UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. Case 9:20-cv-81076-RS

KENNETH JOHANSEN, individually and

on behalf of all other persons and entities 

similarly situated,

Plaintiff,

v.

BLUEGREEN VACATIONS UNLIMITED,

INC., a Florida corporation,

Defendant.

______________________________________/

BLUEGREEN VACATIONS UNLIMITED INC.’S MOTION TO DISMISS AND 

INCORPORATED MEMORANDUM OF LAW

September 4, 2020

Grace L. Mead

Andrea N. Nathan

Veronica L. De Zayas

Joseph J. Onorati

STEARNS WEAVER MILLER WEISSLER

 ALHADEFF & SITTERSON, P.A.

Museum Tower, Suite 2200

150 West Flagler Street

Miami, Florida 33130

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

A. Parties and Proposed Class........................................................................................... 2

B. The May 27 and June 2, 2020 Phone Calls................................................................... 3

STANDARD GOVERNING A MOTION TO DISMISS.............................................................. 7

ARGUMENT.................................................................................................................................. 7

I. The Operative Call Recordings Must Be Considered on this Motion ................................... 7

II. The Complaint Does Not and Cannot Plead a Claim a Basis for Article III Standing.......... 9

III. The Complaint Does Not and Cannot Plead a Claim Under the TCPA Because He 

Had an Established Business Relationship with Bluegreen................................................. 11

A. Plaintiff does not and cannot adequately allege that Bluegreen made a 

“telephone solicitation.”.............................................................................................. 12

B. The United States District Court for the Southern District of Ohio has rejected 

this same Plaintiff’s same tactics to try to create a TCPA claim as a matter of 

law............................................................................................................................... 18

C. The Complaint does not and cannot allege that Bluegreen placed any calls to 

Plaintiff after he asked not to be called....................................................................... 19

III. The Complaint Fails to State a Claim for Treble Damages or Injunctive Relief................. 19

A. The Complaint fails to adequately plead facts showing that Bluegreen or its 

representatives acted “willfully or knowingly.” ......................................................... 19

B. The Complaint fails to adequately plead facts showing any entitlement to 

injunctive relief. .......................................................................................................... 20

CONCLUSION............................................................................................................................. 20

CERTIFICATE OF SERVICE ..................................................................................................... 22

SERVICE LIST ............................................................................................................................ 23

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TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...................................................................................................................7

Bryant v. Avado Brands, Inc.

187 F.3d 1271 (11th Cir. 1999) .................................................................................................8

Charvat v. GVN Michigan, Inc.,

531 F. Supp. 2d 922 (S.D. Ohio 2008), aff'd, 561 F.3d 623 (6th Cir. 2009)...........................15

Charvat v. Southard Corp.

18-cv-00190-MHW-CMV (S.D. Ohio Sept. 30, 2019) .....................................................14, 15

Charvat v. Southard Corp.

18-cv-00190-MHW-CMV (S.D. Ohio Sept. 30, 2019) .....................................................14, 15

Cordoba v. DIRECTV, LLC,

942 F.3d 1259 (11th Cir. 2019) ...............................................................................................10

Cottone v. Jenne,

326 F.3d 1352 (11th Cir. 2003) ...............................................................................................13

Daewoo Motor America v. General Motors,

459 F.3d 1249 (11th Cir. 2006) .................................................................................................8

Day v. Taylor, 

400 F.3d 1272 (11th Cir. 2005) .................................................................................................8

Ela v. Destefano,

869 F.3d 1198 (11th Cir. 2017) ...............................................................................................13

Financial Security Assurance, Inc. v. Stephens, Inc., 

500 F.3d 1276 (11th Cir. 2007) .................................................................................................8

In re James,

406 F.3d 1340 (11th Cir. 2005) ...............................................................................................14

In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,

18 F.C.C. Rcd. 14014 (July 3, 2003) .......................................................................................14

Johansen v. Nat'l Gas & Elec. LLC,

2018 WL 3933472 (S.D. Ohio Aug. 16, 2018), case dismissed, 2019 WL 

4597740 (6th Cir. Apr. 18, 2019) ............................................................................................18

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Johansen v. National Gas & Electric,

2017 WL 6505959 (S.D. Ohio Dec. 20, 2017)....................................................................2, 18

Jones v. Montachusett Regional Transit Authority

2020 WL 1325813 (D. Mass. Feb. 7, 2020) ............................................................................15

Klay v. United Healthgroup, Inc.,

376 F.3d 1092 (11th Cir. 2004) ...............................................................................................20

Lary v. Trinity Physician Financial,

780 F.3d 1101 (11th Cir. 2015) .........................................................................................19, 20

LeFrere v. Quezada,

582 F.3d 1260 (11th Cir. 2009) ...............................................................................................13

Leyse v. Bank of Am., Nat'l Ass’n,

2020 WL 1227410 (D.N.J. Mar. 13, 2020)........................................................................10, 11

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)...................................................................................................................9

Mamani v. Berzain,

654 F.3d 1148 (11th Cir. 2011) .................................................................................................7

Marsh v. Butler County,

268 F.3d 1014 (11th Cir. 2001) ...............................................................................................13

N.R. by Ragan v. School Board of Okaloosa County, Florida,

418 F. Supp. 3d 957 (N.D. Fla. 2019)......................................................................................13

Salcedo v. Hanna,

936 F.3d 1162 (11th Cir. 2019) ...............................................................................................10

Schaffer v. Weast,

546 U.S. 49 (2005)...................................................................................................................13

SEC v. Graham,

823 F.3d 1357 (11th Cir. 2016) ...............................................................................................14

SFM Holdings v. Banc of America Securities,

600 F.3d 1334 (11th Cir. 2010) .................................................................................................8

Shelton v. Merch. Flow Fin. Corp.,

2018 WL 6839562 (D.N.J. Dec. 31, 2018), vacated on other grounds, 2019 

WL 2897719 (D.N.J. Apr. 4, 2019).........................................................................................17

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016).........................................................................................................9, 10

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Summers v. Earth Island Inst.,

555 U.S. 488 (2009)...................................................................................................................9

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308 (2007)...................................................................................................................8

Thomas v. George, Hartz, Lundeen, et al.,

525 F.3d 1107 (11th Cir. 2008) ...............................................................................................13

Thomas-Lawson v. Koons Ford of Baltimore, Inc.

