Lawsuit Filed for Unsolicited Text Messages Violating Telephone Consumer Protection Act, Summaries of Law

Download Lawsuit Filed for Unsolicited Text Messages Violating Telephone Consumer Protection Act and more Summaries Law in PDF only on Docsity! IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CASE NO. _________________ JOHN NORTHRUP, Individually and on behalf of a Class of Similarly Situated Individuals, Plaintiff, vs. RAY SCOTT RISTER; COMPLIANCE EDUCATORS, LLC; and DOT COMPLIANCE GROUP, LLC, Defendants. ______________________________________/ CLASS ACTION COMPLAINT Plaintiff John Northrup, on behalf of himself and all others similarly situated, alleges and avers as follows: INTRODUCTION 1. Plaintiff brings this Class Action Complaint for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Roy Scott Rister; Compliance Educators, LLC; and DOT Compliance Group, LLC (“Defendants”), in negligently, and/or willfully contacting Plaintiff through SMS or “text” messages on Plaintiff’s cellular telephone, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby invading Plaintiff’s privacy. Plaintiff alleges as follows upon personal knowledge as to his own acts and experiences, and, as to all other matters, upon information and belief, including investigation conducted by his attorneys. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 1 of 16 PageID 1 2 PARTIES 2. Plaintiff John Northrup is an individual who resides in Hillsborough County, Florida. 3. Defendant RAY SCOTT RISTER (also known as Scott Rister) is an individual who resides at 134 Taylors Bend, Haughton, Louisiana, 71037. 4. Defendant COMPLIANCE EDUCATORS, LLC is a Louisiana limited liability company that can be served through its registered agent for service, Ray Scott Rister, at its registered address, 134 Taylors Bend, Haughton, Louisiana, 71037. 5. Defendant DOT COMPLIANCE GROUP, LLC is a Louisiana limited liability company, formed on July 15, 2013, that can be served through its registered agent for service, Ray Scott Rister, at its registered address, 134 Taylors Bend, Haughton, Louisiana, 71037. JURISDICTION AND VENUE 6. This Court has jurisdiction over this action and all the Defendants pursuant to 28 U.S.C. § 1331 in that this action arises under a United States federal statute, specifically the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”). The TCPA specifically authorizes this Court to exercise jurisdiction. 7. Jurisdiction is also proper under 28 U.S.C. § 1332(d)(2) because Plaintiff seeks up to $1,500 in damages for each text message in violation of the TCPA, which, when aggregated among a proposed class number of more than five thousand, exceeds the $5,000,000 threshold for federal court jurisdiction. Further, Plaintiff allege a national class, which will result in at least one class member belonging to a different state than that of Defendants, providing jurisdiction under Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 2 of 16 PageID 2 5 that if I receive another text again then legal action will be taken to get them to cease and desist. They messaged again on 12/18/14 and once again today 12/22/14. I messaged them via their website http://www.complianceeducators.com/contact In the message I stated the information I mentioned above. I also tried to call the phone number not found on their site but through the better business bureau. I left a message saying to remove my company's information from their database and to never contact me again in any way shape or form. They are a company trying to sell compliance information which I already have access too> i'm based in oregon and I own a trucking company which is always up to date and current with all state and federal regulations and I do not need the help of Compliance Educators, LLC. They have become very bothersome and their text messages are costing me money. Thanks for your help. I wish for them to stop all forms of contact to me, my business and/or my employee(s). (3) 06/29/2016 Texting to my personal cell phone false information on keeping my driver's license. This number is registered on the Do Not Call registry No phone number on their web site. to unsubscribe they ask for more personal information whish is probably used to harvest more ways to spam. Found the telephone number on this site. I called and the man that answered was rude, asked me if I had a drug or alcohol problem and if that is why I am calling. I asked him to place my number on their Do Not Call list and to stop texting. He immediately hung up. Get them to stop using illegal advertising by texting to numbers not wishing their contact. (4) 06/29/2016 This company send out text messages that say that it is MANDATORY to by FEDERAL LAW that we HAVE TO purchase and go through their classes. If the BBB could hunt, find and destroy this and these companies, THAT WOULD BE THE BEST RESULT. (5) 06/28/2016 Federal Regulations require a phone number on unsolicited faxes sent in order to opt out. The "marketing" fax junk mail they sent does not. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 5 of 16 PageID 5 6 Remove us from your fax AND comply with Federal Regulations immediately. (6) 01/04/2016 I have sent repeated requests to be REMOVED from their mass fax advertising, which they have not complied with at all. We receive on at least a monthly basis that we have to perform MANDATORY DOT SUPERVISOR COMPLIANCE TRAINING. For ONLY $99 they will make sure we are properly trained. We do not do and will not do business with this company. We have sent repeated requests (their email address DOES NOT work) via fax to REMOVE us from their contact list PERMANENTLY. They ignore us. Please contact Compliance Educators LLC to have them permanently remove us from their contact list, via email, fax or phone. We DO NOT want any contact from them. We DO NOT want any contact from this entity, in any way, shape or form 14. An “SMS message” is a text message directed to a wireless device through the use of the telephone number assigned to the device. For purposes of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), a text message is considered to be a call. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14115, ¶ 165 (2003) (“2003 TCPA Order”). 15. When an SMS or “text” message call is successfully made, the recipient’s cell phone rings or otherwise notifies the recipient of the text message that a text message is being received. 16. As cellular telephones are inherently mobile and are carried by their owners at all times, text messages are received by the called party virtually anywhere. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 6 of 16 PageID 6 7 17. Unlike standard advertising methods, bulk advertising by use of text messages cost recipients money, because cell phone users typically pay for the text messages they receive, either individually, or in bulk. 18. Over the course of an extended period beginning no later than in 2015, Defendants and their agents directed the mass transmission of text messages to the cell phones of persons they hoped were potential customers of Defendants’ services. 19. On October 3, 2016, at 12:03 pm, Plaintiff received the following unsolicited SMS or “text” message to his wireless phone: FRM: Compliance Notification MSG: DOT #1186534 ANGIE’S TRANSPORTATION, INC, Your annual UCR fee is due immediately regarding your DOT compliance: www.ExpressDotService.com/nd/MSSOMDM1NgEA 20. On November 22, 2016, at 12:24 pm, Plaintiff received the following unsolicited SMS or “text” message to his wireless phone: FRM: Compliance Notification SUBJ: DOT Notification MSG: [1/2] DOT #1186534 ANGIE’S TRANSPORTATION, INC, Your annual UCR fee is due immediately Regarding your DOT compliance: www.ExpressDotService.com/nd/MSSOMDM1NgEA 21. The website listed in the text, www.ExpressDotService.com is maintained by Defendants. 22. Plaintiff provided no consent to receive these text messages, which were sent by Defendants in an effort to promote the sale of their services to truck drivers. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 7 of 16 PageID 7 10 36. This suit seeks only statutory damages and injunctive relief on behalf of the Class, and it expressly is not intended to request any recovery for personal injury and claims related thereto. 37. The joinder of the Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the court. 38. The Class can be identified through Defendants’ records or Defendants’ agents’ records. 39. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. 40. The questions of law and fact to the Class predominate over questions which may affect individual Class members, including the following: a. Whether, within the four years prior to the filing of this Complaint, Defendants or their agents placed cellular telephone SMS or text messages for purposes of soliciting new customers without the recipients’ prior express consent; b. What systems and methodologies were used to collect the cell phone numbers, and send the text messages at issue in this case; c. Whether the systems used to place the cellular telephone SMS or text messages constituted automatic telephone dialing systems under the TCPA; d. Whether Defendants’ violation of the TCPA was willful or knowing, such that the award should be increased up to three times pursuant to 47 USC §227(b)(3)(c); and e. Whether Defendants and their agents should be enjoined from engaging in such conduct in the future. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 10 of 16 PageID 10 11 41. As a person who received at least one unsolicited telephone SMS or text message without his prior express consent, Plaintiff is asserting claims that are typical of the Class. 42. Plaintiff will fairly and adequately represent and protect the interests of the Class in that Plaintiff has no interests antagonistic to any member of the Class. 43. Plaintiff and the members of the Class have all suffered irreparable harm as a result of the Defendants’ unlawful and wrongful conduct. 44. Absent a class action, the Class will continue to face the potential for irreparable harm. In addition, these violations of law will be allowed to proceed without remedy and Defendants will likely continue such illegal conduct. 45. Because of the size of the individual Class member’s claims, few, if any, Class members could not afford to individually seek legal redress for the wrongs complained of herein. 46. Plaintiff has retained counsel experienced in handling class action claims of this nature. 47. A class action is a superior method for the fair and efficient adjudication of this controversy. 48. Class-wide damages are essential to induce Defendants to comply with federal law. 49. The interest of Class members in individually controlling the prosecution of separate claims against Defendants is small because the maximum statutory damages in an individual action for violation of the TCPA are minimal. Management of these claims is likely to present significantly fewer difficulties than those presented in many individual claims. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 11 of 16 PageID 11 12 50. Defendants have acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the Class as a whole. 51. The members of the Class are capable of being readily ascertained from the information and records in the possession or control of Defendants. 52. The Class members are so numerous that individual joinder of all members is impractical. 53. Plaintiff’s claims are typical of those of the Class and are based on the same legal and factual theories. 54. Plaintiff and his counsel will fairly and adequately represent and protect the interests of the Class. Plaintiff has been subject to the same unlawful acts as the rest of the Class members and is ready, willing and able to serve as a Class representative. Moreover, Plaintiff’s counsel are experienced in handling complex litigation, and have extensive class action experience and a long track record of successful prosecution of class action cases. Neither Plaintiff nor his counsel has any interest that might cause them not to vigorously pursue this action. 55. Certification of a Class under Fed. R. Civ. P. 23(b)(3) is appropriate in that Plaintiff and the Class members seek liquidated statutory monetary damages, common questions predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy. A class action will cause an orderly and expeditious administration of the Class members’ claims and economies of time, effort and expense will be fostered and uniformity of decisions will be ensured. Moreover, the individual Class members are Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 12 of 16 PageID 12 15 SECOND CAUSE OF ACTION KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. 61. Plaintiff incorporates by reference all of the above paragraphs 1-60 of this Complaint as though fully stated herein. 62. Upon information and belief, Defendants violations of the TCPA were willful and/or knowing. Accordingly, Plaintiff and the Class are entitled to have their awards increased to an amount not more than three times the $500 liquidated damages amount, or $1,500.00 per violation, pursuant to 47 U.S.C. § 227(b)(3)(B and C). WHEREFORE, Plaintiff respectfully requests the Court grant Plaintiff and the Class members the following relief against Defendants: As a result of Defendants’, and Defendants’ agents’, willful violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member $1,500.00 in statutory damages, per violation, pursuant to 47 U.S.C. § 227(b)(3)(B). f. Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff seeks injunctive relief prohibiting such conduct in the future. g. As a result of Defendants,’ and Defendants’ agents,’ willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member increased damages, as provided by statute, up to $1,500.00 per violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). h. Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. i. Any other relief the Court may deem just and proper. Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 15 of 16 PageID 15 16 JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable. Dated: March 3, 2017 Respectfully submitted, /s/ Seth M. Lehrman Seth M. Lehrman (Fla. Bar No. 132896) E-mail: seth@pathtojsutice.com FARMER, JAFFE, WEISSING, EDWARDS FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 and Cory S. Fein (Pro Hac Vice to be filed) E-mail: cory@coryfeinlaw.com CORY FEIN LAW FIRM 712 Main St., #800 Houston, TX 77002 Telephone: (281) 254-7717 Facsimile: (530) 748-0601 Attorneys for Plaintiff Case 8:17-cv-00538-SCB-TBM Document 1 Filed 03/06/17 Page 16 of 16 PageID 16 JS 44 (Rev. 11/15) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a)) 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust & Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation Student Loans 340 Marine Injury Product 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV 160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/ 190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange 195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions 196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts 362 Personal Injury - Product Liability Leave Act 893 Environmental Matters Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration 220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of 240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes Employment Other: 462 Naturalization Application 446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration Other 550 Civil Rights Actions 448 Education 555 Prison Condition 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an “X” in One Box Only) 1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another District (specify) 6 Multidistrict Litigation VI. CAUSE OF ACTION Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause: VII. REQUESTED IN COMPLAINT: CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND: Yes No VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE JOHN NORTHRUP, Individually and on behalf of a Class of Similarly Situated Individuals, RAY SCOTT RISTER; COMPLIANCE EDUCATORS, LLC; and DOT COMPLIANCE GROUP, LLC, Hillsborough FARMER, JAFFE, WEISSING, EDWARDS, FISTOS, LEHRMAN, P.A., 425 N. Andrews Ave., Suite 2, Fort Lauderdale, FL 33301; Tel: 954-524-2820 47 U.S.C. § 227 Violation of Telephone Consumer Protection Act 03/03/2017 /s/ Seth M. Lehrman Case 8:17-cv-00538-SCB-TBM Document 1-1 Filed 03/06/17 Page 1 of 1 PageID 17