Miller v. Ginny's Inc.

MOTION for summary judgment

M.D. Fla.July 7, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARGUERITE A. MILLER, CASE NO.: 8:16-cv-01958-CEH-AEP v. GINNY'S INC., Defendant. _______________________________/ PLAINTIFF, MARGUERITE MILLER'S, MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW Plaintiff, Marguerite Miller (“Ms. Miller”), moves for summary judgment pursuant to Fed. R. Civ. P. 56 because the undisputed facts support Plaintiff’s claims as set forth in Plaintiff's Verified Complaint. Doc. 1. I. Summary of the Argument Ms. Miller owed a consumer debt to Ginny's Inc (“Defendant”). During the course of collecting this consumer debt, Defendant utilized an automatic dialer machine to place over two- hundred collection telephone calls to Ms. Miller's cell phone. Ms. Miller was hesitant to provide all of her personal identification information over the phone to callers and repeatedly told Defendant to stop calling because she would not make a payment over the phone. Instead Ms. Miller simply wanted Defendant to send a bill through the mail. Defendant's records support Plaintiff’s motion for summary judgment and demonstrate contact followed by numerous calls. In fact, Defendant had an official policy to ignore oral cease-and-desist requests. This flawed policy resulted in ongoing calls to Ms. Miller's cell phone in violation of the FCCPA and TCPA. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 1 of 16 PageID 114 This Court should enter summary judgment in favor of Ms. Miller and against Defendant for violation of 47 U.S.C. § 227(b)(1)(A)(iii), the Telephone Consumer Protection Act (the “TCPA”), and § 559.72, Florida Statutes, The Florida Consumer Collection Practices Act (the “FCCPA”). II. Summary of Facts Ms. Miller represents that the following facts are undisputed based upon the attached exhibits:1 1. The debt Ms. Miller is alleged to owe Ginny's Inc., (“Defendant”) is a “consumer debt” as defined by Section 559.55(6), Florida Statutes, because the debt was incurred for personal and household uses. Exhibit 1, ¶ 1. Specifically, the debt related to a purchase made by Ms. Miller for items to be used by her in her home. Id. 2. Defendant is a “creditor” as that term is defined by § 559.55(3), Florida Statutes because Defendant extended credit to create the debt alleged to be owed by Ms. Miller. Id. 3. Prior to July of 2015, and at all times relevant to this case, Defendant maintained a policy and procedure requiring consumers to submit a cease-and-desist request in writing in order for the consumer to exercise their right to not have Defendant continue making collection calls. Exhibit 2, Page 7:1-8. If the consumer only gave an oral cease-and-desist request, then the collection calls would continue. Id. 4. Defendant made over two-hundred autodialed telephone calls to Ms. Miller. Exhibit 2, Page 7:14-17; Exhibit 3. Those phone calls were made for the purposes of collecting a debt. Exhibit 2, Page 7:14-20. 1 Other than Ms. Miller's declaration, all other exhibits were marked as “Confidential” pursuant to the Confidentiality Agreement signed by the parties. Thus, counsel for Ms. Miller has filed a Motion to File Under Seal simultaneously with this Motion for Summary Judgment so that the remaining exhibits can be reviewed by the Court. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 2 of 16 PageID 115 5. Defendant utilizes an automatic dialing machine to place phone calls. Exhibit 2, Page 7:21-25. All of the phone calls Defendant placed to Ms. Miller were made by using an automatic dialing machine as defined by the TCPA. Exhibit 2, Page 8:1-11. 6. Ms. Miller provided her cellular telephone number of (813) 447-29202 at the time she opened the account with Defendant. Exhibit 2, Pages 8-9. This is the only telephone Ms. Miller regularly uses. She lives alone, the phone's account is in her name. She pays the phone's bills, and she maintains exclusive possession of the phone. Exhibit 1, ¶ 2. Thus, nobody would answer this phone except Ms. Miller. Id. 7. There are no audio recordings of the telephone calls made by Defendant to Ms. Miller. Exhibit 2, Pages 9-10. 