Preview
Filing# 173185341 E-Filed 05/15/2023 04:47:22 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
Case No. CACE-23-012145
CARL PAALZOW, on behalf o f himself
and others similarlysituated,
Plaintiff,
PUTATIVE CLASS ACTION
V
AP OF SOUTH FLORIDA, LLC, doing business
as FIORELLA INSURANCE AGENCY,
Defendant.
i
DEFENDANT AP OF SOUTH FLORIDA, LLC'S MOTION FOR JUDICIAL NOTICE
Defendant, AP of South Florida,LLC ("APSF"), by and through undersigned counsel and
pursuant to Sections 90.202 and 90.203 of the Florida Statues,respectfully
submits the following
Motion for Judicial Notice and requests that this Court take judicialnotice of the separate
proceeding Plaintiff Carl Paalzow ("Plaintiff')
has filed againstAPSF in Paalzow v. AP of South
Florida, LLC Case No. 0:23-cv-60636-KMM (S.D.Fla. filed Apr. 1, 2023) (the"TCPA Lawsuit")
for purposes rule, as discussed in APSF's accompanying
of applying Florida's claim-splitting
Motion to Dismiss the First Amended Complaint. In support therefor,APSF states as follows:
1. Plaintiff filed this one-count lawsuit allegingpurportedviolations of the Florida
Telephone Solicitation Act (the"FTSA").
2. The lawsuit is nearlyidentical to the TCPA Lawsuit, a lawsuit Plaintiff has already
filed againstAPSF in federal district court.
3. APSF has moved to dismiss this Complaintunder Florida's claim-splitting
rule (the
"Motion to Dismiss"),which "makes it incumbent upon plaintiffs
to raise all available claims
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/15/2023 04:47:22 PM.****
involvingthe same circumstances in one action." Dep't ofAgriculmre and Consumer Servs. v.
Mid-Florida Growers Inc., 570 So. 2d 892, 901 (Fla.1990); Fanover v. NCO Fin. Servs., 857 F.
3d 833, 841 (llth Cir. 2017) ("Itis well settled that a plaintiffmaynot file duplicativecomplaints
in order to expand their (cleanedup). Under
legalrights.") the claim-splittingrule, "[a]n
indivisible cause of action may not be splitinto multipleactions." DeCarlo v. Palm Beach Auto
Brokers, Inc., 566 So.2d 318,219 (Fla.4th DCA 1990).
4. In furtherance of its Motion to Dismiss, APSF requests that the Court take judicial
notice of the TCPA Lawsuit, and the amended complaint filed in the TCPA Lawsuit. A copy of
the docket in the TCPA Lawsuit is filed as Exhibit 1. A copy of the amended complaint in the
TCPA Lawsuit is filed as Exhibit 2.
5. Judicial notice of the above items is appropriate.Under Section 90.202 of the
Florida Statues,a court may take judicialnotice of the "[r]ecordsof any court of this state or of
any court ofrecord ofthe United States or of any other ofthe
or jurisdiction
state, terrirtory United
States." Fla. Stat. § 90.202(6).Thus, for res judicataor claims splitting
purposes, a court may take
notice of documents filed in other proceedingsin considering
judicial a motion to dismiss. Lagarde
v. Outdoor Resorts of Am., Inc.,41% So. 2d 669, 670 (Fla.2d DCA 1982) (affirmingdismissal of
complaintbased on res judicataafter appellatecourt reviewed its own records in priorproceeding);
see also Gulf Coast Home Health Sen?s. of Fla, Inc. v. Dep't of Health and Rehabilitive Servs.,
503 So. 2d 415, 417 (Fla.1 st DCA 1987) ("itis altogetherappropriateofr the appellatecourt to
notice ofthe eistnece o other cases, either pending or closed,which bear a relationship
take judicial
to the case at bar");see also Schaflerv. Indian Spring Maintenance Ass'n, 139 F. App'x 147, 149
(llth Cir. 2005) (courttook judicialnotice of orders issued in previous lawsuits affirmingruling
on res judicataand dismissal of complaint);United States Gof Learning Institute,LLC v. Club
2
Managers Ass 'n of Am., Case No. 8:11-cv-2184-T-33EAJ, 2012 WL 768201, at *3 (M.D. Fla.
Mar. 9, 2012) ("[Tlhe Court may review documents filed in other judicialproceedings for the
act' taken or the subjectmatter of the litigation
limited purpose of recognizing the 'judicial and
issues decided, without convertingthe motion to dismiss to a motion for summary judgment.").
6. Under Section 90.203, "[a] court shall take judicialnotice" of these matters "when
a party requests it and: (1)gives each adverse party timely written notice of the request, proof of
which is filed with the court, to enable the adverse party to prepare to meet the request,"and "(2)
..
furnishes the court with sufficient information to enable it to take judicialnotice of the matter.'
(Emphasis added.)
WHEREFORE, APSF respectfully
requests that the Court enter an Order takingjudicial
notice of the facts and documents described herein and attached hereto.
Date: May 15, 2023 Respectfullysubmitted,
SIDLEY AUSTIN LLP
1001 Brickell Bay Drive
Suite 900
Miami, FL 33131
Tel.: (305) 391-5100
Fax: (305) 391-5101
By-. /sl Ian M. Ross
Ian M. Ross
Florida Bar No. 091214
Email: iross@sidley.com
Attorney for AP of South Florida, LLC
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 15, 2023 a true and correct copy of the foregoing
document was filed with the Clerk of the Court and served on all counsel of record using the
Florida Courts eFilingPortal.
By-. /s/ Ian M. Ross
IAN M. ROSS
4
EXHIBIT 1
LFL,REF DISCOV
U.S. District Court
Southern District of Florida (Ft Lauderdale)
CIVIL DOCKET FOR CASE #: 0:23-cv-60636-KMM
PAALZOW v. AP of South Florida Date Filed: 04/01/2023
Assigned to: Judge K. Michael Moore Jury Demand: Plaintiff
Referred to: MagistrateJudge Lauren Fleischer Louis Nature of Suit: 485 Telephone Consumer
Cause: 47:227 Restrictions ofUse ofTelephone Equipment Protection Act (TCPA)
Jurisdiction: Federal Question
Plaintiff
CARL PAALZOW representedby Joshua Aaron Glickman
and on behalfof all others
individually Social Justice Law Collective,PL
situated
similarly 6709 West 119th Street
#198
Overland Park, KS 66209
9132133064
Fax: 866-893-0416
Email: josh@sjlawcollective.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Shawn Alex Heller
Social Justice Law Collective
974 Howard Ave.
Dunedin, FL 34698
United Sta
202-709-5744
Fax: 866-893-0416
Email: shawn@sjlawcollective.com
ATTORNEY TO BE NOTICED
V.
Defendant
FIA LIQUIDATION COMPANY, INC.
TERMINATED: 04/24/2023
Defendant
AP OF SOUTH FLORIDA, LLC representedby Ian M. Ross
doing business as SidleyAustin LLP
FIORELLA INSURANCE AGENCY 801 Brickell Avenue
Suite 800
33131
Miami, FL 33131
305-391-5218
Email: iross@sidley.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Date Filed # Docket Text
04/01/2023 1 COMPLAINT againstFIA LIQUIDATION COMPANY, INC.. Filingfees $ 402.00 receipt
number AFLSDC-16493208, filed by CARL PAALZOW. (Attachments:# 1 Civil Cover
Sheet, # 2 Summon(s))(Heller,Shawn) (Entered:04/01/2023)
04/01/2023 2 Clerks Notice of Judge Assignment to Judge K. Michael Moore.
