“e third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief.”
How later courts described this case
- “e third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SUMMER BROOKS,
,
Plaintiff,
v. Case No. 8:24-cv-2983-KKM-AAS
PSCU, LLC, and LONE STAR
CREDIT UNION,
Defendants.
___________________________________
ORDER
Summer Brooks sues PSCU, LLC, and Lone Star Credit Union under the
Telephone Consumer Protection Act, 47 U.S.C. § 227, and she seeks class
certification. Compl. (Doc. 1). PSCU and Lone Star move to dismiss, for a more
definite statement, and to strike Brooks’s class allegations. PSCU MTD (Doc. 18);
Lone Star MTD (Doc. 19). ey also move jointly to bifurcate discovery. Joint Mot.
to Bifurcate (Doc. 21). Brooks opposes all these motions. Resp. to Mot. to Bifurcate
(Doc. 26); Resp. to MTDs (Doc. 30). For the reasons below, I deny the defendants’
motions to dismiss and to strike Brooks’s class allegations, but I grant their motions
for a more definite statement, to strike her demand for injunctive relief, and to
bifurcate discovery.
I. BACKGROUND
A. Brooks Receives Unwanted Calls from Lone Star and PSCU
Brooks acquired a new cell phone number in mid-October 2024.1 Compl.
¶¶ 24–25. Since then, she has received unwanted calls that form the basis for this
action. ¶ 26.
Brooks does not allege when the first call happened. ¶ 27. Brooks answered
the call and “told the [d]efendants that they were calling the wrong phone number.”
e complaint does not say whether this call was a robocall.
e next call came on October 25, 2024. ¶ 29. Brook did not answer the
phone, and the caller left a pre-recorded voicemail. ¶¶ 29–31 (“Brooks believes
this voicemail was pre-recorded because the voice sounds robotic, artificial, the
pauses are unnatural, and the recording asks the recipient to press ‘1’ to continue in
English.”). at voicemail, which purported to be from the Lone Star Credit Union
1 At the motion-to-dismiss stage, I assume the allegations in the complaint to be true.
, 516 F.3d 1282, 1284 (11th Cir. 2008).
2
fraud detection department, sought to advise a Rena Sharzer of possible fraudulent
activity on her card:
is is the fraud detection department for Lonestar credit union calling
for Rena Sharzer[]. We need to verify some recent activity on your card
ending . . . 7 0 8 0[.] In order to prevent possible difficulties using your
card it is important that you call us back at your earliest convenience
toll-free at [phone number]. Verify this activity[.] Please reference case
number 3 5 7 8 1[.] [R]eturning our call give me a call us back [24]
hours a day seven days a week.2
¶¶ 30, 32.
A live agent called Brooks on November 10, 2024, on behalf of Lone Star,
using a phone number affiliated with PSCU. ¶¶ 33, 35–36. is message was also
for Sharzer and related to a card security matter:
Hello this message is for Rena Sharzer[]. My name is Jackie[]. I’m
calling on behalf of lone star credit Union to do a security check in
reference to your visa debit card[]. Case number is 3 5 7 8 Twin your
uninterrupted service on your account please contact us at [phone
number]. [I]n reference case number 3 5 7 8 and any agent can assist
you. It is important to contact us as soon as possible at [phone number].
And reference case ID number 3 5 7 8 we look forward to speaking
with you soon thank you . . .”
¶ 34. Brooks does not know a Rena Sharzer, has never gone by the name “Rena
Sharzer or anything similar,” and had never given either Lone Star or PSCU
2 e voicemail’s text is somewhat disjointed, as it appears to have been automatically transcribed
by a cellphone’s voicemail application. Compl. ¶ 30.
3
permission to make pre-recorded calls to her. ¶¶ 37–39. She alleges that these
calls caused her “annoyance, nuisance,” invaded her privacy, “occupied her phone
memory, and disturbed the use and enjoyment of her phone.” ¶ 40.
