Lopez v. Consumer Safety Technology LLC
Filing
40
ORDER denying 26 Motion to Dismiss for Failure to State a Claim; denying 28 Motion to Strike Class Allegations. Signed by Judge William F. Jung on 5/10/2024. (NME)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOEL LOPEZ, individually
and on behalf of all others
similarly situated,
Plaintiff,
v.
Case No. 8:24-cv-150-WFJ-AAS
CONSUMER SAFETY
TECHNOLOGY, LLC,
d/b/a INTOXALOCK,
Defendant.
________________________________/
ORDER
Before the Court are Defendant Consumer Safety Technology, LLC d/b/a
Intoxalock’s (“Intoxalock”) Motion to Dismiss Count I (Dkt. 26) of Plaintiff Joel
Lopez’s Amended Class Action Complaint (Dkt. 21) and Motion to Strike Class
Allegations (Dkt. 28). Mr. Lopez filed Responses to both motions (Dkts. 29, 30),
and Intoxalock filed Replies (Dkts. 36, 37). Upon careful consideration, the Court
denies the motions.
BACKGROUND
Intoxalock is an ignition interlock device company that markets its
breathalyzer products through telephone solicitations of individual consumers. Dkt.
21 ¶¶ 6, 13. Mr. Lopez is one such consumer. Id. ¶ 17. In his Complaint, Mr.
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Lopez alleges that Intoxalock has called his personal residential cellphone number
sixty-six times since September 2023. Id. These telephone solicitations were
“aggressive,” “misleading,” and unwelcome: Mr. Lopez never gave Intoxalock his
contact information or consent to be called. Id. ¶ ¶ 14, 18, 41–42. Mr. Lopez asked
Intoxalock to stop calling him and place him on its internal do not call list, but
Intoxalock kept calling. Id. ¶ 19. Mr. Lopez did not give up. He states that he
repeatedly requested Intoxalock stop calling him, that he made these requests via
telephone and email, and that he asked at least five times to be placed on
Intoxalock’s do not call list. Id. ¶¶ 20–21. Intoxalock allegedly kept calling. Id. ¶
22. Mr. Lopez next placed himself on the national Do Not Call Registry (“DNC
Registry”). Id. ¶ 31. Intoxalock kept calling anyway. Id. ¶ 32.
When Mr. Lopez spoke to Intoxalock representatives on the phone, they
agreed to stop calling him. Id. ¶ 22. And yet, the Amended Complaint states, “the
barrage of calls continued.” Id. Mr. Lopez reports that one Intoxalock agent told
him she would “flag” his account but could not guarantee that the calls would stop.
Id. ¶¶ 24–25. Another Intoxalock agent told Mr. Lopez that, although she could see
he had requested not to be called, “his telephone number was not removed from the
lead list of numbers to be dialed.” Id. ¶ 33.
Mr. Lopez alleges that Intoxalock made these persistent calls through use of
an “automated system [that] selects and dials numbers from a lead list of numbers
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to be dialed without regard to whether those numbers have been placed on
[Intoxalock’s] internal DNC list or national DNC list.” Id. ¶ 34. He reasons that, if
Intoxalock employees dialed numbers manually, “human intervention would have
prevented the calls from being placed to a number that had been ‘flagged’ as do not
call.” Id. The Amended Complaint provides these specific details about
Intoxalock’s alleged automated system:
Upon information and belief, the selection and dialing of numbers for
the calls at issue are done using an automated system because the calls
were sent from telephone numbers used to message consumers en
masse; because Defendant’s dialing equipment includes features
substantially similar to a predictive dialer, inasmuch as it is capable of
making calls without manually dialing the recipients numbers; and
because the hardware and software used by Defendant to send such
calls have the capacity to both select numbers to be dialed and to dial
such numbers in an automated fashion based on predetermined,
programmed, or random criteria or settings.
Id. ¶ 46. In his Response to the instant Motion, Mr. Lopez specifically avers that
Intoxalock uses the Genesys system, configured as an auto dialer, to place calls.
Dkt. 29-1 at 2–3.
Mr. Lopez filed the instant Amended Complaint in March 2024. He alleges
violations of the Florida Telephone Solicitation Act (“FTSA”) and federal
Telephone Consumer Protection Act (“TCPA”), on behalf of himself and multiple
classes of plaintiffs: (1) the “FTSA No Consent Class”; (2) the “FTSA Internal Do
Not Call (“DNC”) Class”; (3) the “Do Not Call Registry Class”; and (4) the
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“Internal DNC Class.” The Amended Complaint defines the FTSA No Consent
Class as:
All persons in the State of Florida who, within the four years prior to
the filing of this Complaint (i) were sent a telephonic sales call within
the four years prior to the filing of the Complaint through the date of
class certification, (ii) using the same equipment or type of equipment
utilized to call Plaintiff (iii) from or on behalf of Defendant and/or its
agents, (iv) promoting Defendant’s products or services, (v) without
the recipients’ prior express written consent.
