Filing # 143914736 E-Filed 02/15/2022 09:13:14 AM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

CASE NO. 2021-026889-CA-01

JAHUARA JEFFRIES;

Plaintiff,

v.

TREMAINE NEVERSON, etc., et al.,

Defendants.

DEFENDANT’S MOTION FOR SANCTIONS OF

DISMISSAL FOR WITNESS TAMPERING

Defendant Tremaine Neverson moves for sanctions against Plaintiff and her counsel for

witness tampering. Witness #1 is an independent witness who was with Plaintiff and

Defendant during the entirety of the period relevant to Plaintiff’s claim. Witness #1 states—by an

affidavit attached to this Motion and through recorded statements that may be presented at an

evidentiary hearing—that the assault described in the Complaint never happened.

Witness #1 , by affidavit, further swears that on April 22, 2021, she met with Plaintiff’s

counsel, Ariel Mitchell. Per Witness #1 , “Ms. Mitchell also informed me that if I changed my

testimony to corroborate [Plaintiff’s] version of events and testified on [Plaintiff’s] behalf, that she

would pay me between $100,000 and $200,000, depending on the case’s ultimate settlement

amount, if any.” Witness #1 also recounts this event in a recorded statement. At an evidentiary

hearing on this matter, Defendant Neverson will offer Witness #1 ’s testimony consistent with this

prior affidavit and recorded statements.

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 Plaintiff and Ms. Mitchell have engaged in serious misconduct, and it warrants a serious

sanction: dismissal of this case and such further discipline that the Court considers appropriate.

This Motion will proceed in two parts. First, it will describe the facts that Defendant

anticipates proving at an evidentiary hearing on this motion. Second, it will discuss the applicable

law and demonstrate why dismissal is warranted.

FACTS

A. Plaintiff accuses Neverson of assaulting herself and another person, Witness

#1
.

Plaintiff has sued Defendant Neverson for sexual assault. She filed her Complaint on

December 13, 2021, alleging that Defendant sexually assaulted her at the E11EVEN nightclub in

Miami by surreptitiously inserting his finger into her vagina while she was not looking. Because

it is important to understanding Witness #1 ’s ability to competently testify as to the events that

night, this subsection will detail Plaintiff’s allegations concerning the evening chronologically.

Plaintiff alleges that on New Year’s Eve 2017,1 she and her friends attended a party at the

house of Sean Combs, also known by his stage name “Puff Daddy.” [Compl. at ¶12.] They left at

approximately 4:00 a.m. to go to E11EVEN. [Id. at ¶13.] Defendant Neverson was also at Combs’s

party with friends of his own and was also planning to go to E11EVEN. He offered to give Plaintiff

and her friends a ride, and they accepted. [Id. at ¶14.]

Plaintiff alleges that she was assaulted at E11EVEN. Plaintiff describes the assault as

follows:

17. While at Defendant [E11EVEN], Plaintiff danced with

friends, and at one point, got up on a couch to dance. Dancing on couches
at Defendant [E11EVEN], and at Miami nightclubs, is common. While
Plaintiff was dancing on the couch, she noticed Defendant Songz standing
on the floor next to her. She then felt fingers being inserted into her vagina,

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December 31, 2017, leading into the morning hours of January 1, 2018.
2
 turned around, and saw Defendant Songz pulling his hand away from her
bottom. At the time, the Plaintiff was wearing a dress with a high slit up
the back.

Plaintiff also alleges that Defendant assaulted another individual that night:

18. Plaintiff immediately got off the couch, sat down, and
was in a state of shock. Another woman who was also in attendance went
to Plaintiff, asked her what was wrong, and then told Plaintiff that
Defendant Songz [Neverson] had reached into her dress and insert [sic]
his fingers into her vagina as well.

