JENNIFER SMITH on behalf of herself and other similarly situated, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
On May 30, 2013, Plaintiff Jennifer Smith filed a one-count Amended Complaint alleging that Defendant State Farm Mutual Automobile Insurance Company ("State Farm") violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b). (R. 29, Compl.) Specifically, Ms. Smith alleges that State farm violated 47 U.S.C. § 227(b)(1)(B) which provides that it "shall be unlawful... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." ( Id. ¶ 67.) Additionally, she claims State Farm violated Section 227(b)(1)(A)(iii) by using an automatic telephone dialing system to call her cellphone. ( Id. ) On June 24, 2013, State Farm filed a motion to dismiss the Amended Complaint. (R. 33, Mot.) For the following reasons, the Court grants the motion and dismisses the Amended Complaint without prejudice.
Plaintiff Jennifer Smith "received one or more unsolicited, unattended, autodialed prerecorded voice calls on her cellular telephone in January 2013, which was placed on behalf of defendant State Farm Mutual Automobile Insurance Company." (Compl. ¶ 2.) Specifically, on January 25, 2013, Ms. Smith received a call from a lead generator, Variable Marking, LLC ("Variable Marketing"), engaged by an exclusive agent of State Farm. ( Id. ¶¶ 32, 41.)
Variable Marketing "offers a service where it purports to deliver live insurance purchasers directly to State Farm insurance agents' phones." ( Id. ¶ 55.) Variable Marketing worked with various State Farm agents to design parameters to use when interviewing potential customers who received the pre-recorded message in an attempt to re-qualify such customers for insurance. ( Id. ¶¶ 56, 58, 59.) After pre-qualifying a potential customer, Variable Marketing would send the information to State Farm exclusive insurance agents who engaged Variable Marketing. ( Id. ¶¶ 59, 61.)
When Ms. Smith answered the call from Variable Marking on January 25, 2013, a pre-recorded message played. (Compl. ¶ 42.) The message indicated that Ms. Smith could save money on her auto insurance. ( Id. ¶ 47.) The message instructed Ms. Smith to press "1" for more information and press "3" to be removed from the telemarketing list. ( Id. ) Ms. Smith hung up without pressing any number. ( Id. ) She called the phone number later that day "to inquire about the call and the caller." ( Id. ¶ 48.) An operator answered and discussed car insurance for a few minutes with Ms. Smith. ( Id. ) The operator then told Ms. Smith that "the call had been placed in order to sell State Farm automobile insurance, and that the call would be automatically transferred to another State Farm salesperson once [Ms. Smith] provided more personal information, which [Ms. Smith] did not do." ( Id. ) The phone number from which the call was made corresponded to Ytel, Inc. ("Ytel"). ( Id. ¶ 36.) Ytel provides voice broadcasting services which "allow its customers to use an automated telephone dialing system, capable of dialing thousands of telephone numbers simultaneously, and play a pre-recorded message when an individual answers the telephone." ( Id. ¶ 37.)
According to Ms. Smith, the call she received, and the similar calls which others received, violate the TCPA. Ms. Smith seeks damages for herself and those similarly situated to her and an injunction prohibiting State Farm "from making impermissible robocalls in the future." ( Id. ¶ 4.)
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). "In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiff's favor." AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ("faced with a Rule 12(b)(6) motion to dismiss a § 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true").
Ms. Smith bases her claims on a call she undisputedly received from Variable Marketing, a lead generator. Ms. Smith does not allege that she received any call either from State Farm or from any State Farm employee or insurance agent. Rather, Ms. Smith seeks to recover from State Farm based on a vicarious liability theory. Ms. Smith, however, has failed to sufficiently allege facts to support vicarious liability under Section 227(b) of the TCPA.
A. The Recent Relevant FCC Ruling on Section 227(b)
In May of 2013, the Federal Communications Commission ("FCC") issued a decision interpreting the TRCP regarding Section 227(b) directly relevant to Ms. Smith's allegations (the "2013 FCC Ruling"). Specifically, in the 2013 FCC Ruling, the FCC "clarf[ied] that while a seller does not generally initiate' calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers." (R. 29-1, FCC Declaratory Ruling 13-54 ¶ 1; 28 F.C.C.R. at 6587.) The FCC recognized that a seller may be held vicariously liable for violations "under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification." 28 F.C.C.R. at 6584. Both parties acknowledge that this FCC ...