Barnes v. Allsup Employment Services LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-21121-BLOOM/Otazo-Reyes

ANNETTE BARNES, individually

and on behalf of all others similarly

situated,

Plaintiff,

v.

ALLSUP EMPLOYMENT

SERVICES, LLC,

Defendant.

_____________________________/

ORDER ON MOTION FOR CLASS CERTIFICATION

THIS CAUSE is before the Court upon Plaintiff Annette Barnes’ (“Plaintiff”) Motion for

Class Certification, ECF No. [49] (“Motion”).1 Defendant Allsup Employment Services, LLC

(“Defendant” or “AES”) filed a Response in Opposition, ECF No. [56] (“Response”),2 to which

Plaintiff filed a Reply, ECF No. [74] (“Reply”). Plaintiff also filed a Notice of Supplemental

Authority, ECF No. [75], to which Defendant filed a Response, ECF No. [101]. The Court has

carefully reviewed the Motion, the record in this case, the applicable law, and is otherwise fully

advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

On March 2, 2021, Plaintiff filed her Complaint against Defendant in the Circuit Court of

the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, alleging that Defendant

violated the Telephone Consumer Protection Act (“TCPA”). See ECF No. [1-2] (“Complaint”).

1 Plaintiff filed an unredacted version of her Motion under seal, ECF No. [48].

2 Defendant filed an unredacted version of its Response under seal, ECF No. [57]. Defendant also filed a

Notice of Filing of Corrected Exhibits. See ECF Nos. [59], [60].

According to the Complaint, Defendant transmitted calls using an artificial or prerecorded voice

to the telephone numbers of Plaintiff and members of the putative classes in violation of the TCPA.

See id. The Complaint alleges three counts on behalf of Plaintiff individually and on behalf of two

putative classes: a violation of 47 U.S.C. § 227(b) brought on behalf of Plaintiff individually and

on behalf of the “No Consent Class” (“Count I”); a violation of 47 C.F.R. § 64.1200 brought on

behalf of Plaintiff individually and on behalf of the “No Consent Class” (“Count II”); and a

violation of 47 U.S.C. § 227(b) brought on behalf of Plaintiff individually and on behalf of the

“Do Not Call Registry Class” (“Count III”).3 See id. Defendant subsequently removed the case to

this Court. See ECF No. [1].

On October March 14, 2022, Plaintiff filed the instant Motion seeking class certification

pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). ECF No. [48]. Plaintiff proposes the following class

and subclass:

CLASS: All persons who AES called from December 2020 to July 2021 using the

OCX Platform and for which AES’s call records reflect a disposition of

“MESSAGE_PLAYED” and “ANSWERING_MACHINE”.

SUBCLASS: All persons whose cellular telephones AES called from December

2020 to July 2021 using the OCX Platform and for which AES’s call records reflect

a disposition of “MESSAGE_PLAYED” and “ANSWERING_MACHINE”.

Id. at 6 (emphasis in original).

Defendant responds that Plaintiff’s proposed class and subclass do not meet the

requirements of Fed. R. Civ. P. 23(a) and 23(b)(3) because (1) individual fact questions

predominate and are not subject to common proof; (2) Plaintiff is an atypical and inadequate class

3 It appears that Count III may have contained a scrivener’s error. Plaintiff may have intended to assert a

claim for a violation of 47 U.S.C. § 227(c), as opposed to 47 U.S.C. § 227(b), on behalf of herself and the

“Do No Call Registry Class.” See ECF No. [1-2] ¶¶ 56, 58. However, the error is immaterial for the

purposes of this Motion because Plaintiff appears to have abandoned the “Do Not Call Registry Class” and

the dispositive issue of standing does not hinge on whether the claim is brought under 47 U.S.C. § 227(b)

or 47 U.S.C. § 227(c). See ECF No. [48] at 6.

representative; and (3) Plaintiff’s proposed class and subclass are not superior or manageable. See

generally ECF No. [57]. Plaintiff replies that Defendant creates a host of nonexistent

individualized issues in its Response and requests that the Court improperly make determinations

on the merits of the case. See generally ECF No. [74].

