# Morris v. Lincare, Inc.

> District Court, M.D. Florida · September 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11140786

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JANET MORRIS,
individually and on behalf of
all others similarly situated,

Plaintiff,
CLASS ACTION
v. Case No: 8:22-cv-2048-CEH-AAS

LINCARE, INC.,

Defendant.
___________________________________/
ORDER
In this class action brought under the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. §§ 227, et seq., and the Florida Telephone Solicitation Act
(“FTSA”), Fla. Stat. § 501.059, Plaintiff Janet Morris, on behalf of herself and others
similarly situated, sues Defendant Lincare, Inc., for unsolicited prerecorded calls made
by Defendant to the class members’ cellular telephones. Before the Court are the
parties’ cross motions for summary judgment (Docs. 188, 189); responses in
opposition (Docs. 194, 195), replies (Docs. 197, 198), and supplemental briefing
(Docs. 245, 250). The Court heard argument on the motions on September 2, 2025.
Having considered the motions and the parties’ written submissions, and argument of
counsel, and being fully advised in the premises, the Court will grant Defendant’s
Motion for Summary Judgment as to the TCPA claim and deny Plaintiff’s motion on
that claim. The Court declines to exercise supplemental jurisdiction as to the FTSA
claim and will dismiss the FTSA claim without prejudice.
I. BACKGROUND1

A. Stipulated Facts
Defendant Lincare Inc. (“Defendant” or “Lincare”) sells continuous positive
airway pressure (“CPAP”) equipment and related durable medical supplies. Doc. 193
¶ 1. Lincare’s parent company is Lincare Holdings, Inc. Id. ¶ 2. American

HomePatient is another durable medical equipment provider that provided CPAP
devices and supplies. Id. ¶ 3. Morris purchased CPAP supplies multiple times between
April 2015 and October 2016 from American HomePatient (“AHP”). AHP is also a
subsidiary of Lincare Holdings, Inc. Id.
On April 24, 2015, Morris’s physician diagnosed her with obstructive sleep

apnea and prescribed her a CPAP device. Id. ¶ 4. On May 12, 2015, Morris selected
AHP as her CPAP supplier. Id. ¶ 5. On that same date, when Morris first signed up for
CPAP therapy at her local AHP office and prior to receiving any calls from AHP or
Lincare, Morris signed a consent form which stated:
I attest the above information is correct. I authorize the
direct billing to Medicare, Medicaid, Medicare
Supplemental, and/or private health insurance on my
behalf by American HomePatient and/or its corporate
affiliates, agents, and assigns. If signed by someone other

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on
the parties’ submissions, including affidavits, depositions, and exhibits, as well as the parties’
Stipulation of Agreed Material Facts (Doc. 193). For purposes of summary judgment, the
Court presents the facts in the light most favorable to the non-moving party, as required by
Fed. R. Civ. P. 56.
than I acknowledge I have the authority to sign on behalf of
the patient. Further, by SIGNING BELOW I hereby
expressly agree to receive calls by or on behalf of American
HomePatient regarding treatment options, health-related
information, disease-management programs, wellness
programs, products, services, or other community-based
initiatives or activities related to my care. I have received,
read and understand THE TERMS OF AGREEMENT
AND AGREE TO BE BOUND BY THE TERMS OF
THE AGREEMENT. I acknowledge receipt of the
Company’s Notice of Privacy Practices.

Id. ¶ 6; see also Doc. 188-1 at 20.
On March 13, 2018, Lincare sent patients, including Morris, a letter informing
them that AHP had joined with Lincare, and stating that “[m]oving forward, your
respiratory supplies and support will be serviced by your local Lincare Center.” Doc.
193 ¶ 7. The letter was sent on AHP letterhead and was signed by “Your American
HomePatient Team.” Doc. 188-1 at 23. The letter advised Morris “that American
HomePatient has officially joined with Lincare,” and if she should need assistance or
have any questions, she should contact the Lincare Center. Id. A telephone number
and address for the Lincare Center in Jacksonville, Florida were provided in the letter.
Id. There is no dispute on the record about Morris’s receipt of the letter.
The prerecorded voice calls at issue in this case were made to Morris by
Lincare’s CPAP Call Center. Doc. 193 ¶ 8. Lincare’s computer-generated Call Logs
reflect calls that were placed by Lincare’s CPAP Call Center. Id. ¶ 9. Lincare’s Call
Logs consist of (1) the telephone numbers Lincare acquired from American Home
Patient (reflected by a Company designation of “American HomePatient”); (2) the
date and time a number was called with a prerecorded message; (3) whether a
prerecorded message was played during the call (reflected by a
“AMD_Application_Played” designation); and (4) whether the telephone number
called was a cellular telephone (reflected by a “Yes” Cell Phone). Id. ¶ 10; see also Doc.

189-4. If the patient does not answer the phone, Lincare leaves a prerecorded voice
mail: “This is your supply center, calling you with an important message regarding
your supplies. Please give us a call back at 1-888-544-2715.” Doc. 193 ¶ 11. Within the
Call Logs produced by Lincare, each call dispositioned as
“AMD_Application_Played” consisted of the prerecorded message requesting a call

back to “your medical supply company.” Id. ¶ 12. Lincare’s Call Logs reflect
prerecorded calls made to Morris’s cellular telephone. Id. ¶ 13.
B. Procedural Background
On September 6, 2022, Morris sued Lincare in a putative class action. Doc. 1.