2020 WL 1675990 (D. Md. Apr. 6, 2020)...............................................................................15

Zean v. Fairview Health Services,

858 F.3d 520 (8th Cir. 2017) .................................................................................................8, 9

Statutes

47 U.S.C. § 227...................................................................................................................... passim

Rules and Regulations

47 C.F.R. § 64.1200.....................................................................................................12, 13, 16, 17

Fed. R. Civ. P. 12...............................................................................................................1, 7, 8, 13

Other Authorities

American Heritage College Dictionary (4th ed. 2002)..................................................................14

Merriam Webster’s Collegiate Dictionary (11th ed. 2005) ...........................................................14

Rules and Regulations Implementing the Telephone Consumer Protection Act 

(TCPA) of 1991, 68 Fed. Reg. 44, 144, 159 (July 25, 2003) ...................................................14

1 Shorter Oxford English Dictionary (Oxford University Press 6th ed. 2007) .............................14

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Defendant Bluegreen respectfully moves under Federal Rule of Civil Procedure 12(b)(6) 

to dismiss the Complaint and submits the following memorandum of law in support thereof:

INTRODUCTION

Plaintiff Kenneth Johansen is a serial plaintiff who has had a TCPA case previously 

dismissed in response to an order to show cause because, while engaging in a ruse to try to lure a 

company into a TCPA violation, he established a business relationship that eliminated his claim.

Dismissal is required in this case too for many of the same reasons, but, under governing 

Eleventh Circuit precedent, dismissal is required now. The most central allegations in the 

Complaint involve the May 27 and June 2 calls that Plaintiff alleges violated the TCPA. Under

governing Eleventh Circuit precedent setting forth black-letter law on incorporation by reference 

and applying it in other contexts, the Complaint incorporates those calls by reference in their 

entirety and they must be considered on this motion to dismiss.

The recordings of the two calls most central to the Complaint—a May 27 call and a June 

2 call—establish that an agent called Plaintiff and reminded him he had previously purchased a 

Bluegreen vacation package that he had not used, that Plaintiff said he expected to go on 

vacation, that he also sought to explore cruising options, that he supplied email addresses, and 

that he asked many more detailed questions and supplied extensive information. All told, the two 

calls about Plaintiff taking a vacation lasted over 50 minutes.

But Plaintiff now sues alleging that Bluegreen violated the TCPA by calling him despite 

being listed on the national Do Not Call Registry. As part of his claim, Plaintiff must prove that 

he had no “established business relationship” with Bluegreen. But, as in the Ohio federal case 

where first many of his claims were dismissed at the pleading stage and then the rest were 

dismissed under the summary judgment standard, Plaintiff’s efforts to create a TCPA claim in 

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fact defeated it. He created an “established business relationship,” which both eliminates his 

Article III standing and his claim.

Accordingly, the Complaint fails to state the single claim it attempts to assert, and should 

be dismissed with prejudice because the incorporated documents establish that any amendment 

would be futile.

1

BACKGROUND

A. Parties and Proposed Class

Defendant Bluegreen Vacations Unlimited, Inc. (“Bluegreen”) is a vacation ownership or 

timeshare company that offers vacation and travel services. See Compl. ¶ 13. As part of its 

marketing efforts, Bluegreen markets by telephone. See Compl. ¶ 14.

Plaintiff Kenneth Johanson alleges that he registered his residential phone number with 

the National Do Not Call Registry. Compl. ¶ 2. Plaintiff is a serial TCPA plaintiff whose 

attempts to lure defendants into TCPA violations have instead been rejected as creating an 

established business relationship. See, e.g., Johansen v. National Gas & Electric, 2017 WL 

6505959, *3-4 (S.D. Ohio Dec. 20, 2017).

Plaintiff claims here that Bluegreen or its representatives made nine marketing calls to 

him in May and June of 2020 and that these calls “temporarily deprived” him of the “legitimate 

use” of his phone. Compl. ¶ 29. He alleges Bluegreen thus violated the TCPA, without actually 

identifying which subsection of 47 U.S.C. § 227 was violated.

 

1

“Bluegreen” refers to the named defendant Bluegreen Vacations Unlimited, Inc., and “TCPA” 

refers to the Telephone Consumer Protection Act. Citations to “Compl. ¶ __” are to the 

Complaint in the above-referenced case filed on July 17, 2020, citations to “DE ___” are to 

docket entries in this case, and references to DE 9 are to an accompanying declaration 

authenticating and attaching the call recordings that the Complaint incorporates by reference. 

References to Exhibits 1 and 2 are to the transcripts of the May 27, 2020 and June 2, 2020 calls, 

which are provided solely for ease of reference. Emphasis is added and citations omitted unless 

otherwise indicated.

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The Complaint seeks to assert a single TCPA claim on behalf of the following proposed 

class spanning a four-year period:

All persons in the United States whose (1) telephone numbers were registered on

the National Do Not Call Registry for at least 31 days, (2) but received more than 

one call from or on behalf of Bluegreen (3) within a 12 month period, (4) from 

four years prior to the filing of the Complaint.

Compl. ¶ 31. 

In addition to seeking treble damages for up to $1,500 in damages for each call made, the 

Complaint seeks an order enjoining Bluegreen from making telemarketing calls, except for 

emergency purposes, to any residential line. Compl. ¶ 45, p. 7. 

B. The May 27 and June 2, 2020 Phone Calls

The Complaint alleges that Bluegreen placed nine telemarketing to Plaintiff—one call on 

May 26, 2020, six calls on May 27, 2020, and two calls on June 2, 2020. Compl. ¶ 19. The 

Complaint makes central to its claims allegations about Plaintiff’s phone calls with Bluegreen’s 

representative, Compl. ¶ 24, incorporates their contents by reference, and the recordings thus 

must be considered on this motion, see pp. 7-9, below. 

The Complaint alleges—as it must to state any claim—that the phone calls placed by 

Bluegreen or its representatives were “telephone solicitations” rather then made based on an 

established business relationship. Compl. ¶ 29; see also pp. 12-18, below. As for the first, May 

26, 2020 call, Plaintiff concedes that, as the first call identified in the Complaint, it cannot create 

liability. Compl. ¶ 31.

