Case 9:19-cv-81568-RAR Document 26 Entered on FLSD Docket 12/30/2019 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA, WEST PALM BEACH DIVISION

CASE NO.: 9:19-cv-81568-RAR

CRAIG CUNNINGHAM (pro se individually)

Plaintiff,

Vs.

JARED DOKOVNA (individually)

JARED G. DOKOVNA, P.A.

LAW OFFICES OF MICHAEL WALSH, P.A.

DOKOVNA & WALSH, P.A.

MICHAEL WALSH (individually)

GLOBAL CLIENT SOLUTIONS, LLC

PALMER FINANCIAL CONSULTANTS, INC

STEPHEN PALMER (individually}

JANE/JOHN DOE(s) 1-5

______________________________________/

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S CORRECTED ORIGINAL

COMPLAINT

COMES NOW, the collective defendants, by and through the undersigned attorney

pursuant to Federal Rule of Civil Procedure and respectfully moves this Honorable Court

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to enter an Order dismissing the Complaint. In support of said Motion, the defendants

would collectively and separately assert as follows:

PROCEDURAL HISTORY COMMON TO ALL DEFENDANTS

1. On November 18, 2019, the Plaintiff filed his Complaint alleging the instant

defendants violated the Telephone Consumer Protection Act, 47 U.S.C. § 227.

2. On December 16, 2019, the Plaintiff filed an Amended Complaint titled “Plaintiff’s

Corrected Original Complaint” alleging the instant defendants violated the Telephone

Consumer Protection Act, 47 U.S.C. § 227.

BACKGROUND

The Plaintiff in this case has filed over 150 lawsuits so closely similar to the instant

case as to create a difference of no distinction. This is what the Plaintiff does as a means

of earning a living. The Plaintiff’s TCPA lawsuit filing career began in 2005. After making

some bad investments, the Plaintiff was in financial ruin, owing over $100,000 in credit

card debt. He needed a way out and found it by abusing the federal court system with an

endless cascade of lawsuits. The Plaintiff has bragged that he “had discovered fire” when

he learned how to file TCPA suits. It should be noted the Plaintiff has been sanctioned by

numerous United States District Court for filing identical lawsuits. The case sub juice is

yet another attempt by the Plaintiff to harass and intimidate the current Defendants into

paying him money in the hopes they will avoid protracted litigation.

According to the Plaintiff this case relates to a telemarketer calling on behalf of a

lawyer engaging in unauthorized practice of law in Texas and telemarketing to solicit

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legal services for Dokovna and Walsh PC at the direction of Jared Dokovna and

Michael Walsh, attorneys who were at the time acting as law partners. The plaintiff

also alleges that these actions were taken on behalf of their respective individual

corporations Jared G. Dokovna, PA and Law offices of Michael Walsh, PA. The

Plaintiff further claims he received multiple calls from a variety of spoofed caller ID's

that contained a pre-recorded message and were initiated using an automated

telephone dialing system. The calls were on behalf of Dokovna and Walsh, PC and

offered the legal services of Jared Dokovna and Michael Walsh and the Plaintiff was

emailed a retainer for the law firm of the Defendants. Calls were placed by Palmer

Financial Consultant, Inc and at the direction of Stephen Palmer. The calls had a delay

of 3-4 seconds of dead air before an audible tone connecting the call to a live person

indicating the calls were initiated using an ATDS.

The Complaint included an alleged email from Palmer Financial, Inc. sent on October

3, 2016, which purportedly contained a “Legal Services Agreement” and “Welcome

Packet” from the firm of Dokovan & Walsh, P.A. The Plaintiff further alleges that the

email was sent by Robert Clarefield and asserts that Robert Clarefield was being directed

by Michael Walsh. The Plaintiff enjoys an acrimonious relationship with Michael Walsh

since file this suit and is self-evident by the numerous intentional falsehoods made in the

Complaint. One example of the intentional falsehoods in contained in paragraph 42

wherein it is alleged that defendants Stephen Palmer, Jared Dokovna, and Michael Walsh

have previously been sued under the TCPA. None of the aforementioned defendants have

ever been sued under the TCPA and the Plaintiff knows this too well.

