United States District Court, C.D. Illinois, Peoria Division
ANDY AGUILAR, on behalf of himself and all others similarly situated, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
ORDER AND OPINION
E. SHADID, CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the Defendant's, State Farm Mutual
Automobile Insurance Company (“State Farm” or
“State Farm Mutual”), Motion to Dismiss
Plaintiff's Complaint (Doc. 12) pursuant to Fed.R.Civ.P.
8 and 12(b)(6). The Motion follows the Plaintiff's
Amended Complaint (Doc. 11). The Motion is fully briefed, and
for the reasons stated herein, the Motion is DENIED.
Plaintiff filed this case on June 10, 2016, under the
Telephone Consumer Protection Act (“TCPA”). (Doc.
1). The Plaintiff alleges that State Farm Mutual set up a
text service which resulted in his receiving text messages
sent by an autodialer and prerecorded messages, both of both
in violation of the TCPA. According to the Plaintiff,
although he tried to “opt out” from receiving
these messages, he continued to receive them. The Plaintiff
also alleges that he confirmed both the text messages and
phone calls with a State Farm customer service agent.
complaint must provide a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). That statement must be
sufficient to provide the defendant with "fair
notice" of the claim and its basis. Tamayo v.
Blagojevich, 526 F.3d. 1074, 1081 (7th Cir. 2008);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). This means that (1) the complaint must describe the
claim in sufficient detail to give the defendant "fair
notice of what the . . . claim is and the grounds upon which
it rests" and (2) its allegations must plausibly suggest
that the plaintiff has a right to relief, raising that
possibility above a "speculative level." EEOC
v. Concentra Health Services, Inc., 496 F.3d 773, 776
(7th Cir. 2007); Twombly, 550 U.S. at 555.
Conclusory allegations are "not entitled to be assumed
true.” Ashcroft v. Iqbal, 556 U.S. 662, 681
(2009) (citing Twombly, 550 U.S. at 554-55 (2007)).
have traditionally held that a complaint should not be
dismissed unless it appears from the pleadings that the
plaintiff could prove no set of facts in support of his claim
which would entitle him to relief. See Conley v.
Gibson, 355 U.S. 41 (1957); Gould v. Artisoft,
Inc., 1 F.3d 544, 548 (7th Cir. 1993). For purposes of a
motion to dismiss, the complaint is construed in the light
most favorable to the plaintiff, its well-pleaded factual
allegations are taken as true, and all reasonably-drawn
inferences are drawn in favor of the plaintiff. See
Albright v. Oliver, 510 U.S. 266, 268 (1994);
Hishon v. King & Spalding, 467 U.S. 69 (1984);
Lanigan v. Village of East Hazel Crest, 100 F.3d 467
(7th Cir. 1997); M.C.M. Partners, Inc. v.
Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969
(7th Cir. 1995); Early v. Bankers Life & Cas.
Co., 959 F.2d 75 (7th Cir. 1992).
complaint must not simply recite the elements of the claim
without additional, independent facts “to raise a
reasonable expectation that discovery will reveal
evidence” of the alleged misconduct. Johansen v.
Vivant, Inc., 2012 WL 6590551, *3 (N.D. Ill. December
18, 2012), citing Twombly, 550 U.S. at 556. A
complaint should be construed broadly and liberally in
conformity with the mandate in Fed.R.Civ.P. 8(f). More
recently, the Supreme Court has phrased this standard as
requiring a showing sufficient “to raise a right to
relief beyond a speculative level.” Bell Atlantic
Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).
Furthermore, the claim for relief must be “plausible on
its face.” Id.; Ashcroft v. Iqbal,
129 S.Ct. 1937, 1953 (2009).
Whether State Farm Mutual Made the Calls
Defendant argues that the Plaintiff's Complaint should be
dismissed because the Plaintiff fails to sufficiently state a
valid claim under the TCPA. First, the Defendant argues that
the Plaintiff failed to allege direct liability, because the
text messages were clearly sent by an independent contractor,
not State Farm. Further, the Defendant argues that the
Plaintiff fails to allege a vicarious liability theory that
would implicate State Farm. The Plaintiff argues that his
Amended Complaint properly alleges facts that indicate the
caller was State Farm Mutual.
TCPA addresses telephone solicitations. The TCPA provides
that it is unlawful for a person to make any call
“using any automatic telephone dialing system or an
artificial or prerecorded voice . . . to any telephone number
. . . for which the party is charged for the call.” 47
USC § 227(b)(1)(A)(i)-(iii); 47 C.F.R. § 64.1200. A
caller using an automatic telephone dialing system
(“ATDS”) must have prior express consent by the
person being called. § 227(b)(1)(A)(iii). A text message
sent to a cell phone qualifies as a call as described in
§ 227. Campbell-Ewald Co. v. Gomez, 136 S.Ct.
663, 667 (2016), as revised (Feb. 9, 2016). An ATDS
is “equipment which has the capacity to store or
produce telephone numbers to be called, using a random or
sequential number generator; and to dial such numbers.”
§ 227(a)(1)(A)-(B). A seller is “the person or
entity on whose behalf a telephone call or message is
initiated for the purpose of encouraging the purchase or
rental of . . . goods, or services, which is transmitted to
any person.” 47 C.F.R. § 64.1200(f)(9).
FCC, which has the authority to promulgate regulations
implementing the TCPA pursuant to 47 U.S.C. § 227(b)(2),
has interpreted § 227 to mean that an individual who
does not physically make a call is not directly liable under
§ 227(b) or (c). In the Matter of the Joint Petition
Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6582-83
(2013). A person who does not physically initiate calls,
however, may nonetheless be held vicariously liable for
violating § 227 under common law agency principles.
Id. at 6584-93; see also, Savanna Grp., Inc. v.
Trynex, Inc., 2013 WL 4734004, at *5 (N.D. Ill. Sept. 3,
2013). For example, the Ruling distinguishes a telemarketer
from a seller, explaining that a seller does not necessarily
initiate a call placed by a third-party telemarketer.
Plaintiff's Amended Complaint includes the text messages