Cunningham v. Foresters Financial Services, Inc. et al

Filing 66

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Harris Defendants' 26 renewed motion to dismiss is GRANTED. Defendant Octavia Pugh's 31 motion to dismiss is GRANTED. Defendant Gil Swets' 49 motion to clarify relief sought is DENIED AS MOOT, and Foresters Defendants' 57 motion to dismiss is GRANTED IN PART AND DENIED IN PART. The claims against Foresters Financial Services, Inc. for violation of 47 U.S.C. § 227(b) based on a direct th eory of liability is DISMISSED WITHOUT PREJUDICE. The Clerk is ORDERED to DISMISS the claims against defendants Angela Harris aka Angela Roach, Insurance Professionals of America, In., Octavia Pugh, and Foresters Financial Holding Company, Inc., for lack of personal jurisdiction. Signed by Judge Rudy Lozano on 1/9/2018. (Copy mailed to pro se party)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

CRAIG CUNNINGHAM,
Plaintiff,
vs.
FORESTERS FINANCIAL SERVICES,
INC., OCTAVIA PUGH, FOSTERS
FINANCIAL HOLDING COMPANY, INC.,
GIL SWETS, MICHAEL SAMAROO,
MAHENDRA SAMAROO, AMERICA
INSURANCE GROUP, LLC, ORACLE
SENIOR INSURANCE GROUP, INC.,
JASON GSOELL, INSURANCE
PROFESSIONALS OF AMERICA, INC.,
ANGELA HARRIS aka ANGELA ROACH,
VIPCO ADVISORS, INC., JAY
POLITI, APPTICAL CORP., UNITED
LIFE ASSOCIATES, LLC, ANDREW
DECOS, GLEA GSOELL, PINNACLE
SENIOR INSURANCE GROUP CORP.,
NATIONWIDE SENIOR MARKETING,
INC., I CLICK ADVANCED MARKETING
COMPANY, KATIE BOLING, NICHOLAS
POLITI, NATIONWIDE SENIOR
SERVICE INC., AXIS BENEFIT
SOLUTIONS INC., AXIS ADVISORY
GROUP INC., and RODERIC BOLING,
Defendants.

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NO. 2:17–CV-00077

OPINION AND ORDER
This matter is before the Court on the Renewed Motion of
Defendants

Angela

Harris

aka

Angela

Roach,

and

Insurance

Professionals of America, Inc., to Dismiss, filed on May 25, 2017
(DE #26), the Motion to Dismiss filed by Octavia Pugh on June 19,

1

2017 (DE #31), Defendant Gil Swets’ Motion to Clarify Relief Sought
in Angela Harris aka Angela Roach and Insurance Professionals of
America, Inc.’s (together, “Harris Defendants”) Motion to Dismiss
and Notice of Non-consent to Transfer, filed on August 10, 2017
(DE #49), and the Motion to Dismiss of Defendants Foresters
Financial Holding Company, Inc. and Foresters Financial Services,
Inc. (together, “Foresters Defendants”) filed on August 25, 2017
(DE #57).

For the reasons set forth below, the Harris Defendants’

renewed motion to dismiss is GRANTED (DE #26).

Defendant Octavia

Pugh’s motion to dismiss is GRANTED (DE #31), Defendant Gil Swets’
motion to clarify relief sought is DENIED AS MOOT (DE #49), and
Foresters Defendants’ motion to dismiss is GRANTED IN PART AND
DENIED IN PART (DE #57).

The claim against Foresters Financial

Services, Inc. for violation of 47 U.S.C. § 227(b) based on a
direct theory of liability is DISMISSED WITHOUT PREJUDICE.

The

Clerk is ORDERED to DISMISS the claims against defendants Angela
Harris aka Angela Roach, Insurance Professionals of America, Inc.,
Octavia Pugh, and Foresters Financial Holding Company, Inc., for
lack of personal jurisdiction.

BACKGROUND
Plaintiff Craig Cunningham (“Plaintiff”), who is proceeding
pro se, brought this action against more than twenty defendants
alleging that the Foresters Defendants engaged in a scheme with

2

the other defendants to market their services through the use of
pre-recorded

messages

in

violation

of

the

Telephone

Protection Act, 47 U.S.C. §227, et seq. (“TCPA”).

Consumer

In response to

the Complaint, the Harris Defendants move to dismiss for lack of
personal jurisdiction pursuant to Federal Rules of Civil Procedure
Rule 12(b)(2) and improper venue.

