I have thoroughly reviewed Defendant's Motion to Dismiss, the Response and Reply thereto, the attached exhibits, the remainder of the record, and the relevant legal authorities. For the reasons provided herein, Defendant's Motion to Dismiss is granted.

This matter arises out of Defendant Sallie Mae, Inc.'s (“Defendant” or “SMI”) alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”). Compl. ¶ 1.[1] Plaintiff Robert D. Floyd (“Plaintiff” or “Mr. Floyd”) avers that SMI, John Doe, or another party acting on their behalf left over 100 pre-recorded messages, and “similar or identical messages on other occasions using an automated telephone dialing system or prerecorded or artificial voice” on Plaintiff's cellular telephone from October 19, 2011 until June 20, 2012. Compl. ¶¶ 6-7; Pl.'s Resp. Interrogatory Nos. 11, 16. Plaintiff also alleges that the telephone calls placed to Plaintiff were not for “emergency purposes” as defined in the TCPA, and SMI “willfully or knowingly violated the TCPA.” Compl. ¶¶ 8-9.

The machinations of discovery revealed that SMI called Mr. Floyd's cellular telephone number 28 times in an attempt to reach its non-paying customer, who is not Mr. Floyd, but who provided to SMI, as her primary home telephone number, the same number associated with Mr. Floyd's cellular phone on June 15, 2010 – over one year before the number belonged to Plaintiff. See Peterson Dep., 99:4-21, 100:14-24, Feb. 15, 2013, ECF No. 66-1 (filed under seal). Based upon this amount of telephone calls made to Plaintiff, SMI made Plaintiff an offer of judgment pursuant to Federal Rule of Civil Procedure 68 (the “Rule 68 Offer”) on February 4, 2013, the terms of which included: $14,000 in statutory damages at $500 for each of the 28 calls, an additional $1, court costs, and SMI's agreement that it “shall not place any non-emergency calls to Plaintiff at [the Number] using an automatic telephone dialing system or pre-recorded or artificial voice.” Mr. Floyd did not accept the Rule 68 Offer, which therefore lapsed on February 18, 2013.

*2 Defendant posits that the relief provided by the Rule 68 Offer amounts to more than what Plaintiff could obtain if he prevails at trial in this action, and thus, having offered Plaintiff an amount and forbearance that satisfies his claim and prayers for relief under the TCPA, no case or controversy required by Article III of the United States Constitution remains in this action. On the basis of lack of subject matter jurisdiction, Defendant now moves this Court to enter against it judgment consistent with the terms of the Rule 68 Offer and dismiss this action in its entirety.

Defendant premises its Motion to Dismiss on Rule 12(b)(1) of the Federal Rules of Civil Procedure.[2] When considering a 12(b)(1) challenge, a court is faced with either a facial attack or a factual attack. See Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003). “Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint.” Id. In other words, the allegations themselves reveal that subject matter jurisdiction is deficient. By contrast, factual attacks contest the truth of the allegations, which, by themselves, would be sufficient to invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Morrison, 323 F.3d at 925 n.5 (“Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings.”). In resolving a factual attack, the district court may consider evidence outside the pleading, such as testimony and affidavits. Morrison, 323 F.3d at 925 n.5. However, “[f]acial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Garcia v. Copenhaver, Bell & Associates, M.D.'s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)) (internal quotation marks omitted).

In the instant case, Defendant asserts a factual attack because it concerns the alleged lack of subject matter jurisdiction based upon “extrinsic evidence and d[oes] not assert lack of subject matter jurisdiction solely on the basis of the pleadings.” Morrison, 323 F.3d at 925 n.5. Stated plainly, SMI is not alleging that Mr. Floyd's claim, as pled in the Complaint, is otherwise inadequate to confer subject matter jurisdiction.

“Under the law of this circuit, parties cannot waive subject matter jurisdiction, and we may consider subject matter jurisdiction claims at any time during litigation.” Belleri v. U.S., 712 F.3d 543, 547 (11th Cir. 2013) (quoting Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)). Consequently, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

Defendant argues that dismissal of Plaintiff's Complaint following the entry of judgment against it according to the terms of its Rule 68 Offer is legally required because:

*3 Mot. Dismiss at 1-2. I distill three distinct arguments: first, Plaintiff spoliated evidence and therefore should be sanctioned in a manner consistent with disallowing him to contradict the number of calls the record establishes were made; second, because SMI did not willfully or knowingly violated the TCPA, treble damages should not be considered; and third, SMI's Rule 68 Offer results in there being no case or controversy on which to anchor this Court's subject matter jurisdiction. With this roadmap, I will address each argument in turn.

