Shamblin v. Obama for America
ORDER: Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction #122 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 11/5/2014. (AKH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LORI SHAMBLIN, individually
and on behalf of all others
Case No. 8:13-cv-2428-T-33TBM
OBAMA FOR AMERICA, DNC
SERVICES CORPORATION, and
NEW PARTNERS CONSULTING, INC.,
This matter is before the Court on consideration of
Defendant New Partners Consulting, Inc.’s Motion to Dismiss
for Lack of Subject Matter Jurisdiction (Doc. # 122), which
was filed on September 25, 2014.
Plaintiff Lori Shamblin
filed a Response in Opposition to the Motion on October 14,
Partners Consulting, Inc. filed its Reply on October 23, 2014.
(Doc. # 137). The Court also granted Defendant Obama for
America and DNC Services Corporation’s Motion to file a
“reply” to articulate its position on Defendant New Partner
Consulting, Inc.’s Motion to Dismiss. (Doc. # 136). On October
30, 2014, also with leave of Court, Shamblin filed her Sur-
Reply. (Doc. # 138). For the reasons that follow, Defendant
New Partners Consulting, Inc.’s Motion is denied.
Shamblin initiated this action by filing a putative
class action against Defendant Obama for America on September
19, 2013, for alleged violations of the Telephone Consumer
Protection Act (“TCPA”) 46 U.S.C. § 227. (Doc. # 1 at ¶ 16).
assigned to a cellular telephone service using an automatictelephone-dialing system or an artificial or pre-recorded
voice. 47 U.S.C. § 227(b)(1)(A). Shamblin alleged that she
received two unsolicited auto-dialed telephone calls from
Obama for America to her cellular telephone that left prerecorded messages on her voice mail system. (Doc. # 1 at ¶
On September 20, 2013, Shamblin filed a Motion to Certify
Class Action. (Doc. # 5). This Court denied without prejudice
Shamblin’s Motion to Certify Class on October 9, 2013, as the
Motion was a placeholder devoid of the substantive factual
and legal allegations necessary for this Court to engage in
a Fed. R. Civ. P. 23 analysis. (Doc. # 13). Thereafter, on
December 2, 2013, Defendant Obama for America filed its Motion
to Dismiss and Motion to Strike Class Allegations. (Doc. #
extension to move for class certification. (Doc. ## 34, 35).
Nearly two months later, on February 6, 2014, Shamblin
sought a further extension of the deadlines to add parties,
amend pleadings, and move for class certification. (Doc. #
applicable Case Management deadlines by 120 days as requested
by Shamblin. (Doc. # 48). On February 18, 2014, Defendant
Obama for America’s Motion to Dismiss was denied. (Doc. #
On April 14, 2014, Shamblin moved under Federal Rule of
Civil Procedure 15(a)(2) for leave to amend her Complaint to
add a new party defendant, DNC Services Corporation, also
known as the Democratic National Committee, whose involvement
was uncovered through the discovery process. (Doc. # 75 at
1). Shamblin’s motion for leave to amend was filed two months
before the Case Management and Scheduling Order’s June 17,
2014, deadline for amendments to the pleadings. (Doc. # 19).
On May 30, 2014, this Court granted Shamblin leave, and
Shamblin filed her Amended Complaint on June 3, 2014. (Doc.
## 86, 87). Thereafter, on August 14, 2014, Shamblin filed
her Second Amended Complaint adding New Partners Consulting,
Inc. as a Defendant. (Doc. # 109).
Shamblin contends that “despite the prohibition of robocalls
to cell phones, and the FCC’s reminder that such calls are
participation of [D]efendant DNC Services Corporation . . .
and New Partners Consulting, Inc., called voter cell phones
recipients to vote for Barack Obama in the 2012 presidential
election.” (Id. at ¶ 2). Shamblin alleges that Defendants
violated the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, “by calling voters’ cell phones with autodialed calls and pre-recorded messages.” (Id. at ¶ 21).
Specifically, Shamblin contends, “beginning in September 2012
and continuing up to the November 2012 election, Defendants
[P]laintiff Shamblin did not answer the call, Defendants’
pre-recorded message was left on her cellular telephone’s
voice mail system.” (Id. at ¶ 22).
Shamblin “is informed and believes that the phone number
was assigned to Organizing for America Florida, which was a
project of the DNC that made and/or paid for calls using
outside vendors such as New Partners Consulting, Inc.” (Id.
at ¶ 24). Shamblin further indicates that she “had not given
Defendants her express consent to call her cell phone with
automatically-dialed or pre-recorded messages.
She had never
given Defendants her telephone number and, prior to receiving
Defendants’ messages, had never even heard of Obama for
America.” (Id. at ¶ 25).
New Partners Consulting, Inc. responded to the Second
Amended Complaint on September 10, 2014, by filing an Answer
Consulting, Inc. then filed the present Motion to Dismiss for
Lack of Subject Matter Jurisdiction pursuant to Fed. R. Civ.
