Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 1 of 11 PageID 1
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`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`8:22-cv-00748
`Civil Action No. _________________________________
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`BRAD M. SMITH, individually,
`and on behalf of all others similarly situated,
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`Plaintiff,
`
`v.
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`T-MOBILE USA, INC.
`and JOHN DOES 1-10,
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`Defendants.
`_______________________________________/
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`CLASS ACTION COMPLAINT
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`NOW COMES BRAD M. SMITH, individually, and on behalf of all others
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`similarly situated, by and through his undersigned counsel, complaining of T-
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`MOBILE USA, INC. and JOHN DOES 1-10, as follows:
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`NATURE OF ACTION
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`1.
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`This action seeks redress for Defendant’s violations of the Telephone
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`Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
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`2.
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`“The primary purpose of the TCPA was to protect individuals from the
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`harassment, invasion of privacy, inconvenience, nuisance, and other harms associated
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`with unsolicited, automated calls.” Parchman v. SLM Corp., 896 F.3d 728, 738-39 (6th
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`8:22-cv-00748
`Civil Action No. _________________________________
`
`BRAD M. SMITH, individually,
`and on behalf of all others similarly situated,
`
`Plaintiff,
`
`v.
`
`T-MOBILE USA, INC.
`and JOHN DOES 1-10,
`
`Defendants.
`_______________________________________/
`
`CLASS ACTION COMPLAINT
`
`NOW COMES BRAD M. SMITH, individually, and on behalf of all others
`
`similarly situated, by and through his undersigned counsel, complaining of T-
`
`MOBILE USA, INC. and JOHN DOES 1-10, as follows:
`
`NATURE OF ACTION
`
`1.
`
`This action seeks redress for Defendant’s violations of the Telephone
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`Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
`
`2.
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`“The primary purpose of the TCPA was to protect individuals from the
`
`harassment, invasion of privacy, inconvenience, nuisance, and other harms associated
`
`with unsolicited, automated calls.” Parchman v. SLM Corp., 896 F.3d 728, 738-39 (6th
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`1
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 2 of 11 PageID 2
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`Cir. 2018) citing Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, §
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`2, 105 Stat. 2394 (1991).
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`3.
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`As the Supreme Court recently observed, “Americans passionately
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`disagree about many things. But they are largely united in their disdain for robocalls.”
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`Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335, 2343 (2020).
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`JURISDICTION AND VENUE
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`4.
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`This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331
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`as the TCPA is a federal statute.
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`5.
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`Venue in this district is proper under 28 U.S.C. § 1391(b)(2) as a
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`substantial part of the events and omissions giving rise to Plaintiff’s claims occurred in
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`this judicial district.
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`PARTIES
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`6.
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`BRAD M. SMITH (“Plaintiff”) is a natural person, over 18-years-of-age,
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`who at all times relevant resided in New Port Richey, Florida.
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`7.
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`8.
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`Plaintiff is a “person” as defined by 47 U.S.C. § 153(39).
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`T-MOBILE USA, INC. (“Defendant”) is a nationally recognized
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`wireless service provider.
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`9.
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`Defendant maintains its principal place of business in Bellevue,
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`Washington.
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`10. Defendant is a “person” as defined by 47 U.S.C. § 153(39).
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`2
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 3 of 11 PageID 3
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`11.
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`JOHN DOES 1-10 are third party vendors/agents that Defendant
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`engages to place outbound calls on its behalf for various purposes. The identities of
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`JOHN DOES 1-10 are unknown to Plaintiff at this time and will be ascertained
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`through discovery.
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`FACTUAL ALLEGATIONS
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`12. At all times relevant, Plaintiff was the sole operator, possessor, and
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`subscriber of the cellular telephone number ending in 8567 (Plaintiff’s personal cellular
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`phone number).
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`13. At all times relevant, Plaintiff’s number ending in 8567 was assigned to
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`a cellular telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii).
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`14. At all times relevant, Plaintiff was financially responsible for his cellular
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`telephone service.
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`15.
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`In February 2022, Defendant started placing calls to Plaintiff’s personal
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`cellular phone number in an attempt to collect an alleged debt owed to Defendant by
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`an unknown individual by the name of “Kimberly Hemmerly”.
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`16. On February 24, 2022, at approximately 9:44 a.m. EST, Plaintiff
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`answered a call from Defendant.
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`17. As soon as Plaintiff answered the call, he was met with an artificial or
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`pre-recorded voice greeting stating “this call is for Kimberly Hemmerly…..”
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`18.
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`It was clear to Plaintiff that a live person was not on the call as the
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`greeting was monotone and Plaintiff would not get a response when he spoke.
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`3
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 4 of 11 PageID 4
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`19. The greeting further provided Plaintiff with the option to press “0” to
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`speak to a live representative.