In the alternative, the Harris

Defendants move to transfer the case to the United States District
Court for the Middle District of Florida pursuant to 28 U.S.C. §
1404(a) or 28 U.S.C. § 1406(a).

(DE #26.)

Plaintiff filed a

three-sentence response to the Harris Defendants’ motion.

(DE

#32.) The Harris Defendants did not file a reply brief. Defendant
Gil Swets (“Swets”) filed a motion to clarify the relief sought in
the Harris Defendants’ motion to dismiss.

(DE #49.)

No party

responded to Swets’ motion.
Defendant Octavia Pugh (“Pugh”) filed a motion to dismiss for
lack of personal jurisdiction and failure to state a claim.
#31.)

Plaintiff filed a response to this motion.

file a reply.

(DE

Pugh did not

Finally, the Foresters Defendants filed a motion to

dismiss for lack of personal jurisdiction and failure to state a
claim.

(DE #57.)

Plaintiff filed a response to the Forester

Defendants’ motion, and the Forester Defendants filed a reply
brief.

3

DISCUSSION
Facts1
Plaintiff’s

Amended

Complaint

(“Complaint”)

alleges,

in

relevant part, the following:
Plaintiff is a natural person living in Nashville, Tennessee.
(DE

#22,

(“FFSI”)

¶1.)
is

Tennessee.

a

Defendant
Tennessee

(Id., ¶2.)

Foresters
corporation

Financial
that

can

Services,
be

Inc.

served

in

Defendant Foresters Financial Holding

Company, Inc. (“FFHCI”) is a Delaware corporation that can be
served in Delaware.

(Id., ¶4.)

Defendant Pugh is a Tennessee

licensed insurance agent who can be served in Georgia.

(Id., ¶3.)

Defendant Swets is a Tennessee licensed insurance agent who can be
served in Indiana.

(Id., ¶5.)

Defendant Insurance Professionals

of America, Inc. (“IPA”) is a Florida corporation that can be
served in Florida. (Id., ¶19.) Defendant Angela Harris aka Angela
Roach (“Harris”) is the sole corporate officer of IPA and can be
served in Florida.

(Id., ¶20.)

The Complaint names 19 additional

1
 Where a defendant moves to dismiss a complaint pursuant to Rule

12(b)(2), the plaintiff bears the burden of demonstrating the
existence of jurisdiction.
Purdue Research Found. v. Sanofi–
Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003).
When the
court rules on such a motion based solely on written materials
provided by the parties, the plaintiff “need only make out a prima
facie case of personal jurisdiction. . . . In evaluating whether
the prima facie standard has been satisfied, the plaintiff is
entitled to the resolution in its favor of all disputes concerning
relevant facts presented in the record.” Id. (internal quotations
and citations omitted). Therefore, any disputed facts have been
resolved in plaintiff’s favor.
4

defendants, all of whom are residents or corporations of the states
of Florida, Texas, Mississippi, or North Carolina.

(Id., ¶¶ 6-

18, 21-26.)2
The Complaint alleges that personal jurisdiction is apparent
as the defendants are making calls from the state of Indiana for
the purpose of soliciting Tennessee residents to purchase life
insurance and engage Indiana and Tennessee licensed insurance
agents to sell policies. (Id., ¶28.) Swets is an Indiana resident
who allegedly placed illegal telemarketing calls to Plaintiff in
an

attempt

Defendants.

to

sell

Plaintiff

(Id., ¶29.)

insurance

from

the

Foresters

The Foresters Defendants allegedly

delegated its marketing duties to the co-defendants, and ratified
the conduct of the co-defendants by accepting the referrals and
sales generated by the illegal calls on behalf of the Foresters
Defendants, and actively participated in the telemarketing calls
through the actions of its agents.

(Id., ¶33.)

The co-defendants

allegedly contacted, and/or caused to be contacted on their behalf,
Plaintiff without his prior express written consent within the
meaning of the TCPA.

(Id.)

2

  The Clerk entered default judgment against defendants Michael
Samaroo, Mahendra Samaroo, American Insurance Group, LLC, Nicholas
Politi, Jay Politi, Nationwide Senior Marketing, Inc., Nationwide
Senior Service, Inc., and Katie Boling on August 16, 2017. (DE
#56.) 

