IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

BRICKELL CHIROPRACTIC 

CENTER, INC., individually and as 

the representative of a class of 

similarly-situated persons,

Plaintiff,

v.

DIAGNOSTIC CENTER OF 

AMERICA INC,

Defendant.

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No.

CLASS ACTION

CLASS ACTION COMPLAINT

Plaintiff, Brickell Chiropractic Center, Inc. (“Plaintiff”), brings this action on 

behalf of itself and a class of all other persons similarly situated and, except as to 

those allegations pertaining to Plaintiff or its attorneys, alleges the following upon 

information and belief against defendant Diagnostic Center of America Inc 

(“Defendant” or “DCA”):

PRELIMINARY STATEMENT

1. On behalf of itself and all other similarly situated, Plaintiff alleges 

claims and seeks statutory damages and other relief arising from Defendant’s 

violations of the Telephone Consumer Protection Act, 47 USC § 227 (the “TCPA”).

2. The TCPA prohibits unsolicited advertising by facsimile.

3. To date, Defendant has successfully transmitted at least four unsolicited 

advertisements to Plaintiff by facsimile. 

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4. True and correct copies of four unsolicited advertisements received and 

printed by Plaintiff’s facsimile machine are attached as Exhibits A-D. 

5. Each of these four facsimiles advertised the commercial availability or 

quality of property, goods, or services available from DCA.

6. Defendant did not have Plaintiff’s prior express invitation or permission 

to send any advertisement by fax.

7. Plaintiff had no “established business relationship” (“EBR”) with 

Defendant.

8. The faxes did not have the opt-out notice required by 47 U.S.C. § 227, so 

any EBR between the parties would be irrelevant in this action.

9. The TCPA creates a private right of action and provides minimum 

statutory damages of $500 per violation. If the Court finds a violation was willful or 

knowing, it can increase the damages up to three times, or $1,500 per violation. The 

Court can also grant injunctive relief to protect against future violations. 47 U.S.C. § 

227(b)(3).

10. Unsolicited facsimiles that are successfully transmitted cause concrete 

damage to their recipients, including wasting the recipient’s valuable time, 

interrupting the recipient’s privacy, using or tying up telephone lines, preventing fax 

machines from receiving authorized faxes, preventing the use of fax machines from 

sending outgoing faxes, wasting the recipient’s paper and ink toner printing the 

sender’s advertising material, causing undue wear and tear on fax machines, 

requiring additional labor to attempt to discern the source and purpose of the 

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unsolicited message, or otherwise using the recipient’s valuable and limited resources 

to deliver Defendant’s advertisement. 

11. On behalf of itself and all others similarly situated, Plaintiff seeks 

statutory damages and other relief for each of Defendant’s violations of the TCPA 

occurring during the statutory limitations period commencing four years prior to the 

filing of this action and continuing until the Court orders notice to the class.

PARTIES, JURISDICTION, AND VENUE

12. Plaintiff, Brickell Chiropractic Center, Inc., is a Florida Profit 

Corporation, with its principal place of business, offering the chiropractic practice of 

Dr. Keith Brickell, located at 5975 N. Federal Highway, #121, Fort Lauderdale, FL 

33308. Plaintiff is in Broward County, FL.

13. Defendant, Diagnostic Center of America Inc, is a Florida Profit 

Corporation with its principal place of business located at 3383 NW 7 St, #313, Miami,

FL 33125. DCA’s registered agent is Marcelino Dominguez Valdes, located at 3383 

NW 7 St, #313, Miami, FL 33125. Although Defendant is in Miami-Dade County, FL, 

its radiological facilities are in Palm Beach County, FL.

14. The Court has subject matter jurisdiction for the TCPA claim under 28 

U.S.C. § 1331 and 47 U.S.C. § 227 and supplemental jurisdiction for the conversion 

claim under 28 U.S.C. § 1367

15. Personal jurisdiction exists over DCA in Florida because it is registered 

to do business in the State, has its principal place of business in the State, and it has 

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committed tortious acts in the State by sending unlawful fax advertisements to 

Plaintiff, a Florida resident.

