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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MARIA FERNANDA SOTO LEIGUE, individually 

and on behalf of all others similarly situated, 

 Plaintiff, 

vs. 

EVERGLADES COLLEGE INC. d/b/a KEISER 

UNIVERSITY, 

 Defendant. 

______________________________________/

CLASS ACTION 

Case No. 1:22-cv-22307-BB 

 

 JURY TRIAL DEMANDED

PLAINTIFF’S MOTION TO SEVER AND REMAND 

 Plaintiff Maria Fernanda Soto Leigue moves to sever and remand to state court Count I of her 

First Amended Complaint, [DE 13], and in support states as follows: 

1. Plaintiff originally filed this putative class action in the Eleventh Circuit in and for 

Miami-Dade County asserting violations of the FTSA. On July 22, 2022, Defendant removed the case. 

2. Count I of Plaintiff’s operative First Amended Complaint alleges that Defendant 

violated section 501.059(8)(a) of the FTSA by sending text messages to Plaintiff and the FTSA 

class members without the requisite express written consent. 

3. Count II of Plaintiff’s operative First Amended Complaint alleges that Defendant 

violated section 501.059(5) of the FTSA by sending text messages to Plaintiff and the Internal Do 

Not Call class members after requests for Defendant to stop sending its solicitations. 

4. Recently, several courts in this District and the Middle District of Florida have held that 

there is no Article III standing for claims involving text message violations under section 501.059(8)(a) 

of the FTSA (i.e., Count I of Plaintiff’s First Amended Complaint). See George v. Ebay Inc., No. 

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8:22-cv-2751-WFJ-AEP, 2023 U.S. Dist. LEXIS 17834 (M.D. Fla. Feb. 2, 2023); Fontanez v. 

Wolverine World Wide, Inc., No. 8:22-cv-2538-KKM-TGW, 2022 U.S. Dist. LEXIS 232164 (M.D. 

Fla. Dec. 27, 2022); Muccio v. Glob. Motivation, Inc., No. 22-81004-CIV-CAN, 2022 U.S. Dist. LEXIS 

231882 (S.D. Fla. Dec. 22, 2022); Iuliano v. UnitedHealth Grp., Inc., No. 8:22-cv-2299-SDM-JSS, 

2022 U.S. Dist. LEXIS 234335 (M.D. Fla. Dec. 9, 2022); Frater v. Lend Smart Mortg., LLC, Civil 

Action No. 22-22168-Civ, 2022 U.S. Dist. LEXIS 175183 (S.D. Fla. Sep. 27, 2022). 

5. Conversely, recent decisions – including from the Eleventh Circuit and this Court – 

support finding Article III standing for Count II of Plaintiff’s First Amended Complaint. See Grieben v. 

Fashion Nova, Inc., No. 22-cv-60908, 2022 U.S. Dist. LEXIS 178319 (S.D. Fla. Sep. 27, 2022) (“the 

named plaintiff in Cordoba repeatedly asked not to be called....As a result, the Eleventh Circuit 

concluded that the named plaintiff had standing.”) (citing Cordoba v. DirecTV, LLC, 942 F.3d 1259, 

1271-72 (11th Cir. 2019)); (“‘Unwanted’ in the context of the statute at issue in our case and 

in Glasser refers to the fact that individuals, though never asking not to be called, were called by 

allegedly prohibited means under the TCPA—automatic telephone dialing systems....In Cordoba, 

people asked not to be called—period.”); Drazen v. Pinto, 41 F.4th 1354, n.14 (11th Cir. 2022); Farhat 

v. Unique Healthcare Sys., No. 8:21-cv-1319-SDM-JSS, 2022 U.S. Dist. LEXIS 4800 (M.D. Fla. Jan. 

11, 2022) (“Although a single text message cannot confer standing, four text messages sent in 

contravention of an instruction to ‘STOP’ plausibly confer standing and certainly warrant an opportunity 

to develop the record.”) (citing Teblum v. Physician Compassionate Care LLC, 2020 U.S. Dist. LEXIS 

52386, 2020 WL 10502588 (M.D. Fla. 2020)). 

6. If this Court agrees that Article III standing is lacking with respect to Count I of 

Plaintiff’s First Amended Complaint, it should, respectfully, sever Count I from the First Amended 

Complaint and remand it to state court. See Stacy v. Dollar Tree Stores, Inc., 274 F. Supp. 3d 1355, 

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1366 (S.D. Fla. 2017) (“But for cases removed here, the claims over which the Court lacks jurisdiction 

must be severed from the claim over which the Court does have jurisdiction, with the severed claims 

being remanded to the state-court forum.”) (citing 28 U.S.C. § 1447(c) (“If at any time before final 

judgment it appears that the district court lacks subject matter jurisdiction, the case shall be 

remanded); 28 U.S.C. § 1441(c)(2) (requiring severance and remand of claims removed to federal court 

over which the court lacks jurisdiction)); Colon v. Dynacast, LLC, No. 20-cv-3317, 2021 U.S. Dist. 

LEXIS 25484, at *12 (N.D. Ill. Feb. 10, 2021) (“Therefore, the Court severs and remands 

Plaintiff's section 15(a) claim for lack of subject matter jurisdiction and retains jurisdiction over the 

remaining claims.”) (citing 28 U.S.C. § 1441(c)); Marquez v. Google LLC, No. 20 C 4454, 2020 U.S. 

Dist. LEXIS 199098 (N.D. Ill. Oct. 27, 2020) (“When a case is filed in state court and removed to 

federal court, and when the federal court finds it lacks subject matter jurisdiction, the appropriate 

disposition is a remand to state court under 28 U.S.C. § 1447(c).... Where, as here, the court lacks 

jurisdiction only over a portion of a suit, it should remand only that portion.”) (citing Collier v. SP Plus 

Corp., 889 F.3d 894, 897 (7th Cir. 2018); Bergquist v. Mann Bracken, LLP, 592 F.3d 816, 819 (7th Cir. 

2010) (“If some portions of a single suit are within federal jurisdiction, while others are not, the federal 

court must resolve the elements within federal jurisdiction and remand the rest.”)); King v. PeopleNet 

Corp., No. 21 CV 2774, 2021 U.S. Dist. LEXIS 207694, at *12 (N.D. Ill. Oct. 28, 2021) (“Plaintiff's 

motion to remand, [18], is granted. King's claims under BIPA § 15(a) and (c) are severed and 

remanded.”). 

WHEREFORE, Plaintiff respectfully request an Order severing and remanding Count I of her 

First Amended Complaint. 

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CERTIFCATE OF CONFERRAL 

 The undersigned conferred telephonically with Defendant’s counsel regarding the instant 

motion and subsequently via e-mail and has been advised that Defendant opposes the instant motion. 

DATED: February 14, 2023 

Respectfully submitted, 

HIRALDO P.A. 

/s/ Manuel S. Hiraldo 

Manuel S. Hiraldo, Esq. 

Florida Bar No. 030380 

401 E. Las Olas Boulevard 

Suite 1400 

Ft. Lauderdale, Florida 33301 

Email: mhiraldo@hiraldolaw.com 

Telephone: 954.400.4713 

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