5

The co-defendants allegedly made autodialed and prerecorded
message calls on behalf of the Foresters Defendants, who are
legally responsible for ensuring that the co-defendants complied
with the TCPA.

(Id., ¶¶42, 46, 100, 104.)

“Foresters relies on

a series of third parties (‘Foresters agents’) to promote its goods
or

services.

Foresters

In

fact,

products,

the

if

an

individual

Foresters

wanted

website

to

advises

purchase
‘You

can

purchase Foresters quality insurance products through a network of
independent life insurance agents. . . .’”
Foresters

Defendants

allegedly

knew

that

(Id., ¶48.)
the

The

telemarketers

violated the TCPA on their behalf and failed to take effective
steps within their power to force the telemarketers to cease that
conduct.
Forester

(Id., ¶¶47, 101-03.)
Defendants

are

The Complaint asserts that the

liable

under

the

theories

of

direct

liability, actual liability, ratification, and apparent authority.
(Id.,

¶¶53-76.)

The

Foresters

Defendants’

agents

solicit

applications for insurance on the Foresters Defendants’ behalf,
and the co-defendants did so using pre-recording telemarketing.
(Id., ¶61.) The Foresters Defendants directed the quality, timing,
geographic

location

and

volume

of

co-defendants’

applicants.

(Id., ¶62.)
In

2016,

Plaintiff

allegedly

received

automated calls to Plaintiff’s cell phones.

over

unwanted

(Id., ¶¶77-78.)

of the calls included the following message:

6

40

Many

“Attention all

seniors between the ages of 55 and 85 years of age who may not
have life insurance or are concerned they may not have enough.
You have been qualified for a plan that will never expire and
premiums that will never go up.

Press 1 now.

There are no medical

exams for this coverage and you can be insured as early as
tonight.”

(Id., ¶79.)

Agents of the telemarketers stated that

the website for the company was oraclesig.com.

(Id., ¶80.)

On

some calls, Plaintiff was able to speak with agents in the call
centers and determined that they were all selling final expense
life insurance by the Foresters Defendants. (Id., ¶81.) Plaintiff
once spoke with an agent named Dave and asked him where he got the
leads for these calls.

(Id., ¶81.)

Dave responded, “I think they

go through a dialer,” and indicated the calls were initiated using
an automated telephone dialing system and that some demographic
information was input into a dialer system, such as age, income,
and state. (Id., ¶81.)

Dave also stated, "Its [sic] a computer

program we use, and it is programmed to make phone calls.
is nobody else involved."

There

(Id., ¶83.)

In another call that was a result of an automated telephone
call with a pre-recorded message, Plaintiff spoke with Pugh, who
was allegedly an agent/employee of IPA.

(Id., ¶88.)

Plaintiff

also received a call from Pugh’s supervisor at her request and the
supervisor indicated that they both worked IPA.

(Id.)

The

supervisor indicated that they had several approved lead vendors

7

for agents/employees of IPA to obtain leads, that IPA purchased
leads, which are provided to their agents, indicating that IPA
paid the telemarketers directly to call Plaintiff.
90.)

(Id., ¶¶89-

Pugh indicated to Plaintiff that she purchased leads from

Oracle Senior Insurance Group, Inc., and that was the reason why
Plaintiff had received a call for life insurance.

(Id., ¶91.)

The Complaint asserts violations of the TCPA, 47 U.S.C. §§
227(c)(5) and 227(b), and seeks statutory damages of $3,000 per
phone call, actual damages and pre-judgment interest.
Motions to Dismiss for Lack of Personal Jurisdiction
A defendant may move for dismissal of a complaint based on a
lack of personal jurisdiction under Federal Rule of Civil Procedure
12(b)(2). Plaintiff bears the burden of establishing that personal
jurisdiction exists, but because the issue is raised in a motion
to

dismiss,

he

need

jurisdictional facts.
Cir. 2012).

only

make

a

prima

facie

showing

of

Felland v. Clifton, 682 F.3d 665, 672 (7th

“A district court sitting in diversity has personal

jurisdiction over a nonresident defendant only if a court of the
state in which it sits would have jurisdiction.”

Purdue Research

Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773, 779 (7th Cir.
2003) (citation omitted).

The inquiry into whether an Indiana

court would have jurisdiction over the defendant has two steps.
Id.

First, the court must decide whether the Indiana long-arm

statute subjects the defendant to in personam jurisdiction.