II. LEGAL STANDARD

District courts have broad discretion in deciding whether to certify a class. See Washington

v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). To certify a class

action, the putative class must satisfy “the four requirements listed in Rule 23(a), and the

requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v. Vital Pharm., Inc., 621 F. App’x

945, 946 (11th Cir. 2015) (citing Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.

2012)); see also Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he

putative class must meet each of the four requirements specified in [Rule] 23(a), as well as at least

one of the three requirements set forth in [Rule] 23(b).”); Rutstein v. Avis Rent-A-Car Sys., Inc.,

211 F.3d 1228, 1233 (11th Cir. 2000) (“A class action may be maintained only when it satisfies

all of the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of

Rule 23(b).” (quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)).

“Under Rule 23(a), every putative class first must satisfy the prerequisites of numerosity,

commonality, typicality, and adequacy of representation.” Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009) (quoting Fed. R. Civ. P. 23(a); Valley Drug Co. v. Geneva Pharms.,

Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003)) (internal quotation marks omitted). Next, under

Rule 23(b)(3), class certification is appropriate if:

(3) the court finds that the questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a

class action is superior to other available methods for fairly and efficiently

adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or

defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already

begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims

in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).

“The burden of establishing these requirements is on the plaintiff who seeks to certify the

suit as a class action.” Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997); see also

Rutstein, 211 F.3d at 1233. The moving party “must affirmatively demonstrate his compliance”

with the class certification requirements. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)

(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). That is, “a party must not

only be prepared to prove that there are in fact sufficiently numerous parties, common questions

of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule

23(a) [but also] satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id.

(emphasis in original). “A district court must conduct a rigorous analysis of the Rule 23

prerequisites before certifying a class.” Vega, 564 F.3d at 1266 (quoting Castano v. Am. Tobacco

Co., 84 F.3d 734, 740 (5th Cir. 1996)).

III. DISCUSSION

As noted above, Plaintiff seeks class certification pursuant to Fed. R. Civ. P. 23(a) and

23(b)(3). ECF No. [48]. Defendant responds that Plaintiff’s proposed class and subclass do not

meet the requirements of Fed. R. Civ. P. 23(a) and 23(b)(3) because (1) individual fact questions

predominate and are not subject to common proof; (2) Plaintiff is an atypical and inadequate class

representative; and (3) Plaintiff’s proposed class and subclass are not superior or manageable. See

generally ECF No. [57]. Plaintiff replies that Defendant creates a host of nonexistent

individualized issues in its Response and requests that the Court improperly make determinations

on the merits of the case. See generally ECF No. [74].

The Court ordinarily addresses Rule 23(a) before addressing Rule 23(b)(3), see Vega, 564

F.3d at 1265 (“Under Rule 23(a), every putative class first must satisfy the prerequisites of

numerosity, commonality, typicality, and adequacy of representation.” (emphasis added)).

However, here, Defendant argues that the requirements of Rule 23(b)(3) are not met because

whether the putative class members have Article III standing is a predominating individual issue

that is not subject to common proof. See ECF No. [57] at 28-31. Plaintiff replies that if Defendant’s

standing argument has any merit, then Plaintiff would not have standing either, and the Court

should remand the instant case to state court. See ECF No. [74] at 10. As Plaintiff correctly notes,

before certifying a class, “the district court must determine that at least one named class

representative has Article III standing to raise each class subclaim.” See ECF No. [48] at 19-20

(citing Rosenberg v. GEICO Gen. Ins. Co., No. 19-61422-CIV-CAN, 2021 U.S. Dist. LEXIS

210775, at *8 (S.D. Fla. Sep. 21, 2021) (quoting Prado-Steiman ex rel. Prado v. Bush, 221 F.3d

1266, 1279-80 (11th Cir. 2000)). As such, Defendant’s Rule 23(b)(3) argument, specifically its

argument with respect to standing, raises a threshold issue of whether the Court has jurisdiction to

hear Plaintiff’s case. Therefore, the Court begins by addressing the threshold issue of whether

Plaintiff has standing and the related issue of whether determining the standing of putative class

members is a predominating individual issue that forecloses class certification.