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Conspicuously missing in the Complaint and exhibits are any facts or documents

related to the Law Office of Michael Walsh, P.A. presumably because the Law Office of

Michael Walsh P.A. did not exist until May 23, 2017. SEE EXHIBIT A (The State of

Florida Division of Corporations business filing for Law Office of Michael Walsh, P.A).

Nevertheless, the Plaintiff seeks money from the Law Office of Michael Walsh, P.A..

Equally obvious is the fact the Complaint contains a “shot-gun” approach to filing the

suit. Besides making merely conclusory allegations with no factual support, the Complaint

fails to provide adequate notice as to the relationship and connection to all the Defendants

with the Plaintiff naming GLOBAL CLIENT SOLUTIONS, LLC. (herein GLOBAL), as a

Defendant without a scintilla of factual support to link the instant Defendant to GLOBAL.

There has never been any knowledge, agreement, participation between Global and any of

the other defendants. Additionally, the complaint, is void of factual support to establish a

connection between the alleged phone calls and emails made by Robert Clarefield with

JARED G. DOKOVNA, P.A. and the LAW OFFICES OF MICHAEL WALSH, P.A., and

nothing more than conclusory allegations that the calls were made under the authority,

direction, or control of STEPHEN PALMER, MICHAEL WALSH, or JARED

DOKOVNA.

GROUND FOR DISMISSAL AND

INCORPORATED MEMORANDUM OF LAW

I. Failure to State a Claim on Behalf of All Defendants

The Complaint should be dismissed for failure to state a claim. In Case No. 19-

cv-61140-BLOOM/Valle United States District Judge Beth Bloom wrote an order in a

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similar case and aptly stated the legal standard: “Rule 8 of the Federal Rules requires

that a pleading contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not

need detailed factual allegations,” it must provide “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an

unadorned, the defendant-unlawfully-harmed-me accusation”). In the same vein, a

complaint may not rest on “‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration

in original)). “Factual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. These elements are required to survive a

motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which

requests dismissal for failure to state a claim upon which relief can be granted.

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept

the plaintiff’s allegations as true and evaluate all plausible inferences derived from those

facts in favor of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades

Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v.

Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet

does not apply to legal conclusions, and courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S.

at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006).

Moreover, “courts may infer from the factual allegations in the complaint ‘obvious

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alternative explanations,’ which suggest lawful conduct rather than the unlawful conduct

the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d

1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A court considering a Rule

12(b) motion is generally limited to the facts contained in the complaint and attached

exhibits, including documents referred to in the complaint that are central to the claim.

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess,

Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside

the four corners of the complaint may still be considered if it is central to the plaintiff's

claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d

1125, 1135 (11th Cir. 2002)).

The instant Plaintiff’s complaint arises under the TCPA § 227, which prohibits using

a “automatic telephone dialing system” [ATDS] which has the capacity “to store or

produce telephone numbers to be called, using a random or sequential number generator”

and which can dial such numbers to “make any call . . . to any telephone number assigned

to a . . . cellular telephone service.” 42 U.S.C. § 227(a)-(b)(1)(iii). The instant Defendants

allege that Plaintiff fails to allege sufficient facts to support his claim including by failing

to “identify the times of day she received these calls, the content of these calls, or

anything else to indicate that these calls originated from an ATDS.” Further, Defendants

assert that “federal courts repeatedly have found that allegations merely stating that a

defendant used an ATDS or artificial or prerecorded voice are insufficient to state a claim

under the TCPA,” because such allegations are a mere formulaic recitation of the

elements of a TCPA claim. (Id. at 3, 6). Defendants also argue that Plaintiff’s claim is

self-defeating, because the allegation that the calls were made to a specific person, to wit:

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him creates an inference that the calls were not made by random or sequential number

generation but were targeted from known numbers. Specifically, the complaint infers that

the Plaintiff must have been in contact with Robert Clarefield before the first temporally

identified call of 10/5/16, in order to provide his email address and receive an email with

a date of 10/5/16. On the limited factual allegations before the Court, it cannot be

discerned whether the calls which Plaintiff received were targeted or random thorough the

use of an ATDS.

