Class Action Complaint 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

JUAN CRENA,

CASE NO.

Plaintiff,

CLASS ACTION

vs.

JURY TRIAL DEMANDED

NAVITELIA INDUSTRIES, INC.,

d/b/a OXYBREATH PRO, and

d/b/a DRESIDE,

Defendant.

___________________________________/

CLASS ACTION COMPLAINT

Plaintiff Juan Crena (“Crena”), individually and on behalf of all others similarly situated, 

by and through his attorneys, sues Defendant Navitelia Industries, Inc., d/b/a OxyBreath Pro and

d/b/a Dreside (“Navitelia”), for damages and equitable relief and, in support thereof, alleges the 

following:

INTRODUCTION

Wis is a class action lawsuit for violations of the Telephone Consumer Protection Act, 47 

U.S.C. § 227 (“TCPA”). Navitelia, who appears to sell exclusively protective equipment necessary

during the COVID-19 pandemic, illegally sent countless unsolicited, automated messages to Crena 

and other similarly situated putative class members, in violation of the TCPA.

PARTIES

1. Plaintiff is an individual who resides in Broward County, Florida.

2. Defendant is a corporation that is incorporated in Florida and has its principal place 

of business in Miami-Dade County, Florida. Upon information and belief, Navitelia does business 

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worldwide through its online stores at oxybreath.club and dreside.com. Navitelia has two physical 

locations in Florida: an office at 601 NE 36th St, Apt 1505, Miami, FL 33137 and a warehouse at 

an unspecified address in Homestead, Florida.1

JURISDICTION AND VENUE

3. Wis is a class action lawsuit for damages within the jurisdiction of this Court.

4. Wis Court has federal question jurisdiction over this action pursuant to 28 U.S.C.

§ 1331, in that this is a civil action arising under the TCPA, 47 U.S.C. § 227.

5. Wis Court also has jurisdiction because at least one class member is from a state 

different from Defendant and Plaintiff is seeking up to $1,500 per violation of the TCPA, which,

when aggregated among the thousands of proposed class members, exceeds the $5,000,000 

threshold for jurisdiction under the Class Action Fairness Act.2

6. Venue is proper in this district under 28 U.S.C. § 1391(b)(1), in that Defendant 

resides in this district. Additionally, venue is proper in this district under 28 U.S.C. § 1391(b)(2), 

in that a substantial part of the events or omissions giving rise to the claim occurred in this district.

Moreover, Defendant’s wrongful acts have impacted the general public of this district, and the 

ends of justice require that parties residing in other districts be brought before this Court.

FACTUAL ALLEGATIONS APPLICABLE TO ALL COUNTS

Overview of the TCPA

7. In 1991, faced with nationwide complaints over the volume of robocalls being 

received by American consumers, Congress enacted the TCPA to address the companies’ abusive 

solicitation through automated calling.

1 See https://dreside.com/pages/contact-us (last visited 07/02/2020). 2 In fact, Navitelia’s website states it has reached over 50,000 “Happy Clients,” making the class potentially that large.

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8. We TCPA prohibits, among other things, making any call to a cellphone using an 

“automatic telephone dialing system” (“ATDS” or “Autodialer”), unless it is made for emergency 

purposes or with the express consent of the party called.

9. We TCPA defines an Autodialer as any “equipment which has the capacity: (A) to 

store or produce telephone numbers to be called, using a random or sequential number generator; 

and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

10. According to the Federal Communications Commission (“FCC”), which is charged 

with implementing the Act, these calls are prohibited because they can be costly and inconvenient.

11. We FCC has recognized that “Robotexts” generated through an ATDS are also 

prohibited under the TCPA.

12. Any equipment that has the capacity to “store or produce telephone numbers to be 

called, using a random or sequential number generator,” satisfies the definition of an ATDS, even 

if that capacity is not used.

13. Under the TCPA and implementing regulations, the burden is on defendants like 

Navitelia to demonstrate that Crena and the putative class of plaintiffs provided express consent 

within the meaning of the statute.

0e Plaintiff and Navitelia’s Texts

14. At all relevant times, Crena was the owner of cellular phone number 1-xxx-xxx0376 (the “0376 Number”).

15. On or before April 15, 2020, Navitelia sent at least two but not more than five 

unsolicited text messages to the 0376 Number regarding its products.

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16. Prior to Navitelia sending Crena unsolicited text messages about its products, Crena 

had never reached out to Navitelia for information, given out his phone number to it, asked about 

its products, done business with it, or otherwise had known about Navitelia.

17. On April 15, 2020, Navitelia sent an unsolicited text message to the 0376 Number 

regarding its products. See Image 1.