Pursuant to 28 USC 636(c),the partiesare hereby notified that the U.S. MagistrateJudge
Lauren F. Louis
available to handle any or all proceedingsin this case. If agreed,parties
is
should complete and file the Consent form found on our website. It is not necessary to file a
document indicating lack of consent. (rbe)(Entered:04/03/2023)
04/03/2023 1 Summons Issued as to FIA LIQUIDATION COMPANY, INC. (rbe)(Entered:04/03/2023)
04/03/2023 4 PAPERLESS PRETRIAL ORDER. of the
This order has been entered upon the filing
complaint.Plaintiffs counsel is hereby ORDERED to forward to all defendants, upon
receiptof a responsivepleading,a copy ofthis Order. It is further ORDERED that S.D. Fla.
L.R. 16.1 shall apply to this case and the partiesshall hold a scheduling conference no later
than twenty (20) days after the filingof the first responsivepleadingby the last responding
defendant, or within sixty(60)days after the filing of the complaint,whichever occurs first.
However, defendants have not been served by the expirationof this deadline,Plaintiff
if all
shall move an enlargement of time to hold the schedulingconference, not to exceed 90
for
days from the filingof the Complaint. Within ten (10)days of the schedulingconference,
counsel shall file a jointscheduling report. Failure of counsel to file a jointscheduling
report within the deadlines set forth above may result in dismissal,default,and the
imposition of other sanctions includingattorney'sfees and costs. The partiesshould note
that the timeperiod for filinga jointschedulingreport is not tolled by the filingof any other
pleading,such as an amended complaintor Rule 12 motion. The schedulingconference may
be held via telephone.At the conference, the partiesshall comply with the following agenda
that the Court adoptsfrom S.D. Fla. L.R. 16.1. (1)Documents (S.D. Fla. L.R. 16.1.B. 1 and
2) The partiesshall determine the procedure for exchanging a copy of, or a description
-
by
category and location of, all documents and other evidence that is reasonably available and
that a party expects to offer or may offer if the need arises. Fed. R. Civ. R 26(a)(1)(B). (a)
Documents include computations of the nature and extent of any category of damages
claimed by the disclosing party unless the computations are privilegedor otherwise
protectedfrom disclosure. Fed. R. Civ. R 26(a)(1)(C). (b)Documents include insurance
agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. R
- The
26(a)(1)(D).(2) List of Witnesses parties shall exchange the name, address and
telephonenumber of each individual known to have knowledge of the facts supportingthe
material allegations o f the pleading filed by the party. Fed. R. Civ. R 26(a)(1)(A).The
parties have a continuingobligation to disclose this information. (3)Discussions and
Deadlines (S.D. Fla. L.R. 16.1.B.2)- The partiesshall discuss the nature and basis of their
claims and defenses and the possibilities for a prompt settlement or resolution of the case.
Failure to comply with this Order or to exchange the information listed above may result in
sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R.
16.1.I.
The parties are hereby on notice that this Court requires all filingsto be formatted in
12 point Times New Roman font and double spaced, including any footnotes, with one
inch margins on all sides. Failure to follow these formattingguidelinesmay result in the
filing being stricken,any opposing filingbeing grantedby default,and the impositionof
other sanctions,includingattorney's fees and costs. Multiple Plaintiffs or Defendants shall
file joint motions with co-parties unless there are clear conflicts of position.If conflicts
of positionexist,partiesshall explainthe conflicts in their separate motions. Failure to
comply with ANY of these proceduresmay result in the impositionof appropriate sanctions,
including but not limited to, the strikingo f the motion or dismissal o f this action. The
parties shall seek extensions of time in a timely fashion. "A motion for extension of time
is not self-executing....
Yet, by filingthese motions on or near the last day, and then sitting
idle pending the Court's disposition of the motion, partiesessentially grant their own
motion. The Court will not condone this." Compere v. Nusret Miami, LLC, 2020 WL
2844888, at *2 (S.D. Fla. May 7,2020) (internal citations omitted).
Pursuant to Administrative Order 2016-70 ofthe Southern District of Florida and consistent
with the Court ofAppeals for the Eleventh Circuit's Local Rules and Internal Operating
Procedures, within three (3)days of the conclusion of a trial or other proceeding,parties
must file via CM/ECF electronic versions of documentary exhibits admitted into evidence,
includingphotographs of non-documentary physical exhibits. The Parties are directed to
comply with each ofthe requirementsset forth in Administrative Order 2016-70 unless
directed otherwise by the Court.
Telephonicappearances are not permittedfor any-purpose. Upon reachinga settlement in
this matter the partiesare instructed to notifythe Court by telephone and to file a Notice of
Settlement within twenty-four(24)hours.
Signed by Judge K. Michael Moore on 4/3/2023. (rhr)(Entered:04/03/2023)
04/03/2023 5 PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO
MAGISTRATE JUDGE LAUREN F. LOUIS. PURSUANT to 28 U.S.C. § 636 and the
MagistrateJudge Rules ofthe Local Rules ofthe Southern District of Florida,the above-
captionedCause is referred to United States MagistrateJudge Lauren E Louis to take all
necessary and proper action as requiredby law with respect to any and all pretrialdiscovery
matters.Any motion affectingdeadlines set by the Court's Scheduling Order is excluded
from this referral, referred by separate Order. It is FURTHER
unless specifically
ORDERED that the partiesshall comply with MagistrateJudge Lauren F. Louis's discovery
procedures.Signed by Judge K. Michael Moore on 4/3/2023. (rhr)(Entered:04/03/2023)
04/24/2023 6 First AMENDED COMPLAINT againstAP OF SOUTH FLORIDA, LLC, filed by CARL
PAALZOW.(Heller, Shawn) (Entered:04/24/2023)
05/05/2023 7 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 6
Amended Complaint/Amended Notice of Removal by AP OF SOUTH FLORIDA, LLC.
Attorney Ian M. Ross added to party AP OF SOUTH FLORIDA, LLC(pty:dft).
(Attachments:# 1 Text of Proposed Order)(Ross,Ian)(Entered:05/05/2023)
05/05/2023 8 PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Unopposed
Motion for Extension of Time. 7. Therein, Defendant requests a brief extension of time to
file a response because counsel "was only recentlyretained,"and counsel needs additional
time to consult with Defendant and prepare a response to the First Amended Complaint. Id.
at 1. Plaintiff does not oppose Defendants request. Id. at 2. UPON CONSIDERATION of
the Motion, the pertinentportionsof the record, and being otherwise fullyadvised in the
premises,it is hereby ORDERED AND ADJUDGED that the Motion Z is GRANTED.