8

Id.

If so, then the court must determine whether the exercise of
jurisdiction comports with federal due process requirements.

Id.

Indiana’s long-arm statute, Trial Rule 4.4(A), provides in part
that an Indiana court “may exercise jurisdiction on any basis not
inconsistent with the Constitutions of this state or the United
States.”

Ind. R. Trial P. 4.4(A).

Trial Rule 4.4(A) “reduce[s]

analysis of personal jurisdiction to the issue of whether the
exercise of personal jurisdiction is consistent with the Federal
Due Process Clause.”
967 (Ind. 2006).

LinkAmerica Corp. v. Cox, 857 N.E.2d 961,

“Thus, the statutory question merges with the

constitutional one – if [Indiana] constitutionally may exercise
personal jurisdiction over a defendant, its long-arm statute will
enable it to do so.”

Northern Grain Marketing, LLC v. Greving,

743 F.3d 487, 492 (7th Cir. 2014) (citations omitted).
For personal jurisdiction to be consistent with due process,
a defendant must have established “certain minimum contacts with
[the forum] such that the maintenance of the suit does not offend
traditional

notions

of

fair

play

and

substantial

justice.”

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) (internal quotations
and citation omitted).

A court has general personal jurisdiction

over a defendant in any action, even if that action “does not arise
out of or relate to the [defendant’s] activities in the forum
State,”

where

the

defendant

has

9

sufficient

continuous

and

systematic general contacts with the forum state.

Id. at 414–16.

A court has specific jurisdiction over a nonresident defendant
when “a controversy is related to or ‘arises out of’ a defendant’s
contacts with the forum.”

Id. at 414 (citation omitted); see

Greving, 743 F.3d at 492 (“To support an exercise of specific
personal jurisdiction, the defendant’s contacts with the forum
state

must

directly

relate

to

the

challenged

conduct

or

transaction.”) (citation and internal quotation marks omitted).
This inquiry “focuses on the relationship among the defendant, the
forum, and the litigation.”

Walden v. Fiore, 134 S. Ct. 1115,

1121, 188 L. Ed. 2d 12 (2014) (citation and internal quotation
marks omitted).

Specific jurisdiction is appropriate where (1)

the defendant “purposefully availed himself of the privilege of
conducting business in the forum state or purposefully directed
his activities at the state;” (2) “the alleged injury [arose] from
the defendant’s forum-related activities;” and (3) the exercise of
jurisdiction comports with “traditional notions of fair play and
substantial
omitted).

justice.”

Felland,

682

F.3d

at

673

(citations

If a defendant submits evidence in opposition to a

finding of personal jurisdiction, “the plaintiff must go beyond
the

pleadings

and

submit

exercise of jurisdiction.”

affirmative

evidence

supporting

the

Purdue Research, 338 F.3d at 783.

The

Court “accept[s] as true any facts contained in the defendant’s
affidavits that remain unrefuted by the plaintiff.”

10

GCIU-Employer

Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1020 n.1 (7th Cir.
2009) (citation omitted).

Because both Plaintiff and Pugh are

proceeding pro se, the Court notes that pro se filings must be
construed liberally, but even pro se litigants must follow the
rules of civil procedure.

Cady v. Sheahan, 467 F.3d 1057, 1061

(7th Cir. 2006) (citation omitted).
The Harris Defendants argue that the Court has neither general
nor specific jurisdiction over them.

In support, they proffer the

affidavit of Harris, in which she attests that she has never: lived
in Indiana; done business in Indiana; had any clients in Indiana;
or called or solicited prospective clients in Indiana.
3.)

(DE #26-

As the principal shareholder of IPA, Harris also attests that

IPA’s principal place of business is in Florida, all of its agents
are located in Florida, none of its agents are licensed to do
business in Indiana, it has no clients or customers in Indiana,
and IPA’s phone records show that its agents have never made a
phone call to any Indiana number.
Plaintiff’s

one-page

(Id.)

response

to

the

Harris

Defendants’

motion to dismiss does not assert that the Court has personal
jurisdiction over the Harris Defendants.

Rather, it merely states

that he agrees that the claims against the Harris Defendants should
be transferred to the appropriate district court in Florida.
#32 at 1.)

(DE

Because Plaintiff does not argue or allege that the

Court has general jurisdiction over the Harris Defendants, he has

11

“waived any general jurisdiction argument.”

