel records and payments” are entirely irrelevant to this action. Such 5 Mr. Posada is a former WilmerHale attorney who was called to testify in the Florida Action because he had personal knowledge of the matters before the Court in the Florida Action. - 13 - topics are not even arguably calculated to lead to the discovery of admissible evidence. See Fla. R. Civ. P. 1.280(b)(1). Moreover, information that is privileged is likewise not discoverable. See Elkins, 644 So. 2d at 544; see also Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So. 3d 620, 623 (Fla. 4th DCA 2009) (explaining that “a protective order,” and not a privilege log, “is the available remedy for non-parties” when a discovery request seeks privileged information). Yet many of Plaintiff’s requests seek just such information. Topics like “[a]ll documents relating to your and Wilmer Hale’s activities in Florida” (presumably referring to the Florida Action involving Toyota); all of WilmerHale’s “communications with Michael Posada from April 2020 to the present,” “[a]ll documents relating to your involvement with the [sic] Toyota, HC2, Andrew Delaney, or Christopher Beres,” and “[a]ll documents relating to Toyota Motor (Thailand) Co., Ltd. Appeal to the Thai Supreme Court”—to name just a few—plainly seek (in part if not entirely) documents protected by the attorney client privilege involving WilmerHale’s representation of Toyota. For this additional reason, the depositions cannot go forward. Further, Mr. Holtmeier is not WilmerHale’s corporate custodian, and cannot be compelled to testify as WilmerHale’s corporate representative and personally produce WilmerHale’s documents. See U.S. Bank Nat’l Ass’n as Tr. for Certificateholders of Structured Asset Mortg. Invs. II, Inc., Bear Stearns Arm Tr., Mortg. Pass-Through Certificates, Series 2006-2 v. Williamson, 273 So. 3d 190, 192 (Fla. 5th DCA 2019) (holding that a company, not the party seeking to depose it, “has the authority to designate one or more of its officers, directors, managing agents, or other persons as its corporate representative to testify at deposition on its behalf”); Fritz v. Norflor Const. Co., 386 So. 2d 899, 900 (Fla. 5th DCA 1980) (quashing subpoena issued to company employees “requiring them to produce certain documents prepared by the corporation and currently in its - 14 - custody”); United States v. S. Capital Constr., Inc., 8:16-CV-705-T-24JSS, 2018 WL 7017412, at *3 (M.D. Fla. Sept. 24, 2018) (holding that subpoena was unenforceable to the extent it required individual—subpoenaed in individual capacity—to produce documents of his company). And at any rate, a subpoena duces tecum “is not the equivalent of a search warrant, and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party can search to find what may be wanted.” Walter v. Page, 638 So. 2d 1030, 1031 (Fla. 2d DCA 1994). Ms. Mostertz also is not the firm’s corporate custodian, and in any event none of those documents described in her notice are relevant this case—which, again, is whether Defendants conspired to, and did, defame Plaintiff in a New York lawsuit. Finally, Mr. Cestaro also is not a WilmerHale corporate custodian, is not in possession of the Department of Justice documents Plaintiff seeks, and his time at the U.S. Department of Justice and his hiring by WilmerHale are irrelevant in this action.6 Thus, even to the extent Plaintiff’s procedurally invalid notices of deposition were valid, this Court should enter a protective order barring them from going forward. CONCLUSION For the above reasons, this Court should stay all discovery against WilmerHale in this action or, in the alternative enter a protective order barring the depositions of Jay Holtmeier, Charlotte Mostertz, and Christopher Cestaro from going forward. 6 To the extent Plaintiff seeks documents and testimony from Mr. Cestaro regarding his time at the Department of Justice, Plaintiff’s request raises a host of additional issues on which the Department of Justice must first weigh in. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); 28 C.F.R. §§ 16.21 et seq. Mr. Cestaro has, as provided in the federal regulations, informed the Department of Justice of Plaintiff’s deposition notice. For this additional reason, this Court should enter a protective order barring Mr. Cestaro’s deposition from moving forward until the Department of Justice has had an opportunity to review and respond. - 15 - Respectfully submitted this 2nd day of June, 2023. /s/ Dustin Mauser-Claassen Thomas A. Zehnder Florida Bar No.: 0063274 Dustin Mauser-Claassen Florida Bar No.: 119289 Quinn B. Ritter Florida Bar No: 1018135 KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 Facsimile: (407) 648-0161 tzehnder@kbzwlaw.com (Primary) dmauser@kbzwlaw.com (Primary) qritter@kbzwlaw.com (Primary) aprice@kbzwlaw.com (Secondary) courtfilings@kbzwlaw.com (Secondary) Counsel for Defendant Wilmer Cutler Pickering Hale and Dorr LLP CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 2, 2023 I electronically filed the foregoing using the State of Florida ePortal Filing System, which will serve an electronic copy to counsel in the Service List below. /s/ Dustin Mauser-Claassen Dustin Mauser-Claassen Florida Bar No.: 119289 SERVICE LIST Christopher Beres Maria H. Ruiz 1600 Sarno Road Ste. 1 Ann M. St. Peter-Griffith Melbourne, FL 32935 Kasowitz Benson Torres LLP chistopherberes8@gmail.com 1441 Brickell Avenue, Suite 1420 Miami, FL 33131 Plaintiff mruiz@kasowitz.com astpetergriffith@kasowitz.com - 16 - courtnotices@kasowitz.com nrojas@kasowitz.com Counsel for Defendant Kasowitz Benson Torres LLP James H. Fallace Vincent A. Citro Andrew J. Williams Law Offices of Horwitz & Citro, P.A. Fallace & Larkin, L.C. 17 East Pine Street 1900 Hickory Street, Suite A Orlando, FL 32801 Melbourne, FL 32901 vince@horwitzcitrolaw.com jim@fallacelarkinlaw.com sue@horwitzcitrolaw.com drew@fallacelarkinlaw.com eservice@fallacelarkinlaw.com Counsel for Defendant Toyota Motor Corporation Counsel for Defendant Toyota Motor Corporation Christopher P. Hammon Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 9310 S. Dadeland Boulevard Suite 1635 Miami, FL 33156 chris.hammon@ogletreedeakins.com robert.borroto@ogletreedeakins.com beran.nar@ogletreedeakins.com Counsel for Defendant Stephanos Zannikos - 17 - EXHIBIT 1 Filing # 172384364 E-Filed 05/03/2023 04:35:58 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER BERES, Case No: 50-2023-CA-001936 Plaintiff, v. TOYOTA MOTOR CORPORATION, WILMER, CUTLER, PICKERING, HALE AND DORR LLP, KASOWITZ BENSON TORRES LLP, and STEPHANOS ZANNIKOS, Defendants. WILMERHALE’S MOTION TO DISMISS AMENDED COMPLAINT, MOTION TO STRIKE, AND INCORPORATED MEMORANDUM OF LAW Defendant Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) moves to dismiss Plaintiff’s Amended Complaint for lack of personal jurisdiction pursuant to Rule 1.140(b)(2), Florida Rules of Civil Procedure and—alternatively—for failure to state a claim pursuant to Rule 1.140(b)(6), Florida Rules of Civil Procedure. WilmerHale further moves to strike improper requests for punitive damages and attorney’s fees pursuant to Rule 1.140(f), Florida Rules of Civil Procedure. In support of its motion, WilmerHale files this memorandum of law. PRELIMINARY STATEMENT Plaintiff claims WilmerHale and others1 defamed him in New York litigation. But rather than file this case in New York—where the alleged defamatory statements were made—Plaintiff filed in Florida, where this Court lacks personal jurisdiction over WilmerHale. WilmerHale did not 1 This is Plaintiff’s seventh defamation action against various entities. See Beres v. Daily J. Corp., 0:22-cv- 60123-WPD (S.D. Fla.); Beres v. Nat’l L. F. LLC, 1:22-cv-20273-RKA (S.D. Fla.); Beres v. RELX Inc., d/b/a LexisNexis USA, et al., 1:22-cv-20429-JEM (S.D. Fla.); Beres, et al. v. Tax Analysts d/b/a Tax Notes, 0:21-cv-62588-RKA (S.D. Fla.); Doe, et al. v. RELX Inc. d/b/a LexisNexis USA, et al., 05-2023-CA-016793 (Fla. 18th Cir. Ct.); John Doe et al. v. Tax Analysts et al., 56-2023-CA-000483A (Fla. 19th Cir. Ct.). make the statements and it was not a party to, or counsel of record in, any of the New York litigations. Moreover, WilmerHale is a Delaware limited liability partnership headquartered in Washington, D.C. and Boston; it has no office in Florida and is not registered to do business here. Further, the alleged defamatory statements—having been made in litigation in 2020—are privileged and barred by the statute of limitations. For these reasons and others, the Amended Complaint must be dismissed. BACKGROUND In 2019, WilmerHale—representing Toyota—engaged a firm called Hire Counsel (“HC2”) to conduct a document review. (Heyison Aff. ¶ 2).2 HC2 hired an attorney—Andrew Delaney—to be one of the reviewing attorneys for the New York-based review. (Id. ¶¶ 3–4). When the COVID- 19 pandemic suspended the review project, Delaney—with Plaintiff eventually acting as his lawyer—sent a series of letters to WilmerHale and Toyota, alleging that Delaney was terminated from the project for raising COVID-19-related safety concerns and demanding compensation for this alleged retaliation. (Id. ¶¶ 4–6). After the