Case 9:18-cv-80176-BB Document 191 Entered on FLSD Docket 05/13/2019 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

IRA KLEIMAN, as the personal representative CASE NO.: 9:18-cv-80176-BB/BR

of the Estate of David Kleiman, and W&K Info
Defense Research, LLC

Plaintiffs,

v.

CRAIG WRIGHT

Defendant.

PLAINTIFFS’ SUR-REPLY TO DEFENDANT’S MOTION FOR JUDGMENT ON THE

PLEADINGS FOR LACK OF
SUBJECT-MATTER JURISDICTION
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INTRODUCTION
After stealing billions of dollars from the estate of his deceased best friend through the use

of fake documents, Craig now seeks to use documents he’s forged to attack this Court’s subject

matter jurisdiction. And despite being caught red-handed filing a forged document, Craig

continues to rely on other documents he knows are also fraudulent.1 Ironically, however, not one

of the documents he’s submitted states or implies anything about W&K’s membership. Instead,

(and putting aside their fraudulent nature) these documents only talk about officers in W&K –

which are irrelevant to jurisdiction. Apparently aware of this deficiency, Craig misrepresented the

content of a fraudulent certification signed by Uyen, but the actual text is completely consistent

with Uyen certifying (falsely) to just being an officer (i.e., manager).

As explained below, Plaintiffs have easily met the preponderance standard applicable to

diversity determinations. Finally, even if diversity was lacking (it’s not), this Court would still

have supplemental jurisdiction. Plaintiff’s Defend Trade Secrets Act claim was not frivolous due

to (i) caselaw expressly stating claims can be brought for prior takings where, as alleged by

Plaintiffs, subsequent disclosures occurred after the DTSA’s enaction in May 2016 and (ii)

Plaintiffs argument for equitable estoppel. Craig also ignores the year+ this Court and Judge

Reinhart have spent understanding and analyzing the complex facts at issue in this case. Craig’s

motion is frivolous and should be summarily denied.

I. PLAINTIFFS’ SECOND AMENDED COMPLAINT SURVIVES A FACIAL

ATTACK TO SUBJECT MATTER JURISDICTION.
“On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing

1
Craig has long and unfortunate history of falsifying documents. The Australian Tax Authorities
also discovered he submitted a number of fake documents in an effort to evade tax liability. See
Ex. 1 (Craig’s tax refund “claim was based on a purported transaction that did not occur and
services that were never provided. We infer that a significant number of documents have been
dishonestly created and submitted to the ATO in an attempt to substantiate the taxpayer’s claim.”)
1
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a Rule 12(b)(6) motion—the court must consider the allegations of the complaint to be

true.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Further, while there must be a

basis for Plaintiff’s allegations, they need not be pled on actual, firsthand, knowledge. Carolina

Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082, 1087–88 (9th Cir. 2014) (“a party should not

be required to plead jurisdiction affirmatively based on actual knowledge.”).2

For example, in JPMCC 2005-CIBC13 Collins Lodging, LLC v. Philips South Beach, LLC,

the plaintiff’s allegations of citizenship survived a facial attack “because in addition to

‘information and belief,’ [the plaintiff] base[d] its citizenship allegations on all publicly available

information.” 2010 WL 11452084, at *3 (S.D. Fla. July 2, 2010) (Altonaga J.). Stated simply, a

Plaintiff “need not prove his case on the pleadings – his Amended Complaint must merely provide

enough factual material to raise a reasonable inference, and thus a plausible claim.” Speaker v.

CDC, 623 F.3d 1371, 1386 (11th Cir. 2010); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857

(9th Cir. 2001). In fact, the applicable standard is that a “[c]ourt may dismiss the complaint based

on a facial challenge only if it is clear that no relief could be granted under any set of facts that

could be proved consistent with the allegations.” World Fuel Servs., Inc. v. Pan Am World Airways

Dominicana, S.A., No. 18-20321-Civ, 2018 WL 3730903, at *2 (S.D. Fla. Apr. 17, 2018) (Torres,

J.) (emphasis added) (quoting Hames v. City of Miami, 479 F. Supp. 2d 1283-84 (S.D. Fla. 2007)).

