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Vessal v. Alarm.Com

United States District Court, N.D. Illinois

October 18, 2017

TARANEH VESSAL, Plaintiff,
v.
ALARM.COM, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff Taraneh Vessal filed a two-count First Amended Complaint, alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227(b)(1)(iii), and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1. Defendant Alarm.com moves to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim [31]. For the reasons set forth below, this Court grants in part and denies in part the motion.

         Background

         The following facts are taken from the First Amended Complaint. (Dkt. 29). Plaintiff Taraneh Vessal registered her cell phone on the Do-Not-Call Registry, and most recently renewed that registration in March 2016. Around the same time, she began receiving calls from entities trying to sell her Alarm.com's home security system.

         Alarm.com provides interactive security and home alarm monitoring solutions for residential and commercial properties around the country. Alarm.com does not sell its services directly to consumers, but relies on a network of third-party dealers to generate subscribers. The complaint contains a list of fifty-six telephone numbers alleged to be used by Alarm.com's third-party dealers. Vessal alleges on information and belief that the enumerated phone numbers are regularly used by third-party dealers. The complaint alleges that Alarm.com controls the details of sale, installation, maintenance, and support for their home security systems. Alarm.com also controls the third-party dealers by retaining the right to discipline and terminate the relationships.

         The phone calls Vessal received were attempts to sell her a “3-in-1 wireless home security system.” Vessal has received calls from American Home Security, American Security Services, Central Security Group, United Security, and Bayside Security, among others. She believes that each of these entities have agreements with Alarm.com as third-party dealers. Some of the callers directed Vessal to Alarm.com when she asked for a web address. When she answers the calls, Vessal hears a recorded message offering her options to opt out or to speak with a representative. The complaint lists dates and phone numbers for nine instances when Vessal followed the prompt to opt out. (Id. at ¶ 26). She also spoke with representatives on multiple occasions, requesting removal from their call list. In July 2016, Vessal spoke with a representative from United Security, to whom she stated, “I asked twice to be removed, why are you calling me?” and “Remove me from your list.” Vessal alleges that United Security's representative responded that they would remove her from the list and from their database. She further alleges on information and belief that United Security is a third-party dealer for Alarm.com. (Id. at ¶ 29).

         On a separate occasion, Vessal alleges that she spoke to a representative named “Jen” from Central Security Group and told the representative not to call her again and was told that she would be removed from their list. Vessal also alleges on information and belief that Central Security Group is a third-party dealer for Alarm.com. (Id. at ¶ 31). On September 27, 2016, Vessal answered a call from American Security Services and the representative said he was calling on behalf of Monitronics. (Id. at ¶ 33). She alleges on information and belief that Monitronics is a third-party dealer for Alarm.com. (Id. at ¶ 34). On September 29, 2016, Vessal answered a call from American Home Security and asked the representative to take her off of the list. She alleges on information and belief that American Home Security is a third-party dealer for Alarm.com. (Id. at ¶ 36). Plaintiff asserts that she has received more than 75 calls despite her requests to be removed from call lists and databases.

         Plaintiff alleges harm from the calls from aggravation and intrusions on her privacy, and increased usage of her telephone services, loss of cell phone capacity and battery life, among other things. (Id. at ¶ 43). Based on these allegations, Vessal asserts that Alarm.com violated the Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act.

         Legal Standard

         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering the motion, the Court accepts as true all well pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive dismissal, the complaint must not only provide the defendant with fair notice of a claim's basis, but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim must be plausible rather than merely conceivable or speculative, meaning that the plaintiff must include enough details about the subject-matter of the case to present a story that holds together. But the proper question to ask is still could these things have happened, not did they happen.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014) (emphasis in original) (internal citations omitted).

         Discussion

         Alarm.com moves to dismiss both counts of the First Amended Complaint for failure to state a claim. Alarm.com argues that the First Amended Compliant fails to allege sufficient facts to draw a reasonable inference that Alarm.com is liable for the conduct of the callers. Alarm.com further contends that Vessal's allegations of “dealer agreements” are too conclusory to satisfy even the minimal requirements of Rule 8. According to Alarm.com the ICFA claims fail because the damages alleged do not qualify as actual damages under the statute and there are no allegations of a deceptive act or practice committed by Alarm.com. This Court will address each argument in turn.

         1. Count I: TCPA

         The TCPA prohibits any person from “mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice… to any telephone number assigned to a… cellular telephone service… unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227 (b)(1)(A)(iii). In Count I, plaintiff alleges that Alarm.com is directly liable for ...


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