Various courts have found that merely alleging that a defendant used an ATDS system

is insufficient to state a claim for relief. See Padilla v. Whetstone Partners, LLC, No. 14-

21079-CIV, 2014 WL 3418490, at *2 (S.D. Fla. July 14, 2014). Numerous courts have also

found that complaints which offered similar or greater factual support than the instant

complaint were nevertheless insufficient to state a claim under the TCPA § 227. See Padilla,

No. 14-21079-CIV, 2014 WL 3418490, at *2 (holding that a complaint which included

allegations that defendants “call[ed] Plaintiff on numerous occasions, several times per day,

and on back-to-back days,” and alleged that he encountered both pre-recorded messages and

spoke to live agents was insufficient to state a claim for relief because the plaintiff “d[id] not

elaborate on the content of the pre- recorded message . . . [or] whether there was a pause upon

his answering the call . . . [or] the content of the pre-recorded messages . . . or any other fact

that would support his conclusory allegation that he received calls from an automatic telephone

dialing system”); Emanuel v. Los Angeles Lakers, Inc., No. CV 12-9936-GW SHX, 2013 WL

1719035, at *4 n.3 (C.D. Cal. Apr. 18, 2013), appeal dismissed (Apr. 29, 2014) (holding that

“merely parroting th[e] definition” of an ATDS “is insufficient to state a claim under Twombly

and Iqbal); Baranski v. NCO Fin. Sys., Inc., No. 13 CV 6349 ILG JMA, 2014 WL 1155304,

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at *6 (E.D.N.Y. Mar. 21, 2014) (holding that “Plaintiffs must do more than simply parrot the

statutory language” defining ATDS and noting that “the vast majority of courts to have

considered the issue have found that “a bare allegation that defendants used an ATDS is not

enough”) (quotation omitted); Snyder v. Perry, No. 14-CV-2090 CBA RER, 2015 WL

1262591, at *8 (E.D.N.Y. Mar. 18, 2015) (same); Brailey v. F.H.Cann & Associates, Inc., No.

CIV. 6:14-0754, 2014 WL 7639909, at *8 (W.D. La. Dec. 5, 2014) (same).

It is respectfully argued by the Defendants that under Iqbal, “threadbare recitals of a

cause of action's elements, supported by mere conclusory statements,” cannot be accepted as

true on a motion to dismiss, thus the Court may not accept an assertion that an ATDS was used

simply because Plaintiff states as much. Thus, the Complaint fails to state a claim and should

be dismissed.

II. “Shotgun Approach” of the Complaint on Behalf of All Defendants

The term “shotgun pleading” refers to a complaint that, for one reason or other, fails to

give the defendants adequate notice of the claims against them. In the Eleventh Circuit, courts

have identified roughly four categories of shotgun pleadings: (1) a pleading with multiple

counts where each count adopts the allegations of all preceding counts; (2) a pleading that

relies on conclusory and vague allegations not tied to any cause of action; (3) a pleading that

fails to separate out its various causes of action and claims for relief; and (4) a pleading that

asserts numerous claims against multiple defendants without specifying which defendants are

responsible for which acts or omissions. Weiland v. Palm Beach Cty. Sheriff’s Office, 792

F.3d 1313, 1321–23 (11th Cir. 2015). By their very nature, shotgun pleadings violate Rule

8’s mandate to provide “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8. The federal courts have found that often times the

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allegations contained in a complaint are not connected to a particular Defendant or set of

Defendants, making it impossible to understand who did what.