In a prior compliant, filed in the Southern District of Florida (later dismissed for lack of

jurisdiction due to improper service), Plaintiff alleged a slightly different version of this second

purported assault:

Shortly after the incident with NEVERSON at E11even [Plaintiff]

discovered that she was not NEVERSON’s only victim at E11even, as
another female who was in attendance at the nightclub with the group
confided to [Plaintiff] that NEVERSON had also put his hands down her
paints and placed his fingers into her buttocks without her consent earlier
that same night.

[Fed. Compl. at ¶12.]2 Plaintiff contends that this second purported victim is Witness #1 . As set

forth below, Witness #1 (1) emphatically denies that she was assaulted; (2) emphatically denies

that she ever told Plaintiff that she was assaulted; (3) states that she did not witness Neverson

assault anyone, despite being with him at E11EVEN at the time of the alleged incident; and instead

(4) believes Plaintiff to be lying about the allegations. Aware of but dissatisfied with these

statements, however, Plaintiff’s counsel met with Witness #1 and offered Witness #1 “between

$100,000 and $200,000” to change her story to say that Neverson assaulted both Witness #1 and

the Plaintiff.

2
The federal case was filed in the Southern District of Florida under Case No. 20-
cv-20016.
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 B. makes her initial recorded statement to Neverson’s attorneys
Witness #1
denying that any assault occurred.

On December 18, 2020, Witness #1 made a statement to two attorneys for Neverson—

Andrew Thomson and Ned Nashban. This statement was recorded with Witness #1 ’s knowledge

and express consent.

Witness #1 states that on February 8, 2020, she received a letter from Plaintiff’s prior

counsel, The Williams Law Group, asking her to contact them concerning sexual assault

allegations involving Neverson. Witness #1 states that this was the first time she had heard any

suggestion of sexual assault taking place on the night in question. Witness #1 declined to respond

to the letter.

She then received another letter in July of 2020, also from Plaintiff’s prior counsel and also

asking her to contact them. This alarmed her, as she had moved in the meantime, and it meant that

Plaintiff’s counsel had somehow obtained her new address without her knowledge. Knowing that

no sexual assault occurred, Witness #1 contacted persons close to Neverson to try to let him and

his team know about the letters. This contact led to her interview with attorneys Thomson and

Nashban.

Witness #1 states that she met Plaintiff and her two friends for the first time on the night

of the alleged incident, in the early morning hours of January 1, 2018. Witness #1 also states that

she first met Defendant Neverson on this night. She has since seen Neverson at clubs a few times

but the two are not in regular contact and Witness #1 has never spent time with Neverson one-on-

one.

Witness #1 states that on New Year’s Eve 2017, she was at Combs’s New Year’s Eve

Party at the invitation of a friend. Around three or four in the morning, this friend invited Witn
ess

to go to the E11EVEN night club in Miami, and Witness #1 agreed. They drove separately

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to E11EVEN. In the parking lot of E11EVEN, they joined Neverson and Neverson’s group and

they all entered the club together. Inside the club they were taken to a “VIP” section with a couch

and drinks served in bottles. Witness #1 states that Plaintiff and Plaintiff’s friends joined them in

this section.

Witness #1 states that she never saw Neverson inappropriately touch Plaintiff or “anything

that could have resembled that.” Witness #1 was asked whether she had told Plaintiff that

Neverson had “fingered her rectum.” Witness #1 denied ever saying such a thing and denied that

anything like that happened. Witness #1 also states that Plaintiff never told her that she (Plaintiff)

was assaulted that evening.

In her recorded statement, Witness #1 also mentioned an incident that occurred in the car

after the group left E11EVEN. While still at the club, Neverson invited Witness #1 , the Plaintiff,

and the rest of the group (male and female) to an after party at his home. They accepted, and the

group departed to Neverson’s house in Neverson’s SUV. Neverson had a driver for the evening,

and was sitting in the first passenger row. During this drive, Plaintiff surreptitiously recorded

Neverson, and Neverson noticed. Neverson asked Plaintiff to delete the video. Plaintiff denied

recording a video and things escalated. Eventually Plaintiff admitted to recording a video, but due

to her initial lies, Neverson asked her to get out of the car anyway.

