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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-cv-61993-CMA

Brickell Chiropractic Center, Inc., et . al,

Plaintiff(s),

v.

Diagnostic Center of America Inc,

Defendant(s.

___________________________________/

DEFENDANT’S MOTION TO DISMISS

FOR LACK OF SUBJECT MATTER JURISDICTION

Defendant, Diagnostic Center of America Inc, by and through undersigned counsel, hereby 

moves to dismiss the Complaint filed by Plaintiff Brickell Chiropractic Center, Inc. for lack of 

subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state 

a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for reasons stated in the following 

Memorandum of Law:

MEMORANDUM OF LAW

INTRODUCTION

Plaintiff attempts to represent a class action, alleging violation of the Telephone Consumer 

Protection Act and a common law claim for conversion. Plaintiff’s Complaint should be dismissed 

because it does not present an actual case or controversy as required by Article III of the U.S. 

Constitution. Defendant has served an offer of judgment pursuant to Federal Rule of Civil 

Procedure 68 that offers Plaintiff the maximum statutory damages and injunctive relieve sough tin 

the Complaint, together with its costs. Due to being offered full relief, Plaintiff does not have 

standing to pursue this litigation, either in its individual capacity or on behalf of an uncertain, 

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purported class of unnamed plaintiffs. Because Defendant is giving Plaintiff everything it seeks in 

its claim against them, this cause does not present a live case or controversy, as for subject matter 

jurisdiction. Therefore, the Court should dismiss the Complaint. 

FACTUAL BACKGROUND

Plaintiff Brickell Chiropractic Center, Inc. has filed a class action complaint against 

Defendant Diagnostic Center of America, Inc., alleging a claim for violation of the Telephone 

Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and a claim for common law conversion. 

The claims arise out of four faxes that Plaintiff alleges Defendant transmitted on October 25, 2018, 

October 26, 2018, October 29, 2018, and April 6, 2020. Complaint Exhibits A, B, C, and D. 

Plaintiff alleges that it is entitled to the maximum statutory amount of $500.00 available under 

Section 227(b)(3)(B) of the TCPA for the four faxes. Id. at pgs. 10-16. Plaintiff further requests 

that, should the Court determine that Defendant acted willful and knowingly, Plaintiff’s damages 

will be trebled to $1,500.00 for each fax pursuant to Section 227(b)(3)(C) of the TCPA. Id. at ¶ 

78.

Prior to filing this Motion, Defendant served Plaintiff with an Offer of Judgment, pursuant 

to which Defendant agreed to the following: 1) all judgment to be entered against it for six 

thousand dollars ($6,000.00); 2) all reasonable costs incurred by Plaintiff, to be decided by the 

court; 3) entry of a stipulated injunction enjoining Defendant from any future violation of 47 

U.S.C. § 227; and 4) any other relief which the Court determines to be necessary to fully satisfy 

all of the individual claims of Plaintiff. See attached Exhibit A. Therefore, the Offer of Judgment 

provide Plaintiff with the full relief requested in the Complaint. 

ARGUMENT

I. LEGAL STANDARD

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“Article III of the United States Constitution limits the jurisdiction of federal courts to 

‘Cases’ and ‘Controversies.’” Swann v. Sec’y of Georgia, 668 F.3d 1285, 1288 (11th Cir. 2012) 

(citation and quotations omitted). “The doctrine of mootness derives directly from the case-orcontroversy limitation because ‘an action that is moot cannot be characterized as an active case or 

controversy.’” Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (quoting Adler v. Duval 

County Sch. Bd., 112 F.3d 1475, 1377 (11th Cir 1997)). “An actual controversy must be extant at 

all stage sof review, not merely at the time the complaint is filed.” Genesis Healthcare Corp. v. 

Smymczyk, -- U.S. --, 133 S. Ct. 1523, 1528 (2013) (internal quotations omitted). A court case is 

moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest 

in the outcome.” Al Najjar, 273 F.3d at 1335-36 (quoting Powell v. McCormack, 384 U.S. 486, 

496 (1969)). A moot case “cannot present an Article III case or controversy,” and “the federal 

courts lack subject matter jurisdiction to entertain it.” Nat’l Adver. Co. v. City of Miami, 402 F.3d 

1329, 1332 (11th Cir. 2005) (quoting Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 

1327 (11th Cir. 2004)). “It is the plaintiff’s burden to show that a court has subject matter 

jurisdiction over his or her claims.” Telemax Entm’t, Inc. v. Telemundo Network, Inc., Case No. 

