1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No. 22-23320-CIV- MARTINEZ 

DIANNA CRAVENER, 

individually and 

on behalf of all others similarly situated, 

 Plaintiff, 

 v. 

SEDUCTION COSMETIC CENTER CORP, 

 Defendant. 

____________________________________/

DEFENDANT’S MOTION TO DISMISS 

PLAINTIFF’S FIRST AMENDED COMPLAINT 

AND ALTERNATIVELY TO STRIKE PLAINTIFF’S CLASS ALLEGATIONS 

Defendant, SEDUCTION COSMETIC CENTER CORP (“Seduction”), by and through its 

undersigned counsel and pursuant to Rule 12(b)(6), Fed. R. Civ. P., hereby moves this Court to 

dismiss Plaintiff’s Amended Complaint [ECF No. 11], and in support thereof states as follows: 

I. INTRODUCTION

This is one of the hundreds of Florida Telephone Solicitation Act (“FTSA”) putative class 

action complaints in the Southern District of Florida. In this case, Plaintiff Dianna Cravener 

(“Plaintiff”) contends this Court has subject matter jurisdiction based upon the Class Action 

Fairness Act but fails to plead the essential jurisdictional allegations and fails to plead anything 

more than conclusory allegations based upon information and belief. Even if this Court has 

jurisdiction, the FTSA is unconstitutional and Plaintiff’s recitation of the legal elements lacks 

sufficient facts and is conclusory. Finally, Plaintiff’s cause of action for an injunction should be 

dismissed as duplicative and failing to adequately allege a future injury.1 As explained below, 

dismissal with prejudice is appropriate. In the alternative only, this Court should strike Plaintiff’s 

1

 For the purpose of preserving Seduction’s argument, if Plaintiff moves past dismissal, the vast majority of any class 

is subject to arbitration. 

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class allegations because common questions of law and fact do not predominate and because the 

proposed classes are impermissibly “fail-safe.” 

II. STANDARD OF REVIEW

Rule 12(b)(6), Fla. R. Civ. P., provides for dismissal where a plaintiff “fail[s] to state a 

claim upon which relief can be granted.” At this stage, “the question is whether the complaint 

‘contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 

face.’” Worthy v. Phenix City, 930 F.3d 1206, 1217 (11th Cir. 2019) (quoting Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009)). A complaint that merely provides “labels and conclusions or a 

formulaic recitation of the elements of a cause of action” or “unadorned, the-defendant-unlawfullyharmed me accusation[s]” is insufficient to survive a Rule 12(b)(6) motion to dismiss. Worthy, 930 

F.3d at 1217 (internal quotations and citations omitted). “Where a complaint pleads facts merely 

consistent with a defendant’s liability, it stops short of the line between possibility and plausibility 

of entitlement to relief.” Hernandez v. GM Fin. Co., No. 19-cv-20136, 2019 U.S. Dist. LEXIS 

42690, at *4–5 (S.D. Fla. Mar. 13, 2019) (citing Iqbal, 556 U.S. at 678) (internal quotations 

omitted). Although “[a] plaintiff need not plead ‘detailed factual allegations[,] . . . a formulaic 

recitation of the elements of a cause of action will not do,’” and the plaintiff must offer in support 

of its claim “sufficient factual matter, accepted as true, to ‘raise a right to relief above the 

speculative level.’” Id. (quoting Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 

2014)). Plaintiff must “include factual allegations for each essential element of his [] claim.” 

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012). “Conclusory 

allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not 

prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). Where 

a law upon which a claim is based is unconstitutional, dismissal under Rule 12(b)(6) is appropriate. 

See, e.g., Harris v. Mex. Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009). 

Finally, as to an injunction, a plaintiff must allege plausible facts establishing “continuing, 

present adverse effects” traceable to defendant’s conduct. O’Shea v. Littleton, 414 U.S. 488, 495–

96 (1974). Specifically, a plaintiff seeking “injunctive relief . . . must demonstrate that he is likely 

to suffer future injury . . . at the hands of the defendant” and “the relief the plaintiff seeks will 

likely prevent such injury from occurring.” Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 

1203–04 (11th Cir. 1991). Conclusory allegations are insufficient and need not be accepted as true. 

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See Tomelleri v. Natale, Case No. 19-CV-81080, 2020 WL 5887151, at *2 (S.D. Fla. July 16, 

2020). 

III. MEMORANDUM OF LAW

The Complaint asserts one cause of action which seeks relief under the recently-amended 

“automated” calling restrictions of the Florida’s Telephone Solicitation Act, Fla. Stat. § 

501.059(8)(a) (“FTSA”). While Count I seeks damages, Count II only seeks “injunctive relief” 

with respect to the same alleged FTSA violations. For the Florida causes of action, Plaintiff 

contends that this Court has original jurisdiction pursuant to the Class Action Fairness Act of 2005 

(“CAFA”), 28 U.S.C. § 1332(d). 

As discussed below in more detail, this Court should dismiss the claims for four reasons. 

First, this Court lacks subject matter jurisdiction. Second, even if this Court has subject matter 

jurisdiction, the FTSA is unconstitutional and the claims fail to meet the minimal pleading 

requirements. Third, the injunction count should be dismissed because an injunction is not a 

standalone cause of action and instead merely a remedy, and Plaintiff fails to meet the requirement 

for “future” injury. 

A. This Court Should Dismiss this Action Because it Lacks Subject Matter Jurisdiction 

The plaintiff bears the burden of adequately pleading, and ultimately proving, jurisdiction. 