P. 12(b)(1) on September 25, 2014. (Doc. # 122), which is now
ripe for this Court’s review.
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
jurisdiction facially or factually.
Morrison v. Amway Corp.,
jurisdictional attack is factual, as in the instant case, the
Court may look outside the four corners of the complaint to
determine if jurisdiction exists.
Eaton v. Dorchester Dev.,
Inc., 692 F.2d 727, 732 (11th Cir. 1982).
In a factual
plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach.
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(citing
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
Because the very power of the Court to hear the case is at
issue in a Rule 12(b)(1) motion, the Court is free to weigh
evidence outside the complaint.
Eaton, 692 F.2d at 732.
III. Mootness Doctrine
Article III of the United States Constitution limits the
judicial authority of the federal court system to cases or
controversies. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water
Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011). “In turn,
the case or controversy constraint imposes on federal courts
a dual limitation known as justiciability. The doctrine of
justiciability prevents courts from encroaching on the powers
of the elected branches of government and guarantees that
adversarial context.” Al Najjar v. Ashcroft, 273 F.3d 1330,
1335–36 (11th Cir. 2001).
The doctrine of mootness springs directly from the case
or controversy limitation because an action that is moot
cannot be characterized as an active case or controversy. Id.
Mootness can occur due to a change in circumstances or a
change in the law. Coral Springs St. Sys., Inc. v. City of
Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004). A case is also
moot when the issue presented is no longer live, the parties
lack a legally cognizable interest in the outcome, or a
decision could no longer provide meaningful relief to the
parties. Troiano v. Supervisor of Elections in Palm Beach
Cnty., Fla., 382 F.3d 1276, 1282 (11th Cir. 2004).
described as the doctrine of standing set in a time frame:
throughout its existence (mootness).” Arizonans for Official
English v. Ariz., 520 U.S. 43, 68 (1997). Additionally, “the
plaintiff generally must assert his own legal rights or
interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Sims v. State of Fla.
Dep't of Highway Safety & Motor Vehicles, 862 F.2d 1449, 1468
(11th Cir. 1989).
New Partners Consulting, Inc. seeks dismissal of the
Second Amended Complaint under Rule 12(b)(1) alleging that
its Rule 68 Offer of Judgment to Shamblin was an offer of
complete relief and thus no case or controversy remains
between the parties. (Doc. # 122 at 3). After review of the
determines that Shamblin maintains a personal stake in this
action as the Rule 68 Offer of Judgment did not offer her
Federal Rule of Civil Procedure 68 provides that at least
fourteen days before trial, a defending party may serve a
plaintiff with an offer to allow a judgment on specified
terms. Fed. R. Civ. P. 68(a). If the plaintiff accepts the
offer within fourteen days, then judgment is entered. Id. If
the plaintiff does not accept the offer, the offer is deemed
withdrawn. Fed. R. Civ. P. 68(b).
Regardless of whether the plaintiff accepts the offer,
“an offer of judgment providing the plaintiff with the maximum
allowable relief [will] moot the plaintiff's claim.” Moore v.
Hecker, 250 F.R.D. 682, 684 (S.D. Fla. 2008). Therefore, “Rule
68 offers can be used to show that the court lacks subjectmatter jurisdiction.” Pollack v. Bay Area Credit Serv., LLC,
No. 08–61101–Civ, 2009 WL 2475167, at *5 (S.D. Fla. Aug. 13,
2009). “Once the defendant offers to satisfy the plaintiff's
entire demand, there is no dispute over which to litigate .
. . and a plaintiff who refuses to acknowledge this loses
outright, under Fed. R. Civ. P. 12(b)(1), because he has no
remaining stake.” Rand v. Monsanto Co., 926 F.2d 596, 598
(7th Cir. 1991).
New Partners Consulting, Inc. strongly relies on Delgado
v. Collecto, Inc., No. 8:13-CV-2511-T-33TBM, 2013 WL 6332748
(M.D. Fla. 2013), an opinion authored by this Court. However,
this is not Delgado. In Delgado, this Court found that “the
Rule 68 offer of judgment tendered by defendant offered
requested that the Court enter judgment in its favor for:
Certification of this matter to proceed as a
ii. The maximum amount of statutory damages
pursuant to Section 559.77, Florida Statutes
for each class member;
iii. Attorneys’ fees, litigation expenses and costs
iv. For such other and further relief as the Court
deems just and proper.
Id. Defendant offered to the plaintiff:
Judgment shall be entered against Defendant in
the amount of Two Thousand One Dollars and
Plaintiff’s FDCPA and FCCPA claims against the
Defendant as alleged in Plaintiff’s pleadings
filed in the above captioned matter.
additional amount for reasonable attorney’s
fees and taxable costs incurred by Plaintiff,
in an amount to be determined by the Court if
the parties are unable to come to an
Should Plaintiff accept this Offer, Plaintiff
agrees that acceptance of this Offer resolves
Plaintiff’s FDCPA and FCCPA claims against
Asserting that the action was not moot, the plaintiff in
Delgado argued that she represented a putative class of
violations of the FDCPA and FCCPA. Id. Nevertheless, the Court
found that the plaintiff’s “putative class action case was
judgment under Rule 68.” Id. In reviewing the prayer for
relief and offer of judgment in Delgado, the Court notes that
the offer language was a mirror image of the relief requested.