The car pulled over, but Plaintiff refused to leave. Plaintiff’s two friends got out of the car

willingly. Eventually a male member of Neverson’s group got out of the car as well, for the purpose

of removing Plaintiff, and Plaintiff got out of the car at that point and without physical intervention.

By now, it was daylight, there was an attended gas station nearby, and Plaintiff was with two

friends, all of whom had cell phones. Neverson accordingly left Plaintiff and her friends and

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proceeded to his home. At Neverson’s home, the remaining group met more people, had breakfast

food, and then Witness #1 left. Neverson’s driver gave Witness #1 a ride home.

In the recording, Witness #1 states that she believes that Plaintiff has made this allegation

falsely and out of retaliation for embarrassment suffered during this latter incident in the car. Witn

states that before that latter incident, everyone—including Plaintiff—was excited to go

back to Neverson’s house and continue the after party.

C. Witness #1 makes a second recorded statement and provides a signed

declaration reporting that Plaintiff’s attorney, Ariel Mitchell, offered her
money to change her story and offer false testimony.

On April 23, 2021, Witness #1 contacted Neverson’s attorneys to provide information

on a troubling encounter with Plaintiff’s counsel the previous evening. Witness #1 reported as

follows. This statement was also recorded with Witness #1 ’s knowledge and consent. She

followed this statement with a written declaration, which is attached to this Motion as “Exhibit

1.”

Witness #1 states that she received a message from her friend (the same individual Witn

was with at E11EVEN on the night of the alleged incident). This friend informed Witn
ess

that “my attorney that I use down here is on Trey [Neverson’s] case” and would like to

talk with Witness #1 . Witness #1 believed that the friend meant that his attorney was working

for Neverson. In reality, it was Plaintiff’s attorney, Ms. Mitchell. Witness #1 responded that she

would be in Miami on April 22, 2021, and would be available to meet with the attorney then. The

friend then put Witness #1 and Ms. Mitchell in a group chat. Ms. Mitchell replied “hey” to the

group chat, and Witness #1 did not respond, anticipating that more instructions would follow if

the attorney still desired to meet.

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 On April 22, the friend texted Witness #1 to ask whether Witness #1 was in Miami. Ms.

Mitchell texted Witness #1 to ask her to have dinner. Witness #1 agreed.

Witness #1 and Ms. Mitchell went to dinner at Sugar Cane restaurant in Miami, which is

close to where Witness #1 was staying. They met at approximately 9:00 pm. After 45 minutes of

small talk, Witness #1 said, “so you’re Trey’s attorney?” and was informed that Ms. Mitchell

represents the Plaintiff. After Witness #1 expressed confusion about whether she should be talking

to Ms. Mitchell, Ms. Mitchell asked whether Witness #1 had signed a non-disclosure agreement

or been compensated for her statement. Witness #1 truthfully responded that she had done no

such thing.

Ms. Mitchell accordingly informed Witness #1 that it was okay for them to talk, and stated

that Plaintiff had been paid $100,000 and “I bet they [Neverson’s team] didn’t tell you that.” Ms.

Mitchell then clarified that Plaintiff had not received any money, but stated that Plaintiff had been

offered $100,000 to settle the matter before the case was dismissed.3

Ms. Mitchell then told Witness #1 that she was going to refile the case and was seeking

much more money. Ms. Mitchell also stated that she had been in touch with TMZ, OnSite, and a

few blog sites that said if Plaintiff would refile using her real name (rather than a pseudonym), the

blog sites would run the story.