King v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007). In this case, Plaintiff premises 

this Court’s subject matter jurisdiction on the CAFA. [ECF No. 11] (Am. Compl., ¶ 8). The CAFA 

grants federal district courts original jurisdiction over class actions where at least one plaintiff is 

diverse in citizenship from any defendant (minimal diversity), the aggregate amount in controversy 

exceeds $5 million, exclusive of interest and costs, and the proposed plaintiff class contains at least 

100 members. 28 U.S.C. § 1332(d); Dudley v. Eli Lilly and Co., 778 F.3d 909, 911–12 (11th Cir. 

2014). The plaintiff’s claims must also involve common questions of law or fact. Lowery v. Ala. 

Power Co., 483 F.3d 1184, 1202–03 (11th Cir. 2007). 

In Soldevilla, the court sua sponta found that it lacked subject matter jurisdiction where 

the plaintiff did not allege “facts sufficient to show that the size of the putative class exceeds 100 

persons, or that the aggregate amount in controversy exceeds $5 million.” Soldevilla v. On the 

Barrelhead, Inc., 19-CV-14462, 2020 WL 13401897, at *2 (S.D. Fla. Apr. 13, 2020). The court 

there explained that alleging facts under “information and belief” was not sufficient, that plaintiff’s 

allegation that the aggregate amount in controversy is likely to exceed the $5 million threshold 

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was conclusory, and that plaintiff’s allegation of numerosity “suggest she has no idea how many 

individuals are in the proposed class.” Id. Specifically: 

Plaintiff’s Complaint simply asserts, based on “information and belief,” that 

“Defendant has sent unsolicited commercial electronic mail messages like the ones 

sent to Plaintiff to thousands of consumers.” [Complaint, ¶ 37]. Plaintiff admits she 

does not know “the exact number” of members in the proposed class, but claims to 

“believe[ ] the class members number in the several thousands, if not more.” 

[Complaint ¶ 36]. She does not explain how she arrived at these suppositions, and 

thus cannot explain how the aggregate amount in controversy is likely to exceed 

the $5,000,000 threshold. Her allegations regarding numerosity of other email 

recipients suggest she has no idea how many individuals are in the proposed class. 

Id. Moreover, the plaintiff’s statement that the number of class members would be ascertained 

through discovery—instead supported the fact that her statement of jurisdiction was speculative 

and did not relieve her of the threshold burden of establishing CAGA jurisdiction. Id. The court 

therefore held that it lacked jurisdiction and the matter would be dismissed. Id. at *3. 

Similarly, this Court has held that using “upon information and belief” is insufficient to 

meet the Twombly standard. Damian v. Meftah, 19-25273-CIV, 2021 WL 8775762, at *4 (S.D. 

Fla. Dec. 28, 2021) (Martinez, J.) (“Conclusory allegations made upon information and belief are 

not entitled to a presumption of truth, and allegations stated upon information and belief that do 

not contain any factual support fail to meet the Twombly standard.” (quoting United Am. Corp. v. 

Bitmain, Inc., 530 F. Supp. 3d 1241, 1275 n.21 (S.D. Fla. 2021))); id. (“[A]llegations based ‘upon 

information and belief’ are not a substitute for establishing jurisdictional facts.” (quoting Anthony 

v. Sandbox Group, LLC, 20-20130-CIV, 2021 WL 2000367, at *4 (S.D. Fla. Mar. 8, 2021))). Other 

courts within the Eleventh Circuit hold the same. See Sellstate Realty Sys. Network, Inc. v. Black, 

220CV00414JLBNPM, 2021 WL 354169, at *2 (M.D. Fla. Feb. 2, 2021) (dismissing complaint 

in part because the court was unable to determine how plausible plaintiff’s “belief” might be where 

complaint alleged defendant did things “upon information and belief”); Jiangmen Benlida Printed 

Circuit Co., Ltd. v. Circuitronix, LLC, 21-60125-CIV, 2021 WL 230178, at *2 (S.D. Fla. Jan. 22, 

2021) (“These beliefs relay, at most [a plaintiff’s] mere unverified contention[s], which [are] 

insufficient to satisfy the Court that the requirements of diversity jurisdiction have been met.” 

(citing Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1228 (11th Cir. 2017))); 

Phoenix Entm’t Partners, LLC v. Orlando Beer Garden, Inc., 6:16-CV-80-ORL-31DAB, 2016 

WL 1567590, at *5 (M.D. Fla. Mar. 30, 2016) (recommending denial of a motion for default, 

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explaining that “[c]onclusory allegations made upon information and belief are not entitled to a 

presumption of truth, and allegations stated upon information and belief that do not contain any 

factual support fail to meet the Twombly standard.”), report and recommendation adopted, 2016 

WL 1559164 (M.D. Fla. Apr. 18, 2016). See also Twombly, 550 U.S. at 551 (declining to accept 

as true the conclusory allegation that companies had entered conspiracy “upon information and 

belief” without enough well-pleaded facts). 

In this situation, Plaintiff has not alleged minimal diversity, has not alleged that there are a 

sufficient amount of putative class members, and has not adequately alleged that there is a 

sufficient amount in controversy. Additionally, the use of so many “information and belief” 

allegations shows the speculative nature of the amended complaint. See (Am. Compl. at ¶ ¶ 8, 16, 

36, 41). Finally, as explained in more detail infra Part II.F.2, plaintiff’s proposed class does not 

involve common questions of law or fact. 

First, as to minimal diversity, Plaintiff alleges she is citizen and resident of Florida, (Am. 

Compl., at ¶ 5), and that Defendant’s primary place of business is in Florida. (Id. at ¶ 7). However, 

Plaintiff fails to allege that there is at least one non-Florida individual. In the jurisdictional 

statement Plaintiff alleges that she “believes . . . at least 10,000 text messages were transmitted to 

consumers in Florida.” (Id. at ¶ 8). Plaintiff also alleges that “on information and belief” Defendant 

sent at least 50 text message solicitations to 50 “consumers in Florida.” (Id. at ¶ 36). Similarly, in 

the numerosity section of the complaint, Plaintiff alleges that “upon information and belief” 

Defendant has placed sales calls to telephone numbers “belonging to at least 50 persons.” (Id. at ¶ 

41). In short, rather than allege minimal diversity, Plaintiff has alleged that she believes text 

messages were sent to 50 consumers in Florida—there is no allegation of a non-Florida consumer. 