B. Brooks Files Suit and Seeks Class Certification
Brooks sues Lone Star and PSCU, alleging a single TCPA violation.
¶¶ 48–51; 47 U.S.C. § 227(b)(1)(A)(iii). She also seeks certification of this
class, subject to some exclusions not relevant here:
Pre-recorded No Consent Class: All persons throughout the United
States (1) to whom PSCU placed, or caused to be placed, a call,
(2) directed to a number assigned to a cellular telephone service, but not
assigned to a Lone Star Credit Union customer or accountholder, (3) in
connection with which PSCU used an artificial or prerecorded voice
message identifying Lone Star Credit Union, (4) from four years prior
to the filing of this case through the date of class certification.
¶¶ 42–43.
Lone Star and PSCU move separately to dismiss the complaint or, in the
alternative, for a more definite statement and to strike the class allegations.
PSCU MTD; Lone Star MTD. e defendants also seek to bifurcate
discovery. Joint Mot. to Bifurcate.
4
II. ANALYSIS
e defendants request that Brooks’s case be dismissed because the fraud alert
exemption to the TCPA bars her claim on her complaint’s face. Absent that relief,
they ask for a more definite statement and that Brooks’s class allegations be stricken
or class certification denied. Lone Star alone asks that I strike Brooks’s demand for
an injunction because Brooks lacks Article III standing. And if the class allegations
survive, the defendants ask for bifurcated discovery.
e fraud alert exemption’s applicability is not apparent from the complaint’s
face. But it is a narrow miss—only two minor factual issues are outstanding. Because
of the narrowness of the parties’ dispute about the exemption’s applicability,
bifurcated discovery is warranted. As discovery will be bifurcated, I decline to strike
Brooks’s class allegations at this stage. But she must replead her complaint to specify
which phone call her TCPA count rests on, or else set out each phone call as a
separate count. And I strike her demand for an injunction because she lacks Article
III standing to seek that prospective relief.
A. e Fraud Alert Exemption Does Not Warrant Dismissal
e defendants principally argue that this action should be dismissed because
the fraud alert exemption to the TCPA bars Brooks’s claim. PSCU MTD at 8–14;
5
Lone Star MTD at 11–13. Brooks responds, first, that the exemption is inapplicable
because she did not give prior express consent to the defendants to call her, and,
second, that in any event the elements of the exemption are not plain from the face
of the complaint. Resp. to MTDs at 1–4. Brooks’s first argument fails. But her second
argument is on the mark.
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” is pleading standard
“does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” ,
556 U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 555
(2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’ ” (quoting , 550 U.S. at
555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’ ” (quoting , 550 U.S. at 557).
“To survive a motion to dismiss” for failure to state a claim, a plaintiff must
plead sufficient facts to state a claim that is “plausible on its face.” (quoting
, 550 U.S. at 570). A claim is plausible on its face when a “plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
6
defendant is liable for the misconduct alleged.” When considering the motion,
courts accept the complaint’s factual allegations as true and construe them in the
light most favorable to the plaintiff. , 516 F.3d 1282, 1284 (11th
Cir. 2008). Courts should limit their “consideration to the well-pleaded factual
allegations, documents central to or referenced in the complaint, and matters
judicially noticed.” ., 358 F.3d 840, 845 (11th Cir.
2004), , 550 U.S. 544.
Brooks’s lone count arises under the TCPA. at statute, enacted to respond
“to a torrent of vociferous consumer complaints about intrusive robocalls,” prohibits
“almost all robocalls to cell phones.” , 591
U.S. 610, 614–15 (2020). e act provides a private right of action. 47 U.S.C.
§ 227(b)(3). To state a TCPA claim under 47 U.S.C. § 227(b)(1)(A)(iii), Brooks
must allege “(1) that the defendant called the plaintiff’s cellular telephone; (2) using
an [automatic telephone dialing system or an artificial or prerecorded voice];
(3) without the plaintiff’s prior express consent.”
, 32 F. Supp. 3d 1193, 1195 (M.D. Fla. 2014); 47 C.F.R.