8. Defendant's Collection Correspondence Summary notes for each attempted call to Ms. Miller consist of two lines denoting the date the call attempt occurred and a result code. Exhibit 2, Page 17:6-8. This three-digit action code relates to the results of Defendant's attempts to reach Ms. Miller. Exhibit 2, Pages 16:2-11 and 18:9-15; Exhibit 43. Sometimes the three- digit action code was supplemented by an additional abbreviated version of the action occurring on the call. Id. 9. Defendant's policy dictates that if an entry appears on Defendant's Collection Correspondence Summary as “TP” or “third-party” it means that either (1) a called-party identified themselves as a third-party; or (2) the called-party was the intended customer but the customer did not provide enough personal identification information for Defendant to positively identify them before hanging-up. Exhibit 2, Page 21:4-18. Thus, Defendant concedes that calls 2 For purposes of this Statement and the corresponding Motion, Defendant only placed calls to this number only calls to this number are at issue in this case. 3 The exhibit attached to this Statement differs from the corresponding exhibit from the deposition because Defendant supplemented its discovery production after the deposition. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 3 of 16 PageID 116 indicated as received by a third-party on Defendant's Collection Correspondence Summary could have actually been answered by Ms. Miller. Exhibit 2, Page 21:19-21. 10. Defendant has no record of what was specifically said on any phone call. Exhibit 2, Page 22:5-7. 11. Defendant's records would only have indicated that a called party made a verbal cease-and-desist if the answering party could be identified as the customer. Exhibit 2, Page 26:12-25. 12. Ms. Miller would have given some, but not all, of her personal information when called in order to protect herself. Exhibit 1, ¶ 3. 13. Every time Ms. Miller spoke to Defendant, she told Defendant's agents that she would not make a payment and to stop calling her. Exhibit 1, ¶ 4. She always told Defendant to stop calling because she wanted Defendant to communicate with her by her preferred method of sending a bill. Id. When speaking to Defendant, she used language that some people consider profane or rude because she was fed up with the continued calls. Id. 14. Ms. Miller did not keep personal records of her conversations with Defendant because she did not expect the calls to continue after she told Defendant to stop calling. Exhibit 1, ¶ 5.4 As a result, Ms. Miller is stipulating to the number of calls, dates, and indications of contact (but not content of conversations) contained in Defendant's records. Exhibit 1, ¶ 5. 4 Ms. Miller's cellular phone records only contain calls from after October 20, 2014. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 4 of 16 PageID 117 15. Defendant's Collection Correspondence Summary and Dialer Records indicate the following call history (Exhibit 4 and Exhibit 3, respectively): a. August 17, 2013 – Defendant begins making collection calls to Ms. Miller using an automated dialer system. b. November 21, 2013 – Defendant's call attempt results in contact with a live- person. While Defendant was unable to positively identify Ms. Miller, the answering party used profanity toward Defendant's agent. The call lasted 125 seconds. c. Fourteen calls were made to Ms. Miller's cell phone utilizing Defendant's automated dialing system between November 21, 2013, and January 15, 2014. d. January 15, 2014 – Defendant's call attempt results in contact with a live- person. While Defendant was unable to positively identify Ms. Miller, the answering party hung-up on Defendant's agent. The call lasted 13 seconds. e. Twenty-two calls were made to Ms. Miller's cell phone utilizing Defendant's automated dialing system between January 15, 2014, and May 16, 2014. f. May 16, 2014 – Defendant's call attempt results in contact with a live-person. While Defendant was unable to positively identify Ms. Miller, the answering party hung-up on Defendant's agent. The call lasted 32 seconds. g. Twelve calls were made to Ms. Miller's cell phone utilizing Defendant's automated dialing system between May 16, 2014, and June 19, 2014. h. June 19, 2014 – Defendant's call attempt results in contact with a live-person. Defendant was unable to positively identify Ms. Miller. Defendant's records Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 5 of 16 PageID 118 do not indicate anything about the result of the call. The