18. On April 19, 2020, Navitelia sent an unsolicited text message to the 0376 Number 

regarding its products. See Image 2.

19. On April 20, 2020, Navitelia sent an unsolicited text message to the 0376 Number 

regarding its products, to which Crena replied “Stop.” See Image 3.

20. On May 21, 2020, Navitelia sent an unsolicited text message to the 0376 Number 

regarding its products, to which Crena again replied “Stop.” See Image 4.

Image 3 Image 4

Image 1 Image 2

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21. When Crena replied “stop,” Crena explicitly conveyed to Navitelia that he did not 

wish to be subscribed to or receive its automatic text messages.

22. On May 21, 2020, Navitelia sent a text message to Crena stating that he had 

“successfully unsubscribed and [would] no longer receive any text messages.” See Image 5.

23. Notwithstanding this “un-subscription,” on May 24, 2020, Navitelia sent another 

text message to the 0376 Number at 02:07 AM, which woke Crena up, promoting its “stay safe” 

products, such as washable masks and gloves. See Image 6.

Image 5 Image 6

24. On May 28, 2020, Navitelia also sent an email to Crena advertising its products. 

On information and belief, Navitelia emailed Crena several other times.

25. On June 4, 2020, Navitelia sent Crena another text message to the 0376 Number,

promoting its N-95 and KN-95 masks, 3-ply cotton masks, and hand sanitizer. See Image 7.

Image 7 Image 8

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26. On June 10, 2020, Navitelia again sent another text message to the 0376 Number, 

identical to the June 4, 2020 one. See Image 8, above.

27. On June 13, 2020, Navitelia sent another text message to the 0376 Number, which 

included a “coupon” to save 10% on its COVID-19 related products. See Image 9.

28. On June 15, 2020, Navitelia again sent the text message promoting its 10% savings 

coupon to the 0376 Number. See Image 10.

Image 9 Image 10

29. In a two-month span, beginning in mid-April up until mid-June 2020, Navitelia has 

contacted and solicited business from Crena more than a dozen times. Navitelia’s relentless texts

to Crena, without his authorization, invaded Crena’s privacy and were an intense interference with 

his life and business.

30. Specifically, Crena is a real estate professional and the constant unsolicited texts 

from Navitelia distract him from the analysis he does of his client’s properties. Further, the random 

non-stop texts distract him during showings and calls with his clients and other agents.

31. All of Navitelia’s text messages were sent to Crena within the timeframe relevant 

to this class action.

32. Navitelia’s text messages constitute telemarketing because they encourage the 

future purchase of or investment in property, goods, or services.

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33. Navitelia and its agents sent the Robotexts from different phone numbers using a 

random number generator. We numbers used by Navitelia include but are not limited to 202-547-

1491, 786-756-7420, 786-699-8274, 786-699-8939, 786-755-0582, 786-757-0595, and the short 

code number 82149. All of these numbers are controlled or owned by Navitelia or its agents.

34. On information and belief, Navitelia contacts consumers in association with a text 

marketing company, which acts as an agent of Navitelia. In association and coordination with the 

text marketing company, Navitelia uses an automated random number generating system in order 

to text consumers from hundreds, if not thousands, of phone numbers. Wis is a common practice

used by TCPA violatorsto circumvent the fact that, as consumersreceive the unsolicited marketing 

texts, consumers tend to block the number from where the text came from. By having these texts 

always come from a different phone number, Navitelia and its agents ensure that the texts land in

the consumer’s cell phone, thereby invading their privacy.

35. We impersonal and generic nature of Navitelia’s text messages also reflect that they 

were sent via an ATDS. In fact, when looking at some of the texts received by Crena, one can see 

that several of them are identical to each other.

36. Further, a look at the texts reflects that they are not written in natural language or 

in a way people usually write, but rather that they are machine-created.

37. On information and belief, the platform used by Navitelia has the capacity to 

generate or store random or sequential numbers or to dial sequentially or randomly at the time the 

text is sent, and to send them en masse, in an automated basis, without human intervention.

38. Additionally, none of the phone numbers from which Crena received texts are the 

contact numbers for Navitelia in its websites, further supporting the use of an ATDS.

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39. Moreover, Navitelia’s messages contained direct links to unsecure websites that 

jeopardized consumers’ personal information, making them vulnerable to hackers. See Image 11.

Image 11

40. Similar or identical text message advertisements were sent to thousands of putative 

class members’ cell phones.

41. Because the putative class members’ cellphones alert them whenever they receive 

a text message, each unsolicited text message transmitted by Navitelia invaded their privacy and,

upon receipt, intruded upon their seclusion.