The Second Amended Complaint’s (“SAC”) diversity allegations clearly meet these

standards. As explained below, the SAC alleges Craig was a citizen of the United Kingdom, Dave

was W&K’s sole member at the time of filing, and Ira (a Florida citizen) is the personal

representative of Dave’s estate. And the SAC pleads facts to support these allegations.

2
See also Medical Assurance Co. v. Hellman, 610 F.3d 371, 376 (7th Cir.2010); Lewis v. Rego
Co., 757 F.2d 66, 68–69 (3d Cir.1985).
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Specifically, the SAC alleges that “Dave was the sole member of W&K.”3 (ECF No. [83], ¶70-

71.) This statement was factually supported by (i) the allegation that W&K’s articles of

incorporation list only Dave as a managing member (Id., ¶69); (ii) the attachment of a copy of

these articles (ECF No. [83-3]); (iii) the allegation that Craig signed a contract stating “Dave

owned legal title to 100% of W&K” (Id.); (iv) the actual attachment of this contract where Craig

states that “the vendor [Dave] is the owner of all issued shares in the company [W&K] . . .”. (ECF

No. [83-5], at 3)4; and (v) allegations (with attached documentary support) showing that Craig

historically claimed that only he and Dave had ownership in W&K, and that prior to suit, Craig

divested himself of any interest he may have had in W&K. (SAC, at ¶¶70-71, n14).

While the SAC contains allegations detailing how, at times in the past, Craig claimed to

have some kind of ownership interest in W&K, these allegations do not pose a problem with

Plaintiffs’ diversity allegations. First, the SAC plainly asserts that “whatever interest [Craig] once

held in W&K, he has [since] disclaimed it” and the Court must accept this as true. (SAC ¶ 70

n.14.). Second, the SAC makes it clear that any interest Craig may have held in W&K prior to his

disclamation of it, was not a membership interest, but rather as some kind of economic interest.5

3
Out of an abundance of caution, and because Plaintiffs were basing their allegations on “all
publicly available information,” the complaint qualified this statement with “as best as can
presently be discerned.” As explained above, this is sufficient for jurisdictional allegations.
4
Plaintiffs allege this contract is a forgery by Craig. Notwithstanding, it is additional evidence
that Dave was the sole member of W&K. The contract does contain a reference to certain interests,
although owned by Dave, as being held “in trust” for Craig. However, it cannot be disputed that
this reference is incorrect as Craig has repeatedly disavowed any ownership interest, beneficial or
otherwise, in W&K. (ECF No. [159], at n1).
5
It’s for this reason Plaintiffs stated that “W&K’s exact ownership structure is unclear.” Because
while it’s clear that at the time of suit Craig had no interest in W&K (SAC ¶71, n14), the form of
any potential prior interest in W&K (be it a contractual economic interest or a gentleman’s
agreement to split profits) while certainly not membership, is not entirely clear due to his
conflicting statements.

3
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(Id. ¶¶ 70 n.14, 71.) Third, these allegations are consistent with Plaintiff’s position that Craig’s

prior claims to actual ownership in W&K were false and only made to facilitate his unlawful taking

of W&K’s assets in the 2013 Australian proceedings. (ECF No. [83], at 70; ECF No. [83-4], at 5).

If Plaintiffs’ factually supported allegations are accepted as true, the parties are completely

diverse. This defeats Craig’s facial attack. World Fuel Servs., Inc, 2018 WL 3730903, at *2. 6

II. CRAIG’S FACTUAL ATTACK FAILS BECAUSE HE HAS FAILED TO

DEMONSTRATE W&K HAD ANY OTHER MEMBERS ASIDE FROM DAVE.
In opposing Craig’s motion, Plaintiffs explained (at 3-11) that (1) the evidence shows Dave

was W&K’s sole member; (2) Craig’s “evidence” – even if legitimate – did nothing to show

membership in W&K; and (3) Craig’s primary “evidence” was a forged email he created a year

after Dave’s death.

