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Aguilar v. State Farm Mutual Automobile Insurance Co.

United States District Court, C.D. Illinois, Peoria Division

March 10, 2017

ANDY AGUILAR, on behalf of himself and all others similarly situated, Plaintiff,



         Now 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.


         The 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.

         Legal Standard

         A 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)).

         Courts 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).

         The 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).


         1. Whether State Farm Mutual Made the Calls

         The 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.

         The 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).

         The 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. Id.

         The Plaintiff's Amended Complaint includes the text messages he ...

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