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`20. Plaintiff pressed 0 and spoke to a live representative.
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`21.
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` During this call, Plaintiff (1) notified Defendant’s representative that he
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`is not “Kimberly Hemmerly”; (2) advised Defendant’s representative that Defendant
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`was calling a wrong number; and (3) requested that Defendant cease its misguided
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`calls.
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`22. Despite Plaintiff’s request that Defendant cease its misguided calls,
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`Defendant continued to pound Plaintiff with calls that utilized an artificial or
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`prerecorded voice (“robocalls”) in an effort to contact “Kimberly Hemmerly.”
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`23. On March 10, 2022, at approximately 10:45 a.m. EST, Plaintiff answered
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`another robocall from Defendant.
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`24. Plaintiff was again greeted with an artificial or pre-recorded voice stating
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`“this call is for Kimberly Hemmerly….”
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`25. Plaintiff again pressed “0” and spoke with a representative named
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`“Dell.”
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`26. During this call, Plaintiff again (1) notified Defendant that it is contacting
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`the wrong party; (2) advised Defendant that he does not know who “Kimberly
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`Hemmerly” is; and (3) requested that Defendant cease its misguided calls.
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`27. Plaintiff’s request that the misguided robocalls cease fell on deaf ears
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`again and Defendant continued placing robocalls to Plaintiff’s cellular phone.
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`4
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 5 of 11 PageID 5
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`28.
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`In total, Defendant placed no less than fifty (50) misguided robocalls to
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`Plaintiff’s cellular phone number, including phone calls from the phone number (844)
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`796-0648.
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`29. Upon information and belief, the robocalls referenced herein were placed
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`by John Does 1-10 on behalf of Defendant.
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`30. At no point in time did Plaintiff provide his personal cellular phone
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`number to Defendant.
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`DAMAGES
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`32. Plaintiff values his time, privacy, and solitude.
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`33. Defendant’s misguided robocalls have invaded Plaintiff’s privacy,
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`disrupted Plaintiff’s everyday life, and have caused Plaintiff actual harm, including:
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`aggravation that accompanies unwanted robocalls, increased risk of personal injury
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`resulting from the distraction caused by the misguided robocalls, wear and tear to
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`Plaintiff’s cellular phone, temporary loss of use of Plaintiff’s cellular phone, loss of
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`battery charge, loss of concentration, mental anguish, nuisance, the per-kilowatt
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`electricity costs required to recharge Plaintiff’s cellular phone as a result of increased
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`usage of Plaintiff’s cellular phone, and wasting Plaintiff’s time.
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`34. Moreover, each time Defendant placed a robocall to Plaintiff cellular
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`phone number, Defendant occupied Plaintiff’s cellular phone number such that
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`Plaintiff was unable to receive other phone calls or otherwise utilize his cellular phone
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`while his phone was ringing.
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`5
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 6 of 11 PageID 6
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`CLASS ALLEGATIONS
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`35. Paragraphs 12 through 34 of this Complaint are expressly adopted and
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`incorporated herein as though fully set forth herein.
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`36. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and
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`23(b)(3) individually, and on behalf of all others similarly situated (“Putative Class”)
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`defined as follows:
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`All individuals residing in the United States (1) to whom Defendant or a
`third party acting on Defendant’s behalf, placed, or caused to be placed,
`a call; (2) directed to a number assigned to a cellular telephone service;
`(3) using an artificial or prerecorded voice; (4) in an attempt to contact a
`third party; (5) without his/her consent; (6) within the four years
`preceding the date of this Complaint through the date of class
`certification.
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`37. The following individuals are excluded from the Putative Class: (1) any
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`Judge or Magistrate Judge presiding over this action and members of their families;
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`(2) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any
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`entity in which Defendant or its parents have a controlling interest and their current
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`or former employees, officers, and directors; (3) Plaintiff’s attorneys; (4) individuals
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`who properly execute and file a timely request for exclusion from the Putative Class;
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`(5) the legal representatives, successors, or assigns of any such excluded individuals;
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`and (6) individuals whose claims against Defendant have been fully and finally
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`adjudicated and/or released.
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`A. Numerosity
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`6
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 7 of 11 PageID 7
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`38. Upon information and belief, the members of the Putative Class are so
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`numerous that joinder of them is impracticable.
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`39. The exact number of the members of the Putative Class is unknown to
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`Plaintiff at this time, and can only be determined through targeted discovery.
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`40. The members of the Putative Class are ascertainable because the Class is
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`defined by reference to objective criteria.
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`41. The members of the Putative Class are identifiable in that their names,
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`addresses, and telephone numbers can be identified in business records maintained by
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`Defendant.