In her Second Amended Complaint filed August 18, 2023, Morris alleges that Lincare
engaged in unsolicited robocalling to promote its goods and services, in violation of
the TCPA and the FTSA. Doc. 51 ¶ 3. Morris alleges that beginning on September 21,
2020, Lincare sent unsolicited and unconsented to prerecorded voice calls to Morris’s
cellular telephone. Id. ¶ 14. Morris was in Florida when she received the sales calls to

her cellular telephone number. Id. ¶¶ 18, 19.
In Count I of the Second Amended Complaint, Morris alleges that Lincare used
prerecorded messages to make non-emergency calls to her cellular telephone in
violation of 47 U.S.C. § 227 and 47 C.F.R. § 64.1200. Id. ¶¶ 40–43. In Count II, Morris
sues Lincare for violation of the FTSA, Florida’s statutory counterpart to the TCPA.
Id. ¶¶ 48–55. She alleges that Lincare made or knowingly allowed sales calls to be
made to Morris’s cellular telephone without her prior express written consent in
violation of the FTSA. Id. ¶¶ 52–53. She claims she was harmed and seeks statutory

damages for each violation of the statute. Id. ¶ 54. Lincare moved to dismiss the
Second Amended Complaint (Doc. 57), which the Court granted-in-part to the extent
that the Court dismissed Morris’s request for injunctive relief (Doc. 125). Otherwise,
the motion to dismiss was denied and Lincare was directed to file an answer. Id. at 14.

On June 7, 2024, Lincare filed its Answer and Affirmative Defenses, raising the
defenses of consent and the applicability of the health care exception, among other
defenses. Doc. 129.
On June 6, 2024, Morris moved for class certification, which the Court granted.2
Doc. 127, 200. In her motion for class certification, Morris argued that her claims were

typical of the class and that common issues, including the issue of consent,
predominate. Doc. 127 at 18–21.
On January 16, 2025, the parties filed cross motions for summary judgment.
Docs. 188, 189. In support of its motion, Lincare submitted the January 14, 2025
affidavit of Heather Brightwell (Doc. 188-1), the deposition of Morris (Doc. 188-2),

the deposition of Brightwell (Doc. 188-3); Plaintiff’s discovery responses (Doc. 188-4),
and the March 6, 2024 deposition of Brandee Childres (Doc. 195-3). For her part,

2 In her motion for summary judgment, Morris requested a ruling on the class certification
motion before a ruling on the merits to avoid running afoul of the one-way intervention rule.
Doc. 189 at 1 n.1.
Morris filed the March 6 and June 5, 2024 depositions of Childres as the corporate
representative for Lincare (Docs. 189-1, 189-2), Lincare’s interrogatory responses
(Doc. 189-3), Lincare’s Call Logs (Doc. 189-4), Morris’s deposition (Doc. 189-5),

Supplemental Declaration of Aaron Woolfson (Doc. 189-6), August 19, 2024 affidavit
of Heather Brightwell (Doc. 189-7), deposition of Christopher Midgyett (Doc. 189-8);
and the deposition of Brightwell as corporate representative of Lincare (Doc. 189-9).
Additionally, the parties filed a Stipulation of Agreed Material Facts (Doc. 193),
and Plaintiff filed a notice of supplemental authority (Doc. 201). Pursuant to the

Court’s direction, the parties filed supplemental briefing on the issue of whether the
Court’s ruling on Lincare’s summary judgment motion should bind the absent class
members. See Docs. 245, 250.
C. Morris’s Discovery Responses and Deposition

Morris states in interrogatory responses that she received calls to her cellular
telephone ending in -7067 from Defendant Lincare on September 21, 2020; November
23, 2020; July 6, 2021; August 3, 2021; and September 9, 2021. Doc. 188-4 at 3.
Lincare’s Call Logs reflect at least 20 calls to Morris’s cellphone number. See Doc. 189-
4 at 969–70.

Both parties filed copies of the deposition of Morris in support of their respective
motions. See Docs. 188-2, 189-5.3 Morris testified that in April 2015 she participated
in a sleep study which resulted in a diagnosis of obstructive sleep apnea. Doc. 189-5 at

3 To promote clarity, since the deposition transcript page number and CM/ECF page number
match, the Court will cite to the Morris deposition at Doc. 189-5.
43. She began using a CPAP machine after being diagnosed with sleep apnea. Id. at
18–19. She does not currently use a CPAP machine but knows that she needs to do
something to treat her sleep apnea condition. Id. at 19. She recognizes the risks of not

using a CPAP machine and leaving her sleep apnea untreated, including that her
breathing could stop in the middle of the night, she could suffer heart failure, heart
attack, stroke, high blood pressure, or shortened life span. Id. at 20–21. After her
diagnosis, she chose AHP to service her CPAP supply needs. Id. at 24. On March 12,

2015, she provided her cell phone number and signed a form expressly agreeing to
receive calls “by or on behalf of American HomePatient.” Id. at 56–57. Morris testified
she gave permission to be contacted by AHP or anyone on its behalf “[a]t that moment
in time, in 2015” (id. at 57), “not for whatever years later.” Id. at 77. However, she
acknowledged she never told AHP that she no longer wanted to be contacted. Id. at

57, 77.
A July 6, 2015, doctor’s note reflected Morris did not need a new CPAP
machine, but she would need supplies for approximately eight years. Id. at 60–62.
Morris’s first order of supplies from AHP was around July 17, 2015. Id. at 48. There
were no other supply companies she used before using AHP, but she started using

Amazon at some point after AHP because the supplies were much cheaper from
Amazon. Id. at 24. AHP gave her a guideline for reordering supplies, and she tried to
follow it. Id. at 49. Her next order date from AHP was October 20, 2015, and then
again on February 2, 2016. Id. at 50–51. Each order consisted of headgear, tubing,
disposable filters, nasal pillows, and most of the time, a dehumidifier chamber. Id. at
52. Morris testified she was not good at remembering when to call and so the orders
may have been scheduled to auto-ship. Id. at 53. Morris was using the supplies when

they were shipped to her; she needed them for her CPAP machine. Id.
Morris testified that she never had a relationship with Lincare. Id. at 63. Her
relationship was with AHP, but she does not recall ever having to call AHP for
anything other than the initial fitting of the machine. Id. at 64–65.