§ 64.1200(a)(1)(iii).
7
e TCPA empowers the Federal Communications Commission to create
exemptions from its general provisions. 47 U.S.C. § 227(b)(2). e FCC has
created such an exemption for calls made by a “financial institution”3 to inform a
customer of “transactions and events that suggest a risk of fraud or identity theft,”
along with other time sensitive financial information. 47 C.F.R. § 64.1200(a)(9)(iii);
, 30 F.C.C. Rcd. 7961, 8023–32 (2015);
, 35 F.C.C. Rcd. 15188, 15201–
02 (2020) (reaffirming and codifying exemption). e parties call this the fraud alert
exemption (or exclusion). , PSCU MTD at 3; Lone Star MTD at 12; Resp.
to MTDs at 2. To qualify for the exemption, the call must meet eight requirements:
(A) Voice calls and text messages must be sent only to the wireless
telephone number provided by the customer of the financial institution;
(B) Voice calls and text messages must state the name and contact
information of the financial institution (for voice calls, these disclosures
must be made at the beginning of the call);
3 e FCC incorporated the definition of “financial institution” from the Bank Holding Company
Act of 1956: “e term ‘financial institution’ means any institution the business of which is
engaging in financial activities as described in [12 U.S.C. § 1843(k)].” 15 U.S.C. § 6809(3)(A). In
turn, 12 U.S.C. § 1843(k)(1)(A) explains that financial activity is any activity that the Board of
Governors of the Federal Reserve System “determines (by regulation or order) . . . to be financial
in nature.” No party disputes that, per the complaint, Lone Star is a financial institution and that
PSCU acted on its behalf. PSCU MTD at 11; Lone Star MTD at 11; Compl. ¶¶ 15,
18–19. Resp. to MTDs.
8
(C) Voice calls and text messages are strictly limited to those for the
following purposes: transactions and events that suggest a risk of fraud
or identity theft; possible breaches of the security of customers’ personal
information; steps consumers can take to prevent or remedy harm
caused by data security breaches; and actions needed to arrange for
receipt of pending money transfers;
(D) Voice calls and text messages must not include any telemarketing,
cross-marketing, solicitation, debt collection, or advertising content;
(E) Voice calls and text messages must be concise, generally one minute
or less in length for voice calls (unless more time is needed to obtain
customer responses or answer customer questions) or 160 characters or
less in length for text messages;
(F) A financial institution may initiate no more than three messages
(whether by voice call or text message) per event over a three-day period
for an affected account;
(G) A financial institution must offer recipients within each message an
easy means to opt out of future such messages; voice calls that could be
answered by a live person must include an automated, interactive voice-
and/or key press-activated opt-out mechanism that enables the call
recipient to make an opt-out request prior to terminating the call; voice
calls that could be answered by an answering machine or voice mail
service must include a toll-free number that the consumer can call to
opt out of future calls; text messages must inform recipients of the
ability to opt out by replying “STOP,” which will be the exclusive means
by which consumers may opt out of such messages; and,
(H) A financial institution must honor opt-out requests immediately.
47 C.F.R. § 64.1200(a)(9)(iii).
Brooks first argues that the fraud alert exemption does not apply because it
requires prior express consent, something the complaint alleges that Brooks did not
give. Resp. to MTDs at 2 (citing Compl. ¶¶ 25–28, 37). In support, she relies on the
9
Eleventh Circuit’s recent decision in ,
127 F.4th 303 (11th Cir. 2025); Resp. to MTDs at 2. In that case, the panel
observed in a footnote that “[f]or other robocalls—such as informational calls about
bank account balance[s], credit card fraud alert[s], package deliver[ies], and school
closing[s]”—only “prior express consent” is required (as opposed to prior express
written consent). , 127 F.4th at 309 n.5 (all but first alteration in the
original) (quoting
, 27 F.C.C. Rcd. 1830, 1838 (2012)). Brooks says that,
because the Eleventh Circuit held that the fraud alert exemption requires prior
express consent, the exemption cannot apply here. Resp. to MTDs at 2.