Defendant shall file a response to Plaintiffs First Amended Complaint or before May 15,
2023. Signed by Judge K. Michael Moore on 5/5/2023. (rhr)(Entered:05/05/2023)
05/05/2023 Reset Response/Answer Due Deadline per DE#8: AP OF SOUTH FLORIDA, LLC
response/answerdue 5/15/2023. (sen)(Entered:05/08/2023)
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 1 of 12
EXHIBIT 2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
Case No. 0:23-cv-60636-KMM
CARL PAALZOW, individuallyand
on behalf of all others similarlysituated,
Plaintiff,
VS. Class Action
AP OF SOUTH FLORIDA, LLC, doing business as
FIORELLA INSURANCE AGENCY,
Defendant.
i
FIRST AMENDED COMPLAINT
and
JURY DEMAND
This is a class action lawsuit alleging
that the Defendant, AP of South Florida,LLC,
doing business as Fiorella Insurance Agency ("Fiorella
Insurance"),violated the Telephone
Consumer Protection Act and implementing regulations
by using an artificial voice or a
prerecordedvoice when they called Plaintiff and the putativeclass members in order to
promote their insurance business without obtainingPrior Express Written Consent; or by
callingPlaintiff and other putativeclass members on the National Do-Not-Call Registryto
promote their insurance business without obtainingpriorexpress invitation or permission
evidenced by a signed,written agreement between the consumer and seller which states
that the consumer agrees to be contacted by this seller and includes the telephonenumber
to which the calls may be placed ("RequisiteDo-Not-Call Permission"). Plaintiff,
Carl
Paalzow, on behalf of a class of persons similarlysituated,seeks statutory damages for
each violation.
1
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 2 of 12
PRELIMINARY STATEMENT
1. The Telephone Consumer Protection Act, as amended, 47 U.S.C. § 227
("TCPA"), is the rightto be free
a consumer protectionstatute that confers on plaintiffs
from certain harassingand privacy-invading but not limited to, placing
conduct, including,
calls using an artificial voice or a prerecorded voice; or to persons and entities on the
National Do-Not-Call Registry;and authorizes an award of damages whenever a violation
occurs. The TCPA provides a privaterightof action and statutory damages for each
violation. Congress and the Federal Communications Commission ("FCC") created the
TCPA and its implementing regulationsin response to immense public outcry about
unwanted telemarkingand advertising
robocalls and telephone solicitations.
2. Carl Paalzow, individuallyand on behalf of
Plaintiff, all others similarly
situated,sues the Defendant for their actions that violate the TCPA, which they benefited
from, and which arise from calls placed to Plaintiff and the putativeclass members in order
to advertise the commercial availability
or qualityof; or encourage the purchase or rental
..
of;Defendant's insurance business ("InsuranceCalls").
JURISDICTION AND VENUE
3 This Court has jurisdictionover this matter pursuant to 47 U.S.C. §
227(b)(3),47 U.S.C. § 227(c)(5),and 28 U.S.C. § 1331.
4. Venue is appropriatein this Court pursuant to 28 U.S.C. § 1391, as the
Insurance Calls, as defined below, were made by or on behalf of Defendant to Plaintiff's
cell phone in Broward County, Florida.
2
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 3 of 12
PARTIES
5. Carl Paalzow,
Plaintiff, owns and maintains a cell phone with a 954-area
code, lives in Broward County, Florida,and uses it regularlythere. Plaintiff successfully
this phone number with the National Do-Not-Call Registryon June 13, 2015.
registered
6. Defendant, AP of South Florida,LLC, doing business as Fiorella Insurance
Agency, is Company that runs and operates Fiorella Insurance
a Florida Limited Liability
Agency.
GENERAL ALLEGATIONS
7. Plaintiff has received dozens of prerecordedor artificial voice phone calls
and voicemails from Defendant, which advertise Defendant's insurance company.
8 Hereinafter,"calls" shall not include text messages.
9- Pursuant to the TCPA and its calls placedusing
implementing regulations,
an artificial voice, or a prerecorded voice, that include or introduce an advertisement or
constitute telemarketingmay not be placedto persons or entities whose telephonenumbers
have been assignedto a cellular telephoneservice or a residential line without obtaining
Prior Express Written Consent.
10. Pursuant to the TCPA and its implementing regulations,47 C.F.R.
Prior Express Written Consent
64.1200(f)(8), is defined as "an agreement, in writing,
bearing the signatureof the person called that clearlyauthorizes the seller to deliver or
cause to be delivered to the person called advertisements or telemarketingmessages using
an automatic telephone dialingsystem or an artificial or prerecorded voice, and the
telephonenumber to which the signatoryauthorizes such advertisements or telemarketing
messages to be delivered," and which must include a clear and conspicuous disclosure
3
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 4 of 12
which states that "By executingthe agreement, such person authorizes the seller to deliver
or cause to be delivered to the signatorytelemarketingcalls using an automatic telephone
dialingsystem or an artificial or prerecordedvoice."
11. However, Defendant placedthe Insurance Calls without obtainingthe Prior
Express Written Consent of Plaintiff or the other putativeclass members.
12. Pursuant to the TCPA and its implementing regulations,telephone
solicitations may not be placed to persons and entities that are with the National
registered
Do-Not-Call Registry at least 30 days priorto being called more than once within a 12-
month period,and without obtainingpriorexpress invitation or permissionevidenced by a
signed,written agreement between the consumer and seller which states that the consumer
agrees to be contacted by this seller and includes the telephone number to which the calls
may be placed.
13. However, Defendant placed the Insurance Calls despite the fact that
Plaintiff's and other putativeclass members' phone numbers were on the National Do-Not-
Call Registry,and without obtainingthe RequisiteDo-Not-Call Permission of Plaintiff or
the other putativeclass members.
14. By placingthe Insurance Calls without Prior Express Written Consent or
RequisiteDo-Not-Call Permission, Defendant harmed Plaintiff and the members of the
putative class by: (1) wasting their time; (2) causing the risk of personal injury due to
interruption (3)forcingthem
and distraction; to incur charges;(4)depletinga cell phone's
or wireless phone's battery, in increased electricity
resulting costs; (5)intrusion upon and
occupationofthe capacityof a cell phone or wireless phone; (6)causingthe risk ofpersonal
4
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 5 of 12
injurydue to interruption the cost of advertingto them in
and distraction;and (7)shifting
violation of the TCPA.
CLASS ACTION ALLEGATIONS
15. Plaintiff brings this action as a class action,pursuant to Rule 23(a) and
23(b)(3),Federal Rules of Civil Procedure, for statutory damages on behalf ofhimself and
a class of all persons similarly
situated.
16. Plaintiff bringsthis class action pursuant to the TCPA, and is a member of,
and seeks to represent, a class ofpersons and entities Class")defined
("Plaintiff as:
"All persons and entities whose telephone numbers were called by
Defendant, or others on their behalf, on or after April 1,2019, where:
1) Defendant initiated a call using an artificial voice, or a prerecorded
voice, to (i) advertise the commercial availability
or quality of any
property, goods, or services;or encourage the purchase or rental of
property, goods, or services;(ii)where such persons' and entities'
telephone numbers were assigned to a cellular phone service or
residential line;and where Defendant failed to obtain Prior Express
(iii)
Written Consent from those persons and entities called;and/or
2) Defendant initiated more than one call within a 12-month period (i)to
persons and entities who were registeredwith the National Do-Not-Call
Registry for at least 30 days prior being called;(ii)encouraging the
to
purchase or rental of property, goods, or services; (iii)where such
persons' and entities' telephone numbers were assigned to a cellular
phone service;and (iv)where Defendant failed to obtain RequisiteDo-
Not-Call Permission from those persons and entities called."