Morris has had the same cellular telephone number ending in -7067 for as long
as she can remember. Id. at 28–29. When she received the prerecorded messages, she
never called the number back to tell them not to contact her. Id. at 67. As the message
referenced only a “medical supply company,” she did not know who the message was
from or whether it was legitimate. Id. at 67–68. She knew nothing about Lincare

because it never identified itself. Id. at 78. After a while, she blocked the number that
she was receiving calls from. Id. at 68.
D. Affidavit of Heather Brightwell
Heather Brightwell is a certified respiratory therapist and is the current head of
the Lincare Call Center for CPAP medical devices. Doc. 188-1 ¶¶ 3, 5. Brightwell

worked at Lincare when it acquired American HomePatient, Inc. on February 1, 2016.
Id. ¶ 6. As part of the acquisition, Lincare and AHP executed an intercompany
agreement in which Lincare agreed to provide call center services for AHP locations
that continued to operate, including the one that served Morris. Id. In 2018, Lincare
combined its local center in Jacksonville with the AHP local Jacksonville center. Id.
In March 2018, patient files of AHP patients who had agreed to be contacted on behalf
of AHP and who had placed orders with AHP in the preceding 18 months were

transferred into Lincare’s patient database. Id. ¶ 6. An earlier-filed Affidavit of
Brightwell stated that in 2018 “Lincare moved the AHP Jacksonville patients to the
Lincare Jacksonville center establishing new patient profiles for those transferred
patients.” Doc. 189-7 ¶ 6. In March 2018, the Lincare CPAP center took over patient
care and re-supply responsibilities for the transferred AHP patients. Doc. 188-1 ¶ 8.

A physician or a sleep lab must write a prescription for the patient in order to
receive a CPAP medical device and its related supplies. Id. ¶ 21. According to AHP’s
records, Morris ordered supplies from AHP on July 17, 2015; October 20, 2015;
February 2, 2016; and October 17, 2016. Id. ¶¶ 29–32.

Lincare created a patient file for Morris on February 15, 2018 and sent her a
letter on March 13, 2018, informing her that Lincare was taking over the servicing of
her CPAP supply needs from AHP. Id. ¶ 34. Lincare placed supply refill reminder calls
to Morris’s cell phone number that she had provided to AHP. Id. ¶ 35. Morris never
contacted AHP to inform them that she no longer wanted to be called regarding her

CPAP supplies. Id. ¶ 36. Lincare placed Morris on the “Do not call” list after she filed
this lawsuit. Id. ¶ 37.
E. The Parties’ Motions
1. Lincare’s Motion for Summary Judgment (Doc. 188)
Lincare moves for summary judgment on both the federal TCPA claim and the
related state law claim under the FTSA arguing that (1) Lincare’s calls to Morris fall
under the TCPA’s Health Care Rule and therefore required only prior express consent

which was given by providing her phone number; (2) Lincare obtained Morris’s prior
express consent via its predecessor entity AHP, on whose behalf Lincare made the
calls; (3) Even if the calls were not subject to the Health Care Rule, Lincare obtained
Morris’s express written consent; and (4) Morris’s FTSA claim fails because the calls
were not “telephonic sales calls” under the statute and she suffered no actual damages.

Alternatively, Lincare asserts that if the Court disposes of Morris’s TCPA claim, it
should decline jurisdiction of the state statutory claim.
Lincare argues the calls placed to Morris and the class were “health care
messages” as defined by the regulations governing the TCPA. Thus, Lincare contends
the Health Care Rule (not the telemarketing rule) governs Lincare’s prerecorded

messages. If the Health Care Rule applies, only prior express consent (not written
consent) is required. See 47 C.F.R. § 64.1200(a)(2). Lincare argues it obtained Morris’s
prior express consent because Morris gave AHP her phone number and signed the
consent form, and AHP transferred Morris’s consent to Lincare as part of the
acquisition. Lincare informed Morris of the transition in its post-acquisition letter

notifying AHP’s clients that it was “stepping into the shoes” of AHP and making the
calls “on behalf of” AHP. Lincare urges that, alternatively, prior express consent may
be transferred through an intermediary. Finally, Lincare argues that even if the Health
Care Rule does not apply and the Court looks to the Telemarketing Rule, Lincare
argues it substantially complied with the prior written consent as well such that the
calls did not run afoul of the TCPA.
2. Morris’s Motion for Summary Judgment (Doc. 189)

Morris moves for summary judgment on behalf of herself and the class members
on her claims under the TCPA and FTSA seeking statutory damages for each call
placed to them in violation of the statutes. Morris submits that the prerecorded voice
calls were made to her and the class members from Lincare’s Call Center which is
staffed by sales representatives who have the singular goal of placing as many calls as

possible to make sales regardless of the individual medical needs of those called and
notwithstanding that Lincare had no information regarding Plaintiff or the class
members’ personal health circumstances. Morris’s phone number (as well as for all
others called) was obtained by Lincare from AHP. Morris contends she never gave her
number to Lincare and never authorized Lincare to call her.

Morris argues there is no dispute that Lincare called her and the class members
using a prerecorded voice message. She next argues that the calls were telemarketing
(not health care) calls because their purpose was to sell class members CPAP
equipment and supplies. She argues that the Court must consider whether the context
of the call was a pretext to make sales (pretext to a commercial transaction), which she

claims this was. She argues the calls were made by telemarketers, who had no
individualized information regarding the people they called. The purpose of the calls
was to encourage a call back to a sales rep to purchase supplies. The callers engaged
in “education rebuttal” in response to any resistance to purchase. Since the purpose of
the call was to encourage the purchase of goods, Morris argues the calls are governed
by the telemarketing rule and Lincare’s defense of consent fails because it failed to
secure valid express written consent from Morris and the class.