A. Plaintiff’s Standing

Plaintiff argues in her Motion that she has Article III standing. See ECF No. [48] at 19-20.

Plaintiff avers that it is undisputed that Plaintiff suffered an injury-in-fact that is traceable to

Defendant’s TCPA violations and that the TCPA authorizes statutory and treble damages for

violations. See id. at 20. Defendant does not directly respond to Plaintiff’s argument with regard

to Plaintiff’s standing, but Defendant notes that standing under the TCPA requires an allegation

that Defendant rendered Plaintiff’s device “unavailable to receive legitimate calls or messages for

[a] period of time.” ECF No. [57] at 29 (quoting Grigorian v. FCA US LLC, 838 F. App’x 390,

391 (11th Cir. 2020)). Defendant further notes that Plaintiff testified that she is seeking to recover

damages for only four (4) recorded voicemails and that she was not deprived of legitimate uses of

her phone as a result of the voicemails. See ECF Nos. [57] at 20-21 (quoting ECF No. [57-1] at

64); see also id. at 30 (quoting ECF No. [57-1] at 53).

The Court agrees with Plaintiff. For standing, “[t]he plaintiff must have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016). The Plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing

these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The Eleventh Circuit has

held that in the context of a TCPA claim, the receipt of more than one call with a prerecorded

message satisfies the requirements of Article III standing. See Cordoba v. DIRECTV, LLC, 942

F.3d 1259, 1270 (11th Cir. 2019) (“The receipt of more than one unwanted telemarketing call

made in violation of the provisions enumerated in the TCPA is a concrete injury that meets the

minimum requirements of Article III standing.”). The Eleventh Circuit further held in Grigorian

that if a defendant used a “ringless” voicemail system, where the phone never rang and the message

went directly to the plaintiff’s voicemail, a plaintiff who received a single voicemail did not have

standing. 838 F. App’x at 392. The Eleventh Circuit analogized a ringless voicemail to an

unwanted text message, which did not amount to an injury-in-fact, because the ringless voicemail

did not result in a material loss of time, render the device unavailable while the voicemail was

being deposited, cause the plaintiff to incur charges, or require the plaintiff’s immediate attention

in the same way a ringing phone does. See id. at 393.

Here, there are no allegations that Defendant used a ringless voicemail system. It is

undisputed that Defendant’s calls were not ringless, and Plaintiff could have answered the calls.

ECF Nos. [48] at 11, [48-1] at 30-31. Because Plaintiff did not answer the calls, Defendant left

voicemails on Plaintiff’s account. ECF Nos. [48] at 11, [48-1] at 30-31. Nonetheless, the Eleventh

Circuit’s underlying reasoning with regard to standing in Grigorian is still instructive because the

Eleventh Circuit did not restrict the standing analysis in Grigorian to cases involving ringless

voicemail systems. As noted above, the Eleventh Circuit’s standing analysis hinged on – not

whether the defendant used a ringless voicemail system – but whether the calls resulted in a loss

of time, rendered the device unavailable, caused the plaintiff to incur charges in the form of

telephone minutes, and required the plaintiff’s immediate attention. See Grigorian, 838 F. App’x

at 393. In Plaintiff’s case, the missed calls did not prevent Plaintiff from using her phone for

legitimate purposes because (1) she was presumably not using her phone anyway given that she

missed the calls or (2) she ignored the calls and used her phone for other legitimate purposes. See

ECF No. [57-1] at 53 (Plaintiff testifying that the calls and voicemails did not prevent her from

using her phone for other purposes). Further, Defendant did not cause Plaintiff to incur charges for

the use of telephone minutes since Plaintiff never answered the calls. See id. (Plaintiff testifying

that she was not charged by her telephone service provider for the unanswered calls or the

voicemails). In addition, Defendant’s calls did not cause Plaintiff to give them her immediate

attention since she never answered the calls. Therefore, at first blush, the calls and resulting

voicemails could each be considered a voicemail from a ringless voicemail system, which is not

sufficient to establish standing. See Grigorian, 838 F. App’x at 392.

