United States District Court, N.D. Illinois, Eastern Division
DAVID STAMER, on behalf of himself and all others similarly situated Plaintiff,
SEAS & ASSOCIATES, LLC, ABC FINANCIAL SERVINCES, INC., BLAST FITNESS GROUP, LLC Defendants.
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge
Stamer sued ABC Financial Services, Inc. (“ABC”)
and several other companies under the Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 227, after he
received robocalls regarding a debt he did not owe. Defendant
ABC has moved to dismiss Stamer's First Amended Complaint
on the grounds that the complaint “fails to set forth
properly-supported allegations of liability against ABC and
fails to make properly-supported allegations indicating that
an ATDS and an artificial or prerecorded voice were used to
place the calls at issue.” Mot. at 1, ECF No. 52.
Because the Court finds that Stamer has adequately alleged
liability against ABC and a violation of the TCPA, the motion
to dismiss is denied.
Stamer began receiving debt collection calls in the summer of
2015 regarding a third party's delinquent fitness center
membership because he was listed as the debtor's
“emergency contact.” Compl. ¶¶ 26-28.
Stamer did not in fact owe the fitness center, Blast Fitness
Group (“Blast”), any money and had not consented
to receive calls from Blast or the other defendants in this
case. See Id. at ¶ 31-32. Stamer alleges that
the calls he received were made “at the request of
Blast and under the direction and control of ABC” by
Seas & Associates using “an automatic telephone
dialing system to place prerecorded robocalls” to his
cell phone. Id. at ¶ 28. In his response to the
motion, Stamer further alleges that all of Seas'
collection calls are made through the Interaction Dialer, an
autodialer. See Pl.'s Resp. at 3, ECF No.
to the complaint, ABC “directed and controlled
virtually the entire business of Seas, ” which shared
ABC's clients, assets, equipment, and a physical address.
Compl. ¶ 20-21. ABC paid a third party vendor to provide
autodialers and then allowed Seas to use those autodialers to
place robocalls. Id. at ¶ 22. At least some of
the time, ABC receives part of the money collected by Seas.
Id. at ¶ 23. In his response to the motion to
dismiss, Stamer further alleges that ABC in fact created Seas
and forwards it accounts for further collection efforts.
See Pl.'s Resp. at 2. ABC allegedly controls
Seas' accounting, hiring, and equipment. See Id.
around August 4, 2015, Stamer told Seas to stop calling and
that he was not the debtor. See Compl. ¶ 29.
Seas marked the account as a “wrong number” but
at least one more call was made to Stamer's cell phone
after that date. See Id. at ¶ 30. Stamer filed
this lawsuit on September 21, 2015 and amended his complaint
to include Blast and ABC on August 1, 2016 following
moved to dismiss on two grounds. First, it argues that Stamer
has failed to allege it is actually liable for the calls in
question. Second, it argues that Stamer has failed to
sufficiently allege an autodialer or prerecorded message in
violation of the TCPA. A complaint requires only that a
plaintiff “provide the grounds of his entitlement to
relief” such that his claim rises “above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Detailed factual
allegations are not necessary. Id. A bare recitation
of the elements of a claim, however, is insufficient, as the
plaintiff must provide sufficient facts to “state a
claim to relief that is plausible on its face.”
Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599,
602 (7th Cir. 2009). For the reasons stated below, the Court
finds Stamer has alleged sufficient facts to state a
violation of the TCPA for which ABC could plausibly be
the TCPA, it is unlawful for “any person” to
“make any call” (with certain exceptions not
relevant here) “using any automatic telephone dialing
system or an artificial or prerecorded voice.” 47
U.S.C. § 227(b)(1)(A). According to the allegations of
the complaint, however, ABC didn't make the call - Seas
did. Although this may seem dispositive, the FCC has held
that third parties “may be liable for violations by its
representatives under a broad range of agency principles,
” and that such “representatives” include
hired telemarketers. In re DISH Network, LLC, 28 FCC
Rcd 6574, 6584, 2013 FCC LEXIS 2057, *34 (F.C.C. 2013). The
only way in which this case differs from that of the usual
seller-telemarketer relationship is that Blast (allegedly)
hired ABC and ABC then directed Seas to engage in the
relevant calls. This is a distinction without a difference,
as the Supreme Court itself has recognized. See
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 674 (2016)
(recognizing vicarious liability for contractors whose
subcontractors violate the TCPA).