Even if the Health Care Rule applied and only prior express consent (not written
consent) was required, Morris argues she is still entitled to summary judgment because
she gave her phone number to AHP, not Lincare, and the form she and the class
members signed said nothing about their phone numbers being transferred. According
to Morris, she and the class members never consented to their numbers being

transferred and never consented to receiving prerecorded calls from Lincare.
II. APPLICABLE LAW
A. Summary Judgment Legal Standard
Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to support the nonmoving party’s case.”
Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must
then designate specific facts showing that there is a genuine issue of material fact. Id.
at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence

present, could find for the nonmoving party,” and a fact is “material” if it may affect
the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the
court must consider all the evidence in the light most favorable to the nonmoving
party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by

relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852,
858 (11th Cir. 2006).
The standard of review for cross-motions for summary judgment does not differ
from the standard applied when only one party files a motion, but simply requires a

determination of whether either of the parties deserves judgment as a matter of law on
the facts that are not disputed. Am. Bankers Ins. Group v. United States, 408 F.3d 1328,
1331 (11th Cir. 2005). The Court must consider each motion on its own merits,
resolving all reasonable inferences against the party whose motion is under
consideration. Id. The Eleventh Circuit has explained that “[c]ross-motions for

summary judgment will not, in themselves, warrant the court in granting summary
judgment unless one of the parties is entitled to judgment as a matter of law on facts
that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.
1984). Cross-motions may, however, be probative of the absence of a factual dispute
where they reflect general agreement by the parties as to the controlling legal theories
and material facts. Id. at 1555–56.
B. TCPA

In relevant part, § 227(b)(1)(A) of the TCPA provides:
It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United States--
(A) to make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice--
…
(iii) to any telephone number assigned to a … cellular telephone service,
…
47 U.S.C. § 227(b)(1)(A)(iii).

The implementing regulations similarly state:
No person or entity may:
(1) Except as provided in paragraph (a)(2) of this section, initiate any
telephone call (other than a call made for emergency purposes or is made with
the prior express consent of the called party) using an automatic telephone
dialing system or an artificial or prerecorded voice; . . .
(iii) To any telephone number assigned to a . . . cellular telephone service,
….

47 C.F.R. § 64.1200(a)(1)(iii).

III. DISCUSSION
A. TCPA Claim
In general, the TCPA prohibits unsolicited phone calls that utilize prerecorded
messages. 47 U.S.C. § 227(b)(1)(A)(iii). The FCC has promulgated exceptions to the
TCPA for certain calls related to health care. Referred to as the “Health Care Rule,”
this exception, codified in paragraph (a)(2) of § 64.1200 of the regulations, provides:
No person or entity may:
Initiate, or cause to be initiated, any telephone call that includes or
introduces an advertisement or constitutes telemarketing, using an
automatic telephone dialing system or an artificial or prerecorded voice,
to any of the lines or telephone numbers described in paragraphs (a)(1)(i)
through (iii) of this section, other than a call made with the prior express
written consent of the called party or the prior express consent of the
called party when the call . . . delivers a “health care” message made by,
or on behalf of, a “covered entity” or its “business associate,” as those
terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.

47 C.F.R. § 64.1200(a)(2).

Lincare contends the Health Care Rule exception applies to its calls because the
calls delivered a “health care” message and Lincare is a “covered entity” as
contemplated by the regulations. Under HIPAA, “covered entity” includes “(3) [a]
health care provider who transmits any health information in electronic form in
connection with a transaction covered by this subchapter.” 45 C.F.R. § 160.103. And
“health care” includes the “[s]ale or dispensing of a drug, device, equipment, or other
item in accordance with a prescription.” Id. Lincare argues it obtained Morris’s prior
express consent to be called when she provided her cellular telephone number to AHP
and consented to receive calls “by or on behalf of” AHP. Morris argues that the
messages are primarily telemarketing and neither she, nor the class members,
consented to calls from Lincare. Liability on Plaintiffs’ TCPA claims turns on the issue
of consent and the applicability of the Health Care Rule exception. The Court
addresses each in turn below.
1. Consent
a. By Providing a Phone Number
Morris testified that she consented to be called by AHP, but not by Lincare, and
she asserts that her consent was only “[a]t that moment in time, in 2015” (Doc. 189-5
at 57), “not for whatever years later.” Id. at 77. But the record also shows she never

gave instructions to the contrary. Whether Morris gave prior express consent to be
called is an affirmative defense to a claim under the TCPA, Murphy v. DCI Biologicals
Orlando, LLC, 797 F.3d 1302, 1304–05 (11th Cir. 2015). Thus, Lincare bears the burden
of establishing consent.

The FCC has explained that “persons who knowingly release their phone
numbers have in effect given their invitation or permission to be called at the number
which they have given, absent instructions to the contrary.” Mais v. Gulf Coast Collection
Bureau, Inc., 768 F.3d 1110, 1118 (11th Cir. 2014) (quoting In re Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991 (1992 FCC Ruling), 7

FCC Rcd. 8752, 8769)). The Eleventh Circuit has confirmed that providing a cellular
telephone number to a company “qualifies as prior express consent under the
TCPA[.]” Lawrence v. Bayview Loan Servicing, LLC, 666 F. App’x 875, 881 (11th Cir.
2016). The record evidence shows Morris provided her cell phone number to AHP.
“On the issue of consent, the FCC has clarified ‘that provision of a phone

number to a healthcare provider constitutes prior express consent for healthcare calls
subject to HIPAA by a HIPAA-covered entity and business associates acting on its
behalf, as defined by HIPAA, if the covered entities and business associates are making
calls within the scope of the consent given, and absent instructions to the contrary.’”
Jackson v. Safeway, Inc., No. 15-cv-4419-JSC, 2016 WL 5907917, at *10 (N.D. Cal. Oct.
11, 2016) (citing 2015 FCC Order, 30 FCC Red. at 8029 ¶ 141). As explained by the
FCC, “within the scope of the consent given” means that calls or messages must be
closely related to the initial purpose for which consent was provided. Bailey v. CVS

Pharmacy, Inc., No. 17CV11482PGSLHG, 2018 WL 3866701, at *6 (D. N.J. Aug. 14,
2018) (citing 2015 FCC Order). However, courts that have addressed this “scope of
consent” issue have understood the “closely related” requirement to be satisfied “so
long as the call bears some relation to the reason for which the number was originally
provided.” 2018 WL 3866701, at *6 (citing Jackson, 2016 WL 5907917, at *10). The

record evidence further supports that the number was provided to AHP by Morris for
purposes of being contacted regarding her CPAP supplies. Thus, the calls fell within
the scope of the consent given, and there is no record evidence of Morris or the class
giving contrary instructions.

