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Dolemba v. Illinois Farmers Insurance Co.

United States District Court, N.D. Illinois, Eastern Division

September 30, 2016

Scott Dolemba, on behalf of plaintiff and a class Plaintiff,
Illinois Farmers Insurance Company, and James V. Lombardi Insurance Agency, Inc., Defendants.


          Honorable Thomas M. Durkin United States District Judge.

         Defendant Illinois Farmers Insurance Company (“Farmers”) moves this Court to dismiss Plaintiff Scott Dolemba's Second Amended Complaint (“SAC”), R. 42, which alleges that Farmers violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/2, under an agency theory of vicarious liability. R. 45. Defendant James V. Lombardi Insurance Agency, Inc. (“the Lombardi Agency”), the “agent” against whom the TCPA and ICFA violations are alleged directly, joins the motion. R. 47; R. 52. For the reasons that follow, Defendants' motions are granted in part and denied in part.


         This is the second time the Court has passed on the adequacy of the complaint in this matter. The previously dismissed First Amended Complaint (“FAC”) alleged that Dolemba received a call to his cellular phone from the Lombardi Agency, a registered Farmers insurance agent. R. 31. The FAC alleged that the call played a pre-recorded message inviting Dolemba to participate in a “town hall” teleconference about the opportunity to become a Farmers insurance agent. See Id. The FAC asserted a claim under § 227(b) of the TCPA, which prohibits robocalls using a prerecorded voice. Id. Exempted from this prohibition by FCC implementing regulations, however, are certain commercial calls that do not “include[ ] or introduce[ ] an advertisement or constitute[ ] telemarketing, ” 47 C.F.R. § 64.1200(a)(1)-(2). Finding that the call, as alleged, was merely a recruitment call and that its purpose was not to promote or encourage the sale of Farmers' products or services, the Court held that the exemption applied and that Dolemba had failed to state a claim upon which relief could be granted. R. 41, 2015 WL 4727331, at *4-5 (N.D. Ill. Aug. 10, 2015). Dolemba was granted leave to replead if he believed he could assert facts sufficient to overcome the deficiencies identified by the Court. Id. at *5.

         Dolemba timely filed the SAC, which adds essentially one allegation (though the allegation spans three paragraphs and derives from the content of two exhibits). See R. 42 ¶¶ 12-14, Exs. D-E. In addition to the facts set forth in the FAC, Dolemba now alleges that had he attended the town hall teleconference referenced in Lombardi's pre-recorded message, and had he acted on the opportunity to become a Farmers insurance agent as presented, then he would have been required to make a significant investment in the upstart of a business, including costs and expenditures that would directly benefit Farmers' business. R. 42 ¶ 12.[1] Dolemba bases these allegations not on the content of Lombardi's recorded telephone message, but rather on a “Reserve Agent Getting Started Guide” he obtained from a registered Farmers agent in San Antonio, Texas (Ex. D) and from the terms of a form “Agent Appointment Agreement, ” (Ex. E) which Dolemba alleges to be “similar [to the] agreements . . . in effect trough [sic] the present, ” id. ¶ 14.

         Before the Court could rule on Defendants' motions to dismiss the SAC, the Lombardi Agency moved to stay the case pending the Supreme Court's decision in Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S.Ct. 1892 (Apr. 27, 2015). R. 54. The Lombardi Agency argued that a stay was appropriate given Spokeo's potential impact on standing for plaintiffs who, like Dolemba, assert statutory violations but no out-of-pocket economic harm. R. 55. The Court granted the Lombardi Agency's motion and instructed the parties that once a decision in Spokeo issued, they were to move the Court to lift the stay and proceed in a manner consistent with the ruling. R. 60.

         The Supreme Court decided Spokeo several months ago, 136 S.Ct 1540 (2016), but none of the parties have moved the Court to lift the stay and proceed in this matter. The Court therefore does so now on its own motion, first evaluating whether Dolemba has standing under Spokeo, and then deciding whether the additional facts set forth in the SAC cure the defects identified in the Court's previous ruling.


         I. Standing and Subject Matter Jurisdiction

         “Article III of the Constitution limits federal judicial power to certain ‘cases' and ‘controversies, ' and the ‘irreducible constitutional minimum' of standing contains three elements.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60 (1992)). The first of these three elements is that the plaintiff must have suffered an “‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). The injury must also be “fairly traceable to the challenged action of the defendant” and redressable through judicial action. Id.

         In May 2016, the Supreme Court decided Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). In Spokeo, the Supreme Court explained that to establish Article III standing, a plaintiff must show not only that he or she was personally affected by the alleged wrongdoing, i.e., a “particularized” injury, but also that he or she suffered a “concrete” injury-i.e., a “de facto” or “real” injury that “actually exist[s].” 136 S.Ct. at 1548. The Spokeo Court explained that “‘[c]oncrete' is not . . . necessarily synonymous with ‘tangible, '” observing that while “tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” Id. at 1549. To identify whether an intangible injury is concrete, “both history and the judgment of Congress play important roles.” Id. at 1549. The Spokeo Court explained:

[I]t is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.

Id. (citations omitted). In other words, the Spokeo Court instructed that while a bare procedural statutory violation is insufficient to confer standing, a statutory violation that invokes the type of intangible injury recognized at common law or elevated by Congress to de facto status is sufficient in itself to satisfy Article III. Id. at 1549-50.

         Another court in this district recently applied this guidance to decide whether a plaintiff seeking only statutory damages for a violation of the TCPA had alleged an injury sufficiently concrete to satisfy Article III. Aranda v. Caribbean CruiseLine, Inc., ...

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