IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICK-VINCENT GARCIA, individually and on 

behalf of all others similarly situated,

Plaintiff,

vs.

FCA US LLC,

a Michigan Limited Liability Company,

Defendant.

______________________________________/

CLASS ACTION

 

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

1. Plaintiff Rick Garcia brings this action against Defendant FCA US LLC to secure 

redress for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.

NATURE OF THE ACTION

2. This is a putative class action under the Telephone Consumer Protection Act, 47 U.S.C.

§ 227 et seq., (“TCPA”), arising from Defendant’s knowing and willfully violations. 

3. To gain an advantage over its competitors and increase its revenue, Defendant engages in 

unsolicited telemarketing, with no regard for consumers’ privacy rights. 

4. This case arises from Defendant’s transmission of prerecorded calls to the cellular 

telephones of Plaintiff and others, promoting Defendant’s services and goods. 

5. Through this action, Plaintiff seeks injunctive relief to halt Defendant’s illegal conduct 

which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life 

of thousands of individuals. Plaintiff also seeks statutory damages on behalf of himself and members of 

the class, and any other available legal or equitable remedies. 

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JURISDICTION AND VENUE

6. Jurisdiction is proper under 28 U.S.C. § 1331 as Plaintiff alleges violations of a federal 

statute. Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because Plaintiff alleges a national class, 

which will result in at least one class member belonging to a different state than that of Defendant. 

Plaintiff seeks up to $1,500.00 (one-thousand-five-hundred dollars) in damages for each call in violation 

of the TCPA, which, when aggregated among a proposed class numbering in the tens of thousands, or 

more, exceeds the $5,000,000.00 (five-million dollars) threshold for federal court jurisdiction under the 

Class Action Fairness Act (“CAFA”). Therefore, both the elements of diversity jurisdiction and CAFA 

jurisdiction are present.

7. Venue is proper in the United States District Court for the Eastern District of Michigan

because Defendant conducts a substantial amount of business throughout this District, maintains its 

principal place of business within this District, and a substantial part of the vents giving rise to these 

claims took place in this District. 

PARTIES

8. Plaintiff is a natural person who, at all times relevant to this action, was a resident of MiamiDade County, Florida.

9. Defendant is a Michigan corporation whose principal office is located at 1000 Chrysler Dr. 

Auburn Hills, MI 48326. Defendant directs, markets, and provides its business activities throughout 

the State of Florida, and does so intentionally. 

THE TCPA

10. The TCPA prohibits: (1) any person from calling a cellular telephone number; (2) using an 

automatic telephone dialing system or an artificial or prerecorded voice; (3) without the recipient’s prior 

express consent. 47 U.S.C. § 227(b)(1)(A).

11. The TCPA exists to prevent communications like the ones described within this Complaint. 

“Voluminous consumer complaints about abuses of telephone technology—for example, computerized 

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calls dispatched to private homes—prompted Congress to pass the TCPA.” Mims v. Arrow Fin. Servs., 

LLC, 132 S. Ct. 740, 744 (2012).

12. In an action under the TCPA, a plaintiff must only show that the defendant “called a number 

assigned to a cellular telephone service using an automatic dialing system or prerecorded voice.” 

Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012), aff'd, 755 F.3d 1265 

(11th Cir. 2014) (emphasis supplied). 

13. The Federal Communications Commission (“FCC”) is empowered to issue rules and 

regulations implementing the TCPA. According to the FCC’s findings, calls in violation of the TCPA 

are prohibited because, as Congress found, automated or prerecorded telephone calls are a greater 

nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and 

inconvenient. The FCC also recognized that wireless customers are charged for incoming calls whether 

they pay in advance or after the minutes are used. Rules and Regulations Implementing the Telephone 

Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 

(2003).

14. In 2012, the FCC issued an order tightening the restrictions for automated telemarketing 

calls, requiring “prior express written consent” for such calls to wireless numbers. See In the Matter of 

Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830, 1838 ¶ 20 

(Feb. 15, 2012)(emphasis supplied).

