Southern District of Florida Holds Offer of Judgment Does Not Afford Full Relief and Plaintiff Entitled to Summary Judgment on Defense of Prior Express Consent

Buslepp v. B & B Entertainment, LLC, No. 12-60089-CIV, 2012 WL 4761509 (S.D. Fla. Oct. 5, 2012) Plaintiff's claims in this purported class action arose out of a contention that he received unsolicited commercial text message solicitations from an adult night club. Both Plaintiff and Defendant moved for summary judgment. Defendant argued that its Rule 68 Offer of a $6,000 Judgment mooted Plaintiff's claims. The court rejected this argument for two reasons: (1) The offer was silent with respect to Plaintiff's claim for injunctive relief, and, as such, did not afford full relief; and (2) Even if the Offer could be construed to include Plaintiff's claim for injunctive relief, the Offer was based on only four alleged violations of the TCPA. Although the Complaint listed four text messages Plaintiff claimed to have received, the Complaint did not limit the relief sought merely to those four text messages but stated that "[s]ome examples of the text messages sent by Defendant are referred to below." According to the court, neither party presented the court with competent evidence such as Plaintiff's telephone records- which establish that Plaintiff received four text messages. Granting Plaintiff's Motion for Summary Judgment on the defense of Prior Express Consent, the court stated "The TCPA exempts calls 'made with prior express consent of the called party.' 'Express consent is [c]onsent that is clearly and unmistakably stated.' Here, Plaintiff submitted an affidavit that states that he never visited the Defendant's business establishment, provided Defendant with his telephone number, or otherwise expressly consented to receive text messages from Defendant. In response to this allegation, Defendant [ ] posited only that (1) Defendant has never purchased a list of telephone numbers for marketing text messaging; (2) the telephone numbers in Defendant's possession are not 'harvested' randomly; and (3) Defendant only obtains telephone numbers from patrons." Though Defendant responded to Plaintiff's sworn statement that he did not expressly consent to receive text messages from Defendant, the court characterized the response as "mere supposition, about how it typically receives patron's numbers. Defendant [ ] failed to adduce any specific evidence which counter[ed] Plaintiff's sworn assertion that he did not provide Defendant with his telephone number or otherwise consent to receive text messages." As such, the court granted summary judgment in Plaintiff's favor on the defense of prior express consent.

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