b. Withdrawal of Consent
A party may withdraw its consent at any time using any reasonable method. See
47 C.F.R. § 64.1200(a)(10) (“A called party may revoke prior express consent,
including prior express written consent, to receive calls or text messages made
pursuant to paragraphs (a)(1) through (3) and (c)(2) of this section by using any

reasonable method to clearly express a desire not to receive further calls or text
messages from the caller or sender.”). “[O]ral revocation is sufficient to withdraw prior
express consent.” Lawrence, 666 F. App’x at 879.
There is no record evidence that Morris gave contrary instructions or made any
attempt, orally or in writing, to withdraw her consent. To that point, Morris testified
that she never told AHP that she no longer wanted to be contacted. Doc. 189-5 at 57,
77. Morris argues, however, that giving her consent to AHP in 2015 cannot mean that
she is authorizing to be called at any point in time years into the future by a different

entity. On the issue of how long the consent lasts, the Court need not make the
determination as to whether the consent was given for an indeterminate amount of
time into the future absent withdrawal. The record before the Court reveals Morris
provided her phone number to AHP, she consented to be called regarding her CPAP
supplies by or on behalf of AHP, her doctor’s prescription indicated that she will need

CPAP supplies for approximately eight years, she did not withdraw her consent to be
called during those eight years, and she received messages to her cell phone regarding
her supplies within the eight years. On these undisputed facts, prior express consent
was provided to AHP. The Court turns next to whether Lincare could rely upon the
consent provided to AHP.

c. On Behalf of AHP
Morris argues she never gave consent to Lincare, a completely different entity.
The consent form signed by Morris, however, indicates that she consented to receive
calls by or “on behalf of” AHP regarding “treatment options, health-related
information, disease-management programs, wellness programs, products,

services….” Doc. 188-1 at 20. Thus, Lincare urges that it stepped into the shoes of
AHP for purposes of servicing Morris’s account. Morris argues there is no record
evidence of the Lincare/AHP relationship because Lincare never placed into evidence
the written agreement between Lincare and AHP regarding their business
arrangement. But Plaintiff’s theory that Lincare is a completely different or unrelated
entity is unpersuasive and unsupported by the record.
In March 2018, Lincare and/or AHP sent Morris a letter stating AHP has

joined Lincare and that “[m]oving forward, your respiratory supplies and support will
be serviced by your local Lincare Center.” Id. at 23. In addition to this letter being
before the Court on the instant motions, Heather Brightwell, head of the Lincare Call
Center for CPAP medical devices, explains that Lincare and AHP executed an
intercompany agreement in which Lincare would provide call center services for AHP

locations that continued to operate, including the one that served Morris. Doc. 188-1
at 3. She further explained that in 2018, the Lincare and AHP Jacksonville Centers
were combined. Id. In March 2018, patient files of AHP patients who had agreed to
be contacted on behalf of AHP and who had placed orders with AHP in the preceding

18 months were transferred to Lincare’s database, unless instructions to the contrary
were received.4 Id. at 4. As of that time, Lincare took over patient care and resupply
responsibilities for the Jacksonville Center patients with the Lincare CPAP call centers
handling the flow of CPAP telephone supply traffic for both Lincare and AHP, except
calls placed to local centers by patients. Id. According to Brightwell, “[t]he purpose of

assigning AHP’s call center services to Lincare was to ensure that patients would
continue to receive consistent and necessary health care services.” Id. at 3. Other than

4 Brightwell explained that patients who had asked not to be contacted by AHP, who had
advised they were getting their CPAP supplies elsewhere, or who reported that they no longer
had the medical device would have been excluded. Doc. 188-1 at 4.
Morris’s speculation as to what may or may not be in the intercompany agreement,
she has placed no evidence in the record to dispute the letter and Brightwell’s affidavit
about the transition.5 Thus, although the Lincare/AHP intercompany agreement is

not in the record, there is undisputed evidence of Lincare’s taking over the handling of
AHP patient care to ensure the patients had continuous care and that Morris and the
class was advised of that transition by letter.
Morris argues that the “on behalf of” language contained in the signed consent
form means that anyone acting for AHP must be doing so for AHP’s benefit. With this

explanation, Morris goes on to argue that since Lincare was contacting Morris solely
for Lincare’s own benefit to make a sale and enrich itself, it could not be acting “on
behalf of” AHP. Morris’s reading of “on behalf of” is too narrow. “On behalf of” can
refer to “as the agent of,” “on the part of,” or “for the benefit of.” AMER. HERITAGE
DICT., HarperCollins, 5th Ed. (2022).6 Thus, the Court rejects Morris’s premise that

Lincare had to be acting solely for the benefit of AHP when it called her.
Lincare alternatively argues that consent may be obtained through an
intermediary, and Eleventh Circuit caselaw supports this proposition. See Mais, 768
F.3d at 1123 (“the FCC recently ruled ‘that the TCPA does not prohibit a caller from
obtaining consent through an intermediary.’ In re GroupMe, Inc./Skype Commc'ns

5 As noted by defense counsel at the hearing, Plaintiff did not depose Brightwell about the
agreement or otherwise seek to put the agreement into the record to demonstrate any
purported discrepancy between it and the Brightwell affidavit.
6 Although the phrases are now used interchangeably, traditionally in behalf of was used to
mean “for the benefit of,” while its counterpart on behalf of meant “as the agent of, on the
part of.” AMER. HERITAGE DICT., HarperCollins, 5th Ed. (2022).
S.A.R.L. Petition, 29 FCC Rcd. 3442, 3447 (2014).”). The FCC explained that
“allowing consent to be obtained and conveyed via intermediaries in this context
facilitates these normal, expected, and desired business communications in a manner

that preserves the intended protections of the TCPA.” Id. at 3445.
The Mais court explained that the analysis under the FCC’s rulings turns on
whether the called party granted permission to be called concerning a particular topic
and not on how the calling party received the number. 768 F.3d at 1123 (“[T]he

appropriate analysis turns on whether the called party granted permission or
authorization, not on whether the creditor received the number directly.”). Thus, a
party that receives an individual’s phone number indirectly may nevertheless have
consent to call that individual. Id. at 1123–24.
In Mais, the wife included her ill husband’s phone number on his hospital

admission paperwork indicating the hospital could release his information for
purposes of his treatment or related to billing. The appellate court concluded that Mais,
through his wife, gave the hospital permission to transfer his number for billing
purposes and thus, “the wireless number was provided by the consumer to the
creditor” in satisfaction of the prior express consent exception. Id. at 1125. Courts have

recognized, however, “the scope of consent must be determined upon the facts of [the]
situation [in which the person gave consent].” Fober v. Mgmt. & Tech. Consultants, LLC,
886 F.3d 789, 793 (9th Cir. 2018) (quoting In re Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7990 (2015)). As discussed
above, Morris consented to be called regarding “treatment options, health-related
information, disease-management programs, wellness programs, products, services . .
. .” Thus, the CPAP refill reminder calls were within the scope of the consent given.
Morris cites Shaikh v. Fairway Indep. Mortg. Corp., No. 21-CV-5715, 2025 WL

