Hey, TCPAWorld!

Allow me to introduce myself. My name is Kayla–one of the newest additions to the powerhouse team here at Troutman Amin, LLP. You’ll definitely get used to hearing from me. Sorry not sorry.

Anyway… you should definitely hear about this new case out of the Middle District of Florida. It provides important insight into the climate for TCPA cases here in the sunny state. Spoiler alert: the temperature is HOT for TCPA defendants. Let’s get into it.

In Cacho v. USHealth Advisors, LLC, 2024 WL 3738869 (M.D. Fla. July 24, 2024), the Court denied Defendant’s motion to dismiss for insufficient service of process, lack of personal jurisdiction, and failure to state a claim.

First, Plaintiff served the Defendant over seven months after filing his complaint–that’s four months beyond the 90-day window. This is noteworthy. If a plaintiff fails to meet this 90-day window, the court must either dismiss the action or order the plaintiff to serve the defendant within a certain time. That is, unless the plaintiff moved for an extension and showed good cause warranting one.

Here, however, Plaintiff never asked for an extension. The Court also didn’t dismiss the action or order Plaintiff to serve the Defendant–it did nothing during the seven months the case lay dormant. Surprisingly, the Court decided not to dismiss the case for insufficient service of process, reasoning that the Defendant was eventually served.

This means that the Middle District of Florida, or at least the Judge who decided this case, is extremely lenient toward TCPA plaintiffs at the pleading stage and defendants are less likely succeed on a motion to dismiss.

Second, the Court found that it had personal jurisdiction over USHealth, despite its lack of business activity in Florida. Indeed, USHealth is a Delaware corporation with headquarters in Texas, it never registered to do business in Florida, never had a mailing address or an office in Florida, and alleged that it does not “market, sell, or underwrite any insurance or other products or services in Florida.” Typically, this would indicate that the defendant lacks the minimum contacts necessary for personal jurisdiction. However, the Court ultimately found that it had personal jurisdiction under Florida state law because USHealth sent text messages to Florida residents, including the Plaintiff, allegedly in violation of the TCPA.

The key takeaway: Sending text messages to Florida residents allegedly in violation of the TCPA is enough to bring a defendant to court in Florida. This is a low bar–corporations beware.

Third and finally, the Court found no failure to state a claim because the complaint stated that the representative who contacted Plaintiff “appear[ed] to be affiliated with [Defendant] in some way.” The fact that these representatives offered links to USHealth’s website, had USHealth email addresses, and identified their company as USHealth was sufficient to establish its TCPA liability. Thus, the appearance of affiliation between the defendant and its alleged representatives satisfies the TCPA at the pleading stage.

All in all, this case sets Florida up as a ripe arena for plaintiffs to bring TCPA claims. Corporations should be wary and armor up on compliance measures, whether they do business in Florida or not.

This article was authored by Kayla Kershen