itself argues that “an agency relationship exists if
the principal controlled or had the right to control”
the agent, including the manner and means of the calls at
issue. See Def.'s Mem. at 5-6 (citing Thomas
v. Taco Bell Corp., 582 F.App'x 678, 679 (9th Cir.
2014)). Stamer has alleged Seas placed the calls “under
the direction and control of ABC.” Compl. ¶ 26.
Although this may be conclusory on its own, Stamer has also
alleged that ABC is the company that forwards accounts to
Seas for calling, that they share clients, facilities,
assets, and equipment, and that ABC “controlled
virtually the entire business operation of Seas.”
See Id. at ¶¶ 19-21. Stamer has further
alleged in his response that ABC trains Seas' employees,
creates and implements Seas' policies and procedures, and
purchases Seas' equipment. See Pl.'s Resp.
at 3. The exhibits that Stamer included with his response
brief provide further support, establishing that ABC created
Seas as a debt collector specifically serving the health club
industry by employing “a softer (kinder/gentler)
approach” to debt collections. Seas' marketing
materials, moreover, tout the close and integrated working
relationship between ABC and Seas, through which ABC submits
collection files to Seas when accounts are delinquent and
with which it maintains “real-time integration.”
With all reasonable inferences taken in favor of the
plaintiff, Stamer has plausibly alleged that ABC controlled
Seas, including controlling the use of the autodialers ABC
allegedly bought for Seas and trained Seas' employees to
use in accordance with ABC-written policies. These
allegations are sufficient to plausibly allege vicarious
liability. No more is required at this stage.
Violation of the TCPA
ABC's vicarious liability only matters if Stamer has
sufficiently alleged the use of an autodialer or prerecorded
message (either one is sufficient) in the first place. ABC
argues that because the use of such techniques is an element
of the claim, it cannot be alleged generally. See
Def.'s Mem. at 11. There is a split within the courts of
this district on whether alleging the mere use of the device
is sufficient or whether the plaintiff must allege additional
facts (such as the sound or content of the message). See
Izsak v. Draftkings, Inc., No. 14-CV-07952, 2016 WL
3227299, at *3 (N.D. Ill. June 13, 2016) (collecting cases).
Stamer has alleged facts beyond the conclusory language of
the statute, so he has stated a claim regardless of whether a
bare allegation would have been sufficient. It is clear, for
example, that Seas did, in fact, use autodialers in
connection with its debt collection efforts (though not
exclusively); its own marketing material describes that use.
Further, Stamer has alleged that a specific type of
autodialer (an Interaction Dialer) was used. See
Pl.'s Resp. at 3. Stamer also explains how that specific
dialer works, in that it can function as both an automated
dialer and a predictive dialer and dials numbers from stored
lists. See id. at 4. The Court does not find it
necessary for Stamer to describe the calls in minute detail
in his complaint (how long was the pause? Did he hear a
click? Just how generic were these “prerecorded
robocalls?”) to allege plausibly that an autodailer was
used. Further, knowledge that a specific piece of equipment
was used is just as factually significant as a short delay or
a clicking noise. Therefore, Stamer has made sufficient
factual allegations to raise his claim that an autodialer was
used above a speculative level.
has alleged sufficient facts to suggest ABC controls Seas and
could be held vicariously liable for Seas' conduct.
Furthermore, Stamer has sufficiently alleged facts that an
autodialer was used in ...