RAR, Inc. v. Turner

Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997) (“RAR has never
alleged that Turner has such systematic contacts with Illinois.
RAR has thus waived any general jurisdiction argument”) (citation
omitted).
the

Similarly, because Plaintiff makes no case at all for

exercise

of

specific

jurisdiction

against

Defendants, he has waived this argument.

the

Harris

See GoldenTree Asset

Mgmt. LP v. BNP Paribas S.A., 64 F. Supp. 3d 1179, 1188 (N.D. Ill.
2014) (finding plaintiff waived arguments in support of specific
personal jurisdiction). Given the unrefuted evidence of the Harris
Defendants’ lack of contacts with the State of Indiana, the Court
finds that it does not have personal jurisdiction over them.

As

such, the Court need not address the alternative arguments raised
in the Harris Defendants’ motion to dismiss.
Pugh, who is proceeding pro se, also moves to dismiss based
on lack of personal jurisdiction.
affidavit

supporting

her

motion,

Pugh does not proffer an
though

she

supplemented

her

motion to provide her address, which is located in Georgia.

(DE

#46.) In response, Plaintiff makes no effort to demonstrate Pugh’s
contacts with Indiana, but notes that Pugh fails to state why the
Court lacks personal jurisdiction over her or proffer supporting
evidence.

(DE #48 at 2.)

Pugh did not file a reply brief.

The Complaint does not indicate that this Court has a basis
for general or specific personal jurisdiction over Pugh.

12

The

Complaint alleges that Plaintiff is a Tennessee resident and that
Pugh is a Tennessee-licensed insurance agent who can be served in
Georgia.

(DE #22, ¶¶1, 3.)

It also alleges that Plaintiff spoke

to Pugh as a result of an automated telephone call with a prerecorded message, and that Pugh’s purchase of leads was the reason
Plaintiff had received the automated telephone call.3
91.)

(Id., ¶¶88,

The Complaint does not allege any connection between Pugh

and the State of Indiana. Because Plaintiff has not met his burden
to show “certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend traditional notions of
fair play and substantial justice,” Helicopteros, 466 U.S. at 414,
Pugh’s motion to dismiss for lack of personal jurisdiction is
granted.
The Foresters Defendants similarly argue that the Court does
not have personal jurisdiction over FFHCI.

In support, they

proffer the Affidavit of Francis Gannon (“Gannon”). Gannon attests
that FFHCI is incorporated in the State of Delaware, does not have
any offices, or own or lease any property in Indiana.
at 2.)

(DE #58-2

Gannon further attests that FFHCI does not conduct any

business operations in Indiana, market or sell any products or
services in Indiana, maintain a telephone number in Indiana, have

3

  While the Complaint alleges that Pugh was an agent/employee of
IPA, IPA has proffered an uncontested affidavit that Pugh has never
been an agent or employee of IPA. (DE #26-3, ¶11.) 

13

a registered agent or any employees, or have any contracts with
any persons or entities located in Indiana.

(Id.)

Plaintiff does not respond with any argument supporting the
Court’s personal jurisdiction over FFHCI.

Rather, he states that

“[t]o the extent that the court lacks personal jurisdiction over
one of the Forester’s [sic] entities, the court should dismiss the
case without prejudice.”

(DE #64 at 3.)

Given the unrefuted

evidence of FFHCI’s lack of contacts with the State of Indiana,
the Court finds that it does not have personal jurisdiction over
FFHCI.
Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) allows a complaint
to be dismissed if it fails to “state a claim upon which relief
can be granted.”

Fed. R. Civ. P. 12(b)(6).

In order to survive

a Rule 12(b)(6) motion, the complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face’.”

Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed.2d
929 (2007)).

All well-pleaded facts must be accepted as true, and

all reasonable inferences from those facts must be resolved in the
plaintiff's favor.
Cir. 2008).

Pugh v. Tribune Co., 521 F.3d 686, 692 (7th

However, pleadings consisting of no more than mere

conclusions are not entitled to the assumption of truth.

14

Iqbal,

556 U.S. at 678-79.

This includes legal conclusions couched as

factual allegations, as well as “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.”

Id. at 678 (citing Twombly, 550 U.S. at 555).

noted above, Plaintiff is appearing pro se in this matter.