Defendant seeks a spoliation sanction in one of three forms, including an adverse inference, the preclusion of proof of facts, or dismissal of the case for what it asserts is Plaintiff's affirmative disposal of crucial evidence after filing suit. See Mot. Dismiss at 8-9. “Spoliation is defined as the ‘destruction’ of evidence or the ‘significant and meaningful alteration of a document or instrument.’ ” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003). Federal law governs the imposition of spoliation sanctions in a case premised on federal question jurisdiction. Martinez v. Brink's, Inc., 171 Fed.Appx. 263, 268 n.7 (11th Cir. 2006). To establish spoliation, the moving party must demonstrate the presence of the following elements: “(1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.” F.T.C. v. First Universal Lending, LLC, 773 F. Supp. 2d 1332, 1353-54 (S.D. Fla. 2011).

Here, Plaintiff testified that his cellular phone, which contained a call log detailing the number of times SMI called him in violation of the TCPA, existed at one time with such evidence, but that he recycled his cellular phone when he transferred cellular phone service providers approximately one month after filing this action. Floyd Dep. 26:1-20, 28:4-13, Mar. 1, 2013. Plaintiff, without credible dispute, knew or should have known that he had a duty to preserve this evidence considering that he disposed of the cellular phone after he filed suit. See Southeastern Mechanical Services, Inc. v. Brody, No. 8:08-CV-1151-T-30EAJ, 2009 WL 2242395, at *2 (M.D. Fla. Jul. 24, 2009) (“Once a party files suit ... it has an obligation to make a conscientious effort to preserve electronically stored information that would be relevant to the dispute.”); Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 127 (S.D. Fla. 1987) (“Sanctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation ... and destroys such documents and information.”).

However, given the potential availability of other evidence also material to the proof or defense of the TCPA claim at issue, I am reluctant to declare that Plaintiff's recycling of his cellular telephone when he switched cellular providers cannot be credibly explained without the presence of bad faith. Call logs from both SMI and Plaintiff's telephone carriers would also provide the necessary evidence to sustain a prima facie case or defense. I recognize that call logs from MetroPCS, Plaintiff's cellular provider at the relevant time, are not available because they were not requested until after MetroPCS' 6-month discard policy. Nevertheless, this fact does not persuade me of Plaintiff's alleged bad faith. Rather, it renders the record devoid of any evidence to controvert the call logs from SMI's telephone service provider. Hence, without exacting any spoliation sanction, the result is the same. Namely, Plaintiff is unable to contest the affirmative evidence that conclusively demonstrates the number of calls SMI made to Plaintiff during the relevant period of October 19, 2011 until June 20, 2012 when Plaintiff was assigned the telephone number at issue. Plaintiff's vastly varying estimates in his Complaint, answers to interrogatories, and deposition testimony simply will not suffice when upon a factual attack to this Court's subject matter jurisdiction, I must weigh the evidence of disputed material facts to evaluate the existence of this Court's constitutional authority to hear the case. See Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003).

*4 The TCPA allows for treble damages to be awarded to a plaintiff “[i]f the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection....” 47 U.S.C. § 227(b)(3)(C). However, treble damages are not mandatory upon such finding. See id. (“the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph”) (emphasis supplied); Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 778 (11th Cir. 2011) (“The statute does not require a trebling”); Manno v. Healthcare Revenue Recovery Grp., LLC, No. 11-61357 SCOLA, 2013 WL 1283881, at *20 (S.D. Fla. Mar. 26, 2013) (“Even supposing that the Defendants violated the statute, the Court would not be inclined to exercise its discretion to award willful and knowing damages....”).[3]

“The TCPA does not require any intent for liability except when awarding treble damages. Importantly though, the intent for treble damages does not require any malicious or wanton conduct, but rather is satisfied by merely ‘knowing’ conduct.” Alea London Ltd., 638 F.3d at 776 (citing Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008)) (internal citations omitted).