15. To obtain express written consent for telemarketing calls, a defendant must establish that it 

secured the plaintiff’s signature in a form that gives the plaintiff a “‘clear and conspicuous disclosure’ 

of the consequences of providing the requested consent....and having received this information, agrees 

unambiguously to receive such calls at a telephone number the [plaintiff] designates.” In re Rules & 

Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C.R. 1830, 1837 ¶ 18, 1838 ¶ 

20, 1844 ¶ 33, 1857 ¶ 66, 1858 ¶ 71 (F.C.C. Feb. 15, 2012).

16. The TCPA regulations promulgated by the FCC define “telemarketing” as “the initiation of 

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

property, goods, or services.” 47 C.F.R. § 64.1200(f)(12). In determining whether a communication 

constitutes telemarketing, a court must evaluate the ultimate purpose of the communication. See Golan 

v. Veritas Entm't, LLC, 788 F.3d 814, 820 (8th Cir. 2015).

17. “Neither the TCPA nor its implementing regulations ‘require an explicit mention of a good, 

product, or service’ where the implication of an improper purpose is ‘clear from the context.’” Id. (citing 

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012)). 

18. “‘Telemarketing’ occurs when the context of a call indicates that it was initiated and 

transmitted to a person for the purpose of promoting property, goods, or services.” Golan, 788 F.3d at 

820 (citing 47 C.F.R. § 64.1200(a)(2)(iii); 47 C.F.R. § 64.1200(f)(12); In re Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C. Rcd at 14098 ¶ 141, 2003 

WL 21517853, at *49).

19. The FCC has explained that calls motivated in part by the intent to sell property, goods, or 

services are considered telemarketing under the TCPA. See In re Rules and Regulations Implementing 

the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶¶ 139-142 (2003). This is true 

whether call recipients are encouraged to purchase, rent, or invest in property, goods, or services during 

the call or in the future. Id. 

20. In other words, offers “that are part of an overall marketing campaign to sell property, 

goods, or services constitute” telemarketing under the TCPA. See In re Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶ 136 (2003).

21. If a call is not deemed telemarketing, a defendant must nevertheless demonstrate that it

obtained the plaintiff’s prior express consent. See In the Matter of Rules and Regulaions Implementing 

the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7991-92 (2015) (requiring express consent 

“for non-telemarketing and non-advertising calls”).

22. As recently held by the United States Court of Appeals for the Ninth Circuit: “Unsolicited 

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telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude 

of their recipients. A plaintiff alleging a violation under the TCPA ‘need not allege any additional harm 

beyond the one Congress has identified.’” Van Patten v. Vertical Fitness Grp., No. 14-55980, 2017 

U.S. App. LEXIS 1591, at *12 (9th Cir. May 4, 2016) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1549 (2016) (emphasis original)). 

FACTS

23. On or about July 24, 2018, Defendant caused a call with a prerecorded message to be 

transmitted to Plaintiff’s cellular telephone number 754-***-5931 (the “754 Number”).

24. Because Plaintiff did not answer his telephone after it rang, a voicemail containing a 

prerecorded message was left on Plaintiff’s phone. 

25. The following is a transcript of the voicemail that was left in Plaintiff’s voicemail box1:

26. The prerecorded call at issue, which was left as a voicemail and was 46 seconds long, was 

transmitted to Plaintiff’s cellular telephone, and within the time frame relevant to this action. 

27. When Plaintiff listened to the voicemail he was easily able to determine that it was a 

prerecorded message. Rahn v. Bank of Am., No. 1:15-CV-4485-ODE-JSA, 2016 U.S. Dist. LEXIS

186171, at *10-11 (N.D. Ga. June 23, 2016) (“When one receives a call, it is a clear-cut fact, easily 

1 Plaintiff’s cellular phone transcribes voicemails and sends the transcript to Plaintiff via text

message. Plaintiff has the option of listening to the voicemail and/or reading the transcript. Here, 

Plaintiff listened to the voicemail and read the transcript. 

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discernible to any lay person, whether or not the recipient is speaking to a live human being, or is instead 

being subjected to a prerecorded message.”). 

28. Defendant’s prerecorded call constitutes telemarketing because it encourages the future 

purchase or investment in property, goods, and/or services, i.e., a new vehicle from Defendant.

29. The prerecorded call Plaintiff received originated from a telephone number owned and/or 

operated by or on behalf of Defendant. 

30. At no point in time did Plaintiff provide Defendant with his express consent to be contacted 

with a prerecorded call.