requests for payment were denied, Delaney—represented by Plaintiff—filed an action in Florida against Toyota Motor Corporation and others. See John Doe v. Toyota Motor Corp. et al., No. 05-2020-CA-024281 (Fla. 18th Cir. Ct., filed on April 15, 2020) (the “Florida Action”); (Heyison Aff. ¶ 7). Later, HC2—represented by Defendant Kasowitz Benson Torres, LLP—filed suit against its former employee, Delaney, in the Southern District of New York, alleging that Delaney had attempted to obtain $450,000 from Toyota by threatening to release 2 In support of this motion, WilmerHale submits the Amended Affidavit of Michael R. Heyison, WilmerHale’s Co-General Counsel, together with supporting exhibits, attached as Exhibit 2. (“Heyison Affidavit” or “Heyison Aff.”). Affidavits are properly considered in a challenge to personal jurisdiction. WilmerHale presents such extrinsic facts for that limited purpose only. WilmerHale’s remaining dismissal arguments for failure to state a cause of action pursuant to Rule 1.140(b)(6) rely on the four corners of the Amended Complaint. -2- Toyota’s confidential information. See HC2, Inc. v. Delaney, No. 1:20-cv-03178 (S.D.N.Y., filed on April 22, 2020) (the “HC2 Action”); (Heyison Aff. ¶ 8). Delaney later filed for bankruptcy in the Eastern District of New York. See In re: Delaney, No. 1-20-44372 (Bankr. E.D.N.Y., filed on Dec. 23, 2020) (the “Bankruptcy Action”); (Heyison Aff. ¶ 9). WilmerHale was not a party to, or counsel of record in the HC2 Action or the Bankruptcy Action. (See Exs. B & C to Heyison Aff.). Yet Plaintiff implausibly claims that all Defendants— including WilmerHale—made a series of defamatory and libelous statements about him in the HC2 Action, the Bankruptcy Action, and in online news articles published by various legal news media. Plaintiff recounts the alleged defamatory statements with confusing repetition and inconsistent or incorrect citations to sources, dates, and speakers. At bottom, however, Plaintiff asserts that Defendants made defamatory statements in seven court documents and five news articles.3 The statements in court documents were filed in the HC2 Action and the Bankruptcy Action and assert that Delaney made demands for payment from Toyota and WilmerHale for his alleged wrongful termination and “threats” to publicly disclose Toyota’s confidential information if his demands were not met.4 (Am. Compl. ¶¶ 31, 33–34, 36–39). WilmerHale did not make any of the statements. (Heyison Aff. ¶ 11). Further, the statements concern Delaney, not Plaintiff, and to the extent the statements mention Delaney’s “counsel,” Plaintiff is not identified as Delaney’s counsel. Plaintiff also accuses Defendants of causing defamatory articles to be published about him. Save for one, the news articles at issue were published at the latest on May 6, 2020—over two years before Plaintiff filed the Complaint—by news outlets including Law 360, Staffing 3 Plaintiff attaches to his Amended Complaint four exhibits, marked as Exhibits A–D. Four days later, Plaintiff separately filed several additional exhibits, marked as Exhibits 1–9. All of the litigation documents filed as exhibits to the Amended Complaint are excerpts that, among other things, do not include the signature pages. The full versions of each document are attached to the Heyison Affidavit. 4 One statement was filed by the Chapter 7 Trustee in the Bankruptcy Action. (Am. Compl. ¶ 41). -3- Industry Analysts, and TaxNotes. (Am. Compl. ¶¶ 42–43, 46 n.8). The articles generally report on the HC2 Action and the dispute between Delaney and HC2. (See generally Ex. K to Heyison Aff.). WilmerHale is not quoted in any of the articles and did not author or initiate publication or printing of the articles. (Heyison Aff. ¶ 12; see generally Ex. K to Heyison Aff.). A list of all alleged defamatory statements, along with their source, is attached hereto as Exhibit 1. Plaintiff’s initial Complaint had two defamation counts—Slander and Libel and Libel Per Se. The Amended Complaint retains those two counts and adds claims for intentional infliction of emotional distress and civil conspiracy. As for jurisdiction, Plaintiff broadly claims that Florida has personal jurisdiction over all Defendants—including WilmerHale—for “defam[ing] plaintiff in the State of Florida” because the statements were accessed online by three Florida residents. (Am. Compl. ¶¶ 4, 27). Because WilmerHale did not make any of the alleged defamatory statements about Plaintiff, and it otherwise lacks sufficient minimum contacts with Florida, WilmerHale moves to dismiss for lack of