Here, the evidence demonstrates that SMI did not knowingly – but mistakenly –telephoned Mr. Floyd 28 times. SMI's business records reveal that a SMI borrower provided the telephone number at issue as her primary home telephone number on June 15, 2010. Peterson Dep., 99:4-21, 100:14-24. SMI was not aware that Plaintiff's cellular telephone service provider, MetroPCS, assigned the telephone number previously associated with its borrower to Plaintiff, until May 24, 2012 when Plaintiff put SMI on notice. See Peterson Dep. 135: 10-18; Frontino Decl.¶ 8, Ex. I (filed under seal). Once SMI had notice that it was erroneously calling Plaintiff, SMI did not dial the number again while it was associated with the Plaintiff. Consequently, SMI did not “willfully or knowingly” violate the TCPA, and therefore, treble damages cannot be awarded. See Harris v. World Fin. Network Nat. Bank, 867 F. Supp. 2d 888 (E.D. Mich. 2012) (debt collector's erroneous, unsolicited calls to plaintiff's cellular telephone using an automatic telephone dialing system, in attempt to collect a debt owed by an unrelated, nonparty who opened three credit accounts using his telephone number, were not willfully or knowingly made, as required for treble damages for violation of the TCPA, until plaintiff informed the debt collector that the number associated with nonparty's account was actually his number).

Defendant contends because its Rule 68 Offer includes more than all of the relief Plaintiff could obtain at trial, Plaintiff's TCPA claim is now moot and this Court no longer has subject matter jurisdiction, which requires entry of judgment consistent with the terms of the Rule 68 Offer and dismissal of this action. Mot. Dismiss at 6-8, 10-11. Following a thorough review of the record, I agree.

“Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of ‘Cases' and ‘Controversies.’ In turn, the ‘case or controversy’ constraint imposes on federal courts a ‘dual limitation’ known as ‘justiciability.’ ” Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (citing U.S. Const. art. III, § 2; United States v. Florida Azalea Specialists, 19 F.3d 620, 621 (11th Cir. 1994)). “The doctrine of mootness derives directly from the case-or-controversy limitation because ‘an action that is moot cannot be characterized as an active case or controversy.’ ” Id. (quoting Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997)). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). “A court may not proceed to hear an action if, subsequent to its initiation, the dispute loses ‘its character as a present, live controversy of the kind that must exist if [the court is] to avoid advisory opinions on abstract propositions of law.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 213 (2000) (quoting Hall v. Beals, 396 U.S. 45, 48, (1969) (per curiam)); Al Najjar, 273 F.3d at 1336 (“If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed.”).

*5 The permissible damages allowed for a violation of the TCPA are, either or both, an injunction of further violations under the TCPA and “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(3)(A)-(C). Plaintiff does not aver that he has sustained any actual damages. See Joint Pre-Trial Stipulation, Stipulated Fact No. P, ECF No. 56. Attorneys' fees are not recoverable under the TCPA. See Sclafani v. I.C. Sys., Inc., No. 0960174-CIV-OSULLIVAN, 2010 WL 1029345, at *2 (S.D. Fla. Mar. 18, 2010); Pollock v. Bay Area Credit Serv., LLC, No. 08-61101-CIV, 2009 WL 2475167, at *5 (S.D. Fla. Aug. 13, 2009). Having determined supra that treble damages are not at issue here, the maximum damages that Plaintiff can recover is $500 for each call made to him by SMI in violation of the TCPA and an injunction of any further calls. Therefore, in order to determine whether SMI's Rule 68 Offer provided Plaintiff more than all of the relief he could obtain at trial, it is necessary to determine how many calls SMI made to Plaintiff in violation of the TCPA.

As an initial matter, Plaintiff has admitted all material facts demonstrating that SMI made only 28 calls to Plaintiff during the applicable period. First, Plaintiff admits that MetroPCS assigned him the telephone number at issue on October 19, 2011. Joint Pre-Trial Stipulation, Stipulated Fact No. P; Frontino Decl. ¶ 2, Ex. A (Response to Interrogatory No. 16). Second, Plaintiff admits that he was no longer in possession of the telephone number at issue after June 20, 2012. Frontino Decl. ¶ 2, Ex. A (Response to Interrogatory Nos. 13, 16); Joint Pre-Trial Stipulation, Stipulated Fact Nos. J, L. Lastly, Plaintiff concedes that Sallie Mae placed 28 telephone calls to the Plaintiff's cellular phone number between October 19, 2011 and June 20, 2012. Joint Pre-Trial Stipulation, Stipulated Fact No. D.