Ms. Mitchell said that she wanted Witness #1 to “join their team” and make false

allegations against Defendant Neverson. Specifically, Witness #1 recounted Ms. Mitchell as

stating the following:

3
To be clear, Neverson has paid no money to Plaintiff or her representatives or
agents. The references to a closed case appear to refer to the aforementioned federal case of Doe
v. Neverson, Case No. 20-cv-20016, before the Southern District of Florida. This matter was
dismissed on March 10, 2021, for insufficient service of process.
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 She wanted me to join their team because I didn’t sign anything [with
Neverson] or get compensated in any way, but if I changed my story, she’s
going to present them to Trey’s mom and Trey’s attorneys that there’s a
way higher number that they want and now there’s two people coming
against him, she’s not going to have to say my name because his mom is
just going to write the check, and I’m looking at $200,000.

Witness #1 stopped Ms. Mitchell and said that she did not want to get involved in that,

did not want money from anyone, and would not change her story because her story was the truth.

Ms. Mitchell then asked Witness #1 how she planned on providing for her son. Witness #1

informed Ms. Mitchell that she would not provide for her son with “wrong money.”

Ms. Mitchell persisted, however. Ms. Mitchell “kept saying the same thing.” Ms. Mitchell

also stated that “Trey [Neverson] does not give an ‘F’ about you,” and asked “why are you wanting

to be a witness for him and ‘do right’ when he’s not even doing right by you—what kind of grown

man doesn’t compensate you for basically saving his life?” Witness #1 said that it wasn’t about

that and she just wanted to do the right thing.

Witness #1 responded by saying in no uncertain terms that Plaintiff is a liar. Witness #1

told Ms. Mitchell that Plaintiff has lied about being assaulted by Neverson. Further, Witness #1

also told Ms. Mitchell that Plaintiff lied about Witness #1 being assaulted by Neverson.

Specifically, Witness #1 said that Neverson never touched her ( Witness #1 ) inappropriately, and

that she resented the insinuation that she ( Witness #1 ) would defend someone who did something

like that to her.

Witness #1 then stated again to Ms. Mitchell that her client was lying. She asked directly,

“You understand your client is lying, right? You understand that none of this happened? What

you’re speaking about, this didn’t happen.” Witness #1 observed to Ms. Mitchell that Plaintiff got

into the car with Neverson to go to his house with her friends after the alleged incident. Ms.

Mitchell responded that Plaintiff wanted video proof that she was with Neverson that night, which

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is smart. Witness #1 then asked why, if that was Plaintiff’s motivation, did she not get out of the

car when asked after she had obtained the video. Ms. Mitchell responded by saying whether this

is a lie or the truth, she doesn’t care, that she (Ms. Mitchell) is a survivor and she’s going to “get

this money.” Ms. Mitchell described herself as a “shark” who “smelled blood in the water.”

Witness #1 affirmed that she wanted no part of changing her truthful story. Ms. Mitchell

responded that she “would take a slow ‘yes’ over a fast ‘no’” and asked Witness #1 to think about

it. Witness #1 responded that it wasn’t going to happen and that she would not change her story.

The next day, Witness #1 contacted Neverson’s attorneys and made her recorded statement.

A few days later, on April 24, 2021, Witness #1 executed a written declaration

memorializing her interaction with Ms. Mitchell. Again, a copy of this Declaration is attached to

this Motion as “Exhibit 1.” The declaration states in pertinent part as follows:

11. At the meeting, Ms. Mitchell asked me if I had been

compensated by the Defendant for my potential testimony. Ms. Mitchell
stated that the Defendant should have paid me for “saving his ass.” I had
no clue what she was talking about and was unclear why I should be
compensated for telling the truth. It was at this point that I began to feel
uncomfortable. It also became clear to me that this meeting had nothing to
do with [my friend] whatsoever.

12. Ms. Mitchell then informed me that she planned on

refiling the case, which is currently closed. Ms. Mitchell further informed
me that she had contacted several paparazzi and news media outlets who
told Ms. Mitchel that if Jane Doe refiled the case under her own name and
not under a pseudonym, that they would pay Ms. Mitchell and Jane Doe
for the alleged “story.”