As
A

document filed pro se is to be “liberally construed,” and a pro se
complaint, however inartfully pleaded, “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L.Ed.2d
1081 (2007) (citations omitted).
The Complaint asserts that the defendants violated the TCPA,
47 U.S.C. §227(b). (DE #22, Count II.) Under the TCPA, a plaintiff
must allege four elements to state a cause of action: (1) a call
was made, (2) the caller used automatic telephone dialing system
or artificial or prerecorded voice, (3) the call was made to a
cellular telephone number, and (4) the recipient of the call did
not give the caller express written consent to make the call.

47

U.S.C. § 227(b)(1)(A)(iii); see Mauer v. Am. Intercontinental
Univ., Inc., No. 16 C 1473, 2016 WL 4651395, at *2 (N.D. Ill. Sept.
7, 2016).

Under certain circumstances, parties that do not

initiate calls may be held vicariously liable for TCPA violations
committed by third-party telemarketers “under a broad range of
agency principles, including not only formal agency, but also

15

principles of apparent authority and ratification.”

In re Dish

Network, LLC, 28 FCC Rcd. 6574, 6584 (2013).
Theories of Liability
The

Foresters

Defendants

challenge

the

four

theories

of

liability alleged against them in the Complaint: direct liability,
vicarious liability, ratification and apparent authority.

They

maintain that the Complaint fails to allege direct liability
because it fails to allege that they made any of the telephone
calls at issue.

See Vessal v. Alarm.com, No. 17 C 2188, 2017 WL

4682736, at *2 (N.D. Ill. Oct. 18, 2017) (“Direct liability under
the TCPA, however, applies only to entities that ‘initiate’ the
telemarketing calls. . . .

[A]s the FCC made clear to initiate a

call means to physically place a telephone call.”).

Plaintiff

does not respond to this argument, and therefore waives it.

See

Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010)
(“silence leaves us to conclude” a concession; “[f]ailure to
respond to an argument . . . results in waiver”).

Moreover, the

Complaint does not allege that the Foresters Defendants made any
telephone calls; rather, it alleges that “co-defendants” made the
calls.

(DE #22, ¶54.)

As such, the Complaint fails to allege a

TCPA claim against the Foresters Defendants under the direct
liability theory.
Turning to Plaintiff’s other theories of liability, a party
may be held vicariously liable for a TCPA violation committed by

16

a third-party “under federal common law principles of agency.”
Dish Network, 28 FCC Rcd. at 6584.

Agency is “the fiduciary

relationship that arises when one person (a ‘principal’) manifests
assent to another person (an ‘agent’) that the agent shall act on
the principal's behalf, and the agent manifests assent or otherwise
consents so to act.”

Restatement (Third) of Agency § 1.01 (2006).

“Agency is typically a factual issue, with the plaintiff at the
pleading stage only required to allege a factual basis that gives
rise to an inference of an agency relationship through the use of
generalized as opposed to evidentiary facts.”

Mauer, 2016 WL

4651395, at *2; see Dish Network, 28 FCC Rcd. at 6593, n.139
(“[N]othing in our ruling requires a consumer to prove at the time
of their complaint (rather than reasonably allege) that a call was
made on the seller's behalf.”); Clarendon Nat'l Ins. Co. v. Medina,
645 F.3d 928, 935 (7th Cir. 2011) (“The question of whether an
agency relationship exists is normally a question of fact.”).
The Foresters Defendants assert that the Complaint fails to
plead that the co-defendants were acting as their agents.

See

Smith v. State Farm Mut. Auto. Ins. Co., No. 13 C 2018, 2013 WL
5346430, at *3 (N.D. Ill. Sept. 23, 2013) (dismissing TCPA claim
without prejudice because plaintiff’s allegations merely supported
a claim that defendant’s insurance agents are its legal agents,
not that the third-party telemarketer who made the calls was the

17

defendant’s agent).4

Plaintiff responds that the Complaint states

a claim for TCPA violations based on vicarious liability.
Complaint
recorded

alleges
calls

that

in

Plaintiff

2016,

and

received

provides

40

automated

Plaintiff’s

The
pre-

telephone

numbers, as well as the telephone numbers from which the automated
calls were made.

While it does not allege that the pre-recorded

messages identified the Foresters Defendants by name, it does
allege that on some calls, “Plaintiff was able to speak with agents
in the call centers and determined that they were all selling final
expense life insurance by Forester’s [sic].”
Complaint describes some of those calls.
85.)

(DE #22, ¶81.)