Dkt. 21 at 11. The “Do Not Call Registry Class” consists of:
All people in the United States who from four years prior to the filing
of this action through the date of class certification, (i) were called by
or on behalf of Defendant; (ii) more than one time within any 12month period; (iii) where the person’s telephone number had been
listed on the National Do Not Call Registry for at least thirty-one
days; (iv) for the purpose of promoting or selling Defendant’s
products and/or services.
Id. at 12.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Intoxalock moved to
dismiss Count I, which brings a claim for violation of the FTSA on behalf of Mr.
Lopez and the FTSA No Consent Class. Id. ¶¶ 69–80. Intoxalock also moved under
Rule 12(f) and Rule 23 to strike the FTSA No Consent Class and the Do Not Call
Registry Class. Dkt. 28 at 6–14.
Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (citation omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. In
considering the motion, the Court must accept all factual allegations of the
complaint as true and construe them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted).
The Court should limit its “consideration to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and matters judicially
noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(citations omitted).
A party moving to strike class allegations under Rule 12(f) must demonstrate
that “the plaintiff's class action allegations are redundant, immaterial, impertinent,
or scandalous.” Fed. R. Civ. P. 12(f); Café, Gelato & Panini LLC v. Simon Prop.
Grp., Inc., 20-60981-CIV-CANNON/Hunt, 2022 WL 17987098, at *3 (S.D. Fla.
Mar. 22, 2022) (quotation omitted). As under Rule 12(b)(6), “[w]hen deciding a
motion to strike, a court must accept the truthfulness of well-pleaded facts and
cannot consider matters beyond the pleadings.” Pavic v. Laser Spine Inst., LLC,
8:13–cv–02578–EAK–EAJ, 2014 WL 2707953, at *2 (M.D. Fla. June 13, 2014)
(quotations omitted); 5C Wright & Miller Fed. Prac. & Proc. § 1380 (Feb. 2024).
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Motions to strike are generally disfavored and “will usually be denied.” Italiano v.
Jones Chemicals, Inc., 908 F. Supp. 904, 907 (M.D. Fla. 1995) (collecting cases).
Analysis
I. Motion to Dismiss
Intoxalock argues Count I fails to state that Intoxalock used an automated
dialing system in violation of the FTSA. Dkt. 26 at 4–6. Mr. Lopez responds that
the facts in the Amended Complaint permit the reasonable inference that such a
system was used. Dkt. 29 at 5. He further argues that his pleading is owed some
latitude because the specific details of Intoxalock’s dialing system are within its
particular knowledge. Id. at 6.
The FTSA, Fla. Stat. § 501.059 (8)(a), provides that:
A person may not make or knowingly allow to be made an unsolicited
telephonic sales call if such call involves an automated system for the
selection and dialing of telephone numbers . . . without the prior
express written consent of the called party.
“To properly allege a violation of this provision, a plaintiff must allege some facts
making it plausible that the defendant used an automated dialing system as
described by the statute.” Davis v. Coast Dental Servs., LLC, 8:22-cv-941-KKMTGW, 2022 WL 4217141, at *2 (M.D. Fla. Sept. 13, 2022). However, no particular
set of facts is required to plead use of an automatic system; as always, a complaint
need only state enough to raise a right to relief above the speculative level.
Compare id. (plaintiff could have stated a claim by alleging “information on [the
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defendant's] website indicating that messages are sent through automated systems,
information regarding the formality of the message, or information regarding the
phone number from which the message was received that could indicate an
automated source”), with Taylor v. Suntuity Solar LLC, 8:23-cv-00694-MSS-AEP,
2024 WL 964199, at *5 (M.D. Fla. Mar. 6, 2024) (plaintiff stated a claim by
naming a specific autodialer system and alleging a pause after she answered and
before a live call center employee picked up), and Simpson v. J.G. Wentworth Co.,
8:23-cv-00152-KKM-AEP, 2024 WL 245992, at *5 (M.D. Fla. Jan. 23, 2024) (an
FTSA claim that alleged a pause after the plaintiff answered, a recording that was
not responsive to the plaintiff’s voice, and a “generic monotone voice” adequately
pled a pre-recorded call in violation of the FTSA).