692104, at *1 (N.D. Ill. Mar. 4, 2025), for the proposition that prior express consent
provided to one party is not transferrable to another entity. Doc. 201. The facts of
Shaikh are distinguishable from the instant case. In Shaikh, plaintiff provided his
contact information and express consent to be contacted to LendingTree. Id. Plaintiff’s

agreement with LendingTree permitted LendingTree to share his information with up
to five Network partners. LendingTree did not provide that contact information to
defendant Fairway, who was one of LendingTree’s approximately 2,500 Network
partners, but Fairway nevertheless obtained the number and sent prerecorded
telemarketing calls to plaintiff. Id. Plaintiff Shaikh sued Fairway for violating the

TCPA. Id. The district court denied Fairway’s motion for summary judgment because
“a reasonable jury could find that Shaikh’s agreement with LendingTree did not
provide his express consent to receive prerecorded calls from Fairway.” Id.
In contrast here, Morris provided her cellular phone number and expressly
consented to receive calls by “or on behalf of” AHP regarding her CPAP supplies.

AHP provided Morris’s number to its affiliate Lincare for purposes of patient care and
re-supply responsibilities for Morris’s account. The undisputed evidence shows
Lincare took over the servicing of AHP patients in Jacksonville. Lincare used the
phone number it got from AHP to call Morris regarding her CPAP supplies within the
eight-year time frame Morris’s doctor indicated she would need supplies. On the
undisputed facts, Morris provided express consent to receive calls from AHP or on its
behalf regarding products and services related to her care, and the Health Care Rule,
discussed below, applies to exempt Lincare’s calls from the TCPA.

2. Health Care Rule
This rule was codified after the FCC issued an order in 2012 “tightening the
restrictions for automated telemarketing calls under the TCPA ….” Jackson, 2016 WL
5907917, at *3. The FCC heightened the consent requirement for certain automated
telemarketing calls, requiring a TCPA caller to obtain prior express written consent,

as opposed to the statutorily required prior express consent. See id. (citing In re Rules
& Regulations Implementing the Tel. Consumer Protection Act of 1991, 27 FCC Rcd.
1830, 1838 ¶ 20 (Feb. 5, 2012). It was in this heightened-consent-requirement order
that the FCC carved out the Health Care Rule exception.

The Health Care Rule states:
No person or entity may: ... Initiate, or cause to be initiated,
any telephone call that includes or introduces an
advertisement or constitutes telemarketing, using an
automatic telephone dialing system or an artificial or
prerecorded voice, to any of the lines or telephone numbers
[listed, including cellular telephone lines], other than a call
made with the prior express written consent of the called
party or the prior express consent of the called party when
the call . . . delivers a ‘health care’ message made by, or on
behalf of, a ‘covered entity’ or its ‘business associates,’ as
those terms are defined [by HIPAA].

47 C.F.R. § 64.1200(a)(2). By its express language, the Health Care Rule applies to a
health care message even if it “includes or introduces an advertisement or constitutes
telemarketing.” 47 C.F.R. § 64.1200(a)(2).
Morris relies on Lawson v. Visionworks of Am., Inc., 741 F. Supp. 3d 1251, 1254
(M.D. Fla. 2024), to argue that Lincare’s calls here were merely a pretext for the sale
of goods or services. Morris’s reliance on Lawson is misplaced for at least two reasons.

First, the Lawson court was considering the matter on a motion to dismiss and thus
had to accept as true the plaintiff’s allegations in his complaint. Second, the Lawson
plaintiff alleged that he attempted to opt out of the text messages on more than one
occasion, but the unwanted messages continued. Id. at 1253. This matter is before the

Court on summary judgment with a more fully developed record and the Court can
go beyond the allegations of Plaintiff’s Complaint. Moreover, there is no indication
that Morris ever attempted to opt out of the messages or advise anyone she did not
want to be contacted.
Morris also argues that the calls were primarily sales calls made from a call

center with “power hours” in which sales representatives compete as to the number of
calls they can place in a month. Even accepting these facts in a light favorable to
Morris, that does not, on its own, negate that the calls were healthcare-related and/or
exempt under the Health Care Rule. As indicated above, the Health Care Rule
exception is within the regulations prohibiting telemarketing messages. Thus, some

telemarketing or advertising component will be inherent in the messages themselves.
Relevant here, HIPAA exempts from its definition of marketing all communications
made “[f]or treatment of an individual by a health care provider . . . or to direct or
recommend alternative treatments” to the individual. 45 C.F.R. § 164.501.
Additionally, HIPAA specifically carves out of its definition of “Marketing” any
“communication made: (i) To provide refill reminders.” Id. § 164.501. Thus,
notwithstanding Morris’s protests that the calls were made for telemarketing purposes,
a healthcare message that is exempt under the Health Care Rule may include an

advertising or telemarketing message and not lose its exempt status.
In determining whether the calls constitute health care messages for which only
prior express (not written) consent is required, both sides rely on Zani v Rite Aid, 246
F. Supp. 3d 835 (S.D.N.Y. 2017), aff’d 725 F. App’x 41 (2d Cir. 2018), which found