After “withdrawing” the forged document, Craig was left with nothing to support his

factual attack. Consequently, on reply he improperly introduced new evidence, misrepresented the

content of those documents, inaccurately described Plaintiffs’ evidentiary burden for surviving a

factual attack, and failed to defend his submission of forged evidence to this Court.

A. Craig’s new evidence does not show W&K has additional members.
Like the evidence cited in his original motion, Craig’s new evidence does not show W&K

6
While Plaintiffs do not believe amendment is necessary, to the extent the Court is concerned with
the overly cautious allegations in the SAC, now that some discovery has been taken, Plaintiffs are
more than willing to amend the SAC to make unequivocal allegations of citizenship for W&K’s
sole member. Wright and Miller, 5B Fed. Prac. & Proc. Civ. § 1350 (3d ed.) (gathering cases and
stating “[w]hen the pleader's . . . evidence show . . . the[y] . . . might be able to amend to allege
jurisdiction, the district court may deny the motion and direct the pleader to amend the pleading or
it may dismiss with leave to amend within a prescribed period of time.”). To that end, Craig’s
reliance on 28 U.S.C. § 1359 to support his assertion that Plaintiffs cannot amend their complaint
to cure a potential defect in jurisdictional allegations is inapposite. (ECF No. [185] at 3.) If this
Court finds it necessary for Plaintiffs to amend the complaint to unequivocally allege Craig had
no membership at the time the Complaint was filed, such an amendment would not be a
“reorganization” of W&K undertaken to “invoke the jurisdiction” of this Court. (See id. at 3.)
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had additional members.

First, while arguing W&K has alien members, Craig claims at (7) that “Uyen Nguyen

certified under oath that she was a ‘managing member’ or ‘member’ of W&K.” (emphasis added).

This is a blatant misrepresentation. The certification actually only states that she was either a

“managing member or manager of the limited liability company.” (Ex. 2) (emphasis added).

Putting aside that this document has no credibility as it was part of Craig’s fraud, the reply

misquotes it leaving the impression that Uyen certified she was a “member.” She did not. In fact,

and as pointed out by Craig himself, in other filings Uyen expressly claimed to be a “manager”

and not a member. (ECF No. [12], 5, n3).

Further, the Court should not rely on any statement from Uyen filed in furtherance of

Craig’s fraud as documents Craig recently produced demonstrate she is nothing more than his

puppet. When the ATO interviewed Uyen via a Skype call about Craig and his businesses, she

refused to enable video so the investigators couldn’t detect she was simply giving answers Craig

was secretly typing for her to repeat. (Ex. 3 at DEF_00030089 (“I [expletive] know how to say

South Arabian, but Craig typed bit slow so I played silly act on that to buy more time HAHAHA”).)

There is not a scintilla of reliable evidence suggesting Uyen had any connection with W&K, let

alone authority to act for W&K.7 And not even forged documents show her to be a member.

Second, Craig relies on an email first cited in reply (at 6), to make a new allegation that

Craig’s ex-wife Lynn is a W&K member. Notably this argument is unaccompanied by any

7
It appears that Uyen may not even be an alien, according to published reports. See e.g. Ex. 4,
available at https://news.bitcoin.com/uyen-t-nguyen-the-powerful-young-woman-behind-the-
alleged-satosh ("Nguyen is allegedly American born and lived in a quiet suburb of Los Angeles
for quite some time."). To date, Plaintiffs have not been able to locate Uyen, and Craig claims not
to have spoken to her in over three years.

