Dolemba v. Illinois Farmers Insurance Company

Filing 41

MEMORANDUM Opinion and Order: For the foregoing reasons, the Court grants the defendants' motion to dismiss, 32 . The Court dismisses Dolemba's TCPA claim without prejudice for failure to state a claim for relief. The Court declines at th is time to address the parties' arguments regarding Dolemba's ICFA claim. See Winfield v. Mercy Hosp. and Med. Ctr., 591 Fed. Appx. 518, 520 (7th Cir. Feb. 17, 2015) ("A district court may decline to exercise supplemental jurisdiction, and the presumption is that the court will do so if all federal claims have been dismissed before trial."). If Dolemba believes that he can plead facts sufficient to overcome the deficiencies the Court has identified, then he may file an amende d complaint by August 31, 2015. If he does not file a second amended complaint by that date, the Court will enter an order dismissing his TCPA claim with prejudice and relinquishing supplemental jurisdiction over his ICFA claim. If Dolemba does file a second amended complaint, the Court will hold a status hearing on September 3, 2015 at 9:00 a.m. The status hearing currently scheduled for August 12, 2015 is stricken. Signed by the Honorable Thomas M. Durkin on 8/10/2015:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT DOLEMBA, ON BEHALF OF PLAINTIFF
AND A CLASS,

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PLAINTIFF,
v.
ILLINOIS FARMERS INSURANCE COMPANY,
D/B/A FARMERS INSURANCE, AND JAMES V.
LOMBARDI INSURANCE AGENCY, INC.,
DEFENDANTS.

No. 15 C 463
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff Scott Dolemba, on his own behalf and on behalf of a putative class,
alleges that defendants Illinois Farmers Insurance Company (“Farmers”) and
James V. Lombardi Insurance Agency, Inc. (“Lombardi”) made an unsolicited
telephone call to his cellular telephone in violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227 (Count I), and the Illinois Consumer Fraud
Act (“IFCA”), 815 ILCS 505/2 (Count II). See R. 31. The defendants have moved to
dismiss the complaint on several grounds, including that the alleged call was
neither an “advertisement” nor “telemarketing” within the meaning of the TCPA’s
implementing regulations. See 47 C.F.R. § 64.1200. For the following reasons, the
Court grants the defendants’ motion to dismiss.
BACKGROUND
On January 15, 2015, Dolemba received an automated telephone call that
played a prerecorded message inviting him to attend a “town hall call offering a
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business opportunity promoting the commercial availability of insurance, goods,
intangibles and services.” R. 31 ¶¶ 8-9. Although somewhat obscured by the
complaint’s artful drafting, the “business opportunity” was the opportunity to
become a Farmers agent. See id. ¶ 12-13. A person who dials the number from
which the call was sent gets a recorded message from Jim Lombardi, a Farmers
agent and district manager, “referencing Farmers and inviting the recipient to
attend a ‘town hall’ call offering a business opportunity involving the sale of
insurance, goods, intangibles (including insurance, annuities, mutual funds,
shopping services, and investment products) and services.” Id. ¶ 10. Dolemba
further alleges that the “business opportunity requires the new agent to acquire
goods and services and expend money to [sic] or for the benefit of” Farmers. Id. ¶ 12.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). 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), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
ANALYSIS
The TCPA makes it unlawful for any person to make a call using an
automatic telephone dialing system or a prerecorded voice to a cellular telephone.
47 U.S.C. § 227(b)(1)(A)(iii). The TCPA authorizes the Federal Communications
Commission (“FCC”) to exempt by rule or order “calls that are not made for a
commercial purpose,” and “such classes or categories of calls made for commercial
purposes as the Commission determines”: (1) “will not adversely affect the privacy
rights that this section is intended to protect”; and (2) “do not include the
transmission of any unsolicited advertisement.” Id. at § 227(b)(2)(B). The FCC’s
implementing regulations make it unlawful to use an automatic telephone dialing
system, or a prerecorded voice, to initiate a call to a cellular telephone “that
includes or introduces an advertisement or constitutes telemarketing.” 47 C.F.R. §
64.1200(a)(1)-(2).

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I.