Second, there is no allegation regarding the amount of class members. Instead, Plaintiff 

alleges, “The exact number and identities of the Class members are unknown at this time and can 

be ascertained only through discovery.” (Am. Compl., at ¶ 42). This is not sufficient. In Soldevilla, 

the plaintiff admitted she did not know the exact number of members in the proposed class and 

alleged that the number of class members can only be ascertained through discovery. 2020 WL 

13401897, at *2. The court found that the pointing to discovery, “only serves to underscore the 

speculative nature of her statement and intimates that she does not have a factual basis for believing 

that jurisdiction exists.” Id. Similarly, in White, CAFA jurisdiction was lacking when plaintiff’s 

number of proposed class members was plead vaguely as “hundreds,” and only “upon information 

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and belief.” White v. Impac Funding Corp., 6:10-CV-1780-ORL-28, 2011 WL 836947, at *3 

(M.D. Fla. Feb. 15, 2011), report and recommendation adopted, 2011 WL 861172 (M.D. Fla. Mar. 

9, 2011). The court explained that the “vague allegations are not a substitute for establishing 

jurisdictional facts.” Id. See Handforth v. Stenotype Institute of Jacksonville, Inc., 2010 WL 55578, 

at *2 (M.D. Fla. 2010) (finding allegations of citizenship “upon information and belief” to be 

insufficient to support diversity and, as a result, jurisdiction under CAFA was inappropriate). 

Third, the CAFA requires an amount in controversy to exceed $5,000,000. 28 U.S.C. § 

1332(d)(2). Plaintiff alleges that the amount is “at least” $5,000,000. (Am. Compl., at ¶ 8). 

However, the source of this knowledge is Plaintiff’s belief that Defendant has sent at least 10,000 

FTSA violating text messages to consumers in Florida, which would be $500.00 per text message. 

(Id.). See Fla. Stat. § 501.059(10)(a)(2). “Speculation alone is inadequate to establish the amount 

in controversy.” Calta v. Vision Solar FL, LLC, 8:22-CV-897-CEH-MRM, 2022 WL 17730114, 

at *4 (M.D. Fla. Dec. 16, 2022). See Soldevilla, 2020 WL 13401897, at *2. Plaintiff’s allegation 

is not sufficient, is not plausible, and the amount in controversy allegation is conclusory. 

Finally, as explained in more detail below, plaintiff’s claims do not involve common 

questions of law or fact. Therefore, this Court lacks subject matter jurisdiction and should dismiss 

this action. 

B. This Court Should Dismiss the FTSA Claims Because the FTSA is Unconstitutional 

and the Claims Fail to Meet the Minimal Pleading Requirements 

Plaintiff brings two counts for violation of the FTSA. The first, Count I, seeks relief based 

upon a violation of Section 8(a). (Am. Compl. at ¶ 50) (citing Fla. Stat. § 501.059(8)(a)). The 

second, Count II, is a claim for injunctive relief. (Id. at ¶ 59). As explained below, Section 8(a) is 

unconstitutional because it violates the dormant commerce clause, is unconstitutionally vague, and 

is an unconstitutional restriction on free speech. Even if the statute survives review, Plaintiff fails 

to meet the minimal pleading requirements and this Court should still dismiss the claim. 

1. Section 8(a) Violates the Dormant Commerce Clause 

“The Commerce Clause grants to Congress the power to regulate interstate and foreign 

commerce.” Fla. Transp. Servs., Inc. v. Miami-Dade Cty., 703 F.3d 1230, 1243 (11th Cir. 2012) (citing 

U.S. Const. art. I, § 8, cl. 3). “[T]his affirmative grant of authority to Congress also encompasses an 

implicit or ‘dormant’ limitation on the authority of the States to enact legislation affecting interstate 

commerce.” Id. (quoting Healy v. Beer Inst., Inc., 491 U.S. 324, 326 n.1 (1989)). When considering 

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whether the law violates the dormant Commerce Clause, courts consider (1) “whether the law or 

regulation directly regulates or discriminates against interstate commerce, or has the effect of favoring 

in-state economic interests;” and (2) whether the law “unduly burden[s] interstate commerce.” Id. at 

1243–44 (internal quotations omitted). 

A “state law that has the ‘practical effect’ of regulating commerce occurring wholly outside 

that State’s borders is invalid under the Commerce Clause.” Healy, 491 U.S. at 332. State legislation 

which attempts to “directly” “assert extraterritorial jurisdiction over persons or property” offends sister 

States and exceed the inherent limits of the State’s power. Edgar v. MITE Corp., 457 U.S. 624, 643 

(1982) (internal quotation omitted). Even if the state did not intent to reach extraterritorial jurisdiction, 

statutes which have the “practical effect of controlling conduct beyond the boundaries of the state are 

‘invalid regardless of whether the statute's extraterritorial reach was intended by the legislature.’” 

TelTech Sys., Inc. v. McCollum, 08-61664-CIV-MARTINEZ-BROWN, 2009 WL 10626585, at *8 

(S.D. Fla. July 16, 2009) (quoting Healy, 491 U.S. at 336–37). 

For example, in TelTech Systems, a Florida statute attempted to prohibit people from using 

Caller ID “spoofing” which had the effect of displaying a different phone number to the call recipient. 