However, the Court notes that in Grigorian, the Eleventh Circuit was addressing whether

a single voicemail established standing and specifically stated that “[t]his analysis may be different

if a plaintiff alleges multiple ringless voicemails.” Id. at 392 n.2. The Eleventh Circuit expressly

noted that Eleventh Circuit case law “leaves unaddressed whether a plaintiff who alleged that he

had received multiple unwanted and unsolicited text messages [and by implication, multiple

voicemails] may have standing to sue under the TCPA.” Id. In this case, Plaintiff asserts a claim

for four (4) voicemails, not a single de minimis phone call and voicemail. See ECF No. [57-1] at

64. It is undisputed that Plaintiff listened to all of the voicemails, though she did not listen to some

of them in their entirety. See ECF Nos. [57] at 17-18, [57-1] at 37-38. Plaintiff also testified that

she got “stressed” and “aggravated” from Defendant’s multiple calls and voicemails. ECF No. [57-

1] at 52. As such, the Court determines that Defendant’s multiple voicemails and Plaintiff’s

repeated losses of personal time from having to listen to multiple voicemails constitute an injury-

in-fact. In reaching this result, the Court finds instructive the Eleventh Circuit holding in Cordoba,

where the Eleventh Circuit expressly held that “[t]he receipt of more than one unwanted

telemarketing call made in violation of the provisions enumerated in the TCPA is a concrete injury

that meets the minimum requirements of Article III standing.” 942 F.3d at 1270 (emphasis added).

In sum, Eleventh Circuit precedent indicates that while one phone call is not enough to establish

an injury-in-fact, see Grigorian, 838 F. App’x at 392 n.2, the receipt of more than one phone call

is sufficient to establish an injury-in-fact, see Cordoba, 942 F.3d at 1270; see also Toney v.

Advantage Chrysler-Dodge-Jeep, Inc., No. 6:20-CV-182-WWB-EJK, 2021 WL 4896949, at *4

(M.D. Fla. July 27, 2021), report and recommendation adopted, No. 6:20-CV-182-WWB-EJK,

2021 WL 3910135 (M.D. Fla. Sept. 1, 2021) (interpreting Cordoba to require more than one

unwanted phone call for an injury-in-fact).

Lastly, the phone calls are traceable to Defendant, and the TCPA authorizes damages for

such an injury. See 47 U.S.C. § 227(b)(3)(B)-(C) (permitting the recovery of actual monetary loss

or $500 for each violation, whichever is greater, and in the case of willful or knowing violation,

treble damages). As such, the Court determines that Plaintiff does have Article III standing.4,5

B. Putative Class Members’ Standing

The Court next addresses whether determining the standing of putative class members is a

predominating individualized issue that forecloses class certification. As noted above, Plaintiff

seeks to represent a class of persons who received a call from Defendant and for whom Defendant’s

call records reflect a disposition of “MESSAGE_PLAYED” and “ANSWERING_MACHINE.”