5
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statement from either Craig or Lynn claiming it’s true (because it’s not). Instead, it’s a patent

attempt to manufacture doubt when there is none. Craig argues that in the email Dave asks if he

could list Lynn as a “mgrm” (managing member) of W&K. But this is a ridiculous reading of the

email. The email chain (if it’s even real) was clearly directed from Dave to Craig, not Lynn. (ECF

No. [157-2] at 2.) Dave is responding directly to Craig’s February 15 email, Craig is listed as the

first recipient, Lynn never sends any communications in the email thread, Dave eventually moves

Lynn to the cc line in the email chain, and none of Craig’s past or present statements as to W&K’s

ownership structure have ever identified Lynn as a member. Furthermore, it’s undisputed that

Craig and Dave ultimately decided not to make Craig a member of W&K as evidenced by Craig’s

numerous sworn statements that he’s not a member (ECF No. [12-2] at 2; ECF No. [159-1] at 6),

and the fact that Dave did not list him (or Lynn) on the articles of organization.8

Lastly, Craig claims (at 7) again that Coin-Exch was a “publicly-listed member of W&K.”

In actuality, it was never listed as anything other than a “director” (and that document itself was

fraudulently filed). (ECF No. [159] at 4).9 The fraudulent nature of this filing is further apparent

from the fact that Coin-Exch wasn’t even incorporated until nine days before Dave was found dead

and decomposing, when (if he was even still alive) he was in no condition to admit new members

8
Defendant’s response to Plaintiff’s motion for sur-reply submits a new exhibit and claims that
Dave’s initial email was directed to Lynn, and that Dave asked Lynn what the company’s name
should be. (ECF No. [185], at 3). But in what is becoming a disturbing pattern, both these claims
are blatant misrepresentations. Dave’s initial email is directed to Craig (Lynn is only cc’d), and
it’s Craig that asks his then wife for her opinion on the name (ECF No. [185-1]). Regardless, it’s
absurd to suggest that providing input into an LLC’s name equates with membership.
9
Craig incorrectly argues that if “[Uyen] and Coin-Exch were just officers of W&K and not
members, then W&K had officers (but no members) for over six years.” (ECF No. [185] at 3.)
This is wrong as a matter of law. Upon Dave’s death, his estate became empowered to “exercise
all the member’s rights for the purpose of settling the member’s estate or administering the
member’s property.” Fla. Stat. § 608.434 (2011).

6
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or otherwise conduct business. (Compare Ex. 5 (autopsy report stating Dave was already

“decomposing” when found on 4/26/13) with Ex. 6 (Coin Exch’s registration date was 4/17/13).10

There is a pattern to Craig’s repeated glossing over the distinction between “directors,”

“managers,” and “members” of an LLC. Although Craig has provided un-credible evidence

regarding whether persons other than Dave may have been “directors” or “managers” of W&K,

these positions are irrelevant to the issue of subject matter jurisdiction, where only membership

matters. Silver Crown Investments, LLC v. Team Real Estate Mgmt., LLC, 349 F. Supp. 3d 1316,

1324 (S.D. Fla. 2018) (Martinez J.).11

B. Plaintiffs have satisfied their burden that subject matter jurisdiction exists.
Craig wrongly asserts (at 8) that “plaintiffs bear the complete burden of establishing that

complete diversity exists.” This is not the legal standard, because “[w]hile the plaintiff has the

burden to prove diversity in a factual attack, that burden exists only if the defendant has first

proffered evidence to show a lack of diversity.” JPMCC 2005-CIBC13 Collins Lodging, 2010 WL

11452084, at *3 (denying motion because defendant’s “factual attack on diversity of citizenship is

devoid of evidentiary support”); see also RG Martin Investments, LLC v. Virtual Tech. Licensing,

LLC, 2017 WL 7792564 at *2 (S.D. Fla. July 7, 2017) (Bloom J.) (emphasis added) (“The burden

of pleading diversity of citizenship is upon the party invoking federal jurisdiction, and if

jurisdiction is properly challenged, that party also bears the burden of proof.”) Plaintiffs satisfied

10
“Except as otherwise provided in the articles of organization or the operating agreement, no
person may be admitted as a member unless a majority-in-interest of the members consent in
writing to the admission of the additional member.” Fla. Stat. 608.4232 (2011).
11
Craig’s citation (at 7) to Ira’s statements to the ATO and Mr. Paige that reference Uyen as a
“director” simply show that Ira believed Craig’s lies. Any cursory reading of the document
demonstrates Ira is speaking from his “understanding” gained from what turned out to be
forged/fraudulent documents provided to him by Craig and that Ira has “no direct knowledge of
how” her alleged appointment occurred. (ECF No. [144-7], at 2).
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their SMJ burden in their SAC and Craig has not “proffered evidence to show a lack of diversity.”