Even plaintiff’s counsel conceded that the plaintiff was
offered full relief by the defendant. Id.
Here, unlike Delgado, New Partners Consulting, Inc.’s
Offer of Judgment did not comport with the standard set forth
in Rule 68 allowing Shamblin to recover the “maximum relief
available under the law.” Id. There are multiple defendants
in this action, whereas in Delgado, there was only one.
Defendants and not solely from New Partners Consulting, Inc.
Therefore, the Offer of Judgment, which was not a mirror image
of the prayer for relief, did not moot Shamblin’s claim and
deprive this Court of jurisdiction.
In the Complaint Shamblin seeks the following relief:
a. Certify this action as a class action under
Federal Rule of Civil Procedure 23, appointing
Plaintiff as the class representative and her
counsel as class counsel;
b. Enjoin Defendants from violating the TCPA in the
future by placing auto-dialed or pre-recorded
calls to cellular telephone numbers;
c. Award statutory damages to Plaintiff and the
class pursuant to 47 U.S.C. § 227(b)(3).
d. Award reasonable attorney fees and costs to
compensate Plaintiff’s counsel for the time and
litigation expenses incurred on behalf of the
e. Issue such other relief
equitable and just.
(Doc. # 131 at 5).
offered Shamblin the following:
(1) Judgment shall be entered against Defendant and
in favor of SHAMBLIN in the amount of $7,500.00,
arising from Plaintiff’s TCPA claims against the
Defendant as alleged in Plaintiff’s Second Amended
Class Action Complaint, (2) Judgment shall include
an additional amount for taxable costs incurred by
Plaintiff in prosecuting the case, in an amount to
be determined by the Court if the parties are unable
to come to an agreement, (3) Judgment shall enjoin
Defendant from violating the TCPA in the future by
placing auto-dialed or prerecorded calls to
SHAMBLIN’s cellular telephone number(s), and (4)
Should Plaintiff accept this Offer, Plaintiff
agrees that acceptance of this Offer resolves
Plaintiff’s TCPA claims against Defendant.
(Doc. # 122-1).
An Offer of Judgment cannot be evaluated solely by its
dollar amount. Lynch v. First Nat. Collection Bureau, Inc.,
No. 11-60798-CIV, 2011 WL 2457903 (S.D. Fla. 2011). In the
instant action, Shamblin seeks to enjoin all Defendants 1 from
The Court notes that Defendant New Partners Consulting, Inc.
argues in its Reply that “New Partners is not required to
moot Plaintiff’s claims against the co-Defendants to divest
the Court of jurisdiction over the Plaintiff’s claims against
committing future violations of the TCPA. (Doc. # 131 at 5).
The TCPA provides in relevant part that,
A person or entity may, if otherwise permitted by
the laws or rules of court of a State, bring in an
appropriate court of that State—
(A) an action based on a violation of this
subsection or the regulations prescribed under
this subsection to enjoin such violation,
(B) an action to recover for actual monetary
loss from such a violation, or to receive $500
in damages for each such violation, whichever
is greater, or
(C) both such actions.
If the court finds that the defendant willfully or
regulations prescribed under this subsection, the
court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3
times the amount available under subparagraph (B)
of this paragraph.
47 U.S.C. § 227(b)(3)(emphasis added).
Accordingly, as the TCPA provides that an injunction is
an appropriate remedy sought under the statute, and because
Shamblin did in fact seek to enjoin all the Defendants in
this action, an Offer of Judgment without full injunctive
relief diminishes the value of the judgment Shamblin seeks.
Thus, the Offer of Judgment, which included injunctive relief
New Partners.” (Doc. # 137 at 2). However, this contention is
misplaced in light of the requirement that Plaintiff receive
the complete relief.
only against New Partners Consulting, Inc., even if for the
full monetary amount, does not encompass the entire value of
Lynch, 2011 WL 2457903.
Although Defendants, Obama for America and DNC Services
Corporation, are willing to be enjoined from “violating the
TCPA in the future by placing auto-dialed or pre-recorded
calls to cellular telephone numbers” at this juncture, that
offer does not appear on the face of New Partners Consulting,
Inc.’s Offer of Judgment. (Doc. # 136). This Court finds that
New Partners Consulting, Inc.’s Offer of Judgment failed to
provide “maximum allowable relief” to Shamblin and therefore
did not moot Shamblin’s claim and deprive this Court of
subject matter jurisdiction.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction (Doc. # 122) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
5th day of November, 2014.
Copies to: All Counsel of Record
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