In Davis, a case heavily relied upon by Intoxalock, the plaintiff alleged that
the defendant sent her a single text message using “a computer software system
that automatically selected and dialed her telephone number to advertise dental
services.” Davis, 2022 WL 4217141 at *1. The Davis court found this allegation
conclusory. Id. at *2. In contrast, Mr. Lopez has pled far more. The Amended
Complaint states that Intoxalock called Mr. Lopez sixty-six times from “telephone
numbers used to message consumers en masse.” Dkt. 21 ¶¶ 17, 46. It also
specifically describes Intoxalock’s automated dialing system. Id. ¶ 46. Further
supporting the inference that Intoxalock used an automated dialing system, the
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Amended Complaint alleges that Intoxalock used a “lead list” of telephone
numbers and that Intoxalock agents exerted no control over whether numbers on an
internal do not call list would be called anyway. Id. ¶¶ 24–25, 33.
Even without alleging the specific system used by Intoxalock,1 the Amended
Complaint pleads enough facts to “nudge[] [its] claims across the line from
conceivable to plausible.” Bell Atl. Corp., 550 U.S. 544, 570 (2007). Intoxalock’s
Motion to Dismiss Count I of the Amended Complaint is denied.
II. Motion to Strike
Intoxalock also moves to strike the FTSA No Consent Class and the Do Not
Call Registry Class under Rules 12(f) and 23. When a defendant moves to strike
class allegations under Rule 12(f), many courts “view the Rule 23 factors through
the lens of the Rule 12(f) standard.” Café, Gelato & Panini, 2022 WL 17987098,
at *3. Governed by Rule 23, class certification proceeds in two parts. First, the
putative class representative must demonstrate that the Rule 23(a) factors of
numerosity, commonality, typicality, and adequacy are satisfied. Fed. R. Civ. P.
23(a). To permit an evaluation of these factors, the proposed class must be
“adequately defined and clearly ascertainable.” Cherry v. Dometic Corp., 986 F.3d
1296, 1302 (11th Cir. 2021). Next, the representative must also “demonstrate
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While Mr. Lopez named the specific system in his Response, Dkt. 29-1 at 2–3, the Court will
not consider facts outside “the four corners of the complaint,” Wilchombe v. TeeVee Toons, Inc.,
555 F.3d 949, 959 (11th Cir. 2009).
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entitlement to class relief under one of the three provisions in Rule 23(b).” Nuwer
v. FCA US LLC, 343 F.R.D. 638, 646 (S.D. Fla. 2023).
It is rarely proper for a court to strike class allegations based only on the face
of the complaint. See Herrera v. JFK Med. Cntr., 648 F. App’x 930, 934 (11th Cir.
2016) (unpublished). Because “class certification is an evidentiary issue,” the
propriety of certifying a class “usually should be predicated on more information
than the complaint itself affords.” Id. A defendant seeking to strike a class prior to
discovery has “the burden of demonstrating from the face of plaintiffs' complaint
that it will be impossible to certify the classes alleged by the plaintiffs regardless of
the facts the plaintiffs may be able to prove.” Romano v. Motorola, Inc., No. 07CIV-60517, 2007 WL 4199781, at *2 (S.D. Fla. Nov. 26, 2007) (quotation
omitted). Intoxalock has not met this burden.
A. FTSA No Consent Class
Intoxalock urges the Court to strike the FTSA No Consent Class because it
is defined based upon the merits of Mr. Lopez’s claim. Dkt. 28 at 6–8. Specifically,
Intoxalock argues that “[b]ecause membership in the class is determined by
whether the consumer received a telephonic sales call, Intoxalock would be
unfairly prejudiced by a proceeding where a crucial merits inquiry has already
been determined in the class members’ favor—individuals are either already
determined to have won on this critical issue, or they are not members of the class
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at all.” Dkt. 28 at 7–8 (citing Chavez, v. Air Prods. & Chems. Inc., CV 14-06360BRO, 2016 WL 9558905, at *9 (C.D. Cal. Feb. 24, 2016)).
Despite Intoxalock’s protestations to the contrary, Dkt. 38 at 5, it is pressing
a “fail-safe class” argument. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532,
538 (6th Cir. 2012) (defining a fail-safe class as one in which “[e]ither the class
members win or, by virtue of losing, they are not in the class and, therefore, not
bound by the judgment”). A fail-safe class is problematic because it “precludes
membership unless the liability of the defendant is established.” Alhassid v. Bank
of Am., 307 F.R.D. 684, 693 (S.D. Fla. 2015). By “only includ[ing] those who are
first determined to be entitled to relief,” MSP Recovery Claims v. Ace Am. Ins. Co.,
341 F.R.D. 636, 646 (S.D. Fla. 2022), a fail-safe class “front-ends a merits
determination on [the defendant’s] liability,” Alhassid, 307 F.R.D. at 694.
The FTSA, Fla. Stat. § 501.059 (8)(a), provides that:
A person may not make or knowingly allow to be made an unsolicited
telephonic sales call if such call involves an automated system for the
selection and dialing of telephone numbers . . . without the prior
express written consent of the called party.