This Court concluded that the statute had “the practical effect of regulating commerce that occur[ed] 

wholly outside the state of Florida” and thus violated the Commerce Clause. This Court explained that 

it was impossible for the callers to determine whether the recipient of a call was in Florida and therefore 

the “logical consequence of this impossibility” was that the plaintiff/callers were unable to offer Caller 

ID spoofing services anywhere in the country without risking criminal liability under Florida’s statute. 

Id. at *8. 

In this situation, the result is no different. The FTSA defines “telephone solicitor” as “a natural 

person, firm, organization, partnership, association, or corporation, or a subsidiary or affiliate thereof, 

doing business in this state, who makes or causes to be made a telephonic sales call.” Fla. Stat. § 

501.059(1)(i) (emphasis added). “Doing business in this state” includes “businesses that conduct 

telephonic sales calls from a location in Florida or from other states or nations to consumers located in 

Florida.” Id. § (1)(e). There is also a rebuttable presumption that a call “made to any area code in this 

state is made to a Florida resident or to a person in this state at the time of the call.” Id. § (8)(d). 

However, an area code is not determinative whether an individual is located in Florida. For 

example, an out-of-state lawyer may be practicing virtually in Florida. See, e.g., In re Amendments to 

Rule Regulating Florida Bar 4-5.5, 334 So. 3d 1272, 1273 (Fla. 2022); American Bar Association 

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Standing Committee on Ethics and Professional Responsibility, Formal Opinion 495 (Dec. 16, 2020). 

Similarly, a business in Hawaii may place might place a “telephonic sales call” using an “automated 

system” to a phone number with a New York area code, but the recipient may be located or reside in 

Florida. See Unsettled State: The moveBuddha 2021 Migration Report, moveBuddha LLC, last visited 

Feb. 28, 2023, available at https://www.movebuddha.com/blog/migration-moving-report/ (“Florida 

saw a sharp rise in net migration flow in 2021 . . . . more than twice as many people moved into Florida 

than left it.”). That out-of-state business would be liable for violating the FTSA even if it had no way 

of determining the recipient’s actual location or residence. Similarly, because the FTSA presumes all 

calls to Florida area codes are made to Florida residents or individuals located in-state, businesses must 

presume all calls to Florida area codes are subject to the FTSA, even if the recipient receives the call 

another state or lives in another state. Thus, the FTSA makes it impossible for businesses to make sales 

calls to consumers anywhere in the country without risk of liability under this Florida statute, 

effectively requiring those businesses to comply with the FTSA for all such calls everywhere—exactly 

the situation this Court discussed in TelTech Systems. Therefore, this Court should find that Section 

8(a) violates the Dormant Commerce Clause. 

2. Section 8(a) is Unconstitutionally Vague 

“A fundamental principle in our legal system is that laws which regulate persons or entities 

must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., 

567 U.S. 239, 253 (2012). This requirement of clarity in regulation is essential to the protections 

provided by the Due Process Clause of the Fifth Amendment, which is made applicable to the states 

via the Fourteenth Amendment. Id. Similarly, the law must not “so standardless that it authorizes or 

encourages seriously discriminatory enforcement.” Id. “When speech is involved, rigorous adherence 

to those requirements is necessary to ensure that ambiguity does not chill protected speech.” Id. at 253–

54. 

In this situation, the FTSA prohibits telephonic sales calls made using “an automated system for 

the selection or dialing of telephone numbers or the playing of a recorded message[.]” Fla. Stat. § 

501.059(8)(a). However, Section 8(a) does not define this critical phrase or the key words in it, and the 

language and legislative history have used various terms to describe the type of technology regulated. 

For example, the legislative history uses the phrases “automated machine,” “automated dialer,” 

“automatic telephone dialing system” (which is the terminology used in the Telephone Consumer 

Protection Act, 47 USC § 227 (“TCPA”)) and “autodialer” interchangeably and without 

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consideration to possible different meanings, sometimes conflating them into a singular “technology.” 

See Florida Senate Bill Analysis and Fiscal Impact Statement for CS/SB 1120 at 1–2, available at 

https://www.flsenate.gov/Session/Bill/2021/1120/Analyses/ 2021s01120.rc.PDF (last visited Feb. 28, 

2023). Further, prior to the amendments, the FTSA used different phrases throughout, even in the same 

sections, to describe covered technology. See Fla. Stat. § 501.059(8)(a)-(b) (2018). As such, it is 

completely unclear what technology constitutes an “automated system,” it is impossible for callers to 

know whether they are using equipment regulated by the FTSA or if they must comply with the FTSA, 

and they can only guess at their peril as to what dialers are illegal. 

Moreover, as discussed supra Part III.B.1, it is unclear whether Section 8 applies to called parties 

who are just visiting Florida. On its face, it prohibits any “person”—not just people or businesses doing 

business in Florida—from making automated calls without first obtaining consent. Fla. Stat.§ 

501.059(8)(a). The statutory text does not expressly limit its application to calls received by Florida 

residents or calls made by Florida businesses or those doing business in the state. Thus, foreign 

companies are left to guess whether they might be subject to the FTSA’s steep statutory damages if 

they unwittingly call or text one of their customers vacationing in Florida, or they may have to avoid 

making such calls altogether (nationwide) given that their customers may be visiting Florida at any 

given time. Therefore, this Court should find that Section 8(a) is unconstitutionally vague. 

3. Section 8(a) Is An Unconstitutional Free Speech Restriction 

The First Amendment, applicable to the States through the Fourteenth Amendment, 

prohibits the enactment of laws “abridging the freedom of speech.” Reed v. Town of Gilbert, Ariz., 

576 U.S. 155, 163 (2015). It is well established that the government “has no power to restrict 

expression because of its message, its ideas, its subject matter, or its content.” Id. A law is “contentbased” where “a regulation of speech ‘on its face’ draws distinctions based on the message a 

speaker conveys.” Id. This includes any laws “singl[ing] out specific subject matter for differential 

treatment.” Id. at 169. 