In addition to Plaintiff's own admissions, the record confirms that only 28 calls were placed to Plaintiff during the relevant time period. SMI's internal business records demonstrate that SMI called Plaintiff while he was assigned the telephone number 28 times. See (Peterson Dep. 109:2-8; Frontino Decl. ¶ 8, Ex. I (filed under seal)). Moreover, the records produced by SMI's telephone service provider, CenturyLink, in response to Plaintiff's subpoena duces tecum, independently confirm that SMI called Plaintiff's cellular telephone number 28 times between October 19, 2011 and June 20, 2012. See Frontino Decl. ¶ 5, Exs. E, F. Therefore, Plaintiff's inconsistent averments and testimony[4] regarding the number of times and when he was called by SMI is unpersuasive to demonstrate that a “case” or “controversy” exists following SMI's Rule 68 Offer.

SMI's Rule 68 Offer included $14,000 in statutory damages at $500 for each of the 28 calls, an additional $1, court costs, and SMI's self-imposed injunction that it “shall not place any non-emergency calls to Plaintiff at [the Number] using an automatic telephone dialing system or pre-recorded or artificial voice.” The Rule 68 Offer, being made pursuant to Federal Rule of Civil Procedure 68, would allow for a judgment to be entered against SMI. Consequently, SMI's Rule 68 Offer provides all of the relief Plaintiff could obtain, plus $1, rendering this matter moot. Cf. Jordan v. ER Solutions, Inc., 900 F. Supp. 2d 1323 (S.D. Fla. 2012) (debt collector's offer of damages and reasonable attorneys' fees did not render consumer's claims under the Fair Debt Collection Practices Act (FDCPA) and Telephone Consumer Protection Act (TCPA) moot as an offer of all relief sought where the debt collector did not offer to allow court to enter judgment against it).

*6 Having determined that Defendant's Rule 68 Offer provides to Plaintiff the maximum relief affordable under the TCPA, resulting in a lack of “case” or “controversy” going forward, dismissal is not only appropriate, but legally mandated by Article III of the United States Constitution. Accordingly, Defendant Sallie Mae, Inc.'s Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 66) is GRANTED. Plaintiff's Complaint (ECF No. 1) is DISMISSEDwith prejudice for lack of subject matter jurisdiction. A separate judgment in favor of Plaintiff Robert D. Floyd and against Defendant Sallie Mae, Inc. shall issue contemporaneously pursuant to Federal Rule of Civil Procedure 58. The Clerk of Court shall CLOSE this case. All remaining motions, if any, are DENIED as moot.

DONE and ORDERED in chambers at Miami, Florida, this 26th day of June 2013.

While some facts are taken from the Plaintiff's Complaint, they are not accepted, necessarily, as true because Defendant's Motion to Dismiss is grounded upon Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Morrison v. Amway Corp., 323 F.3d 920, 924-25 (“Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction –its very power to hear the case – there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional issue.”).

Fed. R. Civ. P. 12(b)(1) challenges a district court's subject matter jurisdiction, thereby challenging its authority to hear an action or certain claims in an action.

The plain language of the statute makes the determination of the defendant's culpability an issue for the court to decide; therefore, Plaintiff's argument that treble damages are a question of fact for the jury is unavailing.

In his Complaint, Plaintiff alleged that SMI “left over 100 prerecorded messages on Plaintiff's cellular telephone during 2011 and 2012.” Compl. ¶ 6. Next, in his January 23, 2013 responses to SMI's Interrogatories, Plaintiff verified under oath that SMI called him 5-6 times per day between October 19, 2011 and June 20, 2012, which would result in 1,225 to 1,470 calls. See Frontino Decl. ¶ 2, Ex. A (Response to Interrogatory Nos. 3-4). An entirely different estimate was proffered at Plaintiff's deposition where he testified that SMI called him 7 times per week, or 245 calls. See Floyd Dep. 24:4-20.