at is not the best reading of . e context
shows the Eleventh Circuit was not interpreting the fraud alert exemption. e
portion of the opinion Brooks relies on quotes from the FCC’s 2012 order requiring
“prior express written consent for all telephone calls using an automatic telephone
dialing system or a prerecorded voice to deliver a telemarketing message to wireless
numbers and residential lines.” 27 F.C.C. Rcd. at 1838. at quotation makes sense,
as was concerned with a 2023 FCC order likewise
interpreting the TCPA’s prior express consent requirement. 127 F.4th at 316–17.
10
But the FCC did not promulgate the fraud alert exemption until 2015, three
years after the 2012 order that the court quoted, and
the FCC did not codify the exemption until 2021. 30 F.C.C. Rcd. at 8023–32;
35 F.C.C. Rcd. at 15201–02; 47 C.F.R. § 64.1200 (eff. Feb. 12, 2021, to Mar.
28, 2021) (first reflecting a codified fraud alert exemption). Nothing in
suggests that the Eleventh Circuit was doing anything more
than recounting the history of the FCC’s interpretation of the TCPA’s prior express
consent language. Brooks thus fails to show that reads
the fraud alert exemption as it exists today to incorporate a prior express consent
requirement. More, even if it did, that statement would be dicta and thus nonbinding.
, 602 F.3d 1276, 1298 (11th Cir. 2010). Brooks’s first
argument therefore fails.
In her second argument, Brooks’s contends that the fraud alert exemption’s
applicability is not plain from her complaint’s face, so dismissal is improper. Resp. to
MTDs at 2–4. e defendants do not argue that Brooks must negate the exemption
to state a claim, so it is best treated as an affirmative defense. “[A] complaint may be
subject to dismissal for failure to state a claim—based on an affirmative defense—
only when the affirmative defense appears on the face of the complaint.”
11
, 58 F.4th 1347, 1350 (11th Cir. 2023) (en banc). Brooks argues that it is not
clear from the face of her complaint (1) “that the call [was] not charged to the called
person or counted against the called person’s plan limits on minutes or texts” and
(2) that the voicemail “include[d] a toll-free number that the consumer can call to
opt out of future calls.” Resp. to MTD at 3 (quoting 47 C.F.R. § 64.1200(a)(9),
(a)(9)(iii)(G)).
Brooks is right. First, the parties do not appear to dispute that the complaint
nowhere says that Brooks was not charged for the calls or that they did not count
against her plan. e defendants argue instead that, because Brooks “fails to allege
the calls were charged towards her telephone plan as a claimed injury, it follows that
they were not.” Joint Reply in Supp. of MTDs (Doc. 36) at 4. To accept this argument
would be to draw an inference against Brooks, which is impermissible at the motion-
to-dismiss stage. , 836 F.3d 1340, 1347–48 (11th Cir.
2016). Second, while the parties agree that the call at issue included a toll-free
number, the complaint does not say whether a customer could opt out by calling the
number, nor does Brooks allege that she called the number. Compl. ¶ 30. e
complaint does not show that either of these requirements are met.
12
Considering the complaint alone, the fraud alert exemption does not require
dismissal.
B. Brooks Must Set Out Her Discrete TCPA Claims in Separate Counts
or Specify Which Call Is the Factual Predicate for Her Claim
PSCU and Lone Star move under Rule 12(e) for an order requiring Brooks
to plead in a separate count each of the three phone calls that she alleges in her
complaint. PSCU MTD at 14–17; Lone Star MTD at 21–23. Brooks does not
address this argument in her response. Resp. to MTDs.