In the case sub judice the Complaint is nothing more than a “boiler-plate” pleading that

the professional Plaintiff files hundreds of times each year suing several persons and entities

that have no liability to him. The language of each complaint recites the same verbiage and

serves as nothing more than his thinly veiled attempt at portraying himself as a victim. The

Plaintiff loves getting calls and filing suits and simply transfers the language from one pro se

complaint to the next, all in an effort to take advantage of the federal court system.

Additionally, the Amended Complaint stretches the boilerplate conclusory allegations just

enough as to lump every defendant together in an effort to “assert[] numerous claims against

multiple defendants without specifying which defendants are responsible for which acts or

omissions” and Weiland, 792 F.3d at 1321–23. As such, the Complaint is not a “short and

plain statement of the claim showing that the pleader is entitled to relief” and more closely

resembles a “the defendant[s]-unlawfully-harmed-me accusation.” Fed. R. Civ. P. 8; Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. The Plaintiff Lacks Standing on Behalf of All Defendants

There are three types of standing: statutory, constitutional, and prudential. "Statutory

standing is simply statutory interpretation: the question it asks is whether Congress has

accorded this injured plaintiff the right to sue the defendant to redress his injury." Graden v.

Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir.2007) (emphasis in original). "Constitutional

and prudential standing are about, respectively, the constitutional power of a federal court to

resolve a dispute and the wisdom of so doing." Id.

a. Statutory Standing

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The parties in the case sub judice absolutely dispute that Plaintiff has statutory standing

under the TCPA. It is adamantly believed by the instant Defendants the Plaintiff did not

receive any unwanted calls. Rather, the instant Plaintiff intentionally went to an online

website and entered his phone number with the unequivocal intention to receive calls. None

of the instant Defendants owned or operated the websites. The persons or entities controlling

the websites are fraudsters who steal legitimate companies identities and falsely induce

consumers into believing the consumers are hiring real lawyers. When the consumers learn

they have been duped, they come after the real business. The lawyers in the instant case are

victims of this scam. In February 2017, the lawyers learned that someone was posing as

them and charging clients for legal services completely unbeknownst to the consumers or

lawyers. Upon learning about this, the lawyers immediately contacted the Florida Bar and

reported it. SEE EXHIBIT B (correspondence from the Florida Bar). Based on the number

of identical complaints filed by the instant Plaintiff, it is believed the instant Plaintiff is the

architect of this chaos. He has no other source of income so he and whoever he recruits are

the sole recipients of any profits from this scheme. Thus, there is no statutory standing and

therefore, the Complaint should be dismissed.

b. Constitutional Standing

In its most recent analysis of standing, the Eleventh Circuit in Salcedo v. Hanna No. 17-

14077 (11th Cir. 2019) held that a single unsolicited text message sent in violation of the

Telephone Consumer Protection Act of 1991 (TCPA) did not cause the kind of concrete

injury necessary to confer standing to sue. Citing the Supreme Court’s standard in Spokeo,

Inc. v. Robins, 578 U.S. ___ (2016) the Eleventh Circuit panel focused on whether Salcedo’s

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allegations stated a concrete injury—whether Salcedo’s injury was “real and concrete as

opposed to figmentary.” Salcedo alleged intangible harms borrowed largely from cases in the

junk fax and robocalling context. Salcedo alleged that Hanna’s text message caused him to

waste time, invaded his privacy, and consumed the use of his mobile phone. Salcedo did not

allege that the text cost him any money, nor did he allege how much time the text caused him

to waste. In analyzing the issue, the Eleventh Circuit focused largely on congressional intent,

finding no evidence that Congress considered the harms of telemarketing by text message

when it adopted the TCPA. Looking at telemarketing more generally, the court noted that

Congress’ concerns primarily involve privacy within the home. Salcedo did not allege that he

received the text at home, and even if he had, the court noted, the nature of a cell phone and

its ability to be silenced differs from the disturbance of domestic peace created by a ringing

house phone.