call lasted 20 seconds. i. Thirteen calls were made to Ms. Miller's cell phone utilizing Defendant's automated dialing system between June 19, 2014, and August 7, 2014. j. August 7, 2014 – Defendant's call attempt resulted in contact with a live- person, but Defendant was unable to positively identify the answering party as Ms. Miller. Notably, the answering party was noted to be rude prior to hanging-up the phone. Exhibit 2, Page 24:14-21. Defendant does not know what was said on that phone call, but the call lasted 37 seconds. Exhibit 2, Page 24:22-23. k. Fifteen calls were made to Ms. Miller's cell phone utilizing Defendant's automated dialing system between August 7, 2014, and September 8, 2014. l. September 8, 2014 - Defendant's call attempt results in contact with a live- person. Defendant was unable to positively identify Ms. Miller. Defendant's records do not indicate anything about the result of the call other than the answering party hung-up on Defendant's agent. The call lasted 16 seconds. m. Fifteen calls were made to Ms. Miller's cell phone utilizing Defendant's automated dialing system between September 8, 2014, and September 18, 2014. n. September 18, 2014 – Defendant's call attempt results in contact with a live- person. Defendant was unable to positively identify Ms. Miller, but the call lasted 34 seconds. Notably, Defendant's agent left no note left about the resolution of the call. Exhibit 2, Page 25:15-19. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 6 of 16 PageID 119 o. After September 18, 2014, one-hundred and two phone calls were placed to Ms. Miller's cell phone by Defendant's automatic dialer system until Defendant's in-house calls stopped on April 13, 2015. 16. In total, Defendant made two-hundred and nineteen automatically dialed calls to Ms. Miller's cell phone. Exhibit 3. Of those calls, one-hundred and eighty-six occurred after the November 21, 2013 telephone call in which defendant's records reflect a 125 second conversation containing strong language from Ms. Miller. Exhibits 3 and 4. III. Standard of Proof A party may obtain summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is genuine is “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cit. 2008). A fact is material if it “might affect the outcome of the suit under governing law.” Id. A court views that facts in the light most favorable to the non-moving party and draws all reasonable inferences in its favor. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006. A moving party is entitled to summary judgment if the nonmoving party has failed to make a sufficient showing of an essential element of her case with respect to which she has the burden of proof.” In re Walker, 48 F.3d 1161, 1163 (11th Cir. 1995). IV. The FCCPA and the Least Sophisticated Consumer The FCCPA “is a laudable legislative attempt to curb what the Legislature evidently found to be a series of abuses in the area of debtor-creditor relations.” Harris v. Beneficial Fin. Co. of Jacksonville, 338 So. 2d 196, 200-201 (Fla. 1976). It seeks to protect Florida “consumers from the illegal and/or unscrupulous practices of debt collectors and other persons.” Schauer v. Gen. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 7 of 16 PageID 120 Motors Acceptance Corp., 819 So. 2d 809, 811-12 (Fla. 4th DCA 2002). The FCCPA reaches farther than its federal counterpart, the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692 et seq., because it applies not only to debt collectors, but to any person collecting consumer debts. Fla. Stat. §§ 559.72 and 559.77. “Like the FDCPA, the [FCCPA] includes a list of prohibited collection practices that give right to a private cause of action.” Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1124 (11th Cir. 2004) (citing Fla. Stat. §§557.72, 559.77). The FCCPA directs that “[i]n the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.” Fla. Stat. §559.552. Moreover, the FCCPA provides that in “applying and construing [the FCCPA], due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” Fla. Stat. § 559.77(5). The Eleventh Circuit reaffirmed the protective nature of the FCCPA, holding that the “FCCPA unequivocally states its goal - to provide the consumer with the most protection possible under either the state or federal statute.” LeBlanc, 601 F.3d at 1190. Notably, under the FDCPA and FCCPA courts should utilize the “least sophisticated debtor” standard, which analyzes whether a hypothetical least sophisticated consumer would be deceived or misled by the debt collector's practices. Jeter v. Credit Bureau, Inc., 760 F. 2d 1168, 1175 (11th Cir. 1985). Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 8 of 16 PageID 121 V. Defendant Violated the FCCPA 1. Defendant's conduct was reasonably expected to harass Ms. MillerFla. Stat. § 559.72(7) provides, in pertinent part: In collecting consumer debts, no person shall: (7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family. Contact from a creditor to a debtor is allowed if the purpose is to inform the debtor of the debt, to determine reasons for nonpayment, to negotiate differences or to persuade the debtor to pay without litigation. See Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977) (finding that almost daily calls amounting to more than 100 in a five month period, continuing after being told to stop calling, was enough to present a case for violation of the FCCPA). Frequent collection calls may constitute harassment, however, “when [the calls] continue after all such information has been communicated and reasonable efforts at persuasion and negotiation have failed…communication can reasonably be expected to harass the debtor or his family, because it tends only to exhaust the resisting debtor’s will.” Id. The Middle District has set forth standards for what would be considered harassing or oppressive, including repeatedly making calls after being told to cease. Tucker v. CBE Group, Inc., 710 F. Supp. 2d 1301, 1305 (M.D. Fla. 2010). Similarly, other Middle District holding have described egregious conduct as including “calling immediately after hanging up, calling multiple times in a single day, calling places of employment, family, or friends, calling at odd hours, or calling after being asked to stop” as egregious conduct. Waite v. Fin. Recovery Serv., Inc., 2010 WL 5209350, at *3 (M.D. Fla. Dec. 16, 2010) (emphasis added); see also Brandt v. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 9 of 16 PageID 122 I.C. System, Inc., 2010 WL 582051,at *2 (M.D. Fla. February 19, 2010) (holding that “Intent [to harass] may be inferred by evidence that the debt collector continued to call the debtor after the debtor had asked not to be called and had repeatedly refused to pay the alleged debt, or during a time of day which the debtor had informed the debt collector was inconvenient.”) (citation omitted). In a summary judgment hearing from a similar case in the Middle District, the Honorable Catherine P. McEwen, addressed a bank’s attempt to excuse its continued calls as being merely attempts to work out a payment plan, and stated: …I’m unsure why creditors continue to call and call and call and call when either there’s no answer, which one would infer means they’re ignoring it, or they flat out say, or someone says, they’re not going to pay, regardless of the reason, because the creditor has the right to file suit. And I want to hear from someone within the collection industry why these calls continue to be made if it’s not to harass someone into finally giving up and trying to pay a few pennies here and again on a payment plan. Esposito v. Target, 8:12- ap-00145-CPM, Doc. 67 at 6:16-25 (9/18/12) (emphasis added). Other courts have reached similar conclusions and held that, under the FDCPA, creditors must honor a debtor’s oral request to cease communications or stop after being made aware a debtor cannot pay. See Brzezinski v. Vital Recovery Services, Inc., 2006 WL 1982501, at *5 (E.D.Wis. July 12, 2006) (analyzing the question of a verbal request to cease collection calls under 15 U.S.C. 1692c(a)(1)); See also Prewitt v. Wolpoff & Abramson, LLP, 2007 WL 841778, at *3 (W.D.N.Y. Mar. 19, 2007) (stating that the frequency of calls following debtor advising the collector he was unable to pay could demonstrate a intent to annoy, abuse and harass under 15 U.S.C. § 1692d(5)). This requirement for a creditor to honor an oral notice to cease communications is because the burden is on the collector to not communicate with the consumer Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 10 of 16 PageID 123 once the collector knows that it is not convenient for the consumer. Brzezinski, 2006 WL 1982501, at *5 (emphasis