13. Ms. Mitchell also informed me that if I changed my

testimony to corroborate Jane Doe’s version of events and testified on Jane
Doe’s behalf, that she would pay me between $100,000 and $200,000
depending upon the case’s ultimate settlement amount, if any. To
demonstrate her seriousness, Ms. Mitchell showed me her phone which
disclosed several payments to friends on the mobile payment application,
CashApp.

14. Ms. Mitchel continued to urge me to change my version

of events and went on to state that the money I could earn from changing

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 my testimony would help to put food in my son’s mouth. I brushed off her
suggestions and informed her that I wanted no part in her plan and felt her
client was lying.

15. Ms. Mitchell also informed me that if I joined Jane Doe

as an additional Plaintiff in a potential refiling, she could extort a larger
sum of money from the Defendant via settlement, despite my repeated
denials through this case that no misconduct whatsoever occurred. Ms.
Mitchell also continued to insist that she “knew” I had been sexually
assaulted by the Defendant, despite my repeated denials.

[Exhibit 1 at ¶¶ 11–16.]

D. Summary

At an evidentiary hearing on this matter, Neverson will offer the testimony of Witness
#1

, consistent with her prior recorded statements and affidavit. She will testify first that—

contrary to Plaintiff’s statements—Neverson never assaulted Witness #1 that night (or any night)

and that Witness #1 never told Plaintiff that she was assaulted. Second, Witness #1 will testify

that she never witnessed Neverson assault the Plaintiff despite being with them at the time Plaintiff

alleges that the incident took place. Witness #1 will further testify that that she observed nothing

that evening that led her to believe that an assault had occurred. Finally, Witness #1 will testify

that Plaintiff’s attorney—Ariel Mitchell—met with her on April 21, 2021, and attempted to induce

her to change her statement and give false testimony in exchange for $100,000 to $200,000.

Importantly, Defendant Nevereson will establish that this was not merely an instance of a

Plaintiff’s lawyer attempting to recruit Witness #1 as an additional plaintiff, and discussing with

her the nature of her claim and her anticipated damages. Defendant Neverson will show that Ms.

Mitchell clearly crossed the line into tampering when she (1) informed Witness #1 that she (Ms.

Mitchell) did not care about the truth of the allegations against Defendant Neverson; (2) stated that

Defendant Neverson should be paying Witness #1 for her favorable testimony; and (3) persisted

in her efforts to have Witness #1 change her statement even after being told by Witness #1 that

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no assault occurred. Further, Ms. Mitchell and Plaintiff have persisted in using her manufactured

version of Witness #1 ’s statement in the Complaint presented to this Court, and in the prior

complaint before the Southern District of Florida.

ANALYSIS

A. Relevant Law

Attempting to induce false testimony for use in a judicial proceeding is a grave violation

of an attorney’s duties. It strikes at the heart of a functioning justice system: honesty. “A system

that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why

this kind of conduct must be discouraged in the strongest possible way.” Cox v. Burke, 706 So. 2d

43, 47 (Fla. 3d DCA 1998). Indeed, under Florida law it is a serious crime to knowingly “offer[]

pecuniary benefit or gain to another person, with the intent to cause or induce any person to . . .

[t]estify untruthfully in an official investigation or an official proceeding.” Fla. Stat. § 914.22(1)(f).

Florida’s courts have accordingly held that engaging in such conduct disqualifies a litigant.

“‘[A] party who has been guilty of fraud or misconduct in the prosecution or defense of a civil

proceeding should not be permitted to continue to employ the very institution it has subverted to

achieve [their] ends.’” Cabrerizo v. Fortune Int’l Realty, 760 So. 2d 228, 229–30 (Fla. 3d DCA

2000) (quoting Hanono v. Murphy, 723 So. 2d 892, 895 (Fla. 3d DCA 1998)). “One who engages

in a fraudulent scheme forfeits all right to the prosecution of a lawsuit.” Horjales v. Loeb, 291 So.

2d 92, 93 (Fla. 3d DCA 1974).

