1

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

DANIEL HERNANDEZ, individually and on 

behalf of all others similarly situated,

 Plaintiff,

vs.

MIAMI AUTOMOTIVE RETAIL, INC. d/b/a

BRICKELL MAZDA,

 Defendant.

______________________________________/

CLASS ACTION

Case No. 

 

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

Plaintiff Daniel Hernandez brings this class action against Defendant Miami Automotive Retail, 

Inc. d/b/a Brickell Mazda and alleges as follows upon personal knowledge as to Plaintiff and Plaintiff’s 

own acts and experiences, and, as to all other matters, upon information and belief, including 

investigation conducted by Plaintiff’s attorneys.

NATURE OF THE ACTION

1. This is a class action under the Florida Telephone Solicitation Act (“FTSA”), Fla. 

Stat. § 501.059, as amended by Senate Bill No. 1120.1 

2. Defendant is an automotive dealership that sells vehicles to businesses and 

consumers. 

3. To promote its goods and services, Defendant engages in telephonic sales calls to 

consumers without having secured prior express written consent as required by the FTSA. 

1 The amendment to the FTSA became effective on July 1, 2021.

Filing # 139670653 E-Filed 12/03/2021 12:20:25 PM Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 1 of 9
2

4. Defendant’s telephonic sales calls have caused Plaintiff and the Class members 

harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and 

invasion of their privacy. 

5. Through this action, Plaintiff seeks an injunction and statutory damages on behalf 

of himself and the Class members, as defined below, and any other available legal or equitable 

remedies resulting from the unlawful actions of Defendant.

PARTIES

6. Plaintiff is, and at all times relevant hereto was, an individual and a “called party” 

as defined by Fla. Stat. § 501.059(1)(a) in that he was the regular user of telephone number ***-

***-9928 (the “9928 Number”) that received Defendant’s telephonic sales calls.

7. Defendant is, and at all times relevant hereto was, a Florida corporation and a 

“telephone solicitor” as defined by Fla. Stat. § 501.059(f). Defendant maintains its primary place 

of business and headquarters in Miami, Florida. Defendant directs, markets, and provides business 

activities throughout the State of Florida and the United States.

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction pursuant to Florida Rule of Civil 

Procedure 1.220 and Fla. Stat. § 26.012(2). The matter in controversy exceeds the sum or value of 

$30,000 exclusive of interest, costs, and attorney’s fees.

9. Defendant is subject to personal jurisdiction in Florida because this suit arises out 

of and relates to Defendant’s contacts with this state. Defendant made or caused to be made 

telephonic sales calls into Florida without the requisite prior express written consent in violation 

of the FTSA. Plaintiff received such calls while residing in and physically present in Florida.

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 2 of 9
3

10. Venue for this action is proper in this Court pursuant to Fla. Stat. § 47.051 because 

Defendant (1) is a Florida corporation doing business in this state; and (2) has an agent or other 

representative in Florida. 

FACTS

11. On or about October 6, 2021, Defendant sent the following telephonic sales calls to 

Plaintiff’s cellular telephone number:

12. As demonstrated by the above screenshots, the purpose of Defendant’s telephonic 

sales calls was to solicit the sale of consumer goods and/or services.

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 3 of 9
4

13. Upon information and belief, Defendant caused similar telephonic sales calls to be 

sent to individuals residing in Florida and throughout the United States. 

14. Plaintiff is the regular user of the telephone number that received the above

telephonic sales calls.

15. To 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.

16. Plaintiff never provided Defendant with express written consent authorizing 

Defendant to transmit telephonic sales calls to Plaintiff’s cellular telephone number utilizing an 

automated system for the selection or dialing of telephone numbers.

17. Defendant’s telephonic sales calls caused Plaintiff and the Class members harm, 

including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance. 

CLASS ALLEGATIONS

PROPOSED CLASS

18. Plaintiff brings this lawsuit as a class action on behalf of himself individually and 

on behalf of all other similarly situated persons as a class action pursuant to Florida Rule of Civil 

Procedure 1.220(b)(2) and (b)(3). The “Class” that Plaintiff seeks to represent is defined as:

All persons in the United States who, (1) were sent a telephonic sales 

call regarding Defendant’s goods and/or services, (2) using the 

same equipment or type of equipment utilized to call Plaintiff.

19. Defendant and its employees or agents are excluded from the Class. Plaintiff does 

not know the exact number of members in the Class but believes the Class members number in the 

several thousands, if not more.

NUMEROSITY

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 4 of 9
5

20. Upon information and belief, Defendant has placed telephonic sales calls to 

telephone numbers belonging to thousands of consumers listed throughout Florida without their 

prior express written consent. The members of the Class, therefore, are believed to be so numerous 

that joinder of all members is impracticable.

21. The exact number and identities of the Class members are unknown at this time and 

can be ascertained only through discovery. Identification of the Class members is a matter capable 

of ministerial determination from Defendant’s call records.

COMMON QUESTIONS OF LAW AND FACT

22. There are numerous questions of law and fact common to the Class which 

predominate over any questions affecting only individual members of the Class. Among the 

questions of law and fact common to the Class are: [1] Whether Defendant initiated telephonic 

sales calls to Plaintiff and the Class members; [2] Whether Defendant can meet its burden of 

showing that it had prior express written consent to make such calls; and [3] Whether Defendant 

is liable for damages, and the amount of such damages.