Restrictions on telemarketing which discriminate based on the call’s content puts those 

restrictions at risk of being unconstitutional. For example, in Barr, there was a government-backed 

debt exception to the “automatic telephone dialing system” (“ATDS”) restrictions of the TCPA. 

The exception permitted automated calls to collect a government debt without consent where such 

calls would otherwise be unlawful. This was deemed an unconstitutional content-based restriction 

on free speech that was not narrowly tailored to serve a compelling interest. Barr v. Am. Ass’n of 

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Pol. Consultants, Inc., 140 S.Ct. 2335, 2346–47 (2020). The plurality held that a law that 

differentiates between calls based on whether the call’s content is to collect a government debt “is 

about as content-based as it gets.” Id. 

Section 8(a) provides “a person may not make or knowingly allow a telephonic sales call 

to be made if such call involves an automated system for the selection or dialing of telephone 

numbers or the playing of a recorded message when a connection is completed to a number called 

without the prior express written consent of the called party.” Fla. Stat. § 501.059(8)(a). A 

“telephonic sales call” is defined as “a telephone call, text message, or voicemail transmission to 

a consumer for the purpose of soliciting a sale of any consumer goods or services.” Fla. Stat. § 

501.059(1)(j). Thus, on its face, whether a call violates Section 8(a) depends on whether it is a 

“telephonic sales call” to a consumer about consumer (not commercial) goods or services—i.e., 

one specific type of call, caller and topic, to the exclusion of all others. As such, a debt collection 

call to a Florida consumer using an “automated system” without consent—which is not allowed 

under the TCPA’s automated call restrictions after Barr—or an “automated” political call to a 

Florida consumer (among other topics) is legal under the FTSA. However, a call for the purpose 

of selling a consumer good or service to that same person while using the same “automated system” 

without FTSA-proscribed consent is illegal. 

“Content-based laws—those that target speech based on its communicative content are 

presumptively unconstitutional” and, as such, are subject to “strict scrutiny” review and therefore 

“may be justified [under the First Amendment] only if the government proves that they are 

narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163. 

To survive strict scrutiny review, the State bears the burden to “prove that the restriction 

furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. at 171. A statute 

is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks 

to remedy.” Frisby v. Shultz, 487 U.S. 474, 485 (1988). 

Section 8(a) is not focused on an “exact source of evil,” and it is both underinclusive and 

overinclusive, and omitted from the statute itself and its legislative history is any purpose or 

justification at all for limiting the application of Section 8(a) of the FTSA as it is. Legislation that 

is “underinclusive” or leaves injuries to the government’s purported interest unprohibited is not 

narrowly tailored. Reed, 576 U.S. at 171–72. Section 8(a) is underinclusive, and therefore not 

narrowly tailored, because it still permits many types of unwanted calls, such as political calls 

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made during election season and it permits calls that are not made with an automated system. The 

Act is also overinclusive because it unnecessarily restricts calls consumers may have actually 

wanted or expected. For example, a consumer could contact a business about the purchase of a 

consumer product and ask to be called back but not provide their “prior express written consent” 

within the meaning of the FTSA’s definition of that term. 

Nor does Section 8(a) survive intermediate scrutiny. Under that standard, the State bears 

the burden to show that the speech that is “neither misleading nor related to unlawful activity” may 

be restricted if there is (i) a “substantial” state interest, (ii) “the regulation directly advances the 

governmental interest asserted” and (iii) the regulation “is not more extensive than is necessary to 

serve that interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 

557, 564 (1980). There is nothing in the FTSA’s legislative history or the text of the statute itself 

suggesting the Florida legislature has articulated any particular interest, let alone a “substantial” 

interest, that the recent amendments to Section 8(a) were designed to address. There is nothing 

suggesting the legislature has proffered any reason for singling out and regulating only unwanted 

automated “telephonic sales calls” to a “consumer” about “consumer goods or services” as Section 

8(a) now does, as opposed to all unwanted calls to any person on any topic. 

4. Minimal Pleading Requirements 

Finally, Plaintiff fails to plead sufficient non-conclusory facts in support of a FTSA claim. In 

Davis v. Coast Dental Services, the district court held that, “[t]o properly allege a violation of [Section 

8(a)], a plaintiff must allege some facts making it plausible that the defendant used an automated 

dialing system as described by the statute.” Davis v. Coast Dental Servs., LLC, Case No. 8:22-CV941-KKM-TGW, 2022 WL 4217141, at *2 (M.D. Fla. Sept. 13, 2022). There, the complaint alleged 

that, “‘[t]o transmit the above telephonic sales calls, Defendant utilized a computer software system 

that automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.” Id. 

Thus, in dismissing the FTSA claim under Rule 12(b)(6), the court held that “[t]his allegation is 

conclusory and the Court need not accept it as true” and that “it is merely possible that [the defendant] 

violated the FTSA, but not plausible as the pleading standard requires.” Id. (citing Chaparro v. 

Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Iqbal, 556 U.S. at 679). Courts in the Eleventh 

Circuit hold that alleging use of an “automated telephone dialing system” (“ATDS” or “autodialer”) 

and parroting the statute is not enough to state a TCPA claim or avoid dismissal under Rule 12(b)(6). 

See, e.g., Turizo v. Jiffy Lube Int’l, Inc., 2019 WL 4737696, at *3 (S.D. Fla. Sept. 27, 2019); Padilla v. 

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Whetstone Partners, LLC, 2014 WL 3418490, at *2 (S.D. Fla. 2014); Mesa v. Am. Express Educ. 