31. Plaintiff is the subscriber and sole user of the 754 Number and is financially responsible for 

phone service to the 754 Number.

32. Defendant’s prerecorded call was sent to a cellular telephone with a 754 number, which 

means Defendant knew, or should have known, that it was making calls into Florida.

33. Defendant’s unsolicited prerecorded call caused Plaintiff actual harm, including invasion of 

his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Specifically,

Defendant’s prerecorded call inconvenienced Plaintiff and caused disruption to his work-day as he 

received the prerecorded messages while at work. Plaintiff wasted 46 seconds listening to the message

while at work and then additional time reading a transcript of the voicemail. See Patriotic Veterans, 

Inc. v. Zoeller, No. 16-2059, 2017 WL 25482, at *2 (7th Cir. Jan. 3, 2017) (“Every call uses some of 

the phone owner's time and mental energy, both of which are precious.”). 

34. Plaintiff also wasted approximately 45 minutes locating and retaining counsel for this case 

in order to (1) determine how his personal contact information was obtained from Defendant and (2) 

stop Defendant from sending him additional unsolicited marketing messages.

35. Furthermore, Defendant’s prerecorded voicemail took up memory space on Plaintiff’s 

voicemail and the cumulative effect of unsolicited prerecorded voicemails like Defendant’s poses a real 

risk of ultimately rendering a telephone’s voicemail unusable as they have limited storage space. 

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CLASS ALLEGATIONS

PROPOSED CLASS

36. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself 

and all others similarly situated.

37. Plaintiff brings this case on behalf of a Class defined as follows:

All persons within the United States who, within the four years prior to the filing 

of this Complaint, were sent a call using an artificial or prerecorded voice, from 

Defendant or anyone on Defendant’s behalf, to said person’s cellular telephone 

number, without emergency purpose and without the recipient’s prior express 

written consent.

38. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know 

the number of members in the Class, but believes the Class members number in the several thousands, 

if not more.

 NUMEROSITY

39. Upon information and belief, Defendant has placed prerecorded calls to cellular telephone 

numbers belonging to thousands of consumers throughout the United States without their prior express 

consent. The members of the Class, therefore, are believed to be so numerous that joinder of all members 

is impracticable.

40. The exact number and identities of the Class members are unknown at this time and can 

only be ascertained through discovery. Identification of the Class members is a matter capable of 

ministerial determination from Defendant’s callrecords.

 COMMON QUESTIONS OF LAW AND FACT

41. There are numerous questions of law and fact common to the Class which predominate over 

any questions affecting only individual members of the Class. Among the questions of law and fact 

common to the Class are:

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(1) Whether Defendant made non-emergency calls to Plaintiff’s and Class members’ cellular 

telephones using an ATDS;

(2) Whether Defendant can meet its burden of showing that it obtained prior express written 

consent to make such calls;

(3) Whether Defendant’s conduct was knowing and willful;

(4) Whether Defendant is liable for damages, and the amount of such damages; and

(5) Whether Defendant should be enjoined from such conduct in the future.

42. The common questions in this case are capable of having common answers. If Plaintiff’s 

claim that Defendant routinely makes prerecorded calls to telephone numbers assigned to cellular 

telephone services is accurate, Plaintiff and the Class members will have identical claims capable of 

being efficiently adjudicated and administered in this case.

TYPICALITY

43. Plaintiff’s claims are typical of the claims of the Class members, as they are all based on 

the same factual and legal theories.

 PROTECTING THE INTERESTS OF THE CLASS MEMBERS

44. Plaintiff is a representative who will fully and adequately assert and protect the interests of 

the Class, and has retained competent counsel. Accordingly, Plaintiff is an adequate representative and 

will fairly and adequately protect the interests of the Class.

 PROCEEDING VIA CLASS ACTION IS SUPERIOR AND ADVISABLE

45. A class action is superior to all other available methods for the fair and efficient adjudication 

of this lawsuit, because individual litigation of the claims of all members of the Class is economically 

unfeasible and procedurally impracticable. While the aggregate damages sustained by the Class are in 

the millions of dollars, the individual damages incurred by each member of the Class resulting from 

Defendant’s wrongful conduct are too small to warrant the expense of individual lawsuits. The 

likelihood of individual Class members prosecuting their own separate claims is remote, and, even if 

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every member of the Class could afford individual litigation, the court system would be unduly 

burdened by individual litigation of suchcases.