42. None of the recipients of the messages gave their prior express consent permitting 

Navitelia to send such text messages to them. In fact, Crena specifically replied at least two times 

saying that he did not wish to receive these text messages (see Images 3 and 4, above). Despite 

this request, Navitelia continued to send unsolicited messages to Crena in violation of the TCPA.

43. Moreover, even before Crena’s replies “unsubscribing” from Navitelia’s messages, 

Navitelia should have been on notice that Crena did not want to receive them, as he had the 0376 

Number registered in the National Do Not Call List.

44. We unsolicited text messages sent to thousands of putative class members caused 

each class member damages, including the costs associated with loss of use of their cellular phones, 

interruption of other usage of their cellular phones, nuisance, annoyance, invasion of privacy, lack 

of sleep, mental anguish, other suffering, and/or additional costs incurred when the number of texts

in a given month exceeded his/her cell phone data plan.

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CLASS ACTION ALLEGATIONS

45. Plaintiff re-alleges and incorporates by reference all the allegations contained in 

paragraphs 1 through 44.

46. Plaintiff brings this class action on behalf of himself and others similarly situated 

pursuant to Fed. R. Civ. P. 23(b)(2) and (3).

47. Plaintiff seeks certification of the following Class:

All persons in the United States who, between July 2, 2016, and the 

present, (1) received a non-emergency text in their cellular phones, (2) 

through the use of an ATDS, (3) from Navitelia, (4) regarding the future 

purchase of goods.

We Class definition is subject to amendment as needed.

48. Excluded from the Class are Navitelia, its respective affiliates, subsidiaries, agents, 

board members, directors, officers, employees, any members of the judiciary to whom this case is 

assigned, their court staff, and Plaintiff’s counsel.

Numerosity

49. Wis class action satisfies the numerosity requirement of Fed. R. Civ. P. 23(a)(1). 

We Class defined in this Class Action Complaint is sufficiently numerous that separate joinder of 

each member is impracticable as the Class will include thousands of members. Wough Plaintiff 

does not know at the time of filing the exact number of putative class members, Navitelia claims 

to have reached over 50,000 customers, and thus the Class will likely be in the thousands.

Commonality and Predominance

50. Wis class action satisfies the commonality requirement of Fed. R. Civ. P. 23(a)(2),

and the predominance requirement of Fed. R. Civ. P. 23(b)(3), as the claims raise questions of law 

and fact common to each member of the Class and such questions predominate over questions 

affecting only individual members. Wese include, without limitation, the following:

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(a) whether Navitelia used an ATDS;

(b) whether Navitelia used its ATDS to text consumer class members;

(c) whether Navitelia’s texts were sent due to an emergency;

(d) whether Navitelia obtained express consent from the class members 

before messaging them;

(e) whether Navitelia’s conduct violates the TCPA;

(f) whether Navitelia’s conduct was negligent;

(g) whether Navitelia’s conduct was knowing and/or willful;

(h) whether Navitelia is liable for damages and the amount of said damages;

(i) whether Plaintiff and the other class members are entitled to declaratory 

relief; and

(j) whether Navitelia should be enjoined from engaging in such conduct in 

the future.

Typicality

51. Wis class action satisfies the typicality requirement of Fed. R. Civ. P. 23(a)(3), as 

the claims made by Plaintiff are similar to those of the other class members. For example, most 

putative class members received the same type of non-emergency soliciting text messages and the 

texts were sent to them using an ATDS.

Adequacy

52. Wis class action satisfies the adequacy requirement of Fed. R. Civ. P. 23(a)(4) 

because Crena will fairly and adequately protect and represent the interests of each class member, 

since he has suffered the same wrongs as the other class members.

53. Further, Crena is well aware of his responsibilities as class representative and has

retained Ayala Law, P.A., Garcia-Menocal, Irias & Pastori LLP, and Fulgencio Law PLLC as 

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counsel, all of whom are experienced in complex litigation and have the necessary resources to 

meet the costs and requirements of a case of this nature.

Superiority

54. Wis class action satisfies the superiority requirement of Fed. R. Civ. P. 23(b)(3) 

because a class action is superior to other available methods for the fair and efficient adjudication 

of this controversy for a variety of reasons, including, without limitation, that it would be an 

inefficient use of judicial resources to require each putative class member affected by Navitelia’s 

actions to bring their own claim. Moreover, the case deals with common issues of law that may be 

adjudicated uniformly in one single action without the unnecessary duplication of evidence, effort,

and expense that numerous individual actions would require.

Class action under Fed. R. Civ. P. 23(b)(2)

55. We prerequisites for maintaining a class action under Fed. R. Civ. P. 23(b)(2) also 

exist because by ignoring consumers’ requests to stop text messages, Navitelia has acted or refused 

to act on grounds that apply to the entire class, making injunctive and equitable relief appropriate.