The

(See, e.g., id., ¶¶81-

It also alleges that Foresters Defendants’ agents solicit

applications for insurance on their behalf, that the co-defendants
did so using pre-recording telemarketing, and that the Foresters
Defendants directed the quality, timing, geographic location and
volume of co-defendants’ applicants.

(Id., ¶61-62.)

Plaintiff

4

 The Foresters Defendants also argue that the TCPA claim should be

dismissed because the Complaint is a shotgun pleading that
impermissibly lumps together the defendants and the alleged calls.
See Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367, 1374 (S.D.
Fla. 2011) (dismissing TCPA claim without prejudice for improperly
lumping together defendants where “nowhere in the Complaint does
Plaintiff identify which Defendant made each call, but instead he
simply lumps the Defendants together despite that they are separate
and distinct legal entities”). However, district courts in this
Circuit have rejected the argument that a plaintiff's allegations
“impermissibly
lump
the
defendants
together”
where
they
sufficiently placed defendants on notice of the plaintiff's
claims. Toney v. Quality Res., Inc., 75 F. Supp. 3d 727, 733 (N.D.
Ill. Dec. 1, 2014). 
18

contends that he cannot ascertain the identity of the callers, or
the contracts and relationships between the parties, without the
aid of discovery.

The Forester Defendants respond that because

the “complaint is deficient under Rule 8, [Plaintiff] is not
entitled to discovery, cabined or otherwise.”

Iqbal, 556 U.S. at

686.
In Charvat v. Allstate Corporation, 29 F. Supp. 3d 1147 (N.D.
Ill. 2014), the court denied the defendants’ motion to dismiss a
TCPA claim despite the plaintiff’s failure to identify the thirdparty telemarketer or lead generator who initiated the call, or
allege what arrangement, if any, that third party had with either
defendant.

Id. at 1150–51.

The court explained that “it is

defendants, not plaintiff, who can reasonably be expected to know
these facts, and plaintiff’s allegations, taken together, suffice
to entitle him to discovery on the issue of vicarious liability.”
Id. at 1151.

“A plaintiff need not allege facts completely within

the defendant’s knowledge at the pleading stage.”

Mauer, 2016 WL

4651395, at *2 (citation omitted). “Plaintiffs may obtain evidence
of

a

relationship

between

a

vendor

and

telemarketer

through

discovery if they do not know the information on their own.”

Id.

(citing Charvat, 29 F. Supp. 3d at 1151); see Dish Network, 28 FCC
Rcd. at 6592-93 (consumers may acquire evidence of relationship
between telemarketer and seller through discovery if they are not
independently privy to such information).

19

“Thus, at the pleading

stage, it is irrelevant that a plaintiff cannot identify the thirdparty telemarketer, or what arrangement that third party had with
the

defendant

vendors

because

the

defendants,

and

not

the

plaintiff, are reasonably expected to know this information.”

Id.

(citing Charvat, 29 F. Supp. 3d at 1150–51).
Here, the Complaint does not allege details regarding the
relationships

between

the

Foresters

Defendants

and

other

defendants, but Plaintiff cannot reasonably be expected to know
such information at this stage of litigation.
must

ultimately

prove

each

individual

While Plaintiff

defendant’s

role

and

relationship to those who made the calls, at this stage, he need
only generally allege his agency claim so as to provide each
defendant notice of the claims against them.

See id. at *3 (citing

Toney, 75 F. Supp. 3d at 733); Vessal, 2017 WL 4682736, at *3
(denying motion to dismiss TCPA claim where “[t]he only allegations
in the complaint to establish any sort of connection between
[defendant] Alarm.com and the callers are made on information and
belief and the assertion that some of the callers identified
Alarm.com as their web address”).

This is the case here, where

Plaintiff likely does not have access to facts to more precisely
identify each defendant’s role without the benefit of discovery.
See Mauer, 2016 WL 4651395, at *3 (citing Charvat, 29 F. Supp. 3d
at 1151).

Plaintiff has sufficiently put the Foresters Defendants

on notice of his TCPA claims, and thus, the Court finds that he

20

has adequately alleged a basis to hold them vicariously liable
under a classic agency theory.

Id.5

Automated Telephone Dialing System
The Foresters Defendants also argue that the Complaint fails
to adequately allege that the calls Plaintiff received were placed
by an automated telephone dialing system (“ATDS”).6
allegations

that

insufficient.”

a

call

was

made

with

an

ATDS

“Conclusory
.