Assurance Co., 2017 WL 2212147, at *5 (S.D. Fla. May 18, 2017).2

In this case, just like in Davis, Plaintiff merely concludes that “‘[t]o transmit the above 

telephonic sales text message call, Defendant utilized a computer software system that automatically 

selected and dialed Plaintiff’s and the [putative] Class members’ telephone numbers.” (Am. Compl., 

at ¶ 17). See also (id. at ¶¶ 18, 21, 31–33 (similar conclusory allegations about the “Platform” 

supposedly used to send the alleged texts, parroting the statutory language and case law). Yet, Plaintiff 

alleges no factual basis for these conclusions. For example, Plaintiff alleges the “Platform” used to 

send the texts at issue “has an auto-reply function that results in the automatic transmission of texts” 

(id. ¶ 33)—meaning if the recipient responded to a text, an automatic reply is generated—but she does 

not ever allege that she actually responded to any texts or received any such a reply. Such naked and 

speculative allegations are insufficient to avoid dismissal. 

Plaintiff alleges that her number was “selected and dialed” from a pre-existing “list of 

numbers” (id. ¶ 17, 31), which myriad courts have found does not support an inference that an ATDS 

was used in TCPA cases, recognizing that the touchstone of an “automated” call is the “‘random nature 

of the automation device’” used to make the call or send the texts at issue. Perrong v. MLA Int’l, Inc.,

Case No. 6:20-cv-01606-RBD-EJK, 2021 WL 3036462, at *2 (M.D. Fla. July 2, 2021) (quoting 

Camunas v. Nat’l Republican Senatorial Comm., 2021 WL 2144671, at *6 (E.D. Pa. May 26, 2021) 

(denying default judgment where “random nature” of device not alleged)); see also Evans v. Ocwen 

Loan Servicing, LLC, 2021 WL 7366534, at *3 (S.D. Fla. Oct. 21, 2021) (dismissing: “[i]f the 

Defendant placed phone calls at random or in sequence, the Plaintiffs would not have received multiple 

phone calls”), vacated and remanded on standing due to unclear amount of calls received, 2022 WL 

17259718 (11th Cir. Nov. 29, 2022); Garry v. NewRez, LLC, Case No. 8:20-cv-2451-KKM-AEP, 2022 

WL 1619592, at *7 (M.D. Fla. Mar. 7, 2022) (granting summary judgment, holding that “[p]hone 

systems that are capable of making telephone calls only to specific telephone numbers from dialing 

lists provided by consumers do not qualify as ATDS systems”). 

In sum, this Court should find Plaintiff’s allegations regarding the use of an “automated 

system” fall short of meeting federal pleading standards. 

2

 In the absence of binding state authority, “Florida courts often look to federal decisions as a guide to interpreting state 

statutes that are similar to federal ones.” Martinolich v. Golden Leaf Mgmt., Inc., 786 So. 2d 613, 615 (Fla. 3d DCA 2001) 

(citations omitted). 

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C. This Court Should Dismiss Count II Because an Injunction is Not a Standalone Cause 

of Action And Plaintiff Fails to Adequately Allege Future Injury 

First, “[i]njunctive relief is not a standalone cause of action. Instead, as relevant here, 

injunctive relief is a remedy.” CMR Constr. & Roofing, LLC v. UCMS, LLC, 21-11183, 2022 WL 

3012298, at *5 (11th Cir. July 29, 2022). Count II is a count for an injunction for allegedly violating 

the FTSA. While this Court should dismiss this count for the same reason it should dismiss Count 

I, an independent reason to dismiss this count: it is an improper cause of action for an injunction. 

It is well established that “an injunction is not a standalone cause of action; it is a remedy 

for which there must be an underlying cause of action entitling the plaintiff to such relief.” Lanzone 

on behalf of One Way Roofing, LLC v. Boggs, Case No. 18-80399-CIV, 2018 WL 11436537, at 

*2 (S.D. Fla. June 13, 2018) (dismissing the standalone cause of action for an injunction). See, 

e.g., Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005) (“For a 

traditional injunction to be even theoretically available, a plaintiff must be able to articulate a basis 

for relief that would withstand scrutiny under Fed. R. Civ. P. 12(b)(6) (failure to state a claim). An 

injunction is a remedy potentially available only after a plaintiff can make a showing that some 

independent legal right is being infringed—if the plaintiff’s rights have not been violated, he is not 

entitled to any relief, injunctive or otherwise.”); Fastway Moving & Storage, Inc. v. Ugarte, Case 

No. 13-60832, 2013 WL 3927687, *3 (S.D. Fla. July 29, 2013) (finding that plaintiff did not meet 

first element for injunctive relief because he “fail[ed] to identify the cause of action upon which 

he is likely to succeed”); Huck v. Philadelphia Consol. Holding Corp., Civil Action No. 1:19-cv03336-SDG, 2020 WL 4726753, at *7 (N.D. Ga. Mar. 19, 2020) (dismissing count for injunctive 

relief because injunctive relief is not an independent cause of action); N. Brevard Cnty. Hosp. Dist. 

v. Metrus Energy-Atlantis, LLC, 620CV547ORL37EJK, 2020 WL 10459467, at *4 (M.D. Fla. July 

10, 2020) (“the separate claim for injunctive relief is dismissed”). 

In this case, the count heading for Count II states that it is for “Injunctive Relief Pursuant 

to Fla. Stat. § 501.059(10)(a).” In the count’s allegations, Plaintiff admits that “Pursuant to section 

501.059(10)(a), Plaintiff seeks injunctive relief.” (Am. Compl., at ¶ 59). Thus, this is either a 

standalone count for injunctive relief or wholly duplicative of the prior count, Counts I. 