17. Class Size (Fed. R. Civ. P. Plaintiff avers that the proposed class
23(a)(1)):
is in excess of 50 persons. The class size is so numerous that joinder of all members is
impracticable.
18. Commonality (Fed. R. Civ. P. There are questionsoflaw and fact
23(a)(2)):
common to all members of the class. Common material questionsof fact and law include,
but are not limited to, the following:
5
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 6 of 12
a. whether the Insurance Calls included an artificial voice;
b. whether the Insurance Calls included a prerecordedvoice;
c. whether the Insurance Calls constitute advertisements;
d. whether the Insurance Calls constitute telemarketing;
e. whether the Insurance Calls constitute telephone solicitations;
f. whether Defendant violated the Telephone Consumer Protection Act and its
implementing regulationsby using (orhaving another on their behalf use) an
artificial voice in conjunction with the Insurance Calls placed to Plaintiff and
the class members without obtainingPrior Express Written Consent;
g. whether Defendant violated the Telephone Consumer Protection Act and its
implementing regulationsby using (or having another on their behalf use) a
prerecordedvoice in conjunctionwith the Insurance Calls placed to Plaintiff
and the class members without obtainingPrior Express Written Consent;
h. whether Defendant violated the Telephone Consumer Protection Act and its
by placing(or having another on
implementing regulations their behalf place)
the Insurance Calls to Plaintiff and the class members where the numbers called
were registeredwith the National Do-Not-Call Registry at least 30 days prior
to being called more than once within a 12-month period,without obtaining
RequisiteDo-Not-Call Permission;
i. whether Plaintiff and the other members of the class are entitled to statutory
damages; and
j. whether Plaintiff and the other members of the class are entitled to treble
daniages.
6
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 7 of 12
19. Typicality(Fed.R. Civ. P. The claims of the named Plaintiff are
23(a)(3)):
typicalof the claims of all members of the class. Plaintiff allegesthat Defendant placed
the same Insurance Calls to Plaintiffand the other class members. Plaintiffraises questions
of fact and law common to the class members. They share the common injuriesof: (1)
and
wasting the consumer's time; (2)causing the risk of personalinjurydue to interruption
distraction;(3) forcing the consumer to incur charges;(4) depletinga cell phone's or
wireless phone's battery,resultingin increased electricity
costs; (5) intrusion upon and
occupation ofthe capacityof a cell phone or wireless phone; (6)causing the risk ofpersonal
injury due to and distraction;and (7) shiftingthe cost of advertingto the
interruption
consumer in violation ofthe TCPA. Defendant have acted the same or in a similar manner
with respect to each class member.
20. The
Fair and Adequate Representation(Fed. R. Civ. P. 23(a)(4)): named
and adequatelyrepresent
Plaintiffwill fairly and protect the interests ofthe class members.
Plaintiff is committed to this cause, willlitigate and is aware o f the fiduciary
it vigorously,
duties of a class Plaintiff's
representative. interests are consistent with and not antagonistic
to the interests of the other class members. Plaintiff has a strong personal interest in the
outcome of this action and has retained experiencedclass counsel to represent his and the
other class members.
21. Class Counsel is and has successfully
experienced in class action litigation
class claims.
litigated
22. Predominance and Superiority(Fed. R. Civ. P. A class action
23(b)(3)): is
superiorto all other available methods for the fair and equitableadjudicationof the
Common questionsof law and fact predominateover any
controversy between the parties.
7
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 8 of 12
only individual members, and a class action is superiorto other methods
questionsaffecting
for the fair and efficient adjudicationof the controversy because:
a. proof of Plaintiff's claims will also prove the claims of the class members
without the need for separate or individualized proceedings;
b. that Defendant
evidence regarding defenses or any exceptionsto liability may
assert and prove will come from Defendant's records (or that of their agents
who placed the Insurance Calls)and will not requireindividualized or separate
inquiriesor proceedings;
c. Defendant have acted and may be continuingto act pursuant to common
policiesor practicesby placing the Insurance Calls to Plaintiff and the class
members;
d. the amount likelyto be recovered by individual class members does not support
individual litigation;
e. a class action will permit a largenumber of relatively
small claims involving
virtuallyidentical facts and legal issues to in one
be resolved efficiently
proceeding based upon common proofs;and
f. this case is inherentlymanageable as a class action in that:
i. Defendant or their agent(s)identified the persons or entities to placethe
Insurance Calls to and it is believed that Defendant's computer and
business records, or those of their agents, will enable the Plaintiff to
readilyidentifyclass members and establish liability
and damages;
ii. and damages can be established for the Plaintiff and for the
liability
class members with the same common proofs;
8
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 9 of 12
iii. statutory damages for violations ofthe TCPA are the same for each class
member;
iv. a class action will result in an orderlyand expeditiousadministration of
claims and will foster economics oftime, effort and expense;
V a class action will contribute to uniformity of decisions concerning
and
Defendant's practices;
Vi. as a matter, the claims of the class members are likelyto go
practical
unaddressed absent class certification.
Count 1
Claim for Relief for Violations of the TCPA
23. Plaintiff reasserts and incorporatesherein by reference the averments set
forth in paragraphs 1 through 22, above.
24. Plaintiffbrings the Defendant
this action against for sendingInsurance Calls
to himself and to members of the Plaintiff Class in violation of the TCPA and its
implementing regulations.
25. Defendant violated the TCPA and implementing regulations47 C.F.R. §
or authorizingthe placement o f the Insurance Calls
64.1200(a),by initiating to the phone
numbers ofPlaintiffand the members ofthe PlaintiffClass without receivingPrior Express
Written Consent.
26. Defendant violated the TCPA and implementing regulation47 C.F.R. §
or authorizingthe placement o f the Insurance Calls
64.1200(c),by initiating to the phone
numbers of Plaintiff and the members ofthe PlaintiffClass where such persons and entities
were registeredwith the National Do-Not-Call Registry at least 30 days priorto being
9
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 10 of 12
called by Defendant more than once within a 12-month period,and without obtaining
RequisiteDo-Not-Call Permission from Plaintiff or members ofthe Plaintiff Class.
27. The named Plaintiff and members of the Plaintiff Class are entitled to
$1,500 for each violation ofeach ofthe Insurance Calls that violated 47 C.F.R. § 64.1200(a)
and $1,500 for each of the Insurance Calls that violated 47 C.F.R. § 64.1200(c) that was
placed to them willfully
or knowingly.
28. In the alternative,
the named Plaintiffand members ofthe PlaintiffClass are
entitled to $500 for each violation of each ofthe Insurance Calls that violated 47 C.F.R. §
64.1200(a)and $500 for each of the Insurance Calls that violated 47 C.F.R. § 64.1200(c)
that was negligentlyplaced to them.