46. The prosecution of separate actions by members of the Class would create a risk of 

establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For example, 

one court might enjoin Defendant from performing the challenged acts, whereas another may not. 

Additionally, individual actions may be dispositive of the interests of the Class, although certain class 

members are not parties to such actions.

COUNT I

Violations of the TCPA, 47 U.S.C. § 227(b)

(On Behalf of Plaintiff and the Class)

47. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 

48. It is a violation of the TCPA to make “any call (other than a call made for emergency 

purposes or made with the prior express consent of the called party) using any automatic telephone 

dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... 

cellular telephone service ....” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis supplied). 

49. Defendant – or third parties directed by Defendant – transmitted calls using an artificial 

or prerecorded voice to the cellular telephone numbers of Plaintiff and members of the putative 

class. 

50. These calls were made without regard to whether Defendant had first obtained express 

permission from the called party to make such calls. In fact, Defendant did not have prior express 

consent to call the cell phones of Plaintiff and the other members of the putative Class when its 

calls were made. 

51. Defendant has, therefore, violated § 227(b)(1)(A)(iii) of the TCPA by using an artificial 

or prerecorded voice to make non-emergency telephone calls to the cell phones of Plaintiff and the 

other members of the putative Class without their prior express consent. 

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52. Defendant knew that it did not have prior express consent to make these calls, and knew 

or should have known that it was using an artificial or prerecorded voice. The violations were 

therefore willful or knowing. 

53. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff 

and the other members of the putative Class were harmed and are each entitled to a minimum of 

$500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction 

against future calls. Id. 

COUNT II

Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b)

(On Behalf of Plaintiffs and the Class)

54. Plaintiff re-allege and incorporates paragraphs 1-46 as if fully set forth herein.

55. At all times relevant, Defendant knew or should have known that its conduct as alleged 

herein violated the TCPA.

56. Defendant knew that it did not have prior express consent to transmit artificial or 

prerecorded voice calls, and knew or should have known that its conduct was a violation of the 

TCPA.

57. Because Defendant knew or should have known that Plaintiff and Class Members had 

not given prior express consent to receive its prerecorded calls, the Court should treble the amount 

of statutory damages available to Plaintiff and the other members of the putative Class pursuant to 

§ 227(b)(3) of the TCPA.

58. As a result of Defendant’s violations, Plaintiff and the Class Members are entitled to 

an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 

227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).

WHEREFORE, Plaintiff Rick Garcia on behalf of himself and the other members of the 

Class, pray for the following relief: 

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a. A declaration that Defendant’s practices described herein violate the Telephone 

Consumer Protection Act, 47 U.S.C. § 227; 

b. An injunction prohibiting Defendant from using an artificial or prerecorded voice to 

contact telephone numbers assigned to cellular telephones without the prior express permission of 

the called party; 

c. An award of actual and statutory damages; and 

d. Such further and other relief the Court deems reasonable and just.

JURY DEMAND

Plaintiff and Class Members hereby demand a trial by jury. 

Dated: September 20, 2019

By: /s/ Nick Suciu, III

BARBAT, MANSOUR & SUCIU PLLC

Nick Suciu III (P72052)

Stephen Cohen (P71534)

1644 Bracken Rd.

Bloomfield Hills, Michigan 48302

(313) 303-3472

nicksuciu@bmslawyers.com

Stephencohen@bmslawyers.com

EDELSBERG LAW, P.A.

Scott Edelsberg, Esq.

Florida Bar No. 0100537

scott@edelsberglaw.com 

2875 NE 191st St., Suite 703

Aventura, FL 33180

Tel: 305-975-3320

HIRALDO P.A.

Manuel S. Hiraldo, Esq. 

Florida Bar No. 030380

mhiraldo@hiraldolaw.com

401 E. Las Olas Blvd., Suite 1400

Ft. Lauderdale, FL 33301

Tel: 954-400-4713

NORMAND PLLC

Edmund A. Normand, Esq.

Florida Bar No. 865590

ed@ednormand.com

Jacob L. Phillips, Esq.

jacob.phillips@normandpllc.com

Florida Bar No. 0120130

Post Office Box 1400036

Orlando, FL 32814-0036

Tel: 407-603-6031

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