04-20150-CIV-GRAHAM, 2004 WL 3019373, at *2 (S.D. Fla. Dec. 16, 2004) (citations omitted). 

Federal Rule of Civil Porcedure 68 provides that, at least fourteen days before trial, a 

defending party may serve a plaintiff with an offer to allow a judgment on specified terms. 

Fed.R.Civ.P. 68(a). Whether or not the plaintiff accepts the offer, “generally, an offer of judgment 

providing the plaintiff with the maximum allowable relief will moot the plaintiff’s FDCPA claim.” 

Moten v. Broward Cnty., No. 10-62398-CIV, 2012 WL 526790, at *2 (S.D.Fla. Feb. 16, 2012) 

(quoting Moore v. Hecker, 250 F.R.D. 682, 684 (S.D. Fla. 2008)); see also Mackenzie v. Kindred 

Hosp. E., LLC, 276 F. Supp. 2d 1211, 1218-19 (M.D. Fla. 2003) (dismissing FLSA claim as moot 

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after plaintiff rejected Rule 68 offer where offer exceeded amount plaintiff could have received at 

trial); Ambalu v. Rosenblatt, 194 F.R.D. 451, 453 (E.D. N.Y. 2000) (same). Therefore, “Rule 68 

offers can be used to show that the court lacks subject matter jurisdiction.” Pollock v. Bay Area 

Credit Serv., LLC, No. 08–61101–CIV, 2009 WL 2475167, at *5 (S.D.Fla. Aug.13, 2009); see 

also Greisz v. Household Bank (Ill.), N.A., 176 F.3d 1012, 1015 (7th Cir.1999) (offer of judgment 

that encompasses the relief claimed “eliminates a legal dispute upon which federal jurisdiction can 

be based,” because “[y]ou cannot persist in suing after you've won”). In order to qualify as an offer 

of full relief, however, it must include an offer to have judgment entered against the defendant. 

See Zinni v. ER Solutions, Inc., No. 11–12413, 2012 WL 3641911 (11th Cir. Aug.27, 2012).

In Genesis, the U.S. Supreme Court considered whether in a Fair Labor Standards Act 

collective action, the plaintiff’s claim “remained justiciable” once the plaintiff’s induvial claim 

became moot. Id. at 1529. The Genesis Court assumed, without deciding, that “an offer that fully 

satisfies a plaintiff’s claim is sufficient to render the claim moot.” Id. at 1528-29. The Court then 

held that when the “individual claim became moot,” the class action became moot because the 

plaintiff “lacked any personal interest in representing others in this action.” Id. at 1529. 

The same principle was upheld in the Eleventh Circuit. “In a class action, the claim of the 

named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and 

when the district court determines whether to certify the putative class.” Tucker v. Phyfer, 819 

F.2d 1030, 1033 (11th Cir. 1987). If the named plaintiff’s claim is not live, the court lacks a 

justiciable controversy and must dismiss the claim as moot. See id. (holding that the named 

plaintiff’s putative class claim on behalf of incarcerated juveniles was moot where, when plaintiff 

sought class certification, he was no longer a juvenile). Therefore, when a defendant serves an 

offer of judgment for the full relief requested by the plaintiff, the plaintiff’s claim is moot, and the 

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putative class action should be dismissed. See Damasco, 662 F.3d at 896 (“To allow a case, not 

certified as a class action and with no motion for class certification even pending, to continue in 

federal court when the sole plaintiff no longer maintains a personal stake defies the limit of federal 

jurisdiction expressed in Article III”); Tucker, 819 F.2d at 1035 (holding that complaint should be 

dismissed where plaintiff “did not move the court to certify his class as a class until after his 

equitable claim had become moot”); Krzykwa, 2012 WL 6965716, at *5 (“Phusion’s offer to settle 

Plainitffs’ claims in full, which Phusion made before Plaintiffs moved to certify the class, render 

Plaintiffs’ claims moot.”). 

II. BECAUSE DEFENDANT HAS OFFERED PLAINIFF THE FULL AND 

COMPLETE RELIEF SOUGHT IN THIS CASE, ITS CLAIM IS MOOT, AND 

THERE IS NO SUBJECT MATTER JURISDICTION OVER ITS COMPLAINT.