Article III vests the judicial power in the federal courts and extends that power to “Cases”

and “Controversies.” U.S. Const. art. III, §§ 1–2. As the Supreme Court has explained, the

“irreducible constitutional minimum” to establish Article III standing requires three

elements. Lujan, 504 U.S. at 560 (1992). “The plaintiff must have (1) suffered an injury in

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

likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016) (citing Lujan, 504 U.S. at 560–61). It is the first element—the “foremost”

of the three, id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998))—

"that is disputed in this appeal and to which we now turn.”

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To establish standing, an injury in fact must be concrete.3 Id. at 1548. “A ‘concrete’

injury must be ‘de facto’; that is, it must actually exist,” as opposed to being hypothetical or

speculative. Id. A concrete injury need be only an “identifiable trifle.” United States v.

Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14

(1973) (noting that sufficiently concrete injuries have included a fraction of a vote, a $5 fine

and costs, and a $1.50 poll tax). But sometimes plaintiffs allege intangible injuries like the

kind contained in the instant Complaint. An injury in fact must also be particularized, that is,

affecting the plaintiff “in a personal and individual way.” Spokeo, 136 S. Ct at 1548 (quoting

Lujan, 504 U.S. at 560). It is undisputed that Salcedo’s allegations are of a personal and

individual nature. When the concreteness of an alleged injury is difficult to recognize, a court

must look to “history and the judgment of Congress” for guidance. Spokeo, 136 S. Ct. at

1549. But an act of Congress that creates a statutory right and a private right of action to sue

does not automatically create standing; “Article III standing requires a concrete injury even

in the context of a statutory violation.” Id.4 “[T]he requirement of injury in fact is a hard

floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island

Inst., 555 U.S. 488, 497 (2009).

Since Eleventh Circuit Precedent requires the instant Plaintiff to bear the burden of

establishing federal jurisdiction, Lujan, 504 U.S. at 561, this Honorable Court must look to

the substance of the instant Complaint’s allegations to determine if the instant Plaintiff has

standing due to a concrete injury. It is axiomatic that the instant Plaintiff has not come close

to meeting his burden. Thus, the Complaint should be dismissed. Other federal courts have

held that professional plaintiffs do not have standing to sue under the TCPA.” Morris, 2016

WL 7115973, at *6 (citing Stoops v. Wells Fargo Bank, N.A., No. CV 3:15-83, 2016 WL

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3566266, at *12 (W.D. Pa. June 24, 2016); Telephone Science Corp. v. Asset Recovery

Solutions, LLC, No. 15-CV-5182, 2016 WL 4179150, at *1 (N.D. Ill. Aug. 8, 2016)).

c. Prudential Standing

Even if, assuming arguendo, Plaintiff had suffered an injury-in-fact, Plaintiff would still

lack standing because he does not have prudential standing. See UPS Worldwide Forwarding

v. United States Postal Serv., 66 F.3d 621, 625 (3d Cir.1995) ("Standing has constitutional

and prudential components, both of which must be satisfied before a litigant may seek

redress in the federal courts."). Prudential standing requires that: (1) "a litigant assert his or

her own legal interests rather than those of third parties;" (2) "courts refrain from

adjudicating abstract questions of wide public significance which amount to generalized

grievances;" and (3) "a litigant demonstrate that her interests are arguably within the zone of

interests intended to be protected by the statute, rule or constitutional provision on which the

claim is based." Id. at 626 (internal quotations and alterations omitted).

To satisfy the first element of prudential standing, "the litigant [must] demonstrate that it

has asserted its `own legal interests rather than those of third parties.'" Id. at 627 (quoting

Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir.1994)). Specifically, "[t]he first

element only mandates that litigants assert their own legal rights, not those of others." Id.