Even if Craig successfully shifted the burden to Plaintiffs – he has not – Plaintiffs’ burden

is demonstrating diversity by a preponderance of the evidence. Paterson v. Weinberger, 644 F.2d

521, 523 (5th Cir. 1981); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010).

Plaintiffs are not required to prove it “beyond all doubt or to banish all uncertainty” and the Court

is allowed “reasonable deductions, reasonable inferences, or other reasonable extrapolations” in

assessing SMJ. Id. Plaintiffs have provided evidence that Dave is the only member. Despite

reviewing tens of thousands of discovery documents, Craig has not come forward with anything

showing anyone other than Dave is a member, and he’s affirmatively sworn that he was not.

III. THIS COURT HAS SUPPLEMENTAL JURISDICTION.

Craig asserts Plaintiffs raised supplemental jurisdiction “belatedly.” But Plaintiffs raised it

as soon as Craig challenged diversity (on his third attempt to dismiss the case). Further, “Plaintiffs

do not need to specifically plead the supplemental jurisdiction statute.” Voyticky v. Village of

Timberlake, 412 F.3d 669, 674 (6th Cir. 2005); Phoenix Ins. Co. v. WSG Management Co., 2011

WL 13860, at *2 (S.D.Fla. 2011).12

Craig is also wrong in contending (at 9), without the slightest factual support, that

Plaintiffs’ federal and state claims do not arise from a “common nucleus of operative fact.” As

Craig concedes, the test is whether “the claims arise from the same facts, or involve similar

occurrences, witnesses or evidence.” Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 455 (11th Cir.

1996). Plaintiffs’ SAC details Craig’s elaborate single scheme to steal Dave and W&K’s bitcoins

12
Craig’s claim (at 11) that Plaintiffs added a federal claim because they were concerned about
diversity is nonsense. At that time, Craig had already testified he was not a W&K member, and
Plaintiffs never conceived Craig would contend (without any basis) that Uyen, Coin Exch, or Lynn
were W&K members. In fact, Craig himself had not yet dreamed up this contention, as he did not
mention it in his subsequent motion to dismiss (ECF No. [33]).

8
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and IP (including trade secrets). (SAC, ¶¶ 95 et seq.). The facts, occurrences, witnesses, and

evidence relating to this theft of Dave’s and W&K’s property (including bitcoin and trade secrets)

are the same, all deriving from Craig’s single fraudulent scheme.

Also baseless is Craig’s contention (at 11) that, if the trade secret and misappropriation

claims arise from the same common nucleus, the claims relating to the theft of bitcoins and other

intellectual property are “displaced and preempted” by Fla. Stat. § 688.08. This provision displaces

other law relating to the wrongful use of trade secrets (e.g., unfair competition, as in the Allegiance

Healthcare case cited by Craig), but it explicitly “does not affect … [o]ther civil remedies that are

not based upon misappropriation of a trade secret,” Fla. Stat. § 688.08(2)(b), such as Plaintiffs’

claims for misappropriation or civil theft of bitcoins and IP that is not a trade secret.

