United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
consumer protection action, LVNV Funding moved (Doc. 43) to
compel arbitration. Because the motion and Vincent
Tormenia's response (Doc. 47) caused considerable
confusion, an April 22, 2019 order (Doc. 50) directed LVNV to
reply to Tormenia's response and ordered Tormenia to show
cause (1) why the complaint should not be dismissed and (2)
why his attorneys should not face sanction under Rule 11,
Federal Rules of Civil Procedure.
and LVNV stipulate (Doc. 51) to dismissal without prejudice.
Also, Tormenia moved first (Doc. 52) to dismiss Credit
Control without prejudice and later moved (Doc. 58) to
dismiss Credit Control with prejudice. Although Credit
Control fails to respond to the motion to dismiss without
prejudice, Credit Control opposes (Doc. 59) dismissal with
prejudice. Additionally, Credit Control moves (Doc. 54) to
recover an attorney's fee.
sued (Doc. 1) LVNV and another defendant under three consumer
protection statutes, including the Telephone Consumer
Protection Act. However, Tormenia amended the complaint (Doc.
14) and omitted the second defendant. A review of TCPA
actions litigated by Tormenia's attorneys reveals that
Tormenia's attorneys have filed an almost identical
complaint in dozens of other TCPA actions. (Doc. 50 at 1)
than six months after suing, Tormenia moved again (Doc. 25)
for leave to amend the complaint. The motion explained that
Tormenia sought “to clarify (1) [that Tormenia] was not
the account holder and (2) [that LVNV] may have been
attempting to collect on multiple accounts. Further,
[Tormenia] also endeavors to add Credit Control . . . as a
co-defendant.” A February 1, 2019 order (Doc. 27)
granted leave to amend the complaint.
Tormenia's second amended complaint (Doc. 28) adds Credit
Control as a defendant (by repeating against Credit Control
allegations that are almost identical to the boilerplate
allegations against LVNV),  the second amended complaint
fails to mention either an additional account holder or
“multiple accounts.” Further, Tormenia replaced
In or about July of 2016, [Vincent Tormenia] spoke to . . .
LVNV . . . and told [LVNV] not to call him regarding this
debt as the debt had been previously discharged through a
bankruptcy proceeding[, ]
(Doc. 14 at ¶ 29) with the allegation:
In or about 2017, [Vincent Tormenia] began receiving calls
from, and on behalf of . . . [LVNV]. [LVNV and Credit
Control] were calling [Vincent Tormenia] in attempt to
collect on a consumer debt(s). [Vincent Tormenia] informed
[LVNV and Credit Control] he was not the account holder of
the account(s) at issue and was not responsible for the
alleged debt(s) and to stop calling.
(Doc. 28 at ¶¶ 33-35) The second amended complaint
omits mention of a July 2016 call or bankruptcy, and Tormenia
never requested leave to amend (Doc. 25) to either change a
date or remove the mention of bankruptcy.
the second amended complaint includes the following
[LVNV and Credit Control] robocalled [Vincent Tormenia] over
LVNV . . . made at least one call to (917) 749-8935[, ] . . .
made at least one call to (727) 367-8284[, ] . . . made at
least one call to (917) 749-8935 . . . using an ATDS[, ] . .
. made at [sic] seventy-five (75) calls to (917) 749-8935[, ]
. . . made at [sic] seventy-five (75) calls to (727)
367-8284[, ] . . . made at least seventy-five (75) calls to
(917) 749-8935 using an ATDS[, ] . . . made at least one
hundred and fifty (150) calls to (917) 749-8935[, ] . . .
made at least one hundred and fifty (150) calls to (727)
367-8284[, ] . . . made at least one hundred and fifty (150)
calls to (917) 749-8935 using an ATDS[, ] . . . made at least
three hundred (300) calls to (917) 749-8935[, ] . . . made at
least three hundred (300) calls to ...