The Complaint should be dismissed because Defendant’s Offer of Judgment in this case 

renders Plaintiff’s claim moot. The terms of the Offer of Judgment are clear that they provide 

Plaintiff with the full relief requested in the Complaint. Plaintiff’s Complaint requests an award of 

statutory damages, costs, and an injunction. The Offer of Judgment offers Plaintiff the sum of 

$6,000.00, an award of costs, an injunction, and all other relief necessary to satisfy Plaintiff’s 

individual claim. Because Defendant has offered Plaintiff complete relief for its TCPA claim, it 

does not have Article III standing and its claim are moot. Without a personal stake in the litigation, 

Plaintiff cannot represent the putative class alleged in the Complaint. For these reasons, the 

Complaint should be dismissed. 

III. BECAUSE THE FEDERAL CLAIMS LACK STANDING, THE SUPPLMENTAL 

CONVERSION CLAIM SHOULD BE DISMISSED. 

Because Plaintiff’s TCPA claim is moot, the Court no longer has subject matter jurisdiction 

over this matter pursuant to 28 U.S.C. § 1331. As a result, the Court should decline to exercise 

supplement jurisdiction over Plaintiff’s state law claim of conversion. Baggett v. First Nat’l Bank 

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of Gainsville, 117 F.3d 1342, 1352 (11th Cir. 1997) (dismissing state law claims). Even though 

dismissal of an underlying federal question claim does not automatically deprive a court of 

supplemental jurisdiction, “§ 1367(c) permits a court to dismiss any state law claims where the 

court has dismissed all claims over which it had original jurisdiction.” Baggett, 117 F.3d at 1352. 

In this case, because Defendant made an Offer of Judgment over the TCPA claim, it is moot, and 

this Court should decline to exercise supplemental jurisdiction over the state law conversion claim. 

IV. THE CONVERSION CLAIM SHOULD BE DISMISSED FOR FAILURE TO 

STATE A CLAIM BECAUSE THE DAMAGES ARE NEGLIGIBLE. 

Count II of the complaint should be dismissed for failure to state a claim upon which relief 

may be granted. Courts are instructed to dismiss a complaint pursuant to Federal Rule of Civil 

Procedure 12(b)(6) if it does not provide enough factual information to “state a claim to relief that 

is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555, 559 (2007). “The plausibility standard . . . asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It 

is axiomatic that “[w]here a complaint pleads facts that are merely consistent with a defendant’s 

liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id.

When evaluating whether a complaint states a plausible claim for relief, the courts are instructed 

“to draw on [their] judicial experience and common sense.” Id. With that in mind, courts “need 

not accept factual claims that are internally inconsistent; facts which run counter to facts of which 

the court can take judicial notice; conclusory allegations; unwarranted deductions; or mere legal 

conclusions asserted by a party.” Response Oncology, Inc. v. MetraHealth Ins. Co., 978 F. Supp. 

1052, 1058 (S.D. Fla. 1997); see also Oxford Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188 

(11th Cir. 2002) (“[C]conclusory allegations, unwarranted deductions of fact or legal conclusions 

masquerading as facts will not prevent dismissal.”) 

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Count II of the Complaint should be dismissed because to prevail on a conversion claim, 

"a plaintiff must allege that a defendant intentionally exercised dominion or control over chattel, 

which 'so seriously interferes with the right of another to control it that the actor may justly be 

required to pay the other the full value of the chattel!" Neurocare Inst. of Cent. Fla., P.A. v. 

Healthtap, Inc., 8 F. Supp. 3d 1362, 1368 (M.D. Fla. 2014) (quoting Restatement (Second) of Torts 

§ 222A). Furthermore, in Neurocare the Plaintiff alleged that the defendant Healthtrap "converted 

fax machines, toner, paper and employee time when printing the faxes." Id. However, the court 

dismissed the conversion claim and reasoned that "[because the alleged interference is not serious, 

major, or important, the complaint fails to state a conversion claim. Even if the interference 

suffered by the more than 39 putative class members is aggregated, it would still be insignificant." 

Here, the Plaintiff is also alleging the conversion of fax machines, paper, toner and 

employee time based on the receipt of four unsolicited faxes. Even if true, the this does not cause 

an interference that would require the payment of the full value of the chattel and any interference 

is not serious, major, or important. Therefore, like in Neurocare the complaint fails to state a 

conversion claim and should be dismissed with prejudice. 