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`B. Commonality and Predominance
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`42. There are many questions of law and fact common to the claims of
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`Plaintiff and the Putative Class.
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`43. Those questions predominate over any questions that may affect
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`individual members of the Putative Class.
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`C. Typicality
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`44. Plaintiff’s claims are typical of members of the Putative Class because
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`Plaintiff and members of the Putative Class are entitled to damages as a result of
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`Defendant’s conduct.
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`7
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 8 of 11 PageID 8
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`D. Superiority and Manageability
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`45. This case is also appropriate for class certification as class proceedings
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`are superior to all other available methods for the efficient and fair adjudication of this
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`controversy.
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`46. The damages suffered by the individual members of the Putative Class
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`will likely be relatively small, especially given the burden and expense required for
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`individual prosecution.
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`47. By contrast, a class action provides the benefits of single adjudication,
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`economies of scale, and comprehensive supervision by a single court.
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`48. Economies of effort, expense, and time will be fostered and uniformity
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`of decisions ensured.
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`E. Adequate Representation
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`49. Plaintiff will adequately and fairly represent and protect the interests of
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`the Putative Class.
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`50. Plaintiff has no interests antagonistic to those of the Putative Class and
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`Defendant has no defenses unique to Plaintiff.
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`51. Plaintiff has retained competent and experienced counsel in consumer
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`class action litigation.
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 9 of 11 PageID 9
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`CLAIMS FOR RELIEF
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`COUNT I
`Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.)
`(On behalf of Plaintiff and the Members of the Putative Class)
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`52. Paragraphs 12 through 51 of this Complaint are expressly adopted and
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`incorporated herein as though fully set forth herein.
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`53.
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`Section 227(b)(1)(A)(iii) of the TCPA prohibits “any call (other than a
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`call made for emergency purposes or made with the prior express consent of the called
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`party) using any automatic telephone dialing system or an artificial or prerecorded
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`voice” to “any telephone number assigned to a paging service, cellular telephone
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`service, specialized mobile radio service, or other radio common carrier service, or any
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`service for which the called party is charged for the call.” Barr v. Am. Ass’n of Political
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`Consultants, 140 S. Ct. 2335, 2344 (2020).
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`54. Defendant violated § 227 (b)(1)(A)(iii) of the TCPA by placing no less
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`than fifty (50) non-emergency calls to Plaintiff’s cellular phone number utilizing an
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`artificial or prerecorded voice without Plaintiff’s consent.
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`55. As pled above, Defendant’s calls utilized an artificial or prerecorded
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`voice that automatically played upon Plaintiff answering the call.
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`56. As pled above, Defendant did not have consent to place calls to Plaintiff’s
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`cellular phone number as Plaintiff never provided his phone number to Defendant.
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`57. Upon information and belief, Defendant does not maintain an effective
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`process to flag wrong numbers and ensure that the calls to wrong numbers cease.
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`9
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 10 of 11 PageID 10
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`58.
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`Specifically, as demonstrated herein, instead of updating its records to
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`cease robocalls to wrong numbers, Defendant blatantly ignored Plaintiff’s requests that
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`the calls cease and continued to pound Plaintiff with misguided robocalls.
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`59. As pled above, Plaintiff was harmed by Defendant’s unlawful robocalls.
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`WHEREFORE, Plaintiff, on behalf of himself and the members of the Putative
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`Class, request the following relief:
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`A. an order granting certification of the proposed class, including the
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`designation of Plaintiff as the named representative, and the appointment
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`of the undersigned as Class Counsel;
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`B. a judgment in Plaintiff’s favor finding that Defendant violated 47 U.S.C.
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`§ 227 (b)(1)(A)(iii);
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`C. an order enjoining Defendant from placing further unlawful calls to
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`Plaintiff and the members of the Putative Class;
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`D. an award of $500.00 in damages to Plaintiff and the members of the
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`Putative Class for each such violation;
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`E. an award of treble damages up to $1,500.00 to Plaintiff and the members
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`of the Putative Class for each such violation; and
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`F. an award of such other relief as this Court deems just and proper.
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`Case 8:22-cv-00748-KKM-TGW Document 1 Filed 03/31/22 Page 11 of 11 PageID 11
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`DEMAND FOR JURY TRIAL
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`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury.
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`Date: March 31, 2022
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`Respectfully submitted,
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`BRAD M. SMITH
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`By: /s/ Alexander J. Taylor
`Alexander J. Taylor, Esq., Of Counsel
`Florida Bar No. 1013947
`SULAIMAN LAW GROUP, LTD.
`2500 South Highland Avenue
`Suite 200
`Lombard, Illinois 60148
`(630) 575-8180
`ataylor@sulaimanlaw.com
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`11
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