added). As early as November 21, 2013, Ms. Miller had answered one of Defendant's collection calls and stated that she was not going to make a payment and that she wanted all calls to stop. This is reflected in Defendant's own records as a call in which Ms. Miller used profanity to express her frustration. It could not have been more clear that continuing to call Ms. Miller would be reasonably expected to harass her than calling her after she showed contempt for the calls through profane language. In spite of this clear indication, Defendant continued to make collection calls and ignored Ms. Miller's requests to stop calling and the fact that she would not pay over the phone. Defendant's calls even continued through several more calls resulting in hang-ups and rude language. Clearly, Ms. Miller's behavior gave indications that telephonic attempts to discuss payment had been exhausted. At that point, there was no legitimate business purposes to continue calling Ms. Miller except to wear down her will through conduct reasonably expected to harass a least sophisticated debtor. Therefore, summary judgment should be entered in favor of Ms. Miller. 2. Defendant had a policy to assert a right that does not exist Fla. Stat. § 559.72(9) provides, in pertinent part: In collecting consumer debts, no person shall: (9) … or assert the existence of some other legal right when such person knows that the right does not exist. To establish a violation under section 559.72(9) of the FCCPA, “it must be shown that a legal right that did not exist was asserted and that the person had actual knowledge that the right Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 11 of 16 PageID 124 did not exist.” Pollock v. Bay Area Credit Serv., LLC, Case No. 08–61101–CIV, 2009 WL 2475167, at *9 (S.D.Fla. Aug. 13, 2009). A plaintiff alleging a violation of Fla. Stat. §559.72(9) must look to “other statutes” to define legal rights. See Gaalswyk-Knetzke v. Receivable Mgmt. Svcs. Corp., No. 8:08-cv-493-T-26-TGW, 2008 WL 2224833, at * 3 (M.D. Fla. May 27, 2008); see also Cliff v. Payco Gen. Ameri. Credits., Inc., 363 F.3d 1113, 1126 (11th Cir. 2004) (examining Fla. Stat. § 559.72(9), regarding debt collector’s misrepresentation of legal rights to garnish wages established by the Higher Education Act 20 U.S.C. § 1095 et seq.) See also In Re Brook v. Suncoast, FCU, 8:12-cv-01428-VMC-MAP, 2012 WL 6059199, at *3 (M.D. Fla. Dec. 6, 2012) (finding that for purpose of surviving a motion to dismiss, the allegation that a creditor violated the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201, et seq. (“FDUTPA”), and the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. was sufficient). Defendant's conduct in this case was entirely consistent with its policy to ignore cease- and-desist requests. Thus, Defendant violated Fla. Stat. § 559.72(9) by directly asserting the legal right to continue to make collection calls to Ms. Miller when there was not legitimate business purpose and after her revocation of consent pursuant to the TCPA. Plainly stated, Defendant did not have the right to continue calling using an automatic dialer after Ms. Miller told Defendant to stop calling. Ms. Miller was a victim of Defendant’s flawed policy to assert a non-existent right. Therefore, summary judgment should be granted in favor of Ms. Miller. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 12 of 16 PageID 125 VI. Defendant violated the TCPA The key provision of the TCPA applicable to this case is 47 U.S.C. § 227(b)(1)(A)(iii), which provides in pertinent part that: [i]t 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 paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.... 47 U.S.C. § 227(b)(1)(A)(iii). The statute further specifies that the appropriate remedy is “an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B). Treble damages are also available for knowing or willful violations. Id. § 227(b)(3) (concluding language). In Osorio, the Eleventh Circuit analyzed a question regarding whether consent under the TCPA could be revoked orally. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014). In holding that oral revocation did apply to the TCPA, the Eleventh Circuit rejected the District Court's holding that consent could only be revoked in writing and stated that the “TCPA's silence regarding the means of providing or revoking consent that Congress sought to incorporate the common law concept of consent.” Id. at 1255 (internal citation omitted). The Court then explained that common-law notion of consent allow for oral revocation and held that the Plaintiffs were “free to orally revoke any consent previously given.” Id. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 13 of 16 PageID 126 1. Defendant's Policy to Violate the TCPA Defendant does not dispute that its policies would have caused its automatic dialer to continue calling in spite of Ms. Miller's verbal revocation of consent. In fact, Defendant maintained a policy that erroneously required consumers to submit their cease-and-desist requests in writing. Any courtesy of a slight delay before recommencing calls to a consumer after an oral cease-and-desist would only be extended if a consumer gave enough personal information to Defendant in order to be positively identified. Since Ms. Miller did not provide all of her personal identifying information to the callers, she was never even given this courtesy. Instead, her requests to receive bills by mail and requests to stop calling were ignored by Defendant. 2. Ms. Miller Revoked Consent, but Defendant Continued Calling Any consent that may have been inferred by Ms. Miller providing her cell phone number during the application process was revoked when Ms. Miller told Defendant to stop calling. Nonetheless, instead of honoring her revocation, Defendant continued to place collection calls by using an automatic dialing machine. Notably, Ms. Miller is the only person who would have answered her cell phone. This means that on November 21, 2013, Defendant's agents reached Ms. Miller. While Defendant's records do not indicate that Ms. Miller gave all of her personal information, the call lasted 125 seconds. The only notes pertaining to the substance of the call reflects that Ms. Miller was upset enough to use profanity. This is consistent with Ms. Miller's testimony that she always told Defendant's agents to stop calling because the calls would not result in a payment. Defendant Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 14 of 16 PageID 127 cannot dispute that on November 21, 2013, Ms. Miller revoked consent for Defendant to continue making automatic dialer calls to her cell phone. Notably, Defendant would not have even noted a verbal cease-and-desist from the November 21, 2013 call because (1) Defendant claims that it could not positively identify Ms. Miller, and (2) Defendant's policy was to require a cease-and-desist request to be in writing. After that November 21, 2013, Defendant placed 199 autodialed calls to Ms. Miller's cell phone. Of those calls, several reached Ms. Miller causing her to exhibit more signs of frustration including hang-ups and rude language. VII. Prayer for Relief Plaintiff requests that this Court enter judgement in its favor as follows: A. As to Count 1, a total of $1000.00 in statutory damages, plus a determination of eligibility for reasonable attorney's fees and costs in amounts to be determined by separate motion. B. As to Count II, statutory damages reflecting 199 calls after the November 21, 2013 phone call in which Ms. Miller revoked consent totaling $99,500 pursuant to 47 U.S.C. § 227(b)(3)(B). C. Treble damages as to Count II pursuant to 47 U.S.C. § 227(b)(3), bringing that actual statutory damages for Count II to $298,500. Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 15 of 16 PageID 128 Dated: July 7, 2017 Respectfully Submitted, CENTRONE & SHRADER, PLLC 612 W. Bay Street Tampa, Florida 33606 Phone: (813) 360-1529 Fax: (813) 336-0832 __/s/ Brian L. Shrader__________________ BRIAN L. SHRADER, ESQ. Florida Bar No. 57251 e-mail: bshrader@centroneshrader.com GUS M. CENTRONE, ESQ. Florida Bar No. 30151 e-mail: gcentrone@centroneshrader.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on July 7, 2017, a true and correct copy of the forgoing was filed with the Clerk of Court for the Middle District of Florida through the CM/ECF system that will give notice to all parties of record. __/s/ Brian L. Shrader_________ Attorney Case 8:16-cv-01958-CEH-AEP Document 24 Filed 07/07/17 Page 16 of 16 PageID 129 Case 8:16-cv-01958-CEH-AEP Document 24-1 Filed 07/07/17 Page 1 of 2 PageID 130 Case 8:16-cv-01958-CEH-AEP Document 24-1 Filed 07/07/17 Page 2 of 2 PageID 131