Second, Plaintiff generally seeks injunctive relief for herself and the putative classes. See

(Am. Compl., at Count II, and Prayer). However, a plaintiff seeking injunctive relief in any federal 

case must allege a threat of future injury. See Cone Corp., 921 F.2d at 1203–1204; Eland, 471 F.3d 

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at 1207; see also Schaevitz v. Braman Hyundai, Inc., 437 F. Supp. 3d 1237, 1251–52 (S.D. Fla. 

2019) (dismissing request for injunctive relief in TCPA case on this basis where no threat of 

possible future injury alleged). Here, there is no threat of possible future injury and Plaintiff has 

alleged that two text messages occurred on September 8. Therefore, this Court should dismiss 

Count II. 

D. Dismissal with Prejudice is Appropriate 

Dismissal with prejudice is appropriate where a plaintiff already has had a chance to amend 

but failed to cure the defects in his original complaint. See, e.g., Rance v. Rocksolid Granit USA, 

Inc., 2010 WL 11601453, at *6 (S.D. Fla. Sept. 2, 2010); see also Frame v. Cal-W. Reconveyance 

Corp., 2011 WL 3876012, at *3 (D. Ariz. Sept. 2, 2011) (dismissing with prejudice where “despite 

the benefit and existence of fully-briefed motions to dismiss, [p]laintiff’s First Amended 

Complaint fail[ed] to cure the deficiencies noticed in [d]efendants’ prior motions”). Here, Plaintiff 

already had a chance to amend and had the benefit of Defendant’s prior motion to dismiss when 

doing so but her FAC still fails to state a viable claim for relief against Defendant. Additionally, 

no amount of additional facts can make the FTSA constitutional. Thus, the FAC should be 

dismissed with prejudice. 

E. Putative Class Members Subject to Arbitration 

To the extent that Plaintiff moves past the dismissal stage, it is believed that the vast 

majority of the putative class members will be subject to arbitration. Thus, although Plaintiff does 

not appear to have signed an arbitration agreement, because the putative class is unknown at this 

time, Seduction does not waive its right to compel Plaintiff, a non-signatory, to arbitrate, see, e.g., 

Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351, 1354 (11th Cir. 

2017), to reduce the putative class size, or to deny class certification on the basis of arbitration. 

F. Alternatively, Plaintiff’s Proposed Classes are Facially Uncertifiable as Pled and 

Should be Stricken. 

Should the Court decide not to dismiss the FAC in its entirety for the reasons above, it 

should nevertheless strike Plaintiff’s facially-defective class allegations under Rules 12(f) and 23, 

Fed. R. Civ. P. 

Sometimes the issues are plain enough from the pleadings” to determine that a case should 

not proceed as a class action. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982); Lawson 

v. Life of the S. Ins. Co., 286 F.R.D. 689, 695 (M.D. Ga. 2012). In this regard, courts in the Eleventh 

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Circuit and elsewhere have widely recognized that they may and should in appropriate cases strike 

faulty class allegations at the pleadings stage under Rule 12(f) where, as here, it is apparent from 

the face of the complaint that the proposed classes are not certifiable under Rule 23 as pleaded. 

See, e.g., Lawson, 286 F.R.D. at 700-01; Foxx v. Ocwen Loan Servicing, LLC, 2012 WL 2048252, 

at *9–10 (M.D. Fla. June 6, 2012). 

Courts have discretion to find proposed classes to be uncertifiable and strike them at the 

pleadings stage, in cases where, as here: (i) common questions of law and fact do not predominate; 

or (ii) the proposed definitions are impermissibly “fail-safe.” See, e.g., Sauter v. CVS Pharmacy, 

Inc., 2014 WL 1814076, at *9 (S.D. Ohio May 7, 2014); Pepka v. Kohl’s Dep’t Stores, Inc., 2016 

WL 8919460, at *1–5 (C.D. Cal. Dec. 21, 2016); Lindsay Transmission, LLC v. Office Depot, Inc., 

2013 WL 275568, at *4–5 (E.D. Mo. Jan. 24, 2013). As explained below, Plaintiff’s proposed 

classes fit neatly into these categories. 

1. Common Questions of Law and Fact Do Not Predominate. 

Plaintiff’s proposed classes would require individualized determinations on the issue of 

consent, and individualized determinations on whether an individual is a patient who agreed to a 

different dispute mechanism, among others, which demonstrates that common questions of law 

and fact would not predominate, as required by Rule 23(b)(3). To meet this requirement, common 

questions must “present a significant aspect of the case” and “can be resolved for all members of 

the class in a single adjudication.” Bacon v. Stiefel Lab’ys, Inc., 275 F.R.D. 681, 695 (S.D. Fla. 

2011) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998)). “[P]redominance 

is lacking” where “whether the calls were consented to—a threshold issue—is not subject to 

generalized proof.” Newhart v. Quicken Loans Inc., 2016 WL 7118998, at *2 (S.D. Fla. Oct. 12, 

2016). Courts routinely deny certification in TCPA3

 cases on predominance grounds where 

individualized determinations of “consent” are needed. See, e.g., New Concept Dental v. Dental 

Res. Sys., Inc., 2020 WL 3303064, at *9–10 (S.D. Fla. Mar. 3, 2020); Newhart, 2016 WL 7118998, 

at *2; Balthazor v. Cent. Credit Servs., Inc., 2012 WL 6725872, at *4 (S.D. Fla. Dec. 27, 2012); 

Tillman v. Ally Fin. Inc., 2017 WL 7194275, at *7 (M.D. Fla. Sept. 29, 2017). Courts also often 

strike class allegations at the pleadings stage and/or grant pre-discovery motions to deny 

certification, in TCPA cases and in others, where individualized determinations of “consent” are 

needed. See, e.g., Pepka and Lindsay, supra; Eldridge v. Cabela’s Inc., 2017 WL 4364205, at *7–

3

 While Plaintiff amended the complaint to remove the TCPA allegations, case law on the TCPA is instructive. 