DATED: December 1, 2022

Respectfully submitted,

GALLARDO LAW OFFICE, P.A.

8492 Southwest 8th Street

Miami, Florida 33144

T: (305) 261 – 7000

By: /s/Maria Vargas

Maria Vargas-mejia-ricart, Esq.

Florida Bar No. 1019003

E: maria.vargas@gallardolawyers.com

/s/Paul Agbeyegbe

Paul Agbeyegbe, Esq.

Florida Bar No. 121458

E: paul.agbeyegbe@gallardolawyers.com

Counsel for Defendant Diagnostic Center of 

America Inc.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 1

st day of December 2022, I electronically filed the 

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

document is being served this day on all counsel of record identified below via transmission of 

Notices of Electronic Filing generated by CM/ECF and/or via electronic mail for those counsel 

that receive Notices of Electronic Filing generated by CM/ECF

BOCK HATCH & OPPENHEIM, LLC

Phillip A. Bock, Esq.

820 w. 41ST Street

#305

Miami Beach, Florida 33140

Email: phil@classlawyers.com

service@classlawyers.com

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Exhibit “A”

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-cv-61993-CMA

Brickell Chiropractic Center, Inc., et . al,

Plaintiff(s),

v.

Diagnostic Center of America Inc,

Defendant(s.

___________________________________/

DEFENDANT’S OFFER OF JUDGMENT TO 

BRICKELL CHIROPRACTIC CENTER, INC

TO: Phillip A. Bock

c/o Bock Hatch & Oppenheim, LLC

820 West 41 Street #300

Miami Beach, Florida 33140

phil@classlawyers.com

service@classlawyers.com

Pursuant to Rule 68 of the Federal Rules of civil Procedure, Defendant, Diagnostic Center 

of America Inc., hereby offers to allow judgment to be entered against it in this action in the amount 

of SIX THOUSAND DOLLARS AND NO CENTS ($6,000.00) as well as all reasonable costs 

incurred to date by Brickell Chiropractic Center, Inc. to be decided by the Court, and entry of a 

stipulated injunction enjoining the Defendant from any future violation of 47 U.S.C. 227. The offer 

extended herein is intended to fully satisfy the individual claims of Brickell Chiropractic Center, 

Inc., made in this action or which could have been made in this action, and to the extent the offer 

extended does not do so, Defendant Diagnostic Center of America Inc., hereby offers to provide 

Brickell Chiropractic Center, Inc., with any other relief which is determined by the Court to be 

necessary to fully satisfy all of the individual claims of Brickell Chiropractic Center, Inc., in the 

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action. This offer of judgment is made for the purposes specified in Federal Rule of Civil Procedure 

68 and is not to be construed as either an admission that Defendant, Diagnostic Center of America, 

Inc., is liable in this action, or that the Plaintiff, Brickell Chiropractic Center, Inc., has suffered 

any damage. This Offer of Judgement shall not be filed with the Court unless (a) accepted or (b) 

in a proceeding to determine costs. The Plaintiff must serve written acceptance of this officer 

within fourteen (14) days, or this offer will be deemed rejected.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic 

mail (email) on this 30th day of November, 2022, at the designated email address of 

phill@classlawyers.com and service@classlawyers.com; and will be mailed by U.S. Mail to 

Phillip A Bock, Esq at Bock Hatch & Oppenheim, LLC., 820 West 41 Street #300, Miami 

Beach, Florida 33140 on December 1st, 2022. 

GALLARDO LAW FIRM, P.A.

Attorney(s) for Defendant

8492 SW 8th Street

Miami, Florida 33144

Telephone: (305) 261-7000

By: /s/ Maria Vargas-Mejia-Ricart

Maria Vargas-Mejia-Ricart, Esq.

Florida Bar No. 1019003

Email: civil@gallardolawyers.com;

María.vargas@gallardolawyers.com and

efiling@gallardolawyers.com

and 

By: /s/ Paul Agbeyegbe

Paul Agbeyegbe, Esq.

Florida Bar No. 121458

Email: civil@gallardolawyers.com;

paul.agbeyegbe@gallardolawyers.com

efiling@gallardolawyers.com

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