As for the May 27 and June 2, 2020 calls, the accompanying audio recordings establish 

that they were the opposite of telephone “solicitations”: Plaintiff baited the Bluegreen 

representatives into having nearly-thirty minute conversations with him by repeatedly expressing 

interest in Bluegreen’s vacation packages.

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On May 27, 2020, an agent called Plaintiff and reminded him that he had previously 

purchased a Bluegreen vacation package to stay in Charleston, South Carolina for three days and 

two nights. Because Plaintiff had not used the vacation package, he had a credit with Bluegreen. 

On hearing this, Plaintiff exclaimed “wow,” DE 9, Ex. A at 00:42; Ex. 1 at 2:22, and engaged 

with the agent for nearly thirty minutes, repeatedly asking about the vacation package: 

 “I expect” “to go on vacation”: After the agent asked whether Plaintiff expected to 

go on a vacation in the next year or two, Plaintiff responded: “I expect so, yes.” DE 9, 

Ex. A at 01:06; Ex. 1 at 3:6. The agent then proceeded to confirm that Plaintiff 

qualified for the package by asking him questions about his income, FICO score, and 

whether he was in the process of a bankruptcy, all of which Plaintiff answered. DE 9, 

Ex. A at 01:36; Ex. 1 at 3:13-17.

 “Let’s leave it at Charleston”: After the agent explained to Plaintiff that he would 

not have to plan anything today but needed to select a temporary location for the 

vacation, she asked Plaintiff whether he wanted her to “leave it for Charleston” or 

whether he would “like information on a different location.” DE 9, Ex. A 02:48; Ex. 1 

at 4:13-15. Plaintiff responded, “Let’s leave it at Charleston.” DE 9, Ex. A at 02:53; 

Ex. 1 at 4:16.

 “Yes, go ahead” and explore cruising options: Plaintiff tells the agent to continue 

explaining Bluegreen’s cruising options. DE 9, Ex. A at 05:47; Ex. 1 at 6:25.

 Confirmation of email: The agent tells Plaintiff that Bluegreen will be sending Plaintiff 

an updated package and reservation information via email, and Plaintiff confirms his 

email address. DE 9, Ex. A at 06:52; Ex. 1 at 7:20.

 “Yeah I have a MasterCard.”—Plaintiff tells the agent that he would like to use his 

MasterCard to make the temporary reservation deposit to secure his vacation package.

DE 9, Ex. A at 08:42; Ex. 1 at 9:10.

 “May I understand the package a little better. Is there some way I can see what the 

package is?”: Plaintiff tells the agent that he would like to receive additional information 

regarding his updated vacation package. DE 9, Ex. A at 08:53; Ex. 1 at 9:13-15.

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 “Let me give you a different email address”: Plaintiff gives the agent an alternate 

email so that he can receive the requested additional information. DE 9, Ex. A at 09:17; 

Ex. 1 at 9:23-24.

 “Okay, yeah, Charleston”: Plaintiff reiterates that he would like to have Charleston, 

South Carolina listed as the location in order to receive an updated vacation package.

DE 9, Ex. A at 11:09; Ex. 1 at 10:20. 

 Plaintiff asks, “Are you still there?” After a prolonged silence, Plaintiff asks if the

agent is still on the line. DE 9, Ex. A at 12:19; Ex. 1 at 10:23-24.

 “Do you have a web page Stacey while I’m waiting for the email?” Plaintiff asks 

for Bluegreen’s website so he can review Bluegreen’s products and services while he 

waits for the updated vacation package to arrive by email. DE 9, Ex. A at 12:26; Ex. 1 at 

11:3-4.

 Plaintiff asks, “You want me to send you an email, and you can do a reply?: 

Plaintiff asks the agent if he can send an email to the agent because he hasn’t received the 

email containing his updated Bluegreen vacation package. DE 9, Ex. A at 14:27; Ex. 1 

at 11:20-21. 

 “Go ahead. Yea. Go ahead and send it.”: Plaintiff reiterates that he wants the agent

to send him the updated vacation package email. DE 9, Ex. A at 18:58; Ex. 1 at 13:19.

 “Hey......it arrived!”: Plaintiff express joy after finally receiving the email he 

requested twice to receive. DE 9, Ex. A at 22:11; Ex. 1 at 14:14. 

 “Wait a min....okay, it says – okay then Go CRV 3 day, 2 night vacation –

what’s that?”: After reviewing the updated vacation package email, Plaintiff asks the 

agent about a specific product that the agent added at no additional charge to Plaintiff.

DE 9, Ex. A at 22:47; Ex. 1 at 14:25 – 15:2.

 “What is the cruise? . . . that’s from where?”: Plaintiff asks details about the cruise 

promotion in the updated vacation package email. DE 9, Ex. A at 23:39 to 23:48; Ex. 1 

at 15:17-20. 

At the end of the May 27 call, after over twenty-five minutes of conversation, the agent

said she could not hear Plaintiff anymore, and she would call back. DE 9, Ex. A at 24:57; Ex. 1 

at 16:4-6. 

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On June 2, 2020, a different agent called back and Plaintiff engaged this second agent in 

another almost thirty-minute conversation. Schumer Decl. ⁋ 9; DE 9, Ex. B. The agent said she 

was calling about the Charleston vacation package he previously purchased, which Plaintiff said

he could not remember. DE 9, Ex. B at 00:20; Ex. 2 at 1:4-9. The agent said she would close out 

the vacation package and told Plaintiff to have a nice evening, thus attempting to end the call. 

DE 9, Ex. B at 00:49; Ex. 2 at 2:19-21. Plaintiff then asked the agent to tell him more about the 

vacation package, stating “Tell me about it.” DE 9, Ex. B at 00:54; Ex. 2 at 2:22. After which, 

Plaintiff and the agent engaged in a conversation about the vacation package: 

 “I guess Boyne Mountain”: Plaintiff chooses Boyne Mountain, Michigan, as the 

location for potential vacation in order to receive an updated vacation package, after 

confirming he likes to ski, has visited Boyne Mountain before, and had a good time. 

DE 9, Ex. B at 04:43; Ex. 2 at 5:23.

 Confirms address: After listening to the agent discuss the vacation package and 

confirming his e-mail address, the agent tells Plaintiff, “whenever you call in regarding 

your account, they will ask you to verify the address on file to make sure you are the 

account holder,” at which point Plaintiff confirmed his address. DE 9, Ex. B at 11:17; x. 