WHEREFORE, Plaintiff, and on behalf o f all others similarlysituated,
individually
demand judgment in its favor and againstDefendant and request an order:
A. certifyingthis action as a class action pursuant to Rule 23, appointing
Plaintiff Carl of the members of the
Paalzow as the representative class
defined above, and appointingthe undersignedas counsel for the members
of the class;
B. findingthat Defendant caused the Insurance Calls to be placed to Plaintiff
and to each class member in violation of the TCPA and its implementing
regulations;
C. findingthat Defendant are liable to pay statutory damages of $1,500 for
each violation of each of the Insurance Calls that violated 47 C.F.R. §
64.1200(a) and $1,500 for each of the Insurance Calls that violated 47
10
Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 11 of 12
C.F.R. § 64.1200(c)that was knowingly and willfully
placedto Plaintiffand
each class member;
Defendant are liable to pay statutory damages
D. findingthat,in the alternative,
of $500 for each violation of each of the Insurance Calls that violated 47
C.F.R. § 64.1200(a) and $500 for each of the Insurance Calls that violated
47 C.F.R. § 64.1200(c)that was negligentlyplaced to Plaintiff and to each
class member;
E. entering a judgment in favor of the Plaintiff as representativeof the
members of the class for the total amount
Preview
Filing# 173185341 E-Filed 05/15/2023 04:47:22 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Case No. CACE-23-012145 CARL PAALZOW, on behalf o f himself and others similarlysituated, Plaintiff, PUTATIVE CLASS ACTION V AP OF SOUTH FLORIDA, LLC, doing business as FIORELLA INSURANCE AGENCY, Defendant. i DEFENDANT AP OF SOUTH FLORIDA, LLC'S MOTION FOR JUDICIAL NOTICE Defendant, AP of South Florida,LLC ("APSF"), by and through undersigned counsel and pursuant to Sections 90.202 and 90.203 of the Florida Statues,respectfully submits the following Motion for Judicial Notice and requests that this Court take judicialnotice of the separate proceeding Plaintiff Carl Paalzow ("Plaintiff') has filed againstAPSF in Paalzow v. AP of South Florida, LLC Case No. 0:23-cv-60636-KMM (S.D.Fla. filed Apr. 1, 2023) (the"TCPA Lawsuit") for purposes rule, as discussed in APSF's accompanying of applying Florida's claim-splitting Motion to Dismiss the First Amended Complaint. In support therefor,APSF states as follows: 1. Plaintiff filed this one-count lawsuit allegingpurportedviolations of the Florida Telephone Solicitation Act (the"FTSA"). 2. The lawsuit is nearlyidentical to the TCPA Lawsuit, a lawsuit Plaintiff has already filed againstAPSF in federal district court. 3. APSF has moved to dismiss this Complaintunder Florida's claim-splitting rule (the "Motion to Dismiss"),which "makes it incumbent upon plaintiffs to raise all available claims *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/15/2023 04:47:22 PM.**** involvingthe same circumstances in one action." Dep't ofAgriculmre and Consumer Servs. v. Mid-Florida Growers Inc., 570 So. 2d 892, 901 (Fla.1990); Fanover v. NCO Fin. Servs., 857 F. 3d 833, 841 (llth Cir. 2017) ("Itis well settled that a plaintiffmaynot file duplicativecomplaints in order to expand their (cleanedup). Under legalrights.") the claim-splittingrule, "[a]n indivisible cause of action may not be splitinto multipleactions." DeCarlo v. Palm Beach Auto Brokers, Inc., 566 So.2d 318,219 (Fla.4th DCA 1990). 4. In furtherance of its Motion to Dismiss, APSF requests that the Court take judicial notice of the TCPA Lawsuit, and the amended complaint filed in the TCPA Lawsuit. A copy of the docket in the TCPA Lawsuit is filed as Exhibit 1. A copy of the amended complaint in the TCPA Lawsuit is filed as Exhibit 2. 5. Judicial notice of the above items is appropriate.Under Section 90.202 of the Florida Statues,a court may take judicialnotice of the "[r]ecordsof any court of this state or of any court ofrecord ofthe United States or of any other ofthe or jurisdiction state, terrirtory United States." Fla. Stat. § 90.202(6).Thus, for res judicataor claims splitting purposes, a court may take notice of documents filed in other proceedingsin considering judicial a motion to dismiss. Lagarde v. Outdoor Resorts of Am., Inc.,41% So. 2d 669, 670 (Fla.2d DCA 1982) (affirmingdismissal of complaintbased on res judicataafter appellatecourt reviewed its own records in priorproceeding); see also Gulf Coast Home Health Sen?s. of Fla, Inc. v. Dep't of Health and Rehabilitive Servs., 503 So. 2d 415, 417 (Fla.1 st DCA 1987) ("itis altogetherappropriateofr the appellatecourt to notice ofthe eistnece o other cases, either pending or closed,which bear a relationship take judicial to the case at bar");see also Schaflerv. Indian Spring Maintenance Ass'n, 139 F. App'x 147, 149 (llth Cir. 2005) (courttook judicialnotice of orders issued in previous lawsuits affirmingruling on res judicataand dismissal of complaint);United States Gof Learning Institute,LLC v. Club 2 Managers Ass 'n of Am., Case No. 8:11-cv-2184-T-33EAJ, 2012 WL 768201, at *3 (M.D. Fla. Mar. 9, 2012) ("[Tlhe Court may review documents filed in other judicialproceedings for the act' taken or the subjectmatter of the litigation limited purpose of recognizing the 'judicial and issues decided, without convertingthe motion to dismiss to a motion for summary judgment."). 6. Under Section 90.203, "[a] court shall take judicialnotice" of these matters "when a party requests it and: (1)gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request,"and "(2) .. furnishes the court with sufficient information to enable it to take judicialnotice of the matter.' (Emphasis added.) WHEREFORE, APSF respectfully requests that the Court enter an Order takingjudicial notice of the facts and documents described herein and attached hereto. Date: May 15, 2023 Respectfullysubmitted, SIDLEY AUSTIN LLP 1001 Brickell Bay Drive Suite 900 Miami, FL 33131 Tel.: (305) 391-5100 Fax: (305) 391-5101 By-. /sl Ian M. Ross Ian M. Ross Florida Bar No. 091214 Email: iross@sidley.com Attorney for AP of South Florida, LLC 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 15, 2023 a true and correct copy of the foregoing document was filed with the Clerk of the Court and served on all counsel of record using the Florida Courts eFilingPortal. By-. /s/ Ian M. Ross IAN M. ROSS 4 EXHIBIT 1 LFL,REF DISCOV U.S. District Court Southern District of Florida (Ft Lauderdale) CIVIL DOCKET FOR CASE #: 0:23-cv-60636-KMM PAALZOW v. AP of South Florida Date Filed: 04/01/2023 Assigned to: Judge K. Michael Moore Jury Demand: Plaintiff Referred to: MagistrateJudge Lauren Fleischer Louis Nature of Suit: 485 Telephone Consumer Cause: 47:227 Restrictions ofUse ofTelephone Equipment Protection Act (TCPA) Jurisdiction: Federal Question Plaintiff CARL PAALZOW representedby Joshua Aaron Glickman and on behalfof all others individually Social Justice Law Collective,PL situated similarly 6709 West 119th Street #198 Overland Park, KS 66209 9132133064 Fax: 866-893-0416 Email: josh@sjlawcollective.