ECF No. [48] at 6. Plaintiff also seeks to certify a subclass for cellphone users with the same

disposition. See id. It is undisputed that in Defendant’s call records, the disposition of

“MESSAGE_PLAYED” AND “ANSWERING_MACHINE” reflects that Defendant delivered

“the message to voicemail.” ECF No. [57] at 21 (quoting ECF No. [48-4] at 147-48). It is also

undisputed that Defendant left voicemails only when the recipients did not answer the calls. ECF

Nos. [48] at 11, [48-1] at 30-31. Plaintiff argues that for individuals with such a disposition –

namely, individuals who did not answer Defendant’s call and who received Defendant’s voicemail

4 As noted above, Plaintiff avers in her Reply that if she does not have standing, then Defendant should not

have removed this matter from state court and should not have represented to this Court that jurisdiction

was appropriate. See ECF No. [74] at 10. The argument is moot given that Plaintiff does have standing.

5 The Court notes that while Plaintiff prevails on this matter, Plaintiff cites several cases that do not advance

her argument. See ECF No. [48] at 19-20. In Perrong v. Total Ins. Brokers, LLC., No. 8:20-CV-1905-JSM-

TGW, 2021 WL 3036467, at *3-4 (M.D. Fla. Apr. 2, 2021), the plaintiff had standing because the plaintiff’s

“telephone service provider charge[d] him for each call he receive[d].” In this case, there is no allegation

that the telephone service provider charged Plaintiff for Defendant’s calls or voicemails. In Abramson v.

Fed. Ins. Co., No. 8:19-CV-2523-T-60AAS, 2021 WL 268350, at *2 (M.D. Fla. Jan. 27, 2021), the plaintiff

had standing because the plaintiff alleged that an unsolicited call temporarily deprived him of legitimate

use of his phone. In this case, Plaintiff does not allege that the unsolicited call deprived Plaintiff of

legitimate use of her phone. The Court further notes that none of the cases are relevant for the following

discussion on whether determining the putative class members’ standing is a predominating individualized

issue since none of the putative class members answered Defendant’s phone calls.

– common questions of law or fact predominate any individualized issues. See ECF No. [48] at

27-29.

Defendant responds that whether putative class members have standing is a predominating

individual issue that forecloses class certification. See ECF No. [57] at 28-31 (citing Grigorian,

838 F. App’x at 391, and Toney, 2021 WL 4896949, at *5). Defendant submits that in this case,

the Court must determine, with respect to all putative class members, “(i) whether their phone rang

when AES called; (ii) if it rang, did the beneficiary hear it; (iii) did the beneficiary delete the

voicemail before retrieving and listening to it; (iv) if they retrieved and listened to the voicemail,

did they lose personal time doing so; and (v) even if they claim to have lost personal time, did the

voicemail render their phones unavailable to receive other calls or messages for any period of

time.” ECF No. [57] at 30.

Plaintiff replies that Defendant’s reliance on cases involving ringless voicemail systems –

namely, Grigorian and Toney – is unavailing because this case does not involve a ringless

voicemail system. See ECF No. [74] at 7-8. Plaintiff argues that Defendant’s phone calls, which

did ring, had the effect of depriving putative class members of legitimate uses of their phones,

which is sufficient to establish an injury-in-fact for all putative class members and obviates the

need for any individualized inquiry with respect to the standing. See id. at 8. Plaintiff further argues

that the Eleventh Circuit resolved the issue of standing by holding that “an unwanted telemarking

call” was sufficient to establish standing. Id. at 9 (citing Glasser v. Hilton Grand Vacations Co.,

LLC, 948 F.3d 1301, 1306 (11th Cir. 2020), cert. denied, 141 S. Ct. 2510 (2021)). Next, Plaintiff

avers that the Court need not resolve the issue of standing for putative class members at the class

certification stage. See id. (citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 n.4 (2021)).

Plaintiff effectively submits that the Court can address class member standing after the jury verdict,

rather than at the class certification stage. See id.