16. Venue is proper in the Southern District of Florida, because DCA’s

principal place of business is within this District, it committed statutory torts within 

this District, and a significant portion of the events took place here.

FACTS

17. For a fee, Defendant offers diagnostic and other radiological services to 

patients and their doctors in Palm Beach County, Florida.

18. On October 29, 2018, celebrating “25 years and beyond,” DCA opened its 

sixth diagnostic center, at which time all six locations were in Palm-Beach County. 

19. “Focused on excellence, committed to patient care,” DCA was the 

distinguished recipient of an official designation from the Diagnostic Imaging Center 

of Excellence, ACR (American College of Radiology), which is awarded to less than 

1% of all imaging facilities in the USA.

20. DCA’s facilities included:

• 3T MRI Siemens Vida - 64 channel with Biomatrix technology

• 128 Slice CT Siemens go.Top - the only one in South Florida

• PET/CT Siemens Biograph Horizon - smaller crystals for better 

image quality

• Hologic 3D Mammography - with SmartCurve Breast Stabilization 

System

• Samsung X-ray - excellent image quality with 51% dose reduction

• Samsung Ultrasound - novel technology for higher level of diagnostic 

confidence

• Also available: nuclear medicine, STAT appointments, labs onsite

• 30+ sub-specialized, board certified and fellowship radiologists.

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21. Despite what Humana and possibly others might have said, as of April 

6, 2021, “DCA is Open and Here for You.”

22. For center schedules, ask a scheduling specialist at 561.496.6935.

23. DCA enforced strict Covid-19 prescreening criteria.

24. For more screening info, and information about DCA’s business 

offerings, one could visit DCAmedical.com.

25. Defendant announced all these things by fax. See Exhibits A-D.

26. Plaintiff did not have an “established business relationship” with 

Defendant and its faxes contained no opt-out notice.

27. Defendant did not have Plaintiff’s prior express invitation or permission 

to send any advertisement by fax.

28. As part of its business operations, Plaintiff sends and receives 

documents by facsimile.

29. Plaintiff uses its fax machine to send and receive urgent, important,

confidential information, including pictures and images, but not advertising material.

30. Plaintiff unwillingly receives unsolicited advertisements on its fax 

machine, but understands that the TCPA prohibits DCA and every other person from 

sending advertising material by fax without Plaintiff’s prior express invitation or 

permission, which Plaintiff did not grant.

31. Plaintiff does not advertise by fax.

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32. To date, Plaintiff’s facsimile machine has received and printed at least 

four unsolicited advertisements sent by or on behalf of DCA. 

33. Attached as Exhibit A is a true and correct copy of a one-page 

advertisement that Defendant successfully sent or caused to be successfully sent by 

fax to Plaintiff on October 25, 2018.

34. Attached as Exhibit B is a true and correct copy of a one-page 

advertisement that Defendant successfully sent or caused to be successfully sent by 

fax to Plaintiff on October 26, 2018.

35. Attached as Exhibit C is a true and correct copy of a one-page 

advertisement that Defendant successfully sent or caused to be successfully sent by 

fax to Plaintiff on October 29, 2018.

36. Attached as Exhibit D is a true and correct copy of a one-page 

advertisement that Defendant successfully sent or caused to be successfully sent by 

fax to Plaintiff on April 6, 2020.

37. DCA’s role as the sender of these unsolicited facsimile advertisements 

is announced in the headers of the Faxes: “FRM: DCA 561-994-6333”. Exhibits A-D.

38. Upon information and belief, Plaintiff alleges that DCA sent Exhibits AD and any other unsolicited advertisements by facsimile to more than 40 persons or 

entities. This allegation is based, in part, on the fact that Exhibits A-D are generic 

form templates, with graphics and trademarks and no personalized information for 

the intended recipient. The header of the faxes show Defendant sent the fax to a 

computerized list of targets, predictably lengthy. Sending advertisements in bulk fax 

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broadcasts is an inexpensive way to reach a wide target audience, far less expensive 

than direct mail, tv, radio, telephone calls, and in-person visits.

