United States District Court, M.D. Florida, Tampa Division
ARNOLD SANS ONE United States Magistrate Judge
Kaplan (“M. Kaplan”), Kathryn Kaplan (“K.
Kaplan”), R1A Palms, LLC (“R1A Palms”),
Triple Net Exchange, LLC (“TN Exchange”), MK
Investing, LLC (“MK Investing”), BNK Smith, LLC
(“BNK Smith”), and MIK Advanta, LLC (“MIK
Advanta”) (collectively, the “Kaplan
Defendants”), seek permission to substantively amend
the joint pretrial statement. (Doc. 178). The Kaplan
Defendants also request leave to file a reply in further
support of their motion to amend the joint pretrial
statement. (Doc. 185). Regions Bank (“Regions”)
opposes both requests. (Docs. 183, 186).
action (one of three litigated by these parties), Regions
seeks damages for alleged fraudulent transfers from R1A
Palms, TN Exchange, and BNK Smith to K. Kaplan. (Doc. 48).
Critical to the instant motion, Regions also alleges that M.
Kaplan restructured his IRA and moved assets from MK
Investing to MIK Advanta to avoid paying Regions'
judgment in the underlying action, Regions Bank v. Marvin
I. Kaplan, et al., No. 8:12-cv-1837-T-17MAP.
now, there has been no dispute that: (1) MK Investing owned a
partial interest in 785 Holdings, LLC (“785
Holdings”) and transferred that interest to MIK
Advanta; (2) MIK Advanta received additional funds from MK
Investing valued at $273, 898.08; and (3) the IRA moved $214,
263.16 in cash received from MK Investing to MIK Advanta. M.
Kaplan, MK Investing, and MIK Advanta admitted these facts in
their respective pleadings and included these facts as
stipulated in the original joint pretrial statement. (Docs.
67, 83, 84, 163).
only a few weeks remaining before the trial of Regions'
claims, the Kaplan Defendants request to remove these
stipulated facts from the joint pretrial statement. (Doc.
178, pp. 3-4). In addition, the Kaplan Defendants seek to add
an exhibit as support for their new set of facts.
(Id. at p. 2). The Kaplan Defendants now assert
that: (1) the IRA, not MK Investing, owned an interest in 785
Holdings; (2) MIK Advanta did not receive $273,
898.08 in value from MK Investing; and (3) the IRA acquired
MIK Advanta's units using $214, 236.16 in
cash. (Id. at pp. 3-4). The court will
separately address each proposed amendment.
MK Investing's interest in 785 Holdings.
Kaplan Defendants request to delete paragraph 17 of the joint
pretrial statement. (Doc. 178, p. 3). Paragraph 17 states
that “[o]n July 12, 2012, M[. Kaplan] caused to be
formed 785 Holdings , in which MK [Investing] owned a
partial interest.” (Doc. 162, ¶ 17). The Kaplan
Defendants now assert that MK Investing did not actually own
an interest in 785 Holdings, LLC. (Doc. 178, p. 3).
their answers, M. Kaplan, MK Investing, and MIK Advanta
“[a]dmitted that MK [Investing] maintained an ownership
interest in 785 Holdings, LLC.” (Docs. 67, 83, 84).
This fact was also affirmed during the trial in the
underlying action (Doc. 183, Exh. A, p. 3), and during the
deposition of M. Kaplan in this action (Doc. 128, p. 161). In
support of the requested amendment, the Kaplan Defendants
rely on three documents from early discussions of the IRA
restructuring. (See Doc. 183, Exhs. C, D, E). These
documents were superseded by other versions and were never
MIK Advanta's receipt of $273, 898.08 in funds from MK
Kaplan Defendants request to delete paragraph 20, footnotes
14-15, from the joint pretrial statement. (Doc. 178, p. 3).
Footnotes 14-15 respectively state, “MK [Investing]
also transferred its interest in a TN [Exchange] note to MIK
[Advanta], ” and “M[. Kaplan], MK [Investing] and
MIK [Advanta] admit MIK [Advanta] received ‘funds'
of $273, 898.08.” (Doc. 162, ¶ 20).
Kaplan Defendants now assert that footnote 14 is not
supported by the evidence in light of the ownership interests
in 785 Holdings. (Doc. 178, p. 3). However, MK
Investing's transfer of its $273, 898.08 interest to MIK
Advanta involved a transaction separate from the ownership
interest in 785 Holdings. The only other evidence the Kaplan
Defendants cite in support of this amendment is the IRA
Annual Report from January 1, 2012 to December 1, 2016. (Doc.
183, Exh. P). That document reflects MIK Advanta's 2016
market value and certain administrative fees and
footnote 15, the Kaplan Defendants agree that a $273, 898.08
transaction occurred, but dispute that it represented actual
value or that actual “funds” were involved in the
transfer. (Doc. 178, p. 3). The joint pretrial statement
stipulates that “[t]he IRA assigned the remaining value
in MK [Investing] of $273, 898.08 to MIK [Advanta].”
(Doc. 162, ¶ 20). The second amended complaint
specifically alleges that the IRA assigned the remaining 229,
517.44 units of MK Investing (with a value of $273, 898.08)
to MIK Advanta. (Doc. 48, ¶ 27(d)). M. Kaplan, MK
Investing, and MK Advanta's answers also admitted that
MIK Advanta received “funds” of $273, 898.08.
(Docs. 67, 84, and 84, ¶ 27(d)). During M. Kaplan's
deposition in this action, he agreed that the IRA moved a MK
Investing asset worth $273, 898.08 to MIK Advanta. (Doc. 128,
pp. 156, 158).
MK Investing's receipt of $214, 236.16 in cash from MIK