"This test generally comes into play in those cases in which a party seeks to challenge agency

action that affects another party." Id. at 627-28. Thus, Plaintiff has satisfied the first element

of prudential standing because he is asserting his own legal interests. The second element of

prudential standing "admonishes courts to `refrain from adjudicating abstract questions of

wide public significance which amount to generalized grievances.'" Id. at 628 (quoting

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Wheeler, 22 F.3d at 538). Examples of generalized grievances include cases in which

plaintiffs sued to protest the Vietnam War and to challenge the legality of the Central

Intelligence Agency. Id. (citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.

208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), and United States v. Richardson, 418 U.S.

166, 175, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)). Plaintiff's action is therefore not the type of

"generalized grievance" that precludes prudential standing. See, e.g., Robins, 136 S.Ct. at

1548 n. 7 ("The fact that an injury may be suffered by a large number of people does not of

itself make that injury a nonjusticiable generalized grievance."); Anderson, 2011 U.S. Dist.

LEXIS 51368, at *17, 2011 WL 1812496, at *6-7 (finding that the plaintiff's TCPA action

did not amount to generalized grievances because "she assert[ed] a specific grievance against

[the defendant]").

The parties dispute whether Plaintiff's interests are arguably within the zone of interests

intended to be protected by the TCPA. "`[T]he zone of interest test is a guide for deciding

whether, in view of Congress' evident intent to make every agency action presumptively

reviewable, a particular plaintiff should be heard to complain of a particular agency

decision.'" Chem Serv., Inc. v. Envtl. Monitoring Sys. Lab.Cincinnati, 12 F.3d 1256, 1262 (3d

Cir.1993) (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d

757 (1987)). "`[T]he test denies a right of review if the plaintiff's interests are so marginally

related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit.'" Id. (quoting Clarke, 479 U.S. at 399, 107

S.Ct. 750). In addressing a statute's purpose, a court "`[is] not limited to considering the

statute under which [the plaintiff] sued, but may consider any provision that helps us to

understand Congress' overall purposes in the [statute].'" Id. at 1264 (quoting Clarke, 479 U.S.

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at 401, 107 S.Ct. 750). There must be an "`integral relationship'" between the statutory

provisions that a plaintiff claims have been violated and the provisions under which the

plaintiff claims standing. Davis by Davis v. Philadelphia Hous. Auth., 121 F.3d 92, 98 n. 8

(3d Cir.1997) (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517,

530, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991)). "This `integral relationship' requirement,

however, only necessitates that `the plaintiff must establish that the injury he complains of ...

falls within the `zone of interests' sought to be protected by the statutory provision whose

violation forms the legal basis for his complaint." Id. (quoting Bennett v. Spear, 520 U.S.

154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (emphasis in original)).

"In applying the zone of interest test, the Court has focused its inquiry on the

Congressional intent of the statute and whether the complainant's interests were `among the

sorts of interests those statutes were specifically designed to protect.'" Chem Serv., Inc., 12

F.3d at 1262 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 886, 110 S.Ct. 3177, 111

L.Ed.2d 695 (1990)). A court therefore must "determine, using traditional tools of statutory

interpretation, whether a legislatively conferred cause of action encompasses a particular

plaintiff's claim." Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134

S.Ct. 1377, 1387, 188 L.Ed.2d 392 (2014). In discussing constitutional standing above, the

Court examined in depth Congress's intention to protect consumers from "the proliferation of

intrusive, nuisance [telemarketing] calls to their homes" by enacting the TCPA. Mims, 132

S.Ct. at 745 (internal quotations omitted); see also supra Part V.A. In addition to its above

analysis, the Court notes that the Third Circuit Court of Appeals has addressed the zone of

interests protected by the TCPA. See Leyse, 804 F.3d 316. Specifically, the Third Circuit

Court of Appeals explained that "[i]n passing the Act, Congress was animated by outrage

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over the proliferation of prerecorded telemarketing calls to private residences, which

consumers regarded as an intrusive invasion of privacy and a nuisance." Id. at 325-26

(concluding that "a regular user of the phone line who occupies the residence being called

undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to

protect") (internal quotations and alterations omitted); see also Gager, 727 F.3d at 271

(stating that "[t]he TCPA is a remedial statute that was passed to protect consumers from

unwanted automated telephone calls") (emphasis added).