It follows, then, that simply placing a telephonic sales call to members of the
proposed class is not enough to make Intoxalock liable. To be entitled to relief, Mr.
Lopez and the other class members must show that the equipment Intoxalock used
to place the call violates the FTSA. As a result, the class’s “telephonic sales call”
requirement does not presuppose Intoxalock’s liability or otherwise front-end a
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merits determination. Because Intoxalock has not shown it will be impossible to
certify the FTSA No Consent Class, its motion to strike this class is denied.
B. Do Not Call Registry Class
Intoxalock argues that the DNC Registry Class should be stricken because it
is overly broad and therefore lacks commonality. Intoxalock asserts that the DNC
Registry Class is “overly broad because it includes all numbers on the National
DNC Registry, regardless of who registered that number” and “because it entirely
fails to exclude or carve out individuals who had an ‘established business
relationship’ with Intoxalock.” Dkt. 28 at 10–11. It asserts that individualized
issues will predominate because of these deficiencies and because of the fact that
the class “includes all cellular numbers rather than just residential ones.” Id. at 13.
Each of these alleged deficiencies goes to the class members’ entitlement to relief
under the TCPA. See 47 C.F.R. § 64.1200(a)(4)(i), § 64.1200(c).
These arguments do not justify the disfavored action of striking class
allegations based only on the Amended Complaint. A court need not require a
named plaintiff to demonstrate that every member of a proposed class is entitled to
relief before certifying the class—much less before allowing a class allegation to
survive a motion to strike. See Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1276
(11th Cir. 2019); Sharfman v. Premier Med., Inc., 6:20-cv-1278-WWB-LRH, 2021
WL 6884683, at *6 (M.D. Fla. Dec. 29, 2021). In Cordoba, the defendant argued
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that a class was improperly certified because “the bulk of the unnamed members”
arguably lacked standing. 942 F.3d at 1276. As here, this purported lack of
entitlement to relief impacted both overbreadth and predominance. Id. at 1275. The
Eleventh Circuit noted that:
A plaintiff need not prove that every member of the proposed class
has Article III standing prior to certification, and in some cases a court
might reasonably certify a class that includes some putative members
who might not have [standing under applicable precedent] and decide
to deal with the problem later on in the proceeding, but before it
awarded any relief.
Id. at 1277. The problem in Cordoba was that “many . . . even a majority” of
unnamed plaintiffs potentially lacked an injury. Id. The district court abused its
discretion by certifying the class without first considering “whether the
individualized issue of standing will predominate over the common issues in the
case, when it appears that a large portion of the class does not have standing.” Id.
Critically, the Eleventh Circuit commented that “if [the defendant’s]
argument depended on the proposition that all class members must prove their
standing before a class could be certified, that argument would be wrong.” Id. at
1273. Instead, it was necessary for the court to ask, prior to certification, how
many class members had an injury, and whether there was “a plausible
straightforward method to sort [those with standing] out at the back end of the
case.” Id. 1275.
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The instant matter is not before the Court on a Rule 23 motion to certify.
Instead, Intoxalock brings a Rule 12(f) Motion to Strike at an early stage of
proceedings, before discovery has taken place. Nothing in the Amended Complaint
indicates that a large portion of the class members’ telephone numbers are nonresidential or placed on the DNC registry by someone else, or that the bulk of the
unnamed members have an existing business relationship with Intoxalock.
Additionally, the Court is ill-equipped to undertake the inquiries identified in
Cordoba at this stage in the litigation. If a district court can certify a class and “sort
out the uninjured class members” at a “later stage in the proceeding,” Cordoba,
942 F.3d at 1276, then it can certainly deny a motion to strike a class allegation
based only on the face of the complaint, see Sharfman, 2021 WL 6884683, at *6
(“Defendant points to no authority that would support the striking of class
allegations from the complaint, prior to the class certification stage, based on the
mere possibility that the unnamed class members may not have standing.”).
Intoxalock’s Motion to Strike the DNC Registry class is premature.
It can hardly be said that Mr. Lopez’s class allegations are “impertinent” or
“scandalous.” F. R. Civ. P. 12(f). After the benefit of full discovery, and on a
motion to certify the classes, Intoxalock is free to reraise these arguments.
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CONCLUSION
Accordingly, it is hereby ORDERED and ADJUDGED that Defendant’s
Motion to Dismiss Count I (Dkt. 26) and Motion to Strike FTSA No Consent Class
and Do Not Call Registry Class (Dkt. 28) are DENIED. DONE and ORDERED
at Tampa, Florida, on May 10, 2024.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
Copies Provided To
Counsel of Record
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