2 at 11:12-17.

 Adds wife to account: Plaintiff responds to the agent’s question as to his marital status. 

DE 9, Ex. B at 11:33; Ex. 2 at 11:23. The agent tells Plaintiff she is going to add Mrs. 

Johansen to the account so that when he goes to book travel dates, there are no issues. DE 

9, Ex. B at 11:36; Ex. 2 at 11:24 – 12:1. The agent asks Plaintiff for his wife’s name, to 

which he responds, “Rita.” DE 9, Ex. B at 11:54; Ex. 2 at 12:9. The agent confirms that 

she has added Rita to the account. DE 9, Ex. B at 12:00; Ex. 2 at 12:12-15.

 Confirms phone number: Plaintiff confirms this is the best phone number to reach him. 

DE 9, Ex. B at Ex. B at 12:10; Ex. 2 at 12:17. 

 “I have a MasterCard”: The agent informs Plaintiff he will receive an email 

confirmation for the vacation package and a second e-mail containing instructions 

regarding how to book. DE 9, Ex. B at 12:12; Ex. 2 at 12:18 – 13:5. She tells Plaintiff 

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which credit cards they accept, and he replies that he has a MasterCard. DE 9, Ex. B 

at 14:52; Ex. 2 at 15:4.

 Plaintiff asks for Bluegreen’s Website: Plaintiff asks the agent for the Bluegreen 

website: ““Do you have a website?” DE 9, Ex. B at 15:00; Ex. 2 at 15:7.

 “Do you have a travel license number? Plaintiff asks the agent is she has a travel 

license number. DE 9, Ex. B at 17:36; Ex. 2 at 16:20-21.

 “Okay. Go ahead.”: Plaintiff confirms that the agent can send an email in response 

to Plaintiff’s request for the travel license number. DE 9, Ex. B at 18:34; Ex. 2 at 

17:8-15.

After nearly thirty minutes of conversation, Plaintiff announces he is on the Do Not Call 

Registry, to which the agent replies, “well you’re a client of ours,” before bringing a supervisor 

on the phone, who promised to take Plaintiff off the calling list. DE 9, Ex. B at 22:50; Ex. 2 at 

19:5-16. The Complaint does not allege that anyone from Bluegreen spoke to him again.

STANDARD GOVERNING A MOTION TO DISMISS

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 

“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that 

is plausible on its face.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While a court must consider the allegations 

contained in the plaintiff’s complaint as true, this rule “is inapplicable to legal conclusions.” Iqbal, 

556 U.S. at 678. And “[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id.

ARGUMENT

I. The Operative Call Recordings Must Be Considered on this Motion

In ruling on a motion to dismiss, “courts must consider the complaint in its entirety, as 

well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, 

in particular, documents incorporated into the complaint by reference, and matters of which a 

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court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 

(2007). “[T]he district court may consider an extrinsic document if it is (1) central to plaintiff’s 

claim, and (2) its authenticity is not challenged.” SFM Holdings v. Banc of America Securities, 

600 F.3d 1334, 1337 (11th Cir. 2010).

Like SEC filings in a securities fraud case, the call recordings “are the very documents 

that are alleged to contain the” legally operative acts “and are not relevant to prove the truth of 

their contents but only to determine what [was] stated.” Bryant v. Avado Brands, Inc. 187 F.3d 

1271, 1277 (11th Cir. 1999). “Were courts to refrain from considering such documents, 

complaints that quoted only selected and misleading portions of such documents could not be 

dismissed under Rule 12(b)(6) even though they would be doomed to failure.” Id. And 

“[f]oreclosing resort to such documents might lead to complaints filed solely to extract nuisance 

settlements.” Id. 2 And, as established by the accompanying Declaration of Jarred Schumer, there 

can be no dispute about the authenticity of the call recordings. See DE 9. 

Indeed, courts apply these same principles when considering documents that are 

technically outside of the four corners of the complaint, but nonetheless incorporated therein, 

when deciding motions to dismiss in TCPA cases. For example, in Zean v. Fairview Health 

Services, 858 F.3d 520 (8th Cir. 2017), the Eighth Circuit Court of Appeals affirmed the district 

 

2

See also, e.g., SFM Holdings, 600 F.3d at 1337 (affirming dismissal with prejudice of 

complaint alleging breach of fiduciary duty and constructive fraud against broker based, in part, 

on account opening documents that were central to Plaintiff’s claim); Financial Security 

Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284-85 (11th Cir. 2007) (affirming dismissal 

of claim under Securities and Exchange Act that considered insurance policy; describing with 

approval First Circuit holding that magazine article central to libel claims could be considered 

because “plaintiffs unquestionably would have had to offer a copy of the article in order to prove 

their case”); Daewoo Motor America v. General Motors, 459 F.3d 1249, 1266 n.11 (11th Cir. 

2006) (ruling master transaction agreement and distribution agreement were integral to 

allegations and therefore district court properly considered them on a motion to dismiss without 

converting it to a motion for summary judgment); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 

2005) (affirming dismissal of antitrust claims and consideration of a distribution agreement that, 

though not attached to the complaint, was “at the very heart” of plaintiff’s claim).

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court’s dismissal of the plaintiff’s TCPA complaint based on documents that were outside of the 

four corners of the complaint but were “embraced by the pleadings,” where the plaintiff did not 

“raise a genuine objection to the authenticity of the documents.” Id. at 527. 

Binding precedent in the Eleventh Circuit on the scope of documents incorporated by 

reference and their consideration on motions to dismiss mirrors that applied by the Eighth 

Circuit, and this Court should therefore consider the call recordings here.

II. The Complaint Does Not and Cannot Plead a Claim a Basis for Article III Standing

Plaintiff lacks standing to bring his claim because he cannot adequately allege he suffered 

an injury from calls he welcomed and engaged in as required by Article III of the United States 

Constitution.

Plaintiff alleges, in conclusory fashion, that he was harmed by Bluegreen’s calls because 

he was “temporarily deprived of legitimate use of [his] phone because the phone line was tied up 

during the telemarketing calls and [his] privacy was improperly invaded,” and the calls “were 

frustrating, obnoxious, annoying, were a nuisance and disturbed the solitude of plaintiff.” Compl. 

¶ 29. These allegations do not and cannot support Article III standing because the incorporated 

phone calls reveal that Plaintiff, who had an established business relationship with Bluegreen, 

welcomed and engaged in the calls and, therefore, did not suffer a concrete injury. 