23. The common questions in this case are capable of having common answers. If 

Plaintiff’s claim that Defendant routinely transmits telephonic sales calls without prior express 

written consent is accurate, Plaintiff and the Class members will have identical claims capable of 

being efficiently adjudicated and administered in this case.

TYPICALITY

24. Plaintiff’s claims are typical of the claims of the Class members, as they are all 

based on the same factual and legal theories.

PROTECTING THE INTERESTS OF THE CLASS MEMBERS

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 5 of 9
6

25. Plaintiff is a representative who will fully and adequately assert and protect the 

interests of the Class and has retained competent counsel. Accordingly, Plaintiff is an adequate 

representative and will fairly and adequately protect the interests of the Class.

SUPERIORITY

26. A class action is superior to all other available methods for the fair and efficient 

adjudication of this lawsuit because individual litigation of the claims of all members of the Class 

is economically unfeasible and procedurally impracticable. While the aggregate damages sustained 

by the Class are in the millions of dollars, the individual damages incurred by each member of the 

Class resulting from Defendant’s wrongful conduct are too small to warrant the expense of 

individual lawsuits. The likelihood of individual Class members prosecuting their own separate 

claims is remote, and, even if every member of the Class could afford individual litigation, the 

court system would be unduly burdened by individual litigation of such cases.

27. The prosecution of separate actions by members of the Class would create a risk of 

establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For 

example, one court might enjoin Defendant from performing the challenged acts, whereas another 

may not. Additionally, individual actions may be dispositive of the interests of the Class, although 

certain class members are not parties to such actions.

COUNT I

VIOLATION OF FLA. STAT. § 501.059

(On Behalf of Plaintiff and the Class)

28. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth 

herein.

29. It is a violation of the FTSA to “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 

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 6 of 9
7

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).

30. 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, 

soliciting an extension of credit for consumer goods or services, or obtaining information that will 

or may be used for the direct solicitation of a sale of consumer goods or services or an extension 

of credit for such purposes.” Fla. Stat. § 501.059(1)(g).

31. “Prior express written consent” means an agreement in writing that: 

1. Bears the signature of the called party;

2. Clearly authorizes the person making or allowing the placement of a telephonic 

sales call by telephone call, text message, or voicemail transmission to deliver 

or cause to be delivered to the called party a telephonic sales call using an 

automated system for the selection or dialing of telephone numbers, the playing 

of a recorded message when a connection is completed to a number called, or 

the transmission of a prerecorded voicemail;

3. Includes the telephone number to which the signatory authorizes a telephonic 

sales call to be delivered; and

4. Includes a clear and conspicuous disclosure informing the called party that:

a. By executing the agreement, the called party authorizes the person

making or allowing the placement of a telephonic sales call to deliver or

cause to be delivered a telephonic sales call to the called party using 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; and

b. He or she is not required to directly or indirectly sign the written

agreement or to agree to enter into such an agreement as a condition of

purchasing any property, goods, or services.

Fla. Stat. § 501.059(1)(g).

32. Defendant failed to secure prior express written consent from Plaintiff and the Class 

members. 

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 7 of 9
8

33. In violation of the FTSA, Defendant made and/or knowingly allowed telephonic 

sales calls to be made to Plaintiff and the Class members without Plaintiff’s and the Class 

members’ prior express written consent. 

34. Defendant made and/or knowingly allowed the telephonic sales calls to Plaintiff 

and the Class members to be made utilizing an automated system for the selection or dialing of 

telephone numbers.

35. As a result of Defendant’s conduct, and pursuant to § 501.059(10)(a) of the FTSA, 

Plaintiff and Class members were harmed and are each entitled to a minimum of $500.00 in 

damages for each violation. Plaintiff and the Class members are also entitled to an injunction 

against future calls. Id.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the Class, prays for the following 

relief:

a) An order certifying this case as a class action on behalf of the Class as defined above, 

and appointing Plaintiff as the representative of the Class and Plaintiff’s counsel as Class 

Counsel;

b) An award of statutory damages for Plaintiff and each member of the Class;

c) An order declaring that Defendant’s actions, as set out above, violate the FTSA;

d) An injunction requiring Defendant to cease all telephonic sales calls made without 

express written consent, and to otherwise protect the interests of the Class;

e) Such further and other relief as the Court deems necessary. 

JURY DEMAND

Plaintiff, individually and on behalf of the Class, hereby demand a trial by jury.

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 8 of 9
9

DOCUMENT PRESERVATION DEMAND

Plaintiff demands that Defendant take affirmative steps to preserve all records, lists, electronic 

databases or other itemization of telephone numbers associated with the communications or transmittal 

of the calls as alleged herein.

Dated: December 3, 2021

Respectfully Submitted,

EDELSBERG LAW P.A.

/s/ Scott Edelsberg_

Scott Edelsberg, Esq.

Florida Bar No. 0100537

20900 NE 30th Ave., Suite 417

Aventura, Florida 33180

Telephone: 305-975-3320

Email: scott@edelsberglaw.com

SHAMIS & GENTILE, P.A.

/s/ Andrew Shamis

Andrew J. Shamis, Esq.

Florida Bar No. 101754

ashamis@shamisgentile.com

/s/ Garrett Berg_

Garrett O. Berg, Esq.

Florida Bar No. 1000427

gberg@shamisgentile.com

14 NE 1st Ave., Suite 705

Miami, Florida 33132

Telephone: 305-479-2299

Counsel for Plaintiff and the Class.

Case 1:22-cv-23958-DPG Document 1-2 Entered on FLSD Docket 12/05/2022 Page 9 of 9