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Shawn Alex Heller Social Justice Law Collective 974 Howard Ave. Dunedin, FL 34698 United Sta 202-709-5744 Fax: 866-893-0416 Email: shawn@sjlawcollective.com ATTORNEY TO BE NOTICED V. Defendant FIA LIQUIDATION COMPANY, INC. TERMINATED: 04/24/2023 Defendant AP OF SOUTH FLORIDA, LLC representedby Ian M. Ross doing business as SidleyAustin LLP FIORELLA INSURANCE AGENCY 801 Brickell Avenue Suite 800 33131 Miami, FL 33131 305-391-5218 Email: iross@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text 04/01/2023 1 COMPLAINT againstFIA LIQUIDATION COMPANY, INC.. Filingfees $ 402.00 receipt number AFLSDC-16493208, filed by CARL PAALZOW. (Attachments:# 1 Civil Cover Sheet, # 2 Summon(s))(Heller,Shawn) (Entered:04/01/2023) 04/01/2023 2 Clerks Notice of Judge Assignment to Judge K. Michael Moore. Pursuant to 28 USC 636(c),the partiesare hereby notified that the U.S. MagistrateJudge Lauren F. Louis available to handle any or all proceedingsin this case. If agreed,parties is should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (rbe)(Entered:04/03/2023) 04/03/2023 1 Summons Issued as to FIA LIQUIDATION COMPANY, INC. (rbe)(Entered:04/03/2023) 04/03/2023 4 PAPERLESS PRETRIAL ORDER. of the This order has been entered upon the filing complaint.Plaintiffs counsel is hereby ORDERED to forward to all defendants, upon receiptof a responsivepleading,a copy ofthis Order. It is further ORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the partiesshall hold a scheduling conference no later than twenty (20) days after the filingof the first responsivepleadingby the last responding defendant, or within sixty(60)days after the filing of the complaint,whichever occurs first. However, defendants have not been served by the expirationof this deadline,Plaintiff if all shall move an enlargement of time to hold the schedulingconference, not to exceed 90 for days from the filingof the Complaint. Within ten (10)days of the schedulingconference, counsel shall file a jointscheduling report. Failure of counsel to file a jointscheduling report within the deadlines set forth above may result in dismissal,default,and the imposition of other sanctions includingattorney'sfees and costs. The partiesshould note that the timeperiod for filinga jointschedulingreport is not tolled by the filingof any other pleading,such as an amended complaintor Rule 12 motion. The schedulingconference may be held via telephone.At the conference, the partiesshall comply with the following agenda that the Court adoptsfrom S.D. Fla. L.R. 16.1. (1)Documents (S.D. Fla. L.R. 16.1.B. 1 and 2) The partiesshall determine the procedure for exchanging a copy of, or a description - by category and location of, all documents and other evidence that is reasonably available and that a party expects to offer or may offer if the need arises. Fed. R. Civ. R 26(a)(1)(B). (a) Documents include computations of the nature and extent of any category of damages claimed by the disclosing party unless the computations are privilegedor otherwise protectedfrom disclosure. Fed. R. Civ. R 26(a)(1)(C). (b)Documents include insurance agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. R - The 26(a)(1)(D).(2) List of Witnesses parties shall exchange the name, address and telephonenumber of each individual known to have knowledge of the facts supportingthe material allegations o f the pleading filed by the party. Fed. R. Civ. R 26(a)(1)(A).The parties have a continuingobligation to disclose this information. (3)Discussions and Deadlines (S.D. Fla. L.R. 16.1.B.2)- The partiesshall discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case. Failure to comply with this Order or to exchange the information listed above may result in sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R. 16.1.I. The parties are hereby on notice that this Court requires all filingsto be formatted in 12 point Times New Roman font and double spaced, including any footnotes, with one inch margins on all sides. Failure to follow these formattingguidelinesmay result in the filing being stricken,any opposing filingbeing grantedby default,and the impositionof other sanctions,includingattorney's fees and costs. Multiple Plaintiffs or Defendants shall file joint motions with co-parties unless there are clear conflicts of position.If conflicts of positionexist,partiesshall explainthe conflicts in their separate motions. Failure to comply with ANY of these proceduresmay result in the impositionof appropriate sanctions, including but not limited to, the strikingo f the motion or dismissal o f this action. The parties shall seek extensions of time in a timely fashion. "A motion for extension of time is not self-executing.... Yet, by filingthese motions on or near the last day, and then sitting idle pending the Court's disposition of the motion, partiesessentially grant their own motion. The Court will not condone this." Compere v. Nusret Miami, LLC, 2020 WL 2844888, at *2 (S.D. Fla. May 7,2020) (internal citations omitted). Pursuant to Administrative Order 2016-70 ofthe Southern District of Florida and consistent with the Court ofAppeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three (3)days of the conclusion of a trial or other proceeding,parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, includingphotographs of non-documentary physical exhibits. The Parties are directed to comply with each ofthe requirementsset forth in Administrative Order 2016-70 unless directed otherwise by the Court. Telephonicappearances are not permittedfor any-purpose. Upon reachinga settlement in this matter the partiesare instructed to notifythe Court by telephone and to file a Notice of Settlement within twenty-four(24)hours. Signed by Judge K. Michael Moore on 4/3/2023. (rhr)(Entered:04/03/2023) 04/03/2023 5 PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE LAUREN F. LOUIS. PURSUANT to 28 U.S.C. § 636 and the MagistrateJudge Rules ofthe Local Rules ofthe Southern District of Florida,the above- captionedCause is referred to United States MagistrateJudge Lauren E Louis to take all necessary and proper action as requiredby law with respect to any and all pretrialdiscovery matters.Any motion affectingdeadlines set by the Court's Scheduling Order is excluded from this referral, referred by separate Order. It is FURTHER unless specifically ORDERED that the partiesshall comply with MagistrateJudge Lauren F. Louis's discovery procedures.Signed by Judge K. Michael Moore on 4/3/2023. (rhr)(Entered:04/03/2023) 04/24/2023 6 First AMENDED COMPLAINT againstAP OF SOUTH FLORIDA, LLC, filed by CARL PAALZOW.(Heller, Shawn) (Entered:04/24/2023) 05/05/2023 7 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 6 Amended Complaint/Amended Notice of Removal by AP OF SOUTH FLORIDA, LLC. Attorney Ian M. Ross added to party AP OF SOUTH FLORIDA, LLC(pty:dft). (Attachments:# 1 Text of Proposed Order)(Ross,Ian)(Entered:05/05/2023) 05/05/2023 8 PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Unopposed Motion for Extension of Time. 7. Therein, Defendant requests a brief extension of time to file a response because counsel "was only recentlyretained,"and counsel needs additional time to consult with Defendant and prepare a response to the First Amended Complaint. Id. at 1. Plaintiff does not oppose Defendants request. Id. at 2. UPON CONSIDERATION of the Motion, the pertinentportionsof the record, and being otherwise fullyadvised in the premises,it is hereby ORDERED AND ADJUDGED that the Motion Z is GRANTED. Defendant shall file a response to Plaintiffs First Amended Complaint or before May 15, 2023. Signed by Judge K. Michael Moore on 5/5/2023. (rhr)(Entered:05/05/2023) 05/05/2023 Reset Response/Answer Due Deadline per DE#8: AP OF SOUTH FLORIDA, LLC response/answerdue 5/15/2023. (sen)(Entered:05/08/2023) Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 1 of 12 EXHIBIT 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION Case No. 0:23-cv-60636-KMM CARL PAALZOW, individuallyand on behalf of all others similarlysituated, Plaintiff, VS. Class Action AP OF SOUTH FLORIDA, LLC, doing business as FIORELLA INSURANCE AGENCY, Defendant. i FIRST AMENDED COMPLAINT and JURY DEMAND This is a class action lawsuit alleging that the Defendant, AP of South Florida,LLC, doing business as Fiorella Insurance Agency ("Fiorella Insurance"),violated the Telephone Consumer Protection Act and implementing regulations by using an artificial voice or a prerecordedvoice when they called Plaintiff and the putativeclass members in order to promote their insurance business without obtainingPrior Express Written Consent; or by callingPlaintiff and other putativeclass members on the National Do-Not-Call Registryto promote their insurance business without obtainingpriorexpress invitation or permission evidenced by a signed,written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephonenumber to which the calls may be placed ("RequisiteDo-Not-Call Permission"). Plaintiff, Carl Paalzow, on behalf of a class of persons similarlysituated,seeks statutory damages for each violation. 