The Supreme Court has explained that “the “irreducible constitutional minimum” to 

establish Article III standing requires “[t]he plaintiff []have (1) suffered an injury in fact, (2) that 

is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed 

by a favorable judicial decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 

“[T]he requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be 

removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). In Spokeo v. 

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Robins, the Supreme Court held that a plaintiff does not “automatically satisf[y] the injury-infact requirement whenever a statute grants a person a statutory right and purports to authorize 

that person to sue to vindicate that right,” and that “Article III standing requires a concrete injury 

even in the context of a statutory violation,” which injury “must be ‘de facto’; that is, it must 

actually exist.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548-49 (2016). 

Consistent with Spokeo, the Eleventh Circuit Court of Appeals has dismissed cases for 

lack of Article III standing where a plaintiff has alleged nothing beyond a bare procedural or 

technical injury. In Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1268 (11th Cir. 2019), the 

Eleventh Circuit held that consumers who never asked to be placed on a broadcast satellite 

service provider’s internal do-not-call list lacked standing to maintain a claim under the TCPA 

based on allegations that the provider failed to institute appropriate procedures to maintain an 

internal list.3 Likewise, in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), the Eleventh 

Circuit dismissed a TCPA claim premised on the receipt of a single text message for lack of 

standing, holding that the text message did not rise to the level of concrete injury-in-fact. 

Courts confronted with facts similar to those alleged here have concluded there is no 

injury-in-fact where a plaintiff welcomes and engages in the calls. For example, in Leyse v. Bank 

of Am., Nat'l Ass’n, 2020 WL 1227410 (D.N.J. Mar. 13, 2020), the District of New Jersey held 

that a plaintiff failed to meet the injury-in-fact requirement and therefore lacked standing to bring 

a claim under the TCPA against Bank of America. Id. at *3-*4. In Leyse, the plaintiff was a Bank 

of America customer who received a telemarketing call on his residential line from Bank of 

America’s agent. Id. at *1-*2. The District of New Jersey found that the plaintiff could not 

 

3 The Eleventh Circuit held that “the named plaintiff – who repeatedly asked not to be called – 

ha[d] standing,” but, in vacating the district court’s class certification order, differentiated him 

from “[t]he unnamed members of the putative class who did not ask DIRECTV to stop calling 

them,” because they “were not injured by the failure to comply with the regulation.” Cordoba, 

942 F.3d at 1264. 

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satisfy the injury-in-fact requirement because the plaintiff “welcomed such calls in his role as a 

paid investigator aiding his counsel in the preparation of TCPA lawsuits,” which the court 

ascertained from, among other things, “the types of questions he asked [] representatives, his use 

of a false name and employer, his secret recordings of the calls, and his submission of those 

recordings to his counsel.” Id. at *4. 

Leyse applies with even greater force to require dismissal here because the Plaintiff

“welcomed” Bluegreen’s calls and then engaged with the agent for almost thirty minutes on two 

separate calls. Leyse, 2020 WL 1227410 at *4. At the beginning of the May 27 phone call, 

Plaintiff exclaimed “wow!” when the Bluegreen representative told him he still had a credit 

based on the vacation package he purchased and never used years prior, DE 9, Ex. A at 00:42; 

Ex. 2 at 2:22, and engaged with the representative by asking questions, providing his e-mail 

address, and confirming the type of credit card he wished to use for the transaction. DE 9, Ex. A 

at 06:52, 08:53, 09:17, 12:19, 12:26, 18:58, 22:47, 23:39 to 23:48; Ex. 2 at 7:20, 9:13-15, 9:23-

24, 10:23-24, 11:3-4, 13:19, 14:25 – 15:1, 15:16-19. When, at the end of the June 2 phone call, 

Bluegreen’s representative tried to end the phone call and stated “have a nice evening,” Plaintiff 

kept her on the line by asking—with reference to the vacation package—“tell me about it.” DE 9, 

Ex. B at 00:49, 00:54; Ex. 2 at 2:19-22. Only at the end of the second nearly thirty-minute phone 

call did Plaintiff announce he was on the national Do Not Call Registry and ask not to be called. 

DE 9, Ex. B at 22:50; Ex. 2 at 19:5-16.. Plaintiff cannot adequately allege he suffered any injury 

from calls he welcomed and engaged in. See Leyse, 2020 WL 1227410 at *4.

Even interpreted most charitably toward Plaintiff, the Complaint alleges only a bare 

procedural or technical injury, which is no basis for Article III standing. See p. 10, above. 

III. The Complaint Does Not and Cannot Plead a Claim Under the TCPA Because He 

Had an Established Business Relationship with Bluegreen

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Under the TCPA’s statutory framework, Plaintiff’s claims must also be dismissed. The 

May 27 call identified in the Complaint confirmed an established business relationship existed 

between Plaintiff and Bluegreen, which eliminates liability under the TCPA for that and future 

calls because none qualify as “solicitations” or telemarketing calls. Only on the June 2, 2020 

identified in the Complaint did Plaintiff make clear he was on the Do Not Call Registry and did 

not want to receive phone calls from Bluegreen. After receiving that notification, Bluegreen 

never called again. 

As the Complaint alleges, “[t]he TCPA and implementing regulations prohibit the 

initiation of telephone solicitations to residential telephone subscribers [on] the Registry and 

provides a private right of action against any entity that makes those calls . . . .” Compl. ⁋ 12. 

Plaintiff does not and cannot allege, however, that Bluegreen made a “telephone solicitation” as 

defined by the TCPA and implementing regulations, which dooms his claim. As discussed 

below, Plaintiff’s allegation that “Bluegreen placed at least nine telemarketing calls to 

Mr. Johansen” in May and June of 2020, Compl. ⁋ 19, fails to meet the definition of “telephone 

solicitation” because Plaintiff and Bluegreen had an established business relationship. 

A. Plaintiff does not and cannot adequately allege that Bluegreen made a 

“telephone solicitation.”

The TCPA and its implementing regulations define the term “telephone solicitation” as “a 

telephone call or message for the purpose of encouraging the purchase or rental of, or investment 

in, property, goods, or services, which is transmitted to any person . . . .” 47 U.S.C. § 227(a)(4); 

47 C.F.R. § 64.1200(f)(14). Specifically excluded from this definition, however, are any calls or 

messages “to any person with whom the caller has an established business relationship.” 47 

U.S.C. § 227(a)(4)(B); 47 C.F.R. § 64.1200(f)(14)(ii).