Under Federal Rule of Civil Procedure 12(e), a “party may move for a more
definite statement of a pleading to which a responsive pleading is allowed.” A more
definite statement is warranted if a pleading “is so vague or ambiguous that the party
cannot reasonably prepare a response.” Federal Rule of Civil Procedure 8(a)(2)
requires that a complaint include “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Rule 10(b) provides that “[a] party must state
its claims or defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances.” And “[i]f doing so would promote clarity, each claim
founded on a separate transaction or occurrence . . . must be stated in a separate
count.”
13
I agree with the defendants that, in this case at least, it “would promote clarity”
for the different phone call predicates to be set out in separate counts. FED. R. CIV.
P. 10(b); , 792 F.3d 1313, 1322–23
(11th Cir. 2015) (“e third type of shotgun pleading is one that commits the sin of
not separating into a different count each cause of action or claim for relief.”). e
complaint plainly contains too little information about the first phone call to state a
claim for relief under the TCPA based on that call. Compl. ¶ 27;
, 43 F. Supp. 3d 1251, 1254 (M.D. Fla.
2012). e allegations about the other two phone calls are more detailed, but they
are different in a key respect—the October 25 call was pre-recorded, Compl. ¶ 31,
while a live agent made the November 10 call, ¶ 35; 47 U.S.C. § 227(b)(1)(A)
(prohibiting only calls made “using any automatic telephone dialing system or an
artificial or prerecorded voice”). More definite pleading will likely allow the parties
to narrow the scope of discovery and promote an expeditious resolution of this case.
Brooks must therefore replead her complaint, either pleading each phone call
as a separate TCPA count, or else specifying which phone call her lone TCPA count
is premised on.
14
C. Good Cause Exists to Bifurcate Discovery
PSCU and Lone Star jointly move to bifurcate individual and class discovery
on the theory that the fraud alert exemption will dispose of Brooks’s claims.
Joint Mot. to Bifurcate. Brooks’s sole basis for opposing the motion is that
“because the banking fraud alert exemption does not apply in this case, bifurcating
discovery would be inefficient for the Court and parties.” Resp. to Mot. to Bifurcate
at 3.
District courts have “broad discretion over the management of pre-trial
activities, including discovery and scheduling.”
, 263 F.3d 1234, 1269 (11th Cir. 2001). Courts have discretion to bifurcate
individual discovery and class discovery in class action cases, including those
claiming TCPA violations. ,
959 F.2d 1566, 1570–71 (11th Cir. 1992); , No.
3:19-CV-353-J-39PDB, 2019 WL 7423522, at *3 (M.D. Fla. Aug. 22, 2019) (“In
the TCPA context, a motion to bifurcate individual and class discovery is not
unheard of, with varied results largely based on educated guesses about future
unknowns.”); , No. 8:15-CV-1470-T-
15
30MAP, 2015 WL 6150888, at *2 (M.D. Fla. Oct. 15, 2015). Courts consider a
variety of factors in adjudicating a motion to bifurcate discovery, including
[1] the likelihood of overlap of individual and class discovery, [2] the
likelihood of ensuing discovery motions, [3] the likelihood of prejudice
to the nonmovant, [4] evidence suggesting the claims of the named
plaintiffs lack merit or the absence of such evidence, [5] the timing of
the bifurcation motion, [6] whether the case can continue if the claims
of the named plaintiffs are dismissed, [7] the interests of judicial
economy, and [8] the “early practicable time” requirement of Rule
23(c)(1)(A).
, 2019 WL 7423522, at *3.
While Brooks is right that the fraud alert exemption is not applicable from
the complaint’s face, bifurcation is appropriate because only two of the exception’s
elements are outstanding: (1) that Brooks was not charged for the call, and (2) that
it was possible to opt out by calling the included toll-free number. at 12–
13. Because there is a significant possibility that the exemption bars Brooks’s claim,
any prejudice to Brooks from a brief delay will be minimal, and bifurcation may
promote the expeditious resolution of this action, I conclude that bifurcation is
appropriate. , 2015 WL 6150888, at *2.
Accordingly, the parties must file a new case management report proposing
dates for bifurcated discovery.