39. Plaintiff and the other class members owe no obligation to protect their 

fax machines from Defendant’s unlawful facsimiles. Their fax machines are ready to 

send or receive their urgent business communications, or private communications 

about patients’ medical needs, not to receive Defendant’s unsolicited advertisements.

CLASS REPRESENTATION ALLEGATIONS

40. Plaintiff brings this action as a class action on behalf of itself and a class 

of other persons and entities similarly situated, and initially defined as follows:

All persons and entities successfully sent one or more unsolicited 

advertisements by facsimile from Diagnostic Center of America without

the opt-out notice required by 47 U.S.C. § 227(b)(2)(D).

Excluded from the class are DCA, any entity in which DCA has a controlling interest, 

DCA’s employees, officers, and directors, DCA’s legal representatives, heirs, 

successors, and assigns, and any Judge assigned to this action, and his or her family.

41. If Defendant’s fax advertising efforts involved other, substantiallysimilar advertisements to the same or similar target lists, then Plaintiff intends to 

argue to include those claims in the resolution of this litigation and intends to locate 

those advertisements in discovery. See Exhibit E, a Demand for Preservation of All 

Tangible Documents Including Electronically Stored Information.

42. This action is brought, and may properly be maintained as, a class action

under Fed. R. Civ. P. 23. This action satisfies Rule 23(a)’s numerosity, commonality, 

typicality, and adequacy requirements. Additionally, prosecution of Plaintiff’s claims 

separately from the putative class’s claims would create a risk of inconsistent or 

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varying adjudications under Rule 23(b)(1)(A). Furthermore, the questions of law or 

fact that are common in this action predominate over any individual questions of law 

or fact making class representation the superior method to adjudicate this 

controversy under Rule 23(b)(3).

Numerosity/Impracticality of Joinder

43. On information and belief, the class includes more than 40 persons and, 

thus, is so numerous that joinder of all members is impracticable. The precise number 

of class members and their identities are unknown to Plaintiff, but Plaintiff intends 

to obtain them in discovery from DCA’s records or the records of third parties.

Commonality and Predominance

44. There is a well-defined community of interest and common questions of 

law and fact that predominate over any question affecting only individual members 

of the class. These common legal and factual questions, which do not vary from one 

class member to another, and which may be determined without reference to the 

individual circumstances of any class member, include, but are not limited to the 

following:

a. Whether DCA sent unsolicited advertisements by fax; 

b. Whether DCA’s fax contained any material advertising the 

commercial availability or quality of any property, goods, or services;

c. The manner and method DCA used to compile or obtain the target 

lists to which it sent facsimile transmissions; 

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d. Whether DCA faxed advertisements without possessing prior 

express invitation or permission of the intended recipient;

e. Whether DCA’s facsimiles contained an opt-out notice that 

complied with the TCPA’s requirements, because otherwise any “established 

business relationship” between Defendant and an unnamed class member is 

completely irrelevant here;

f. Whether Plaintiff and the other class members are entitled to 

statutory damages;

g. Whether the Court should treble the statutory damages; and

h. Whether DCA should be enjoined from sending unsolicited

advertisements by facsimile in the future without first ensuring the Court that 

it has adopted measures and mechanisms to prevent unlawful fax advertising.

Typicality of Claims

45. Plaintiff’s claims are typical of the claims of the other class members 

because all were injured by the same wrongful practices. Plaintiff and the members 

of the class received DCA’s unsolicited advertisements by facsimile. If Plaintiff 

prevails on its claims, then the putative class members will prevail as well.

Adequacy of Representation

46. Plaintiff is an adequate representative of the class. Plaintiff’s interests 

do not conflict with the interests of the class. Plaintiff has retained counsel competent 

and experienced in complex class action litigation, and TCPA litigation in particular, 

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and Plaintiff intends to vigorously prosecute this action. Plaintiff and its counsel will 

fairly and adequately protect the interest of members of the class.