personal jurisdiction and for failure to state a claim and, additionally, to strike improper requests for attorney’s fees and punitive damages. ARGUMENT This Court lacks jurisdiction over WilmerHale because Plaintiff cannot show that the exercise of jurisdiction over WilmerHale satisfies the Due Process Clause. Alternatively, Plaintiff has failed to state a claim for several additional independent reasons: (1) Plaintiff repeatedly lumps together and commingles allegations of defamation against all Defendants; (2) the statements made in litigation are absolutely privileged; (3) the statute of limitations bars claims based on statements made more than two years before Plaintiff filed his initial Complaint; (4) several of the statements facially do not concern Plaintiff; (5) the intentional infliction of emotional distress claim does not allege “outrageous” conduct; and (6) the civil conspiracy claim fails to allege an agreement to -4- commit an unlawful act. Additionally, Plaintiff impermissibly pleads entitlement to punitive damages and attorney’s fees and costs, which should be stricken. I. This Court lacks personal jurisdiction over WilmerHale. To establish personal jurisdiction, Plaintiff must both satisfy Florida’s long arm statute and the “more restrictive” constitutional due process requirement of “minimum contacts.” Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So. 2d 582, 584 (Fla. 2000). To satisfy due process, this Court must “determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida’s courts.” Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So. 2d 598, 601 (Fla. 2d DCA 2007). WilmerHale may challenge the Amended Complaint’s allegations by “fil[ing] affidavits in support of its position.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The burden then shifts to Plaintiff to file an affidavit showing personal jurisdiction exists. Id. If Plaintiff fails to offer “sworn proof” that refutes WilmerHale’s affidavit and establishes personal jurisdiction, his claims must be dismissed.5 Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58, 63 (Fla. 5th DCA 2007). The Due Process analysis recognizes two varieties of personal jurisdiction: (1) general jurisdiction and (2) specific jurisdiction. General jurisdiction subjects nonresident defendants to “any and all claims” in the forum where their contacts are “so continuous and systematic as to render them essentially at home in the forum State,” while specific jurisdiction applies only when “the suit arises out of or relates to the defendant’s contacts with the forum.” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (cleaned up). Here, this Court lacks both. 5 However, if the affidavits raise genuine disputes of fact, there must be “an evidentiary hearing to resolve all disputed facts essential to determining the jurisdictional issue.” Venetian Salami Co., 554 So. 2d at 503. -5- A. There is no general jurisdiction over WilmerHale. Rarely, if ever, will general personal jurisdiction be appropriate in a state where a company is neither incorporated nor maintains its primary place of business. See, e.g., Daimler AG, 571 U.S. at 139 n.19 (hypothesizing the possibility of an “exceptional case” where a company’s “operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State”); BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 417 (2017) (Sotomayor, J. concurring) (concluding that, based on the majority’s reasoning, “it is virtually inconceivable that [large multistate or multinational] corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation.”). This case is no exception. WilmerHale is a limited liability partnership headquartered in Washington, D.C., and Boston, and organized under Delaware law. (Heyison Aff. ¶¶ 1, 13). It has thirteen offices in five countries, but none in Florida. (Id. ¶ 13). WilmerHale has no Florida address or telephone number, no property, assets or accounts in Florida, is not registered to do business in Florida, and does not direct advertisements at residents of Florida. (Id.). Only one of WilmerHale’s 1,141 lawyers is licensed to practice law in Florida, and that lawyer is located in the firm’s Washington, D.C. office.6 (Id.). WilmerHale also does not generally conduct business in Florida. For example, since 2020, WilmerHale has generated only 2% of its revenue from Florida-based clients and it has represented clients in Florida courts in a de minimis 1.3% of its cases. (Id. ¶¶ 14–15). Because the general jurisdiction inquiry examines a company’s “activities in their entirety,” BNSF Ry. Co., 581 U.S. at 414 (citation