56. Specifically, Plaintiff seeks an order declaring that Navitelia’s text marketing tactics 

are in violation of the TCPA. Plaintiff also requests an injunction against Navitelia, preventing it

from further taking advantage of unsuspecting class members, using the COVID-19 crisis as an 

opportunistic excuse to text them unsolicited.

COUNT I – VIOLATION OF THE TCPA

47 U.S.C. § 227 et seq.

57. Plaintiff incorporates paragraphs 1 through 56 fully in this Count.

58. Plaintiff and each member of the Class received more than one text message sent 

by or on behalf of Navitelia during the class period. Additionally, all such messages were sent via 

the same dialing technology, which qualifies as an ATDS within the meaning of the TCPA, as 

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evidenced by the generic, impersonal nature of the text messages, the use of different phone 

numbers that are not the regular numbers of Navitelia, the repetitive nature of the texts, and the 

persistence of the texts even after “unsubscribing.”

59. Neither Plaintiff nor any other class member provided his/her phone number to 

Navitelia.

60. Neither Plaintiff nor any other class member provided Navitelia with his/her prior

express consent, within the meaning of the TCPA, to receive the autodialed text messages.

61. Navitelia’s use of an ATDS to send text messages to telephone numbers, including 

Crena’s 0376 Number and the numbers of all members of the Class, without their requisite prior 

express consent, constitute violations of the TCPA by Navitelia, including but not limited to 

violations of 47 U.S.C. § 227(b)(1)(A)(iii).

62. Navitelia’s use of an ATDS to send text messages to the telephone numbers of class 

members registered on the National Do Not Call List constitute a willful and knowing violation of 

the TCPA as described in 47 U.S.C. § 227(b)(3)(C).

63. Navitelia’s use of an ATDS to send text messages to the telephone numbers of class 

members, even after they “unsubscribed” to marketing texts they never consented to, constitutes a 

willful and knowing violation of the TCPA as described in 47 U.S.C. § 227(b)(3)(C).

64. Plaintiff and all class members are entitled to, and do seek, an award of $500 in 

statutory damages for each such violation of the TCPA committed by or on behalf of Defendant 

(or $1,500 for any such violation committed willfully or knowingly).

65. Plaintiff, individually and on behalf of the Class, seeks an award of attorneys’ fees 

and costs to Plaintiff’s counsel pursuant to Fed. R. Civ. P. 23.

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WHEREFORE, Plaintiff Juan Crena respectfully requests a judgment in his favor and the 

Class as follows:

(a) injunctive relief sufficient to ensure Navitelia refrains from violating the TCPA in 

the future;

(b) statutory damages of $500 for Plaintiff and each putative class member for each of 

Navitelia’s violations of 47 U.S.C. § 227(b) (or $1,500 for each such violation to 

the extent it was committed willfully or knowingly);

(c) an order certifying this action to be a class action pursuant to Fed. R. Civ. P. 23, 

establishing an appropriate class and any subclass(es) this Court deems appropriate, 

finding that Plaintiff is a proper representative of the Class, and appointing the 

attorneys representing Plaintiff as counsel for the Class; and

(d) an award of attorneys’ fees and costs to Plaintiff’s counsel, payable from any classwide damages recovered by the Class, pursuant to Fed. R. Civ. P. 23.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury on all claims so triable pursuant to Fed. R. Civ. P. 38(b).

Dated: July 2, 2020

Respectfully submitted,

Eduardo A. Maura, Esq.

Luis F. Quesada Machado, Esq.

Attorneys for Plaintiff

Ayala Law, P.A.

1390 Brickell Ave, Ste 335

Miami, FL 33131

Telephone: 305-570-2208

Email: eayala@ayalalawpa.com

By: /s/ Eduardo A. Maura

Eduardo A. Maura

Florida Bar No. 91303

Jorge Garcia-Menocal, Esq.

Attorney for Plaintiff

Garcia Menocal, Pastori & Irias LLP

368 Minorca Ave

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Coral Gables, FL 33134

Telephone: 305-400-9652

Email: jgm@gmilaw.com

By: /s/ Jorge G. Menocal

Jorge G. Menocal

Florida Bar No. 17990

Felipe Fulgencio, Esq.

Attorney for Plaintiff

Fulgencio Law PLLC

105 S Edison Ave,

Tampa, FL 33636

Telephone: 813-463-0123

Email: felipe@fulgenciolaw.com

By: /s/ Felipe Fulgencio

Felipe Fulgencio

Florida Bar No. 95961

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