The Court agrees with Defendant. The Court reiterates that while Grigorian established

that a single voicemail from a ringless voicemail system did not establish standing, the Eleventh

Circuit left open the possibility that multiple voicemails could result in standing. See Grigorian,

838 F. App’x at 392 n.2. Further, Cordoba established that “[t]he receipt of more than one

unwanted telemarketing call made in violation of the provisions enumerated in the TCPA is a

concrete injury that meets the minimum requirements of Article III standing.” 942 F.3d at 1270

(emphasis added); see also Toney, 2021 WL 4896949, at *4 (interpreting Cordoba to require more

than one unwanted phone call for an injury-in-fact). As discussed above, Plaintiff received multiple

calls that she did not answer, which resulted in repeated losses of personal time. The repeated

losses of time established an injury-in-fact for Plaintiff. However, as Defendant correctly points

out, whether other putative class members received multiple phone calls or one phone call is

unclear and will require an individualized inquiry. One unanswered phone call that resulted in a

voicemail would be insufficient to establish an injury-in-fact, but multiple unanswered phone calls

resulting in multiple voicemails would be sufficient to establish an injury-in-fact.

Further, for individuals included in the putative class or subclass because they did not

answer one call and received one voicemail – who would ordinarily not have standing because

they only received one voicemail – would have standing if they answered at least two separate

calls from Defendant because two or more answered calls are sufficient to establish standing.

Cordoba, 942 F.3d at 1270. In other words, even after identifying class members who received

one voicemail from one unanswered phone call and who ordinarily do not have standing, the Court

would then have to ascertain whether those class members answered two or more separate calls

from Defendant because those class members would have standing by virtue of the answered calls.

Such individualized inquiries predominate any common question.

Plaintiff’s arguments to the contrary are unavailing. First, although Plaintiff argues that

Grigorian and Toney are inapposite because the cases involved a ringless voicemail system that

did not deprive recipients of legitimate uses of their phones, the Court is not persuaded for the

reasons stated above. To reiterate, an unanswered phone call that resulted in a voicemail has the

same effect as a ringless voicemail because neither event deprives recipients of legitimate uses of

their phones. In this case, the unanswered calls did not render the putative class members’ phones

unavailable since the class members were not using the phone or ignored the call and used the

phone for other purposes. As such, the putative class members were not all deprived of legitimate

uses of their phones by the voicemails, and they do not all have standing simply because a

voicemail was left on their phones.

Second, while Plaintiff relies on Glasser, 948 F.3d at 1306, to argue that “an unwanted

telemarking call” is sufficient to establish standing, Plaintiff belies the holding of Glasser by using

the article “an” and thereby implying one call is sufficient to establish standing. ECF No. [74] at

9. In Glasser, the Eleventh Circuit held that “[t]he receipt of more than one unwanted

telemarketing call . . . is a concrete injury that meets the minimum requirements of Article III

standing.” 948 F.3d at 1306 (emphasis added). The holding in Glasser is applicable only to cases

involving “more than one” phone call, not a singular phone call. As such, Glasser does not

preclude this Court from having to consider whether each putative class member received one

phone call or more than one phone call. Moreover, as noted above, Toney, 2021 WL 4896949, at

*4, makes clear that according to Eleventh Circuit precedent more than one phone call is necessary

to establish an injury-in-fact. While Plaintiff has standing because she lost personal time listening

to multiple voicemails, the Court must determine whether each individual class member actually

listened to the multiple voicemails and lost personal time as a result.6

Third, Plaintiff argues that the Court need not decide the issue of standing for class

members at the class certification stage. See ECF No. [74] at 9. In support, Plaintiff submits that

in Ramirez, 141 S. Ct. at 2208 n.4, the Supreme Court did not require courts to resolve the issue

of class member standing before class certification. However, the Court notes that the Supreme

Court expressly stated that it was not addressing “the distinct question whether every class member

must demonstrate standing before a court certifies a class.” See id. Therefore, Ramirez does not

meaningfully advance Plaintiff’s argument that the Court need not consider whether every class

member has standing before certifying a class since the Supreme Court stated that it was not

deciding the issue one way or the other. Moreover, the Court is not determining standing for each

class member at this stage. The Court is instead examining whether determining standing for

putative class members will be a predominating individual issue. The Eleventh Circuit has spoken

on this precise distinction in Cordoba, 942 F.3d at 1276-77. In Cordoba, the Eleventh Circuit held

as follows:

We do not hold today that a court is required to ensure that the class definition does

not include any individuals who do not have standing before certifying a class

6 The Court further notes that in a nonbinding case, Abramson v. Fed. Ins. Co., No. 8:19-CV-2523-T-

60AAS, 2021 WL 268350, at *2 (M.D. Fla. Jan. 27, 2021), the court held that one call was sufficient to

establish standing. In light of Eleventh Circuit cases discussed above – namely, Cordoba, 942 F.3d at 1270,

and Glasser, 948 F.3d at 1306 – the Court declines to follow the analysis set forth by the Abramson court.

The Court also notes that in Duverger v. Rsch. Strategies, Inc., No. 21-CV-62465-RAR, 2022 U.S. Dist.

LEXIS 57529, *2 (S.D. Fla. Mar. 29, 2022), the court determined that one unwanted phone call was

sufficient to establish standing. However, the relatively short opinion noted that Grigorian was

distinguishable from Duverger because the plaintiff in Duverger could show that her phone was unavailable

for other uses because of the phone call. See id. As such, one unwanted phone call was sufficient in

Duverger because it deprived the plaintiff the use of her phone. As noted above, in this case, Plaintiff has

testified that her phone was available for other uses despite the unwanted phone calls. See ECF No. [57-1]

at 53. All of the putative class members also did not answer Defendant’s phone calls and received

voicemails, meaning their phones were not being used or were being used despite Defendant’s phone calls.

Thus, the putative class members were not deprived of the use of their phones, and they do not automatically

have standing by virtue of a single unwanted phone call.

. . . . Rather, we only hold that in this case the district court must consider under

Rule 23(b)(3) before certification whether the individualized issue of standing will

predominate over the common issues in the case, when it appears that a large

portion of the class does not have standing, as it seems at first blush here, and

making that determination for these members of the class will require

individualized inquiries.

942 F.3d at 1276-77 (italics added; underline in original). As emphasized, while the Court need

not determine standing at this stage, it must determine whether the issue of standing for putative

class members will require individualized inquiries that predominate over the common issues in

this case.

Fourth, the Court notes that Plaintiff filed supplemental authority that purportedly

addresses the issue of standing. See ECF No. [75] (citing Garey v. James S. Farrin, P.C., 35 F.4th

917 (4th Cir. 2022)); see also ECF No. [75-1]. Defendant responds that the case is inapposite as it

does not address whether putative class members have Article III standing, relies on a nonbinding

case from outside the Eleventh Circuit, and does not disturb the Eleventh Circuit’s case law that

establishes that a voicemail from a ringless voicemail system or an unanswered phone call does

not establish standing. See ECF No. [101]. The Court agrees with Defendant. Garey does not

establish why the issue of standing for putative class members will not predominate the common

questions. Further, even if it did, the case is nonbinding, and the Court declines to follow a

nonbinding case in light of binding Eleventh Circuit precedent discussed above.

Accordingly, Plaintiff has failed to meet her burden of satisfying the requirements of Rule

23(b)(3). Plaintiff does not seek class certification under Rule 23(b)(1) or (2). Therefore, class

certification is not warranted and the Court need not proceed further. See Karhu, 621 F. App’x at

946 (requiring the plaintiff to satisfy the requirements of Rule 23(b)(1), (2), or (3) for class

certification).

Case No. 21-cv-21121-BLOOM/Otazo-Reyes

C. Request for Hearing

As a final matter, Plaintiff requests a hearing. See ECF No. [48] at 32. Given the Court’s

analysis above, the Court does not find a hearing to be necessary to address the issues presented.

As such, the Court denies Plaintiff's request for a hearing.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Class

Certification, ECF No. [49], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on July 1, 2022.

BETHBLOOM i sts

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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