“at least three factors may be material to whether a call conveys a health care message
as a matter of law.” Id. at 851. Morris argues all three factors must be met. Lincare
argues that the Zani factors are not requirements but instead are factors for courts to
consider and weigh. In relevant part, the Zani court stated:
First, if such a call concerns a product or service that is
inarguably health-related, as narrowly defined by the FTC,
it likely conveys a health care message. Such category
would include the administration of medication “prescribed
by a doctor or other healthcare provider,” but would not
include any product simply because it may be construed to
benefit a consumer’s health. FTC Guidance, supra. Second,
if such a call is made by or on behalf of a health care
provider to a patient with whom she has an established
health care treatment relationship, that too is material to
application of the rule. See 2012 Order at 1855 ¶ 63
(describing such calls as placed by or on behalf of “the
consumer’s health care provider to the consumer ...
concern[ing] the consumers’ health”). Finally, if the call
concerns the individual health care needs of the patient
recipient, that too is material. See id. The operative question
as to this last factor would be whether a nexus exists
between the subject matter of the call and the established
health care needs of its recipient.

Id. at 851.
As to the first factor whether the call is health-related, HIPAA defines health
care to include “care, services, or supplies related to the health of an individual”
including but not limited to “[s]ale or dispensing of a . . . device, equipment, or other
item in accordance with a prescription.” 45 C.F.R. § 160.103. It is undisputed that a
prescription is required for CPAP equipment and supplies. The Court finds that the

messages left on Morris’s and the class members’ cell phones regarding refill reminders
for their CPAP supplies were unquestionably health-related such that they conveyed a
health care message. Morris does not vigorously dispute this.
As to the second factor, whether the “call is made by or on behalf of a health
care provider to a patient with whom she has an established health care treatment

relationship,” Morris submits she and the class members have no relationship with
Lincare. She contends this is further evidenced by the Brightwell declaration that
explained Lincare established “new” patient profiles for the transferred AHP patients.
Doc. 189-7 ¶ 6. Lincare responds that Morris’s relationship with AHP, for which
Lincare took over the responsibilities, satisfies the relationship prong. Even accepting

that Lincare had to set up “new” profiles for the AHP patients as Morris argues, the
Court again finds the language “on behalf of” to be relevant. The Health Care Rule
specifically references health care messages made by, or on behalf of, a covered entity
or its business associates. Morris does not dispute she had a health care treatment
relationship with AHP. As discussed above, on this record, the Court finds that

Lincare was making the calls to Morris and the class on behalf of AHP. Significantly,
Morris and the class members were told by letter about the Lincare/AHP transition.
Brightwell also provided an affidavit explaining Lincare’s role in taking over the
servicing of the Jacksonville call center patients.

Additionally, Lincare argues the facts here are similar to those in Zani where
that court found the plaintiff had an established health care relationship with the
defendant Rite Aid HQ even though Rite Aid HQ did not itself directly provide
prescriptions or health care to plaintiff, but rather Rite Aid HQ was an affiliate of Rite
Aid New York which operated the pharmacy plaintiff used. Similarly, although

Lincare did not provide the initial care, the affiliated relationship between Lincare and
AHP supports a finding that the calls were made on behalf of a health care provider
with whom Morris had a relationship.
The third Zani factor considers whether the “call concerns the individual health

care needs of the patient recipient.” Morris argues the generic message of the
recording,7 the defendant’s lack of knowledge of her personal health care/records, and
the fact it did not call her until four years after her last order demonstrate the calls did
not concern her or the class members’ individual needs. Lincare responds this factor is
met because the calls were made based upon when the recipient would be expected to

need to order CPAP supplies. Lincare argues, like in Zani, the calls satisfied the third
factor because they “alerted . . . patients to the availability of a medication treating the

7 The messages left did not specifically identify Lincare or that it was calling regarding CPAP
supplies. Lincare explains its voice mail messages are intentionally non-specific so as not to
run afoul of HIPAA in the event someone besides the patient picks up the message.
precise medical issue for which they had previously sought care.” 246 F. Supp. 3d at
852. Zani involved calls regarding prescription flu shot reminders. Rite Aid only sent
the flu shot reminder calls to patients of Rite Aid pharmacies who had received a

prescription flu shot the previous year from those pharmacies. Id. Such flu shot
reminder calls were found not to violate the TCPA. In discussing this factor, the Zani
court found significant whether a nexus exists between the subject matter of the call
and the established health care needs of its recipient. Morris testified that she knew she

would need supplies for approximately eight years and AHP provided her with a
guideline of when supplies were needed which she tried to follow. Although a closer
call exists as to this factor, because of the timing of Lincare’s calls to Morris, the Court
concludes that the CPAP supply reminder calls at issue here similarly alerted patients
to the availability of CPAP supplies in a manner consistent with when such supplies

would need to be renewed. A nexus exists between the subject matter of the call and
the established health care needs of Morris.
Upon consideration, the Court finds that the calls placed by Lincare to Morris
and the class members fall within the Health Care Rule exception to the TCPA so that
only prior express consent, not written consent, was necessary and that such consent

was provided.8 This case is not a situation in which Plaintiffs were receiving calls from
some company out-of-the-blue with whom they had no relevant connection. For
example, in Murtoff v. My Eye Dr., plaintiff started receiving automated phone calls

8 Given this finding, the Court does not reach Lincare’s alternative argument that even if
written consent were required, it substantially complied.
from MyEyeDr., reminding her that she was due for an annual eye exam, a couple of
years after she had made a single inquiry to one of defendant’s optometry offices for a
price quote on a pair of glasses. Murtoff v. My Eye Dr., LLC, No. 1:21-CV-02607, 2024