This is especially so where the misconduct implicates the merits of a party’s claim. In such

cases, dismissal is warranted. “Litigants should not be left with the impression that they can abuse

the judicial process and opposing parties by fabricating evidence concerning the core of their case

and simply pay a fine to absolve their misdeeds.” Quiroz v. Superior Bldg. Maintenance, Inc., Case

11
No. 03-21594-CIV, 2008 WL 3540599 (S.D. Fla. Apr. 12, 2008). Such conduct “not only

warrant[s] dismissal, but require[s] it.” Middleton v. Hager, 179 So. 3d 529, 534 (Fla. 3d DCA

2015) (emphasis in original) (citing Storm v. Allied Universal Corp., 842 So. 2d 245 (Fla. 3d DCA

2003); Hanono, 723 So. 2d at 896; Papadopoulos v. Cruise Ventures Three Corp., 974 So. 2d 418,

418 (Fla. 3d DCA 2007); Leo’s Guld Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001)).

The Third DCA has articulated the standard for decision thus:

The requisite fraud on the court occurs where “it can be demonstrated,
clearly and convincingly, that a party has sentiently set in motion some
unconscionable scheme calculated to interfere with the judicial system’s
ability impartially to adjudicate a matter by improperly influencing the
trier of fact or unfairly hampering presentation of the opposing party’s
claim or defense.

Sky Development, Inc. v. Vistaview Development, Inc., 41 So. 3d 918, 920 (Fla. 3d DCA 2010)

(quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)).

It is no bar to dismissal that misconduct is perpetrated through counsel, rather than by a

party directly. As the Florida Supreme Court held in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.

1993) even a lawyer’s negligence can warrant dismissal in certain circumstances. That said,

“[b]ecause dismissal is the ultimate sanction in the adversarial system, it should be reserved for

those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Id.

The Supreme Court therefore enumerated factors for the lower courts to consider in evaluating

whether dismissal is an appropriate sanction for attorney misconduct:

1) whether the attorney’s disobedience was willful, deliberate, or

contumacious, rather than an act of neglect or inexperience; 2) whether
the attorney has been previously sanctioned; 3) whether the client was
personally involved in the act of disobedience; 4) whether the delay
prejudiced the opposing party through undue expense, loss of evidence, or
in some other fashion; 5) whether the attorney offered reasonable
justification for noncompliance; and 6) whether the delay created
significant problems of judicial administration.

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 The Kozel court articulated these factors in a case concerning misconduct far more

innocuous than that at issue here. In Kozel, a plaintiff’s attorney missed (by several months) a

court-imposed deadline for filing an amended complaint. The trial court dismissed the case with

prejudice and the Second DCA affirmed. The Florida Supreme Court quashed the DCA’s

affirmance, however, and remanded the case to the trial court to consider the above-referenced,

newly enumerated, framework. In doing so, the Florida Supreme court stated that analysis of the

Kozel factors is mandatory whenever a sanction of dismissal is imposed for attorney misconduct.

Following Kozel the Florida Supreme Court affirmed that dismissal for an attorneys’

negligence is still on the table. “[The Florida Supreme Court] has long recognized the existence of

circumstances where it may be appropriate to dismiss a litigant’s action based upon an attorney’s

neglect.” Ham v. Dunmire, 891 So. 2d 492, 497 (Fla. 2004). These include circumstances where

the negligence was “persistent” or involved “failure to appear at various hearings and to comply

with multiple trial court orders.” Id. at 498. Dismissal will be affirmed so long as the trial court

appropriately analyzes the Kozel factors and concludes that no lesser sanction will suffice.