Whether Dolemba has Adequately Alleged that the Call Included or
Introduced an Advertisement
The FCC’s regulations define “advertisement” as “any material advertising

the commercial availability or quality of any property, goods, or services.” 47 C.F.R.
§ 64.1200(f)(1). Whether a given call includes or introduces an “advertisement”
depends on the call’s content. Golan v. Veritas Entm’t, LLC, 788 F.3d 814, 820 (8th
Cir. 2015).
A call that seeks to hire individuals to sell a defendant’s products may
constitute an advertisement “if the individuals called are encouraged to purchase,
rent, or invest in property, goods, or services, during or after the call.” In re Rules
and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18
FCC Rcd. 14014, 14098-99 (July 3, 2003). Several district courts have held,
however, that a mere “recruitment” call is not actionable. See AL and PO Corp. v.
Med-Care Diabetic & Med. Supplies, Inc., No. 14 C 01893, 2014 WL 6999593, at *2
(N.D. Ill. Dec. 10, 2014) (“[D]rawing attention to a job opening does not equate to
promoting the ‘commercial availability or quality of any property, goods, or
services’”) (quoting 47 U.S.C. § 227(a)(5)); Friedman v. Torchmark Corp., No. 12-CV2837-IEG (BGS), 2013 WL 4102201, at *5 (S.D. Cal. Aug. 13, 2013) (similar); Lutz
App. Servs., Inc. v. Curry, 859 F. Supp. 180, 181 (E.D. Pa. 1994) (similar); see also
Reardon v. Uber Tech., Inc., Case No. 14-cv-05678-JST, — F. Supp. 3d —, 2015 WL
4451209, at *5 (N.D. Cal. July 19, 2015) (“[T]he texts from Uber seeking to recruit
drivers were not attempts to promote a ‘good’ (its application) to those drivers, but

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instead was an attempt to recruit drivers so that those potential drivers could
provide services to riders.”).
In Friedman, the plaintiff alleged that the defendant sent a prerecorded
message to his residential telephone inviting him to contact the defendant “at a
specific telephone number to attend a ‘recruiting webinar’ . . . wherein [plaintiff]
could learn about [defendant’s] products and services in order to sell said products
and services to other Americans who are in need of health or similar insurance
policies.” 2013 WL 4102201, at *1. Individuals who completed the webinar received
an email that “provide[d] the opportunity to enter into a contract with” the
defendant. Id. The contract contained fees that the individual would have to pay to
sell the defendant’s products, in exchange for which the defendant would supply
client lists. Id. The Friedman court held that the call offered the plaintiff the
opportunity to “enter into an independent contractor relationship,” and was “not
part of an overall marketing campaign to sell access to a customer database.” Id. at
*6; see also Lutz, 859 F. Supp. at 181 (“A company’s advertisement of available job
opportunities within its ranks is not the advertisement of the commercial
availability of property.”). On that basis, the court dismissed the plaintiff’s TCPA
claim.
In Med-Care, the plaintiff received from the defendant a fax encouraging it to
join the defendant’s “affiliate/subcontractor program.” Id. at *1. The fax went on to
list “various supplies and goods for the recipient’s patients,” id., and to tout the
benefits of joining the company’s program:

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This program will enable you to, not only maintain your referral
sources but, leverage our capacity and diversification of products and
payer base to expand the products, and services you offer to a larger
group of insurers. Med-Care has been in business since 1999. We
currently service an active patient base of over 250,000 patients. We
offer a multitude of products and services, all credentialed by The Joint
Commission. All fulfillment is handled in house within our 40,000 sq.
ft. shipping facility in Boca Raton FL . . . . Subcontracting agreements
can be a lucrative method for smaller providers to maintain and
enlarge their referral sources and increase your footprint by affiliating
with a national organization. You will be able to provide a wide variety
of quality products and services to current and future patients.
Id. The Med-Care court agreed with Friedman and Lutz that a “barebones ‘help
wanted’ notice and an open-ended invitation to attend a webinar, on their own, do
not promote any property, goods, or services.” Id. at *3. It held that those cases were
distinguishable, however, because the defendant’s fax “trumpeted” the company’s
“wide variety of quality products,” and “specifically listed twelve separate
examples.” Id.
Dolemba argues that the defendants’ call is “more akin to” the calls at issue
in Brodsky v. HumanaDental Insurance Company, No. 10 C 3233, 2014 WL 2780089
(N.D. Ill. June 12, 2014) (Durkin, J.). In Brodsky, the plaintiff—a “wholesaler of
insurance”—received a fax from the defendant promoting the company’s insurance
products. Id. at *2. The fax invited the plaintiff to “[e]nhance your clients’ benefits
with dental and vision,” and listed the attractive features of the defendant’s
“portfolio of specialty benefits products.” Id. It also stated that the defendant had
“made it easier than ever for [your clients] and you to do business with us, providing
a single source for a quote, application, enrollment and bill.” Id. (emphasis added).
In denying the defendant’s summary judgment motion, the Court held that a
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reasonable jury could find that the fax “contained a sales pitch,” and rejected the
defendant’s argument that the fax was merely “informational.” Id. at *7. Dolemba
also cites Green v. Time Insurance Company, which held that the plaintiff’s
allegation that he received a fax similar to the faxes at issue in Brodsky and MedCare stated a claim for relief under the TCPA. 629 F. Supp. 2d 834, 835 (N.D. Ill.
2009) (“The Direct General Agent contract is by far the most lucrative contract
available when contracting with Assurant Health/Time Insurance . . . .We’re an A
rated company that’s been doing business for over 115 years. Our underwriting is
second to none . . . .”); see also Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008
WL 489360, at *7 n. 5 (N.D. Ill. Feb. 20, 2008) (“While Med1 does not list any prices
on its forms, it does claim to pay ‘TOP DOLLAR’ for used medical equipment,
describes its company as ‘a better way to buy medical equipment,’ and urges
recipients to ‘Call us!’ or visit its website.”).
As alleged in the complaint, the defendants’ call does not serve the “dual
purpose” of recruitment and promotion. In re Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. at 14098-99. The call
invited Dolemba to attend a “town hall call offering a business opportunity
promoting the commercial availability of insurance, goods, intangibles and
services.” R. 31 ¶ 9. This allegation is virtually indistinguishable from the plaintiff’s
allegation in Friedman. The fact that the call informed Dolemba what he would be
selling (“insurance”), without more, does not make the call an advertisement.
Dolemba’s allegations that the call promoted the defendants’ insurance products

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merely parrot the regulation’s language, see R. 31 ¶¶ 9-10, 13, or else are too vague
to provide adequate notice of his claim. See id. ¶ 12 (“The business opportunity
requires the new agent to acquire goods and services and expend money to [sic] or
for the benefit of Illinois Farmers Insurance Company.”).
Dolemba has not adequately alleged that the call he received included or
introduced an “advertisement” as the FCC’s regulations define that term.
II.

Whether Dolemba Has Adequately Alleged that the Call Constituted
Telemarketing
The TCPA’s implementing regulations define “telemarketing” as “the