A Class Action is the Superior Method of Adjudicating the Common

Questions of Law or Fact that Predominate over Individual Questions

47. A class action is superior to other available methods for the fair and 

efficient adjudication of this lawsuit because individual litigation of the claims of all 

class members is economically unfeasible and procedurally impracticable. Class 

members do not have strong interests in individually controlling the prosecution of 

separate actions. There is no other litigation pending regarding fax advertisements 

from DCA. Management of these claims and their resolution as a class action will not 

be difficult.

COUNT I 

TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227

48. Plaintiff incorporates the preceding paragraphs as though fully set forth 

herein.

49. Plaintiff brings Count I on behalf of itself and a class of similarlysituated persons.

50. The TCPA prohibits:

any person within the United States, or any person outside the United 

States if the recipient is within the United States—

* * *

(C) to use any telephone facsimile machine, computer, or other device to 

send, to a telephone facsimile machine, an unsolicited advertisement, 

unless--

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(i) the unsolicited advertisement is from a sender with an established 

business relationship with the recipient;

(ii) the sender obtained the number of the telephone facsimile machine 

through--

(I) the voluntary communication of such number, within the context of 

such established business relationship, from the recipient of the 

unsolicited advertisement, or

(II) a directory, advertisement, or site on the Internet to which the 

recipient voluntarily agreed to make available its facsimile number for 

public distribution, except that this clause shall not apply in the case of 

an unsolicited advertisement that is sent based on an established 

business relationship with the recipient that was in existence before 

July 9, 2005, if the sender possessed the facsimile machine number of 

the recipient before July 9, 2005; and

(iii) the unsolicited advertisement contains a notice meeting the 

requirements under paragraph (2)(D),

except that the exception under clauses (i) and (ii) shall not apply with 

respect to an unsolicited advertisement sent to a telephone facsimile 

machine by a sender to whom a request has been made not to send 

future unsolicited advertisements to such telephone facsimile machine 

that complies with the requirements under paragraph (2)(E); ***

47 U.S.C. § 227 (b)(1)(C).

51. The TCPA defines “unsolicited advertisement” as “any material 

advertising the commercial availability or quality of any property, goods, or services 

which is transmitted to any person without that person’s express invitation or 

permission.” 47 U.S.C. § 227(a)(4).

52. The TCPA provides a “private right of action” as follows:

A person or entity may, if otherwise permitted by the laws or rules of 

court of a State, bring in an appropriate court of that State--

(A) an action based on a violation of this subsection or the regulations 

prescribed under this subsection to enjoin such violation,

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(B) an action to recover for actual monetary loss from such a violation, 

or to receive $500 in damages for each such violation, whichever is 

greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this 

subsection or 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 the amount available under 

subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3).

53. In relevant part, the TCPA states that “[t]he [Federal Communications] 

Commission shall prescribe regulations to implement the requirements of this 

subsection ... in implementing the requirements of this subsection, the Commission 

shall provide that a notice contained in an unsolicited advertisement complies with 

the requirements under this subparagraph only if ... (i) the notice is clear and 

conspicuous ...” 47 U.S.C. § 227(b)(2)(D)(i).

54. Additionally, “a notice contained in an unsolicited advertisement 

complies with the requirements under this subparagraph only if ... (ii) the notice 

states that the recipient may make a request to the sender of the unsolicited 

advertisement not to send any future unsolicited advertisements to a telephone 

facsimile machine or machines and that failure to comply, within the shortest 

reasonable time, as determined by the Commission, with such a request meeting the 

requirements under subparagraph (E) is unlawful ...” 47 U.S.C. § 227(b)(2)(D)(ii). The 

shortest reasonable time has been determined to be thirty (30) days. 47 C.F.R. § 

64.1200(a)(4)(iii)(B).

55. The opt-out notice must also include “a domestic contact telephone and 

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facsimile number for the recipient to transmit such a request to the sender” as well 

as a “cost-free mechanism for a recipient to transmit a request pursuant to such notice 

...” 47 U.S.C. § 227(b)(2)(D)(iv).

