Lopez v. Consumer Safety Tech.

1

JOEL LOPEZ, individually and on behalf of all others similarly situated, Plaintiff, v. CONSUMER SAFETY TECHNOLOGY, LLC, d/b/a INTOXALOCK, Defendant.

No. 8:24-cv-150-WFJ-AAS

United States District Court, M.D. Florida, Tampa Division

May 10, 2024

ORDER

WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

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 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 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 “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 12-month 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 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); Cafe, 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).

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-KKM-TGW, 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 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...