Craig claims (at 11) that Plaintiffs’ DTSA claim cannot support federal jurisdiction because

it is “insubstantial” and “obviously frivolous.” Quite the contrary, the case Plaintiffs relied on to

argue the DTSA claim was not time-barred, Adams Arms, LLC v. Unified Weapon Sys., Inc., 2016

WL 5391394, at *6 (M.D. Fla. Sept. 27, 2016), has been followed over 40 times, including several

times since the dismissal.13 Adams Arms correctly held that the DTSA allows suit for

“misappropriations” that include taking, disclosure, and use of trade secrets. The caselaw therefore

allows a claim for a trade secret taken before May 2016 if there are post-May 2016 uses or

13
See e.g., Taoglas Group Holdings Limited v. 2J Antennas USA, 2019 WL 1239302, at *5
(S.D.Cal. 2019) (“acts occurring after the DTSA’s enactment can be actionable, even if they
involve trade secrets misappropriated before its enactment”); Genentech, Inc. v. JHL Biotech, Inc.,
2019 WL 1045911, at *9 (N.D.Cal. 2019) (“DTSA applies to misappropriations that began prior
to the DTSA’s enactment if the misappropriation continues to occur after the enactment date, so
long as the defendant took some relevant act after that date”); Roeslein & Associates, Inc. v. Elgin,
2019 WL 195089, at *12 (E.D.Mo., 2019) (“DTSA applies to a trade secret misappropriation that
continues after the DTSA’s enactment date, even if the misappropriation began before the
enactment date”).

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disclosures, something Plaintiff alleged (ECF No. [24], ¶188). The Court did not address this

argument in its opinion, but its presence renders Plaintiffs’ DTSA claim credible. 14

All of the pertinent factors favor retaining federal jurisdiction. The case is factually

complex due to Craig’s lies, elaborate forgeries, Dave’s unavailability, and the difficulty of tracing

bitcoin transactions – but the law is simple: theft is theft. There are no complex state law issues.

The only issue even mentioned by Craig (at 12) is whether bitcoin is “money” for the conversion

count. But this Court has already held Plaintiffs adequately alleged a conversion claim, even if

bitcoin is deemed money. (ECF No. [68] at 33-36). Plaintiffs have plead and intend to prove the

extra “money” elements – rendering this issue likely moot and eliminating any “comity” issue.

Craig stresses (at 12-13) the cases stating that in the “usual case” dismissal is appropriate

if the federal claims are dismissed before trial, but he doesn’t dispute that’s inapplicable where, as

here, substantial federal judicial resources have already been invested. This Court and Judge

Reinhart have already spent over a year and countless hours becoming familiar with this factually

complex case. Indeed, since Plaintiffs opposition to this motion, Judge Reinhart held a fifth

discovery hearing and issued five new orders (ECF No. [165], [166], [168], [169], [172], [173]).

Craig claimed he could complete discovery in 90 days when opposing a continuance (ECF No.

[145-6, at 6]), but now claims “there is much more work to be done than has been done . . .” (at

14). Even if the latter’s true, that’s no reason to waste the extensive work done by two federal

judges getting familiar with the facts and issues and to force a state court to start anew.

Plaintiffs respectfully submit the Court should deny Craig’s Motion.

14
Plaintiffs also argued Craig should have been equitably estopped from asserting the statute of
limitations because he lulled Ira into inaction with false promises of large payments. (ECF No.
[46], 45-47). The Court’s opinion did not address this argument, but its presence also demonstrates
Plaintiffs’ claims weren’t frivolous.

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Dated: May 13, 2019 Respectfully submitted,

s/ Velvel (Devin) Freedman

Velvel (Devin) Freedman, Esq.
Florida Bar No. 99762
BOIES SCHILLER FLEXNER LLP
100 SE Second Street, Suite 2800
Miami, Florida 33131
Telephone: (305) 539-8400
Facsimile: (305) 539-1307
vfreedman@bsfllp.com

Kyle W. Roche, Esq.

Admitted Pro Hac Vice
BOIES SCHILLER FLEXNER LLP
333 Main Street
Armonk, NY10504
Telephone: (914) 749-8200
Facsimile: (914) 749-8300
kroche@bsfllp.com

Counsel to Plaintiffs Ira Kleiman as Personal

Representative of the Estate of David Kleiman and
W&K Info Defense Research, LLC.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 13, 2019, a true and correct copy of the foregoing was
filed with CM/ECF, and a copy was served on all counsel of record by email.

/s/ Velvel (Devin) Freedman

Velvel (Devin) Freedman

11