WL 4278033, at *1 (N.D. Ill. Sept. 24, 2024). While the pre-recorded calls were
inarguably health-related, on the facts of that case, there was no established health care
relationship because that plaintiff never received any treatment nor had any
relationship with defendant. Instead, this case is more factually similar to those cases,
like Zani, involving reminder flu shot calls to patients who had previously received a

flu shot or other health care from the defendant or its affiliate such that there was an
established health care relationship. See, generally, Zani, 246 F. Supp. 3d at 851; Bailey,
2018 WL 3866701, at *6; Latner v. Mount Sinai Health Sys., Inc., 879 F.3d 52, 55 (2d
Cir. 2018), as amended (Jan. 9, 2018); Jackson, 2016 WL 5907917, at *8–9 (holding

that a generic flu shot reminder call does not violate the TCPA, as such calls fall within
the Health Care Rule exemption).
B. Morris’s Motion on the TCPA Claim
In her motion, Morris argues there is no dispute that Lincare called her and the
class members using a prerecorded voice message. While this is correct, Morris’s

motion for summary judgment still fails. Morris argues that because Lincare’s calls
were telemarketing calls, Lincare must have obtained her prior written consent. The
Court disagrees. Based on the undisputed facts presented in this case and considering
the Zani factors, Lincare has established that the Health Care Rule applies to the
prerecorded messages left by Lincare on Morris’s cell phone. In support of her motion,
Morris proffered evidence that the calls were placed by telemarketers hoping to receive
a return call to order supplies. Notwithstanding, even though the calls contained a
telemarketing component, the Health Care Rule still applies to the messages left by

Lincare for the reasons discussed in section (A)(2) above. As a result, only prior express
consent was required, not written consent.
Morris next argues she is entitled to judgment in her favor because although she
may have provided to AHP prior consent to be called, she did not provide prior express
consent to Lincare. The Regulations clearly indicate that providing one’s telephone

number constitutes consent for which the number was provided. By signing the
consent form, Morris provided her phone number and provided her prior express
consent to be called by AHP, or by an entity on AHP’s behalf, regarding products and
services related to her health care. On the record before the Court, Lincare is
considered an entity on behalf of AHP. The messages left on Morris’s phone related

to her healthcare supplies. Thus, when servicing Morris’s account for AHP, Lincare
could rely upon the prior express consent Morris gave to AHP (or an entity on AHP’s
behalf) to be called about her CPAP supplies. Lincare’s calls to Morris did not violate
the TCPA. Accordingly, Morris’s motion for summary judgment on Count I of her
Second Amended Complaint is due to be denied.9 Lincare’s motion for summary

9 The Court is not unsympathetic to a plaintiff’s complaints of receiving unexpected and
nonconsensual telemarketing calls to one’s cell phone. And the Court’s ruling here is not
intended to open the floodgates to finding consent with any affiliate’s calls. As stated by the
FCC, “the scope of consent must be determined upon the facts of [the] situation.” In re Rules
& Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7990
(2015). The undisputed facts here, however, show that Lincare’s calls to Morris were made
judgment on the TCPA claim is due to be granted as to Morris and the TCPA class
members. See Juris v. Inamed Corp., 685 F.3d 1294, 1312 (11th Cir. 2012) (“Class action
judgments will typically bind all members of the class.”).

C. FTSA
Plaintiff’s remaining claim in Count II (FTSA) arises under Florida statutory
law. Although similar in many aspects to the TCPA, the FTSA differs materially, as
relevant to the issues in this case, because it does not have a “Health Care Rule”

exception to telemarketing calls.10 Thus, the resolution of the FTSA claim will require
analysis of Florida law. “[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will
point toward declining to exercise jurisdiction over the remaining state-law claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Upon careful
consideration, as this action is not currently scheduled for trial, the Court will decline
to exercise its supplemental jurisdiction over the remaining state law claim.11 See 28

on behalf of AHP, the messages left fell within the Health Care Rule exception to the TCPA,
and Morris provided her prior express consent to be called.
10 Additionally, the FTSA prohibits “unsolicited calls,” defined under Florida law as calls by
a telephone solicitor who does not have a “prior or existing business relationship” with the
person called. See Fla. Stat. § 501.059(1)(k). The TCPA, on the other hand, permits health-
care related calls by, or on behalf of a “covered entity” or its “business associate,” as defined by
HIPAA. See 47 C.F.R. § 64.1200(a)(2); 45 CFR 160.103.
11 The period of limitations for any claim asserted under subsection (a) [establishing
supplemental jurisdiction] . . . shall be tolled while the claim is pending and for a period of 30
days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C. §
1367(d). Section 1367(d) “protects plaintiffs who choose to assert supplemental state-law
claims in a federal action. If the court declines to exercise supplemental jurisdiction over those
claims, the plaintiff may assert them in a new action in state court without fear of being barred
U.S.C. § 1367(c)(3) (“[D]istrict courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all
claims over which it has original jurisdiction.”); see also Jordan v. Mosley, 298 F. App’x

803, 806 (11th Cir. 2008) (citing Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th
Cir. 2004) (the decision whether to exercise supplemental jurisdiction is within the
discretion of the district court and we have “encouraged district courts to dismiss any
remaining state claims when . . . the federal claims have been dismissed prior to
trial”)). Accordingly, it is hereby

ORDERED AND ADJUDGED:
1. As to the federal TCPA claim in Count I of the Second Amended Class
Action Complaint, Defendant Lincare, Inc.’s Motion for Summary Judgment (Doc.
188) is GRANTED, and Plaintiff Janet Morris’s Motion for Summary Judgment

(Doc. 189) is DENIED.
2. The Clerk is directed to enter Judgment in favor of Defendant Lincare,
Inc. and against Plaintiff Janet Morris and the Class Members, as to the federal TCPA
claim in Count I of the Second Amended Class Action Complaint.
3. The Court declines to exercise supplemental jurisdiction over the FTSA

state law claim against Lincare, Inc. in Count II of the Second Amended Class Action

by the statute of limitations. This obviously protects plaintiff when state law might not have
provided for tolling during the pendency of the federal-court case.” 13D Charles Alan Wright
et al., Federal Practice & Procedure § 3567.4, 458–59 (3d ed. 2008).
Complaint. Count II of the Second Amended Class Action Complaint is DISMISSED
without prejudice.
4. The Clerk is further directed to terminate any pending motions and
deadlines and CLOSE this case.
DONE AND ORDERED in Tampa, Florida on September 17, 2025.

Chak ome ards hn TDA pl el □
Charlene Edwards Honeywell
United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11140786. Public record. Not legal advice.