1 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 2 of 12 PRELIMINARY STATEMENT 1. The Telephone Consumer Protection Act, as amended, 47 U.S.C. § 227 ("TCPA"), is the rightto be free a consumer protectionstatute that confers on plaintiffs from certain harassingand privacy-invading but not limited to, placing conduct, including, calls using an artificial voice or a prerecorded voice; or to persons and entities on the National Do-Not-Call Registry;and authorizes an award of damages whenever a violation occurs. The TCPA provides a privaterightof action and statutory damages for each violation. Congress and the Federal Communications Commission ("FCC") created the TCPA and its implementing regulationsin response to immense public outcry about unwanted telemarkingand advertising robocalls and telephone solicitations. 2. Carl Paalzow, individuallyand on behalf of Plaintiff, all others similarly situated,sues the Defendant for their actions that violate the TCPA, which they benefited from, and which arise from calls placed to Plaintiff and the putativeclass members in order to advertise the commercial availability or qualityof; or encourage the purchase or rental .. of;Defendant's insurance business ("InsuranceCalls"). JURISDICTION AND VENUE 3 This Court has jurisdictionover this matter pursuant to 47 U.S.C. § 227(b)(3),47 U.S.C. § 227(c)(5),and 28 U.S.C. § 1331. 4. Venue is appropriatein this Court pursuant to 28 U.S.C. § 1391, as the Insurance Calls, as defined below, were made by or on behalf of Defendant to Plaintiff's cell phone in Broward County, Florida. 2 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 3 of 12 PARTIES 5. Carl Paalzow, Plaintiff, owns and maintains a cell phone with a 954-area code, lives in Broward County, Florida,and uses it regularlythere. Plaintiff successfully this phone number with the National Do-Not-Call Registryon June 13, 2015. registered 6. Defendant, AP of South Florida,LLC, doing business as Fiorella Insurance Agency, is Company that runs and operates Fiorella Insurance a Florida Limited Liability Agency. GENERAL ALLEGATIONS 7. Plaintiff has received dozens of prerecordedor artificial voice phone calls and voicemails from Defendant, which advertise Defendant's insurance company. 8 Hereinafter,"calls" shall not include text messages. 9- Pursuant to the TCPA and its calls placedusing implementing regulations, an artificial voice, or a prerecorded voice, that include or introduce an advertisement or constitute telemarketingmay not be placedto persons or entities whose telephonenumbers have been assignedto a cellular telephoneservice or a residential line without obtaining Prior Express Written Consent. 10. Pursuant to the TCPA and its implementing regulations,47 C.F.R. Prior Express Written Consent 64.1200(f)(8), is defined as "an agreement, in writing, bearing the signatureof the person called that clearlyauthorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketingmessages using an automatic telephone dialingsystem or an artificial or prerecorded voice, and the telephonenumber to which the signatoryauthorizes such advertisements or telemarketing messages to be delivered," and which must include a clear and conspicuous disclosure 3 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 4 of 12 which states that "By executingthe agreement, such person authorizes the seller to deliver or cause to be delivered to the signatorytelemarketingcalls using an automatic telephone dialingsystem or an artificial or prerecordedvoice." 11. However, Defendant placedthe Insurance Calls without obtainingthe Prior Express Written Consent of Plaintiff or the other putativeclass members. 12. Pursuant to the TCPA and its implementing regulations,telephone solicitations may not be placed to persons and entities that are with the National registered Do-Not-Call Registry at least 30 days priorto being called more than once within a 12- month period,and without obtainingpriorexpress invitation or permissionevidenced by a signed,written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed. 13. However, Defendant placed the Insurance Calls despite the fact that Plaintiff's and other putativeclass members' phone numbers were on the National Do-Not- Call Registry,and without obtainingthe RequisiteDo-Not-Call Permission of Plaintiff or the other putativeclass members. 14. By placingthe Insurance Calls without Prior Express Written Consent or RequisiteDo-Not-Call Permission, Defendant harmed Plaintiff and the members of the putative class by: (1) wasting their time; (2) causing the risk of personal injury due to interruption (3)forcingthem and distraction; to incur charges;(4)depletinga cell phone's or wireless phone's battery, in increased electricity resulting costs; (5)intrusion upon and occupationofthe capacityof a cell phone or wireless phone; (6)causingthe risk ofpersonal 4 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 5 of 12 injurydue to interruption the cost of advertingto them in and distraction;and (7)shifting violation of the TCPA. CLASS ACTION ALLEGATIONS 15. Plaintiff brings this action as a class action,pursuant to Rule 23(a) and 23(b)(3),Federal Rules of Civil Procedure, for statutory damages on behalf ofhimself and a class of all persons similarly situated. 16. Plaintiff bringsthis class action pursuant to the TCPA, and is a member of, and seeks to represent, a class ofpersons and entities Class")defined ("Plaintiff as: "All persons and entities whose telephone numbers were called by Defendant, or others on their behalf, on or after April 1,2019, where: 1) Defendant initiated a call using an artificial voice, or a prerecorded voice, to (i) advertise the commercial availability or quality of any property, goods, or services;or encourage the purchase or rental of property, goods, or services;(ii)where such persons' and entities' telephone numbers were assigned to a cellular phone service or residential line;and where Defendant failed to obtain Prior Express (iii) Written Consent from those persons and entities called;and/or 2) Defendant initiated more than one call within a 12-month period (i)to persons and entities who were registeredwith the National Do-Not-Call Registry for at least 30 days prior being called;(ii)encouraging the to purchase or rental of property, goods, or services; (iii)where such persons' and entities' telephone numbers were assigned to a cellular phone service;and (iv)where Defendant failed to obtain RequisiteDo- Not-Call Permission from those persons and entities called." 17. Class Size (Fed. R. Civ. P. Plaintiff avers that the proposed class 23(a)(1)): is in excess of 50 persons. The class size is so numerous that joinder of all members is impracticable. 18. Commonality (Fed. R. Civ. P. There are questionsoflaw and fact 23(a)(2)): common to all members of the class. Common material questionsof fact and law include, but are not limited to, the following: 5 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 6 of 12 a. whether the Insurance Calls included an artificial voice; b. whether the Insurance Calls included a prerecordedvoice; c. whether the Insurance Calls constitute advertisements; d. whether the Insurance Calls constitute telemarketing; e. whether the Insurance Calls constitute telephone solicitations; f. whether Defendant violated the Telephone Consumer Protection Act and its implementing regulationsby using (orhaving another on their behalf use) an artificial voice in conjunction with the Insurance Calls placed to Plaintiff and the class members without obtainingPrior Express Written Consent; g. whether Defendant violated the Telephone Consumer Protection Act and its implementing regulationsby using (or having another on their behalf use) a prerecordedvoice in conjunctionwith the Insurance Calls placed to Plaintiff and the class members without obtainingPrior Express Written Consent; h. whether Defendant violated the Telephone Consumer Protection Act and its by placing(or having another on implementing regulations their behalf place) the Insurance Calls to Plaintiff and the class members where the numbers called were registeredwith the National Do-Not-Call Registry at least 30 days prior to being called more than once within a 12-month period,without obtaining RequisiteDo-Not-Call Permission; i. whether Plaintiff and the other members of the class are entitled to statutory damages; and j. whether Plaintiff and the other members of the class are entitled to treble daniages. 