initiation of a telephone call or message for the purpose of encouraging the purchase
or rental of, or investment in, property, goods, or services, which is transmitted to
any person.” 47 C.F.R. § 64.1200(f)(12). The “telemarketing” inquiry focuses on the
purpose of the call, rather than its content. See Golan, 788 F.3d at 820. The TCPA
does not “‘require an explicit mention of a good, product or service,’ where the
implication of an improper purpose is ‘clear from the context.’” Id. (quoting Chesbro
v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012)).
In Golan, a telemarketing company retained Mike Huckabee to read a
scripted, prerecorded call purporting to be a “survey” about a movie that the
company had been hired to promote:
Hello, this is Governor Mike Huckabee, with a 45–second survey. Do
you believe in American freedom and liberty? ... Would you, like me,
Mike Huckabee, like to see Hollywood respect and promote traditional
American values? I am an enthusiastic supporter of a new movie called
Last Ounce of Courage. It is a film about faith, freedom, and taking a
stand for American values. May I tell you more about why I
recommend that you ... see the movie Last Ounce of Courage?
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Id. at 817. If the consumer said “yes,” then the call would proceed to the script’s
next segment. Id. (“Thank you for your interest. Last Ounce of Courage opens in
theaters on Friday, September 14, [2012] . . . .”). Recipients who did not answer the
call received the following voicemail message: “Liberty. This is a public survey call.
We may call back later.” Id. The plaintiffs, who did not answer the call and received
only the truncated message, filed a TCPA claim against the defendants on their own
behalf and on behalf of a class that included consumers who heard some or all of the
scripted promotion. Id. at 817-18. The Eighth Circuit held that the short voicemail
message was not an “advertisement” because it “did not mention property, goods, or
services.” Id. at 819. But it held that the message was “telemarketing” because the
purpose of the call was to encourage consumers to purchase tickets to see the movie.
Id. at 820 (“Here, the context of the calls indicates that they were initiated for the
purpose of promoting the Last Ounce of Courage.”).
In Chesbro v. Best Buy Stores, L.P., the defendant sent the plaintiff a
prerecorded message informing him that his “Best Buy Reward Zone” certificates
would expire soon. 705 F.3d at 916. It later sent a second prerecorded message to
the plaintiff telling him about changes to the Reward Zone program, and
encouraging him to “go to MyRewardZone.com for details and to update your
membership.” Id. The Ninth Circuit rejected Best Buy’s argument that the calls
were “purely informational”:
We approach the problem with a measure of common sense. The robotcalls urged the listener to “redeem” his Reward Zone points, directed
him to a website where he could further engage with the RZP, and
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thanked him for “shopping at Best Buy.” Redeeming Reward Zone
points required going to a Best Buy store and making further
purchases of Best Buy’s goods. There was no other use for the Reward
Zone points. Thus, the calls encouraged the listener to make future
purchases at Best Buy. Neither the statute nor the regulations require
an explicit mention of a good, product, or service where the implication
is clear from the context.
Id. at 918.
By contrast, the Friedman court held that the defendant’s faxes were not
“telephone solicitations” 1 because they did not encourage the plaintiff to “invest
money in [the defendant’s] brokerage services.” 2013 WL 4102201, at *6. Rather,
“the messages were intended to inform [the plaintiff] of the opportunity to enter into
an independent contract position with” the defendant. Id.
This case is more similar to Friedman than it is to Golan or Chesbro. The
defendants’ call invited Dolemba to participate in a “town hall call” during which he
would learn about becoming a Farmers insurance agent. Like Friedman, and unlike
Chesbro, the call did not explicitly or implicitly encourage him to purchase, or
“invest” in, any property, goods, or services. And unlike Golan, Dolemba has not
alleged facts indicating that the defendants’ recruiting call was part of a larger
telemarketing promotion.

The version of the implementing regulations in effect when the court decided
Friedman exempted calls made for a commercial purpose that did “not include or
introduce an unsolicited advertisement or constitute telephone solicitation.” See 47
C.F.R. § 64.1200(a)(2)(iii) (effective until Oct. 16, 2013). The current version of
subsection (a)(2) substitutes “telemarketing” for “telephone solicitation.” See id. at §
64.1200(a)(2) (effective Oct. 16, 2013). It does not appear that this amendment
affected the substance of the regulation.
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Dolemba has not adequately alleged that the call he received constituted
“telemarketing” as the TCPA defines that term. 2
III.

The Dismissal is Without Prejudice
The Court declines at this time to dismiss Dolemba’s TCPA claim with

prejudice. See R. 33 at 2 (seeking dismissal with prejudice). Dolemba voluntarily
amended his complaint in response to the defendants’ original motion to dismiss.
See R. 29. With the benefit of the Court’s ruling, Dolemba may be able to plead
sufficient facts to state a plausible claim for relief.
CONCLUSION
For the foregoing reasons, the Court grants the defendants’ motion to
dismiss, R. 32. The Court dismisses Dolemba’s TCPA claim without prejudice for
failure to state a claim for relief. The Court declines at this time to address the
parties’ arguments regarding Dolemba’s ICFA claim. See Winfield v. Mercy Hosp.
and Med. Ctr., 591 Fed. Appx. 518, 520 (7th Cir. Feb. 17, 2015) (“A district court
may decline to exercise supplemental jurisdiction, and the presumption is that the
court will do so if all federal claims have been dismissed before trial.”). If Dolemba
believes that he can plead facts sufficient to overcome the deficiencies the Court has
identified, then he may file an amended complaint by August 31, 2015. If he does
not file a second amended complaint by that date, the Court will enter an order
dismissing his TCPA claim with prejudice and relinquishing supplemental
jurisdiction over his ICFA claim. If Dolemba does file a second amended complaint,
In light of the Court’s ruling, it is unnecessary to address whether Farmers may
be held vicariously liable for Lombardi’s actions. See R. 33 at 10.
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the Court will hold a status hearing on September 3, 2015 at 9:00 a.m. The status
hearing currently scheduled for August 12, 2015 is stricken.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge

Dated: August 10, 2015

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