The implementing regulations define an “established business relationship” as follows:

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The term established business relationship for purposes of telephone 

solicitations means a prior or existing relationship formed by a voluntary twoway communication between a person or entity and a residential subscriber with 

or without an exchange of consideration, on the basis of the subscriber’s purchase 

or transaction with the entity within the eighteen (18) months immediately 

preceding the date of the telephone call or on the basis of the subscriber's inquiry 

or application regarding products or services offered by the entity within the 

three months immediately preceding the date of the call, which relationship has 

not been previously terminated by either party.

47 C.F.R. § 64.1200(f)(5). Thus, Plaintiff must allege that Bluegreen and Plaintiff did not have 

an established business relationship to state a claim under 47 U.S.C. § 227(c).4

The implementing regulations make clear that a consumer’s “inquiry” into a 

telemarketer’s services is sufficient to create an established business relationship, even where a 

purchase or transaction has not occurred. See 47 C.F.R. § 64.1200(f)(5). Indeed, “the legislative 

 

4 The TCPA requires Plaintiff to prove the absence of an established business relationship for 

three reasons: (1) “Absent some reason to believe that Congress intended otherwise...[the courts] 

conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.” 

Schaffer v. Weast, 546 U.S. 49, 57-58 (2005); see also Thomas v. George, Hartz, Lundeen, et al., 

525 F.3d 1107, 1110 (11th Cir. 2008); (2) the statute excludes from the definition of “telephone 

solicitation” and eliminates liability in cases where there is an established business relatonship.” 

47 U.S.C. § 227(a)(4). The Eleventh Circuit has held that where “the plain meaning” of an 

“element[] giving rise to liability” requires the plaintiff to prove a related statutory definition, the 

plaintiff bears the burden of proof. Thomas, 525 F.3d at 1111-12; and (3) the TCPA itself does 

not make showing an “established business relationship” an affirmative defense, but elsewhere 

does make the existence of adequate policies and procedures an affirmative defense. 47 U.S.C. § 

227(c)(5). “It is well-settled that where Congress includes particular language in one section of a 

statute but omits in another section of the same Act, it is generally presumed that Congress acts 

intentionally and purposely.” Ela v. Destefano, 869 F.3d 1198, 1202 (11th Cir. 2017). And 

“[w]here Congress knows how to say something but chooses not to, its silence is controlling.” Id. 

The burden of proving the absence of an established business relationship therefore should lie 

with the Plaintiff.

Alternatively, even if the presence of an established business relationship is considered an 

affirmative defense, the Court must nonetheless dismiss. See LeFrere v. Quezada, 582 F.3d 

1260, 1263 (11th Cir. 2009) (if a “complaint contains a claim that is facially subject to an 

affirmative defense, that claim may be dismissed under Rule 12(b)(6) (citing Cottone v. Jenne, 

326 F.3d 1352, 1357 (11th Cir. 2003); Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir. 

2001); see also, N.R. by Ragan v. School Board of Okaloosa County, Florida, 418 F. Supp. 3d 

957, 987 (N.D. Fla. 2019) (“A complaint is subject to dismissal under Rule 12(b)(6) where its 

allegations, on their face, show that an affirmative defense bars recovery on the claim.”).

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history suggests that Congress contemplated that an inquiry by a consumer could be the basis of 

an established business relationship.” In re Rules & Regulations Implementing the Tel. Consumer 

Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14080 (July 3, 2003).

Though “inquiry” is not defined by the TCPA or the implementing regulations, the 

Eleventh Circuit has frequently looked to dictionaries to ascertain plain meaning. See, e.g., SEC 

v. Graham, 823 F.3d 1357, 1360-61 (11th Cir. 2016); In re James, 406 F.3d 1340, 1343 (11th 

Cir. 2005). An “inquiry” is commonly defined as “to ask,” to “seek knowledge of a thing by 

asking a question,” 1 Shorter Oxford English Dictionary, at 1391 (Oxford University Press 6th 

ed. 2007), or “a request for information,” Merriam Webster’s Collegiate Dictionary, at 646 (11th 

ed. 2005). Simply put, it is “a question.” American Heritage College Dictionary (4th ed. 2002). 

The FCC has stated that “inquiries” in the context of the established business relationship are 

those from which “a consumer might reasonably expect a prompt follow-up telephone call 

regarding the initial inquiry or application.” Rules and Regulations Implementing the Telephone 

Consumer Protection Act (TCPA) of 1991, 68 Fed. Reg. 44, 144, 159 (July 25, 2003).

Consistent with the implementing regulations, district courts routinely dismiss TCPA 

claims where the calls evidence voluntary two-way communications in which a plaintiff inquires

about a company’s products or services, thus creating an established business relationship. For 

example, in Charvat v. Southard Corp. 18-cv-00190-MHW-CMV (S.D. Ohio Sept. 30, 2019), 

the Southern District of Ohio granted the defendant’s motion for partial judgment on the 

pleadings on the ground that Plaintiff created an established business relationship on the fifth call 

between the Plaintiff and Defendant. Charvat v. Southard Corp. 18-cv-00190-MHW-CMV at 13 

(S.D. Ohio Sept. 30, 2019). The Court held that Plaintiff’s TCPA claims based on the sixth and 

seventh calls were barred by Plaintiff’s voluntary inquiry into the Defendant’s products and 

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services on the fifth call, which created an established business relationship. Id. Additionally, the 

Court noted that it did not matter that the fifth call itself violated the TCPA because the “Plaintiff 

could have chosen to not engage in any communication at all—i.e. by hanging up” or could have 

simply “inform[ed] the caller that Plaintiff’s number is the NDNCR and he [did] not wish to receive 

any more phone calls.” Id. at 10. 5

As in Charvat, Plaintiff here engaged in voluntary two-way communications while 

repeatedly inquiring about Bluegreen’s products and services based on a previous purchase that 

he made with Bluegreen. Yet, Plaintiff alleges that Bluegreen made “illegal telemarketing calls”

to him on May 26, 2020 (one call), May 27, 2020 (six calls), and June 2, 2020 (two calls). Two 

of those calls—on May 27, 2020 and June 2, 2020—resulted in recorded conversations between 

Bluegreen’s representative and Plaintiff. 