6 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 7 of 12 19. Typicality(Fed.R. Civ. P. The claims of the named Plaintiff are 23(a)(3)): typicalof the claims of all members of the class. Plaintiff allegesthat Defendant placed the same Insurance Calls to Plaintiffand the other class members. Plaintiffraises questions of fact and law common to the class members. They share the common injuriesof: (1) and wasting the consumer's time; (2)causing the risk of personalinjurydue to interruption distraction;(3) forcing the consumer to incur charges;(4) depletinga cell phone's or wireless phone's battery,resultingin increased electricity costs; (5) intrusion upon and occupation ofthe capacityof a cell phone or wireless phone; (6)causing the risk ofpersonal injury due to and distraction;and (7) shiftingthe cost of advertingto the interruption consumer in violation ofthe TCPA. Defendant have acted the same or in a similar manner with respect to each class member. 20. The Fair and Adequate Representation(Fed. R. Civ. P. 23(a)(4)): named and adequatelyrepresent Plaintiffwill fairly and protect the interests ofthe class members. Plaintiff is committed to this cause, willlitigate and is aware o f the fiduciary it vigorously, duties of a class Plaintiff's representative. interests are consistent with and not antagonistic to the interests of the other class members. Plaintiff has a strong personal interest in the outcome of this action and has retained experiencedclass counsel to represent his and the other class members. 21. Class Counsel is and has successfully experienced in class action litigation class claims. litigated 22. Predominance and Superiority(Fed. R. Civ. P. A class action 23(b)(3)): is superiorto all other available methods for the fair and equitableadjudicationof the Common questionsof law and fact predominateover any controversy between the parties. 7 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 8 of 12 only individual members, and a class action is superiorto other methods questionsaffecting for the fair and efficient adjudicationof the controversy because: a. proof of Plaintiff's claims will also prove the claims of the class members without the need for separate or individualized proceedings; b. that Defendant evidence regarding defenses or any exceptionsto liability may assert and prove will come from Defendant's records (or that of their agents who placed the Insurance Calls)and will not requireindividualized or separate inquiriesor proceedings; c. Defendant have acted and may be continuingto act pursuant to common policiesor practicesby placing the Insurance Calls to Plaintiff and the class members; d. the amount likelyto be recovered by individual class members does not support individual litigation; e. a class action will permit a largenumber of relatively small claims involving virtuallyidentical facts and legal issues to in one be resolved efficiently proceeding based upon common proofs;and f. this case is inherentlymanageable as a class action in that: i. Defendant or their agent(s)identified the persons or entities to placethe Insurance Calls to and it is believed that Defendant's computer and business records, or those of their agents, will enable the Plaintiff to readilyidentifyclass members and establish liability and damages; ii. and damages can be established for the Plaintiff and for the liability class members with the same common proofs; 8 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 9 of 12 iii. statutory damages for violations ofthe TCPA are the same for each class member; iv. a class action will result in an orderlyand expeditiousadministration of claims and will foster economics oftime, effort and expense; V a class action will contribute to uniformity of decisions concerning and Defendant's practices; Vi. as a matter, the claims of the class members are likelyto go practical unaddressed absent class certification. Count 1 Claim for Relief for Violations of the TCPA 23. Plaintiff reasserts and incorporatesherein by reference the averments set forth in paragraphs 1 through 22, above. 24. Plaintiffbrings the Defendant this action against for sendingInsurance Calls to himself and to members of the Plaintiff Class in violation of the TCPA and its implementing regulations. 25. Defendant violated the TCPA and implementing regulations47 C.F.R. § or authorizingthe placement o f the Insurance Calls 64.1200(a),by initiating to the phone numbers ofPlaintiffand the members ofthe PlaintiffClass without receivingPrior Express Written Consent. 26. Defendant violated the TCPA and implementing regulation47 C.F.R. § or authorizingthe placement o f the Insurance Calls 64.1200(c),by initiating to the phone numbers of Plaintiff and the members ofthe PlaintiffClass where such persons and entities were registeredwith the National Do-Not-Call Registry at least 30 days priorto being 9 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 10 of 12 called by Defendant more than once within a 12-month period,and without obtaining RequisiteDo-Not-Call Permission from Plaintiff or members ofthe Plaintiff Class. 27. The named Plaintiff and members of the Plaintiff Class are entitled to $1,500 for each violation ofeach ofthe Insurance Calls that violated 47 C.F.R. § 64.1200(a) and $1,500 for each of the Insurance Calls that violated 47 C.F.R. § 64.1200(c) that was placed to them willfully or knowingly. 28. In the alternative, the named Plaintiffand members ofthe PlaintiffClass are entitled to $500 for each violation of each ofthe Insurance Calls that violated 47 C.F.R. § 64.1200(a)and $500 for each of the Insurance Calls that violated 47 C.F.R. § 64.1200(c) that was negligentlyplaced to them. WHEREFORE, Plaintiff, and on behalf o f all others similarlysituated, individually demand judgment in its favor and againstDefendant and request an order: A. certifyingthis action as a class action pursuant to Rule 23, appointing Plaintiff Carl of the members of the Paalzow as the representative class defined above, and appointingthe undersignedas counsel for the members of the class; B. findingthat Defendant caused the Insurance Calls to be placed to Plaintiff and to each class member in violation of the TCPA and its implementing regulations; C. findingthat Defendant are liable to pay statutory damages of $1,500 for each violation of each of the Insurance Calls that violated 47 C.F.R. § 64.1200(a) and $1,500 for each of the Insurance Calls that violated 47 10 Case 0:23-cv-60636-KMM Document 6 Entered on FLSD Docket 04/24/2023 Page 11 of 12 C.F.R. § 64.1200(c)that was knowingly and willfully placedto Plaintiffand each class member; Defendant are liable to pay statutory damages D. findingthat,in the alternative, of $500 for each violation of each of the Insurance Calls that violated 47 C.F.R. § 64.1200(a) and $500 for each of the Insurance Calls that violated 47 C.F.R. § 64.1200(c)that was negligentlyplaced to Plaintiff and to each class member; E. entering a judgment in favor of the Plaintiff as representativeof the members of the class for the total amount