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Jackson v. Caribbean Cruise Line, Inc.

United States District Court, E.D. New York

February 17, 2015

BRIAN M. JACKSON, individually and on behalf of a class, Plaintiff,
v.
CARIBBEAN CRUISE LINE, INC., ADSOURCE MARKETING LTD., and Does 1-10, Defendants

Page 130

[Copyrighted Material Omitted]

Page 131

For the Plaintiff: Abraham Kleinman, Esq., Of Counsel, Kleinman, LLC, Uniondale, NY.

For the Plaintiff: Cathleen M. Combs, Esq., Daniel A. Edelman, Esq., Tiffany N. Hardy, Esq., Of Counsel, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For the Defendant Caribbean Cruise Line, Inc.: Jeffrey Backman, Esq., Richard W. Epstein, Esq., Of Counsel, Greenspoon Marder, P.A., Fort Lauderdale, FL.

For the Defendant Caribbean Cruise Line, Inc.: Shaji M. Eapen, Esq., Of Counsel, Morgan Melhuish Abrutyn, Livingston, NJ.

Adsource Marketing Ltd., Does 1-10.

Page 132

DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On April 18, 2014, the Plaintiff Brian M. Jackson (the " Plaintiff" ), individually and on behalf of a putative class, commenced this action against the Defendant Caribbean Cruise Line, Inc. (" CCL" ) and several Doe Defendants. The Plaintiff asserted a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (" TCPA" ) and sought actual and statutory damages, injunctive relief, and costs.

That same day, to avoid having the class claims mooted by a Rule 68 Offer of Judgment or other tender, the Plaintiff filed a motion to certify a class defined as (a) all persons (b) who, on or after April 18, 2010 (c) were sent text message calls by or on behalf of CCL.

On April 25, 2014, the Court denied the motion for class certification without prejudice to re-file upon completion of class discovery.

On May 27, 2014, CCL moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) to dismiss the complaint as against it for failure to state a claim upon which relief can be granted.

On June 17, 2014, in lieu of responding to Defendant's motion to dismiss, the Plaintiff filed an amended complaint.

That same day, the Plaintiff filed an amended motion to certify a class, again defined as (a) all persons (b) who, on or after April 18, 2010 (c) were sent text message calls by or on behalf of CCL.

On June 20, 2014, the Court denied the Plaintiff's amended motion for class certification without prejudice to re-file upon completion of class discovery.

On July 8, 2014, CCL served the Plaintiff with a Rule 68 Offer of Judgment. The Plaintiff did not respond to that offer.

On August 1, 2014, CCL moved pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3) to dismiss the complaint against it for lack of subject matter jurisdiction in light of the Rule 68 Offer of Judgment to the Plaintiff.

On September 18, 2014, the Plaintiff moved pursuant to Fed.R.Civ.P. 15(a) for leave to file a second amended complaint adding Adsource Marketing Ltd. (" Adsource" ) as a defendant.

On September 19, 2014, the Court granted as unopposed the Plaintiff's motion for leave to file a second amended complaint.

On October 2, 2014, the Plaintiff filed the second amended complaint.

On December 5, 2014, CCL moved to withdraw the motion to dismiss the original complaint for lack of subject matter jurisdiction.

On December 6, 2014, the Court granted CCL's motion to withdraw the motion to dismiss for lack of subject matter jurisdiction.

Page 133

With respect to CCL's pending motion to dismiss the original complaint pursuant to Fed.R.Civ.P. 12(b)(6), " [w]hen a plaintiff amends its complaint while a motion to dismiss is pending, . . . the 'court then has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint.'" Sussman-Automatic Corp. v. Spa World Corp., 15 F.Supp.3d 258, 2014 WL 1651953 (E.D.N.Y. 2014)(quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 384 (D. Conn. 2008)(citation and internal quotation marks and alterations omitted).

For the reasons set forth, CCL's motion to dismiss the original complaint against it pursuant to Fed.R.Civ.P. 12(b)(6) is treated as directed at the second amended complaint and granted. The second amended complaint is dismissed as against CCL without prejudice to replead certain allegations as set forth later. Finally, sua sponte, the Court declines to certify certain portions of this Decision and Order to CLL for an interlocutory appeal under 28 U.S.C. § 1292(b).

I. BACKGROUND

Unless stated otherwise, the following facts are drawn from the second amended complaint and construed in a light most favorable to the non-moving party, the Plaintiff.

A. The Parties

At the time the complaint was filed, the Plaintiff, an individual, was a resident of this district.

CCL is a Florida Corporation with its principal place of business located at 5100 North State Road 7, Fort Lauderdale, Florida 33319.

Adsource is a Canadian corporation with its principal place of business located 82 Pleasant Heights RR2, Pictou, Nova Scotia. Adsource conducts business throughout the United States, including in this District.

The Defendants John Does 1-10 are other natural or artificial persons, unknown to the Plaintiff, allegedly involved in the sending ...


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