As for the May 26, 2020 call, the plain language of the TCPA requires more than one 

violation of the Do Not Call regulations within a 12-month period to create liability. 47 U.S.C. § 

227(c)(5)(B). The May 26 call is the first identified in the Complaint, and Plaintiff therefore 

concedes that it cannot serve as a basis for liability. See Compl. ¶ 31. As the United States 

District Court for the Southern District of Ohio put it: “the TCPA does not [] allow a plaintiff to 

bring an action for first call violations,” rather, the purpose of the portion of the statute providing 

the private right of action, § 227(c)(5) “is to prevent repeated telemarketing calls to someone 

who has told the telemarketer not to call.” Charvat v. GVN Michigan, Inc., 531 F. Supp. 2d 922, 

926 (S.D. Ohio 2008), aff'd, 561 F.3d 623 (6th Cir. 2009).

 

5

See also Thomas-Lawson v. Koons Ford of Baltimore, Inc. 2020 WL 1675990 (D. Md. Apr. 6, 

2020) (TCPA claims dismissed where the “allegations on the face of the Complaint demonstrate 

the existence of an established business relationship, as defined in the statute” as text message 

acknowledged transaction five months prior); Jones v. Montachusett Regional Transit Authority 

2020 WL 1325813 (D. Mass. Feb. 7, 2020) (“Even assuming all of Plaintiff’s allegations as true, 

Plaintiff failed to allege that the calls constituted telephone solicitations or that he was a 

consumer within the meaning of the TCPA”).

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The May 27, 2020 call—the first call for which the Complaint seeks to impose any 

liability on Bluegreen—both confirmed that a prior established business relationship existed 

based on Plaintiff’s earlier purchase of a Bluegreen vacation package and then unequivocally 

created an established business relationship based on Plaintiff’s repeated inquiries regarding that

vacation package. Indeed, on that call, an agent named Stacey reminded Plaintiff that he 

previously purchased a vacation package from Bluegreen to go to Charleston for three days and 

two nights. Because Plaintiff had not used the vacation package, he had a credit with Bluegreen. 

DE 9, Ex. A at 00:37; Ex. 1 at 2:19-21. On hearing this, Plaintiff exclaimed “wow!” DE 9, Ex. A 

at 00:42; Ex. 1 at 2:22. He then engaged with the agent for nearly thirty minutes, saying he 

expected to go on a vacation in the next year or two, supplied updated financial information, 

selected a temporary location for the vacation, sought to explore cruising options, supplied 

additional information for both options including his email address, and confirmed receipt of an 

email about the vacations. At the end of the call, after more than twenty-five minutes of 

conversation, the agent stated she could not hear Plaintiff anymore, and stated that she would call 

back. See pp. 4-5, above. 

The nearly-thirty minute phone call, which lasted only as long as Plaintiff wanted it to 

and consisted of Plaintiff repeatedly inquiring about Bluegreen’s products, was a “voluntary twoway communication.” 47 C.F.R. § 64.1200(f)(5). Plaintiff could have easily hung up or simply told 

the representative that he was on the National Do Not Call Registry and did not wish to receive 

any more calls. Instead, Plaintiff communicated with the agent for over 25 minutes about 

updating his vacation package. An existing business relationship therefore existed on the May 

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27, 2020 phone call and all of the later calls were then not solicitations but instead made as part 

of that relationship.6

As explained above, on June 2, 2020, Plaintiff and a different agent engaged in another 

nearly-thirty minute conversation. DE 9, Ex. B. The agent said she was calling about the 

Charleston vacation package, which Plaintiff stated he could not remember, so the agent said she 

would close out the vacation package and told Plaintiff to have a nice evening, attempting to end 

the call. Plaintiff then asked the agent to tell him more about the vacation package, stating “Tell 

me about it.” At length, Plaintiff and the agent then discussed the vacation package, including details 

such as a new destinations in Michigan, confirming Plaintiff’s email address, confirming his wife’s 

name, confirming his phone number, and his additional, detailed questions. See pp. 6-7, above. Only 

after nearly thirty minutes of conversation, did Plaintiff announce that he is on the Do Not Call 

Registry. DE 9, Ex. B at 22:50; Ex. 2 at 19:5-6. The nearly-twenty-minute June 2, 2020 call 

further confirms that Plaintiff and Bluegreen had an established business relationship.

If there were any doubt, in both phone calls, Plaintiff confirmed his email address and 

then provided the agent with a second e-mail address to receive more details about the vacation 

package. DE 9, Ex. A at 06:52, 09:17,14:27; Ex. 1 at 7:20, 9:23-24, 11:20-21; DE 9, Ex. B at 

11:17; Ex. 2 at 11:12-17. At least one court has held that providing an email address “reasonably 

invites the company to contact the individual in the future about the services pitched on the sales 

call.” Shelton v. Merch. Flow Fin. Corp., 2018 WL 6839562, at *7 (D.N.J. Dec. 31, 2018), 

vacated on other grounds, 2019 WL 2897719 (D.N.J. Apr. 4, 2019). Indeed, in the first call, 

Plaintiff even went so far as to ask if he could email Bluegreen so he could receive the 

 

6 The subsequent calls were all made within the time 3-month time limitation provided in 47 

C.F.R. § 64.1200(f)(5). Compl. ⁋ 19.

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information more quickly, and then confirmed receipt of the e-mail that the representative sent to 

him during the call. 

B. The United States District Court for the Southern District of Ohio has 

rejected this same Plaintiff’s same tactics to try to create a TCPA claim as a 

matter of law.

Another district court presented with the same issues in a case filed by the same Plaintiff 

derided Plaintiff for the same “deceptive conduct” he has engaged in here. In Johansen v. 