Where cases involve intentional misconduct by an attorney, rather than negligence, courts

have not hesitated to impose the sanction of dismissal. For example, in Adams v. Barkman, 114

So. 3d 1021, 1023 (Fla. 5th DCA 2012), the Fifth DCA affirmed the striking of a party’s pleadings

where that party’s attorney repeatedly and intentionally violated the trial courts orders on motions

in limine precluding admission of certain evidence and testimony at trial. The Court analyzed the

Kozel factors, and held that the sanction was justified “where a litigant or lawyer’s behavior

indicates ‘[a] deliberate and contumacious disregard of the court’s authority[,] . . . bad faith, willful

disregard or gross interference to an order of the court, or conduct which evidences deliberate

13
callousness.’” Id. at 1024 (quoting Houser v. Cnty of Volusia, 25 So. 3d 75 (Fla. 5th DCA 2009)

(alterations in original)).

Fraud, of course, is far worse. It is among the most “deliberate and contumacious” of

misconduct, rife with “bad faith,” and evidencing a “deliberate callousness” and “gross

interference” with the court’s truth-finding role. Accordingly, where an attorney has engaged in

fraudulent conduct, tampering with witnesses, and the manufacturing of evidence, Florida courts

have held that the trial court has a “duty and an obligation” to dismiss the case. ICMfg & Assocs.,

Inv. v. Bare Board Group, Inc., 238 So. 2d 326, 334 (Fla. 2d DCA 2017) (quoting Long v.

Swofford, 805 So. 3d 882, 884 (Fla. 3d DCA 2001)).

B. Application

As set forth in this memorandum, Defendant Neverson will show at an evidentiary hearing

that Plaintiff’s counsel offered money to witness Witness #1 in an effort to induce Witness #1

to offer false testimony. Specifically, Ms. Mitchell promised Witness #1 between $100,000 and

$200,000 if she would testify that Defendant Neverson assaulted Plaintiff Jeffries and Witness #1

in the early morning hours of January 1, 2018.

Importantly, Ms. Mitchell’s actions were not merely a clumsy but good faith attempt to

recruit an additional plaintiff to add to her suit. Rather, Ms. Mitchell conveyed to Witness #1 that

she did not care about the truth of Witness #1 ’s testimony. Ms. Mitchell further told Witness #1

that Witness #1 should effectively offer her testimony to the highest bidder, and that Witness #1

should expect Defendant Neverson to pay her for her testimony. Finally, Ms. Mitchell continued

to offer Witness #1 money to change her testimony even after Witness #1 told Ms. Mitchell that

Ms. Mitchell was asking Witness #1 to lie.

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 Upon such a showing, the Court must consider the factors that the Florida Supreme Court

articulated in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), to determine whether dismissal

is appropriate. In the face of a deliberate, willful scheme to induce fraudulent testimony, and

considering the Kozel factors, dismissal is appropriate. “A trial court has a duty and an obligation

to dismiss a cause of action based upon fraud.” ICMfg & Assocs., 238 So. 3d at 334.

WHEREFORE, Defendant Neverson will set this Motion for evidentiary hearing. Upon the

requisite showing, Defendant Neverson respectfully requests the court enter an appropriate finding

of misconduct and grant his request for the sanction of dismissal, and take such further action as

the court deems warranted.

Dated: February 15, 2022 Respectfully submitted,

MARCUS NEIMAN RASHBAUM

& PINEIRO LLP

100 SE Third Ave, Suite 805

Fort Lauderdale, FL 33394
Telephone (954) 462-1200
Facsimile: (866) 780-8355

By: /s/ Jeffrey Neiman

JEFFREY A. NEIMAN
Florida Bar No. 544469
DERICK R. VOLLRATH
Florida Bar No. 126740
[email protected]
[email protected]

Counsel for Defendant Neverson

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 CERTIFICATE OF SERVICE

I certify that on February 15, 2022, I served the foregoing document via email in
accordance with the requirements of Florida Rule of Judicial Administration 2.516 on all parties
through their counsel as set forth below:

Plaintiff: Defendant 11USA Group, LLC

Ariel E. Mitchell Marissa D. Kelley

[email protected] [email protected]
[email protected]
George Vrabeck [email protected]
[email protected]

/s/ Jeff Neiman

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EXHIBIT 1
Frie
nd