As discussed throughout this motion, the instant Plaintiff has not suffered an injury-in-

fact because his privacy and economic interests were not violated when he received calls

from Defendant. See supra Part V.A. Similarly, Plaintiff's interests are not within the zone of

interests intended to be protected by the TCPA. Plaintiff's interests, which include purchasing

cell phones with the hope of receiving calls from creditors for the sole purpose of collecting

statutory damages, are not "among the sorts of interests [the TCPA was] specifically

designed to protect." Chem Serv., Inc., 12 F.3d at 1262 (internal quotations omitted). Given

his incomplete allegations in the Complaint, it is respectfully argued that the instant

Plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in

the [TCPA] that it cannot reasonably be assumed that Congress intended to permit the suit.

Indeed, it is unfathomable that Congress considered a consumer who files TCPA actions as a

business when it enacted the TCPA as a result of its "outrage over the proliferation of

prerecorded telemarketing calls to private residences, which consumers regarded as an

intrusive invasion of privacy and a nuisance." Leyse, 804 F.3d at 325 (internal quotations and

alterations omitted).

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Because Plaintiff does not have "the sort of interest in privacy, peace, and quiet that

Congress intended to protect," id. at 326, this Court should find that he has failed to establish

that the injury he complains of "falls within the zone of interests sought to be protected by

the statutory provision whose violation forms the legal basis for [her] complaint," Davis by

Davis, 121 F.3d at 98 n. 8 (internal quotations and emphasis omitted). See, e.g., Maiden

Creek Assocs., L.P. v. United States DOT, 123 F.Supp.3d 638, 649 (E.D.Pa.2015) (noting

that courts have held that plaintiffs "whose sole motivation ... was their own economic self-

interest and welfare" were not within the zone of interests to be protected by the National

Environmental Policy Act) (internal quotations omitted); Cellco P'ship, 2012 U.S. Dist.

LEXIS 64407, at *17, 23, 2012 WL 1638056, at *8 (holding that the plaintiffs did not fall

within the zone of interests protected by the TCPA because "they attempt[ed] to use the

statute in a way not intended or contemplated by Congress" and because "[t]heir damages are

not of the vexatious and intrusive nuisance nature sought to be redressed by Congress in

enacting the TCPA"); cf. Anderson, 2011 U.S. Dist. LEXIS 51368, at *17, 2011 WL

1812496, at *6-7

Accordingly, not only does the instant Plaintiff lack statutory standing, but he also lacks

constitutional and prudential standing. Because both constitutional and prudential standing

must be established "before a litigant may seek redress in the federal courts," UPS Worldwide

Forwarding, 66 F.3d at 625, this Honorable Court should dismiss his Complaint.

IV. Arguments Solely of Behalf of the Law Office of Michael Walsh, P.A .

The case against the Law Office of Michael Walsh, P.A should be dismissed because

that Defendant did not even exist during the time included in the Complaint. The

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Complaint does not establish even a scintilla of facts or documents asserting any

knowledge or participation by the Law Office of Michael Walsh, P.A. presumably because

the Law Office of Michael Walsh P.A. did not exist until May 23, 2017. SEE EXHIBIT A

(The State of Florida Division of Corporations business filing for Law Office of Michael

Walsh, P.A). This reckless disregard in suing anyone he thinks he can boost money from

is typical of the Plaintiff. Nevertheless, the Plaintiff seeks money from the Law Office of

Michael Walsh, P.A..

V. The Complaint Fails to Comply with the Court’s Order dated November 20,

2019, and Local Rule 2F.

The Plaintiff was ordered by this Court as well as required under the local rules to

include the proper signatures block. Local Rule 2F reads, “Filings must include a

signature block with the name, street address, telephone number, facsimile telephone

number, e-mail address of the filing party (and the Florida Bar identification number if

filed by an attorney).”