National Gas & Electric LLC, the Plaintiff filed a TCPA complaint based on violation of the 

National Do Not Call Registry and the defendant moved to dismiss the complaint and to compel 

arbitration. 2017 WL 6505959, *3-4 (S.D. Ohio Dec. 20, 2017). The court ordered the Plaintiff 

to show cause why his complaint should not be dismissed as nothing more than a “ruse” because 

it appeared that Plaintiff’s “deceptive conduct” gave the company an “objectively reasonable 

basis for believing that he had established a business relationship” with them by virtue of his 

communications and inquiries on several phone calls. Id. The court further commented that his 

admissions—“pos[ing]” as an interested customer, and “play[ing] along ‘as he typically does’”

—“cast serious doubts on his fitness to serve as an adequate class representative” and 

“undermine the viability of his cause of action under the TCPA.” Id. at *3. Applying the standard 

applicable to motions for summary judgment, which construes the “evidence, all facts, and any 

inferences that may permissibly be drawn from the facts . . . in the light most favorable to 

[Plaintiff],” the court ultimately found that the Plaintiff “has not shown cause and that this action 

should be dismissed.” Johansen v. Nat'l Gas & Elec. LLC, 2018 WL 3933472, at *2 (S.D. Ohio 

Aug. 16, 2018), case dismissed, 2019 WL 4597740 (6th Cir. Apr. 18, 2019).

This Court should also dismiss Plaintiff’s “ruse” of a Complaint here. Because the May 

27, 2020 call shows an established business relationship existed between Plaintiff and Bluegreen, 

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Plaintiff does not and cannot adequately allege that Bluegreen made a “telephone solicitation.” 

Plaintiff’s claim therefore fails. 

C. The Complaint does not and cannot allege that Bluegreen placed any calls to 

Plaintiff after he asked not to be called.

On the June 2, 2020 phone call, Plaintiff announced—after a combined fifty-two minutes 

of conversation—that his number was on the national Do Not Call Registry and he did not want 

Bluegreen to call him. DE 9, Ex. B at 19. But the Complaint identifies no basis for liability after 

June 2 because it does not and cannot allege that Bluegreen ever called Plaintiff again.

III. The Complaint Fails to State a Claim for Treble Damages or Injunctive Relief

A. The Complaint fails to adequately plead facts showing that Bluegreen or its 

representatives acted “willfully or knowingly.”

The TCPA creates a private “action to recover for actual monetary loss from such a 

violation, or to receive up to $500 in damages for each such violation, whichever is greater.” 47 

U.S.C. § 227(c)(5)(B). The Complaint does not attempt to assert a claim for actual damages—

there were none. The Complaint does attempt to seek treble damages of up to $1500 for each 

violation. Section 227(c)(5)(C) of the TCPA provides: “If the court finds that the defendant 

willfully or knowingly violated the regulations prescribed under this subsection, the court may, 

in its discretion, increase the amount of the award to an amount equal to not more than 3 times” 

$500 for each violation. 47 U.S.C. § 227(c)(5)(C).

The Eleventh Circuit has ruled that, to recover treble damages under the TCPA, “[t]he 

requirement of ‘willful[] or knowing[]’ conduct requires the violator to know that he was 

performing the conduct that violates the statute.” Lary v. Trinity Physician Financial, 780 F.3d 

1101, 1107 (11th Cir. 2015). It reasoned: “If we interpreted the statute to require only that the 

violator knew he was making a ‘call’ or sending a fax, the statute would have almost no room for 

violations that are not ‘willful[] or knowing[].’” Id.

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Aside from the conclusory and formulaic recitations of the phrase “willfully or 

knowingly” or variants that must be disregarded, see Compl. at ¶ 44, the Complaint also fails to 

plead any facts showing that any Bluegreen representative believed that she was violating the 

TCPA. Thus, Plaintiff’s claim for treble damages of $1500 for each violation must be dismissed.

B. The Complaint fails to adequately plead facts showing any entitlement to 

injunctive relief.

For a plaintiff to be entitled to the remedy of a preliminary (or permanent injunction), the 

plaintiff must establish: (1) a substantial likelihood of success on the merits (or success on the 

merits); (2) irreparable injury unless the injunction issues; (3) the threatened injury to the movant 

outweighs whatever damage the proposed injunction may cause to the opposing party; and (4) 

that, if issued, the injunction would not be adverse to the public interest. Klay v. United 

Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004).

Putting aside that Plaintiff here cannot succeed on the merits, which independently 

defeats his ability to receive injunctive relief, the request founders on every other element as 

well. The Complaint does not establish any sort of irreparable injury that could not be remedied 

by statutory damages, that such injury outweighs any damage an injunction would cause to 

Bluegreen, or how issuing one would be consistent with the public interest. Indeed, in affirming 

the dismissal of a request for an injunction in another TCPA case, the Eleventh Circuit has 

reasoned that, because of the availability of statutory damages, the plaintiff “established neither a 

likelihood of future harm nor the inadequacy of his remedy at law.” Lary, 780 F.3d at 1107. 

Here, Plaintiff’s request for an injunction must be dismissed for the same reasons.

CONCLUSION

The Complaint must be dismissed. Because any amendment would be futile, it should be 

dismissed with prejudice.

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Date: September 4, 2020 Respectfully submitted,

By: /s/ Grace L. Mead

GRACE L. MEAD

Florida Bar No. 49896

gmead@stearnsweaver.com

ANDREA N. NATHAN

Florida Bar No. 16816

anathan@stearnsweaver.com

VERONICA L. DE ZAYAS

Florida Bar No. 91284

vdezayas@stearnsweaver.com

JOSEPH ONORATI

Florida Bar No. 92938

jonorati@stearnsweaver.com

STEARNS WEAVER MILLER WEISSLER

 ALHADEFF & SITTERSON, P.A.

Museum Tower, Suite 2200

150 West Flagler Street

Miami, Florida 33130

Telephone: 305-789-3200 

Facsimile: 305-789-3395 

Attorneys for Defendant 

Case 9:20-cv-81076-RS Document 10 Entered on FLSD Docket 09/04/2020 Page 26 of 28
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 4th day of September, 2020, I electronically filed the 

foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record identified on the attached Service List 

via transmission of Notices of Electronic Filing generated by CM/ECF.

/s/ Veronica L. de Zayas

 Veronica L. de Zayas

Case 9:20-cv-81076-RS Document 10 Entered on FLSD Docket 09/04/2020 Page 27 of 28
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SERVICE LIST

Avi R. Kaufman, Esq.

kaufman@kaufmanpa.com

Rachel E. Kaufman, Esq. 

rachel@kaufmanpa.com

KAUFMAN P.A.

400 NW 26th Street

Miami, FL 33127

Telephone: (305) 469-5881

Counsel for Plaintiff and the putative class

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