56. “A notice contained in an unsolicited advertisement complies with the 

requirements under this subparagraph only if ... (v) the telephone and facsimile 

machine numbers and the cost-free mechanism ... permit an individual or business to 

make such a request at any time on any day of the week.” 47 U.S.C. § 227(b)(2)(D)(v).

57. The FCC’s regulations pertaining to opt-out notices on unsolicited 

advertisements are set forth at 47 C.F.R. § 64.1200(a)(4)(iii).

58. Exhibit A advertises the commercial availability or quality of 

Defendant’s property, goods, or services.

59. Defendant sent Exhibit A to Plaintiff by facsimile without Plaintiff’s 

prior express invitation or permission.

60. Exhibit A has no opt-out notice.

61. Exhibit B advertises the commercial availability or quality of 

Defendant’s property, goods, or services.

62. Defendant sent Exhibit B to Plaintiff by facsimile without Plaintiff’s 

prior express invitation or permission.

63. Exhibit B has no opt-out notice.

64. Exhibit C advertises the commercial availability or quality of 

Defendant’s property, goods, or services.

65. Defendant sent Exhibit C to Plaintiff by facsimile without Plaintiff’s 

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prior express invitation or permission.

66. Exhibit C has no opt-out notice.

67. Exhibit D advertises the commercial availability or quality of 

Defendant’s property, goods, or services.

68. Defendant sent Exhibit D to Plaintiff by facsimile without Plaintiff’s 

prior express invitation or permission.

69. Exhibit D has no opt-out notice.

70. Plaintiff intends to discover and include within this case all unsolicited 

advertisements Defendant sent by fax. See Exhibit I, a Demand for Preservation of 

All Tangible Documents Including Electronically Stored Information.

71. Defendant violated 47 U.S.C. § 227 et seq. by sending advertisements by 

fax to Plaintiff and the other class members without their prior express invitation or 

permission and, to the extent Defendant will contend it sent facsimiles based on an 

“established business relationship,” by failing to include compliant opt-out notices on 

its unsolicited fax advertisements.

72. Facsimile advertising imposes burdens on unwilling recipients that are 

distinct from those imposed by other types of advertising. The content of the required 

opt-out notice is designed to ensure that the recipients know how to prevent and avoid 

future fax transmissions of advertising material, and to provide the various cost-free 

means Congress required to be made available to do so. If senders do not clearly and 

conspicuously provide the opt-out content to the recipients and comply with these 

requests when made, then the recipients are unable to stop the burdens imposed by 

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this form of advertisement.

73. The TCPA is a strict liability statute and Defendant is liable to Plaintiff 

and the other class members even if its actions were negligent.

74. Defendant is liable because it sent the faxes, caused the faxes to be sent, 

participated in the activity giving rise to and/or constituting the violation, the faxes 

were sent on its behalf, and/or under general principles of vicarious liability 

applicable under the TCPA, including actual authority, apparent authority, and 

ratification.

75. Defendant knew or should have known that Plaintiff and the other class 

members had not given express invitation or permission for Defendant or anybody 

else to send advertisements by facsimile and that Defendant’s faxes either did not 

display the opt-out notice required by the TCPA (including the FCC’s regulations), or 

displayed a non-compliant opt-out notice that did not have the required language or 

make available the means Congress intended to make such an opt-out request.

76. Defendant’s actions caused damages to Plaintiff and the other class 

members. Receiving Defendant’s junk faxes caused most recipients to lose paper and 

toner consumed in the printing of Defendant’s faxes. Moreover, the subject faxes used

Plaintiff’s and the class’s fax machines, blocked the sending and receiving capacity of 

the machine, increased costs associated with operating and maintaining a fax 

machine, and wasted valuable time. Defendant’s faxes unlawfully interrupted 

Plaintiff’s and the other class members’ privacy interests in being left alone. Finally, 

the injury and property damage sustained by Plaintiff and the other class members 

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from the sending of the faxes occurred outside Defendant’s premises.