The Amended Complaint still lacks a telephone number and email address for

the Plaintiff. Defendant Walsh personally communicated this error directly to the Plaintiff

upon being served with the Initial Complaint. Defendant Walsh offered to email the

Plaintiff the Court’s order and local rule, but the Plaintiff refused to provide any email.

VI. Plaintiff Cannot Seek Attorney Fees on Behalf of all Defendants

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The Supreme Court has held that where a statute permits attorney's fees to be awarded to

the prevailing party, the attorney who prevails in a case brought under a federal statute as a

pro se litigant is not entitled to an award of attorney's fees. Kay v. Ehrler, 499 U.S. 432

(1991). This ruling was based on the court's determination that such statutes contemplate an

attorney-client relationship between the party and the attorney prosecuting or defending the

case, and that Congress intends to encourage litigants to seek the advice of a competent and

detached third party. As the court noted, the various circuits had previously agreed in various

rulings "that a pro se litigant who is not a lawyer is not entitled to attorney's fees". Kay v.

Ehrler, 499 U.S. 432, 435 (1991), citing Gonzalez v. Kangas, 814 F. 2d 1411 (9th Cir. 1987);

Smith v. DeBartoli, 769 F. 2d 451, 453 (7th Cir. 1985), cert. denied, 475 U.S. 1067 (1986);

Turman v. Tuttle, 711 F. 2d 148 (10th Cir. 1983) (per curiam); Owens-El v. Robinson, 694 F.

2d 941 (3d Cir. 1982); Wright v. Crowell, 674 F. 2d 521 (6th Cir. 1982) (per curiam); Cofield

v. Atlanta, 648 F. 2d 986, 987-988 (5th Cir. 1981); Lovell v. Snow, 637 F. 2d 170 (1st Cir.

1981); Davis v. Parratt, 608 F. 2d 717 (8th Cir. 1979) (per curiam).

It is undisputed that the instant Plaintiff appears before the Court pro se and therefore, is

precluded from seeking an award for attorney fees.

CONCLUSION

Based on the foregoing it is respectfully prayed that this Honorable Court will enter an

Order Dismissing the Complaint along with any other relief the Court deems appropriate and

in the interests of justice to include an award of attorney fees.

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Respectfully submitted,

Richard Joseph Casey, Esq.

5301 North Federal Highway,
Suite 215
Boca Raton, Florida 33487
(561) 945-2887 Phone
Richardjcaseyiii@gmail.com
Shannondonovan19@gmail.com

_____/s/ Richard J Casey III_________

RICHARD J CASEY III, ESQ.
Fla. Bar No. 1012146

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy if the foregoing was electronically

filed on December 26, 2019, with the Clerk of the Court using CM/ECF along with having

served all counsel of record or pro se parties identified on the service list incorporated herein in

the manner specified, either via transmission of Electronic filing generated by CM/ECF or in

some other authorized manner for those counsel or parties not authorized to receive

electronically Notice of Electronic Filing.

SERVICE LIST

CUNNIGHAM V. DOKOVNA
9:19-CIV-81568-RAR
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

Craig Cunningham Richard Casey

3000 Custer Road, Suite 270-206 Florida Bar #1012146
Plano, TX 75075 5301 North Federal Highway
Pro Se Plaintiff Suite 215
Service via U.S. Mail Boca Raton, FL 33487
Richardjcaseyiii@gmail.com
Shannondonovan19@gmail.com
Michael D. Walsh Attorney for Defendants
Florida Bar 0172138 Service via CM/ECF
5301 North Federal Highway
Suite 215 Stephen Palmer
Boca Raton, FL 33487 1730 S. Federal Hwy
(561) 584-4939 Phone Suite 296
(407) 675-1661 Phone Delray Beach, FL 33483
Mwalsh7700@gmail.com
spalmerpfc@gmail.com
Shannondonovan19@gmail.com
Attorney for Defendants Defendant
Service via CM/ECF Service via Email

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