16
D. It Is Unnecessary to Resolve the Merits of the Defendants’ Motion to
Strike Brooks’s Class Allegations
e defendants move to strike Brooks’s class allegations. PSCU MTD at 18–
25; Lone Star MTD at 13–20. And PSCU moves to deny class certification. PSCU
MTD at 18–25; , 582 U.S. 23, 34 n.7 (2017) (“An order
striking class allegations is ‘functional[ly] equivalent’ to an order denying class
certification.” (alteration in the original) (quoting
733 F.3d 105, 110–11 n.2 (4th Cir. 2013))). Because they succeeded on their motion
to bifurcate discovery and “motion[s] to strike are generally disfavored,”
, No. 3:07 CV 1200 J 25TEM, 2008 WL 4059786, at *1 (M.D. Fla.
Aug. 27, 2008), I decline to address the class issues at this time. e defendants may
re-raise the issue of the adequacy of Brooks’s class allegations after the resolution of
the applicability of the fraud alert exemption to her claim, if appropriate.
E. Brooks Lacks Article III Standing to Seek an Injunction
Last, Lone Star alone moves to strike Brooks’s demand for injunctive relief
because she does not have Article III standing to seek prospective relief. Lone Star
MTD at 20–21. Brooks responds that because her requested injunction is a statutory
17
injunction, her demand is adequate. Resp. to MTDs at 7 (citing
, 376 F.3d 1092, 1098 (11th Cir. 2004)).
A requested injunction’s statutory origin does not—and cannot—abrogate
Article III’s minimum requirements for standing. , 578
U.S. 330, 339 (2016) (“Congress cannot erase Article III’s standing requirements by
statutorily granting the right to sue to a plaintiff who would not otherwise have
standing.” (quoting , 521 U.S. 811, 820 n.3 (1997))), (May
24, 2016). To seek forward-looking injunctive relief, a plaintiff must show that future
injury is “certainly impending.” , 568 U.S. 398, 409
(2013) (quoting , 495 U.S. 149, 158 (1990));
, 594 U.S. 413, 431 (2021) (“[S]tanding is not dispensed in gross;
rather, plaintiffs must demonstrate standing for each claim that they press and for
each form of relief that they seek.”); , 739
F. Supp. 3d 1055, 1063–64 (M.D. Fla. 2024).
Brooks does not point to any allegations in the complaint that tend to show
that future unsolicited calls from the defendants are “certainly impending.” Nor have
I identified any. Brooks therefore lacks Article III standing to seek prospective
injunctive relief, and striking the demand for injunctive relief is warranted.
18
, 437 F. Supp. 3d 1237, 1251–52 (S.D. Fla. 2019)
(dismissing claim for injunctive relief under the TCPA for lack of Article III
standing).
III. CONCLUSION
Accordingly, the following is ORDERED:
1. Defendant PSCU, LLC’s Motion to Dismiss and for More Definite
Statement, or in the Alternative, Motion to Strike Class Allegations or
Deny Class Certification (Doc. 18) is GRANTED-IN-PART and
DENIED-IN-PART.
2. Defendant Lone Star Credit Union’s Motion to Dismiss, or in the
Alternative, Motion to Strike Class Action Allegations and Motion for
More Definite Statement (Doc. 19) is GRANTED-IN-PART and
DENIED-IN-PART.
3. e defendants’ Joint Motion to Bifurcate Discovery (Doc. 21) is
GRANTED.
4. Plaintiff Summer Brooks is ORDERED to replead her complaint to
either set out each phone call as a separate TCPA count, or else specify
19
which phone call her lone TCPA count is premised on. Brooks must
amend her complaint no later than June 25, 2025.
5. Plaintiff Summer Brooks’s demand for injunctive relief, Compl.
(Doc. 1) at 14, is STRIKEN.
6. No later than June 25, 2025, the parties must file a new case
management report jointly proposing a bifurcated discovery timeline.
ORDERED in Tampa, Florida, on June 11, 2025.
athryn’ Kimball Mizelle
United States District Judge
20