77. Even if DCA did not intend to cause damage to Plaintiff and the other 

class members, did not intend to use their paper and toner, did not intend to assume 

control of their fax machines by blocking their fax sending and receiving capacity, did 

not intend to violate their privacy, did not intend to waste the recipients’ valuable 

time with DCA’s advertisements, and did not intend to increase their costs associated 

with operating and maintaining a fax machine, those facts are irrelevant because the 

TCPA is a strict liability statute.

78. The Court, in its discretion, can treble the statutory damages if the 

violation was knowing or willful and Plaintiff requests trebling. 47 U.S.C. § 227.

COUNT II

COMMON LAW CONVERSION

79. Plaintiff incorporates by reference all preceding paragraphs as though 

fully set forth herein.

80. Plaintiff brings Count II on behalf of itself and a class of similarlysituated persons and against Defendant.

81. By sending numerous advertisements to their fax machines, Defendant 

improperly and unlawfully converted the class’s fax machines to Defendant’s own use. 

Where printed (as in Plaintiff’s case), Defendant also improperly and unlawfully 

converted the class members’ paper and toner to Defendant’s own use. Defendant also 

converted Plaintiff’s time to Defendant’s own use, as it did with the valuable time of 

the other class members. Lastly, where received over a regular telephone line (as in 

Plaintiff’s case) Defendant effectively took over Plaintiff and the other class members’ 

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telephone lines while the numerous unsolicited facsimiles were transmitting and 

printing rendering them unable to use their fax machines for receiving authorized 

faxes or sending outgoing faxes.

82. Immediately prior to the sending of the unsolicited faxes, Plaintiff and 

the other class members each owned an unqualified and immediate right to 

possession of their fax machines, paper, toner, and employee time.

83. By sending them unsolicited faxes, Defendant permanently 

misappropriated the class members’ fax machines, toner, paper, and employee time 

to their own use. Such misappropriation was wrongful and without authorization.

84. Defendant commandeered the fax machines of Plaintiff and the other 

class members and converted their fax machines to their own advertising and 

marketing tool by bombarding their fax machines with at least four unsolicited 

facsimile advertisements, at least three of which were successfully sent within a 

period of five days.

85. Defendant knew or should have known that their misappropriation of 

paper, toner, and employee time was wrongful and without authorization.

86. Plaintiff and the other class members were deprived of one or more of 

the use of their fax machine, paper, toner, or other incremental cost, plus valuable 

time, only as a result of Defendant’s unsolicited and unwanted facsimiles, which used, 

wasted, and diverted their fax machines to Defendant’s improper use. Plaintiff and 

each class member suffered damages by receiving unsolicited faxes from Defendant.

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87. Defendant’s unsolicited faxes effectively stole Plaintiff’s employees’ time 

because persons employed by Plaintiff were involved in receiving, routing, and 

reviewing Defendant’s illegal faxes. Defendant knew or should have known 

employees’ time is valuable to Plaintiff.

WHEREFORE, Plaintiff demands judgment in favor of itself and all others 

similarly situated and against DCA as follows:

A. That the Court adjudge and decree that the present case may be 

properly maintained as a class action, certify a class, appoint Plaintiff as the 

representative of the class, and appoint Plaintiff’s counsel as counsel for the 

class;

B. That the Court award $500 in statutory damages for each of 

DCA’s violations of the TCPA;

C. That the Court treble the statutory damages to $1,500 per 

violation if it finds that DCA knowingly or willfully violated the TCPA;

D. That the Court enter an injunction prohibiting DCA from sending 

any advertisement by fax without first demonstrating that it has obtained 

express invitation or permission to fax advertisements; and

E. That the Court award costs, expenses and attorney fees on the 

conversion claim, and such further relief as the Court deems just and proper.

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Respectfully submitted,

BRICKELL CHIROPRACTIC CENTER, INC., 

individually and on behalf of all similarlysituated persons,

By: /s/ Phillip A. Bock

One of their attorneys

Phillip A. Bock (FL 93895)

BOCK HATCH & OPPENHEIM, LLC

820 W. 41st St., #305

Miami Beach, FL 33140

Telephone: 305-239-8726

Email: service@classlawyers.com

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