Case 1:22-cv-23320-JEM Document 22 Entered on FLSD Docket 02/28/2023 Page 15 of 18
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11 (W.D. Ky. Sept. 29, 2017); Cholly v. Uptain Grp., Inc., 2017 WL 449176, at *4 (N.D. Ill. Feb. 

1, 2017); Dorfman v. Albertson’s LLC, 2020 WL 86192, at *5 (D. Idaho Jan. 7, 2020); see also 

Baisden v. Credit Adjusts., Inc., 813 F.3d 338, 343 (6th Cir. 2016) (“[t]he context of the consent 

provided is critical” in a TCPA case). This Court should rule similarly. 

Here, while Plaintiff’s proposed class does not expressly include the word “consent,” it is 

broadly defined to include every person in the United States who were sent “more than one text 

message regarding Defendant’s property, goods, and/or services[.]” (Am. Compl., at ¶ 39). The 

other class is a Florida subclass. However, the FTSA’s automated dialing provisions likewise only 

prohibit “telephonic sales calls”—and in that regard, a call does not qualify as a “solicitation” or 

“sales call” where (among other things) the plaintiff gave their “prior express invitation or 

permission” or “prior express written consent” receive the call. Fla. Stat. § 501.059(8)(a). Thus, 

the legal and factual issues of consent are inextricably intertwined with Plaintiff’s proposed class 

definitions. 

Moreover, the same problem exists for persons with an “established business relationship” 

with the caller, which is also context-dependent, can likewise vary wildly by individual, and can 

also prevent calls from qualifying as a “sales call” under the FTSA. See also Fla. Stat. § 

501.059(1)(k)(3) (calls to parties with whom the caller has an “existing business relationship” with 

are not considered “unsolicited telephonic sales calls”). 

There are many different context-specific ways in which an “established business 

relationship” can arise under the FTSA, which will undoubtedly necessitate individualized 

determinations on those issues and thus prevent Plaintiff from establishing the predominance 

requirement. See Lindsay, 2013 WL 275568, at *5 (granting motion to strike, holding “the absence 

of prior consent and the absence of a prior business relationship” are individualized issues 

precluding certification in a TCPA case under Rule 23). As such, whether any texts in this case 

were sent without consent or if they constituted a “telephonic sales call” under the statute are not 

common questions of law or fact that can be resolved by generalized proof across the entire class 

in a single adjudication. Rather, these issues would necessitate individualized factual and legal 

inquires on those critical threshold issues, among others. Thus, Plaintiff’s proposed class 

definitions should be stricken on this basis alone. 

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2. Plaintiff’s Proposed Classes Are Impermissibly Fail-Safe. 

Plaintiff’s proposed class definitions are also impermissibly fail-safe in violation of Rule 

23 because the Court must make a determination on the merits of putative class members’ 

individual claims to determine membership. See, e.g., Fennell v. Navient Sols., LLC, 2019 WL 

3854815, at *3 (M.D. Fla. June 14, 2019). Specifically, a fail-safe class is one that includes only 

those putative class members who are entitled to relief. Id. Fail-safe classes are not permitted 

because they “shield[] the putative class members from receiving an adverse judgment” and “either 

the class members win or, by virtue of losing, they are not in the class, and therefore not bound by 

the judgment.” Balassiano v. Fogo De Chao Churrascaria (Orlando) LLC, 2020 WL 7365264, at 

*3 (M.D. Fla. Dec. 15, 2020). 

Here, Plaintiff’s proposed classes are impermissibly fail-safe because membership depends 

on the merits of the putative class members’ underlying claims. Indeed, the proposed FTSA class 

is comprised of all persons in Florida who (1) “were sent more than one text message regarding 

Defendant’s property, goods, and/or services” (i.e., whether the callers received a “telephonic sales 

call” and did not have a “preexisting business relationship”); and (2) “using the same equipment 

or type of equipment utilized to call Plaintiff” (i.e., only including those who purportedly received 

messages from an automated messaging system). The other class is a Florida subclass. Each of 

these is undoubtedly a merits-based inquiry going directly to the heart of the underlying FTSA 

claim here, and there is no objective way to determine who is a class member as pleaded. Thus, 

Plaintiff’s proposed classes are also impermissibly fail-safe and properly stricken at the pleadings 

stage for this additional reason. See, e.g., Bryant v. King’s Creek Plantation, L.L.C., 2020 WL 

6876292, at *3 (E.D. Va. June 22, 2020) (striking as impermissibly fail-safe a similar proposed 

TCPA class). 

IV. CONCLUSION

WHEREFORE, Seduction Cosmetic Center, respectfully requests this Court to grant this 

motion, to dismiss the Amended Complaint with prejudice, and in the alternative to strike 

Plaintiff’s facially-uncertifiable class-related allegations, and to order such further relief as deemed 

just. 

 

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Respectfully Submitted, 

LALCHANDANI SIMON PL 

Attorneys For Seduction Cosmetic Corp 

25 S.E. 2nd Avenue, Suite 1020 

Miami, Florida 33131 

(305) 999-5291 (office) 

(305) 671-9282 (fax)

By: /s/ Kubs Lalchandani 

Kubs Lalchandani, Esq. 

Florida Bar No. 63966 

kubs@lslawpl.com 

Daniel E. Davis, Esq. 

Florida Bar No. 104970 

ddavis@lslawpl.com 

CERTIFICATE OF SERVICE 

I hereby certify that on February 28, 2023, a true and correct copy of the foregoing 

document was filed with the Clerk of Court via CM/ECF, which effectuated service on all counsel 

of record via transmission of a Notice of Electronic Filing generated by CM/ECF. 

By: /s/ Daniel E. Davis 

Daniel E. Davis 

 

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