.

.

are

Mauer, 2016 WL 4651395, at *4 (citations omitted).

Rather, “a plaintiff should use ‘laymen's terms’ or describe the
surrounding circumstances that give rise to the inference that an
ATDS, artificial, or prerecorded voice was used.”
omitted).

Id. (citations

“For example, a TCPA plaintiff could describe the

robotic sound of the voice on the other line, the lack of human
response when he attempted to have a conversation with the ‘person’
calling him, the generic content of the message he received, or
anything

else

about

the

circumstances

of

a

call

or

message

contributing to his belief it was pre-recorded or delivered via an

5

Because the Court finds a basis for vicarious liability under
the agency theory of actual authority, it need not address whether
Plaintiff has sufficiently pleaded a basis for liability under
ratification or apparent authority theories. See Mauer, 2016 WL
4651395, at *3 n.6.
6

 The statute defines the term “automatic telephone dialing system”
as “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.” 47 U.S.C. § 227(a)(1)(A)(B). 

21

ATDS.” Johansen v. Vivant, Inc., No. 12 C 7159, 2012 WL 6590551,
at *3 (N.D. Ill. Dec. 18, 2012).
The

Foresters

Defendants

maintain

that

the

Complaint’s

allegations are insufficient to suggest that the calling system
“had the functionality and technical characteristics of an ATDS.”
(DE #58 at 18.)

District courts in this circuit have held that “a

TCPA plaintiff should not be expected to plead details regarding
the technical functionality of the alleged ATDS,” rather, “the
complaint

must

include

at

least

conclusion that an ATDS was used.”

some

facts

to

support

the

Izsak v. Draftkings, Inc., 191

F. Supp. 3d 900, 904 (N.D. Ill. 2016) (noting “a plaintiff could
describe the promotional content or the generic, impersonal nature
of the text message allegedly sent using an ATDS”).

Moreover,

Plaintiff need not state facts that would be completely within the
defendants’

knowledge.

(citations omitted).

See

Mauer,

2016

WL

4651395,

at

*4

“This includes the precise type of machine

used for the communication, as it would be nearly impossible for
plaintiffs to obtain evidence to determine the type of machine
used for a call absent discovery.”

Id. (citations omitted); see

Torres v. Nat'l Enter. Sys., No. 12 C 2267, 2012 WL 3245520, at *3
(N.D. Ill. Aug. 7, 2012) (denying motion to dismiss where plaintiff
allegedly received a call from defendant with a prerecorded voice
because it was premature to address evidentiary issues prior to
discovery).

Requiring

more

would

22

make

defendants

“virtually

immune to TCPA claims, which clearly is not what was intended by
Congress in creating the TCPA.”

Mauer, 2016 WL 4651395, at *4

(citation omitted).
Here, the Complaint alleges that Plaintiff received calls
with a “pre-recorded message” about life insurance, and provides
a quote of that message.

(DE #22, ¶79.)

It alleges that after

Plaintiff pressed 1 as directed by the pre-recorded message, he
once spoke with an agent named Dave and asked him where he got the
leads for these calls.

(Id., ¶81.)

think they go through a dialer.”

Dave allegedly responded, “I

(Id., ¶81.)

Dave also allegedly

stated, "Its [sic] a computer program we use, and it is programmed
to make phone calls.

There is nobody else involved."

(Id., ¶83.)

The Court finds that these allegations meet Plaintiff’s minimal
burden of alleging the necessary facts to show that the calls at
issue were made using an ATDS.
47 U.S.C. § 227(c)(5)
The Complaint also alleges that defendants violated Section
227(c)(5) of the TPCA by failing to maintain a do-not-call list.
(DE #22, Count I.)

Section 227(c)(5) provides a private right of

action on behalf of “[a] person who has received more than one
telephone call within any 12-month period by or on behalf of the
same entity in violation of the regulations prescribed under this
subsection. . . .”

47 U.S.C. § 227(c)(5).

47 C.F.R. § 64.1200(d)

states that “[n]o person or entity shall initiate any call for

23

telemarketing
unless

such

maintaining

purposes
person
a

to

or

list

of

a

residential

entity

has

persons

telephone

instituted

who

request

subscriber

procedures
not

to

for

receive

telemarketing calls made by or on behalf of that person or entity.”
47 C.F.R. § 64.1200(d) (emphasis added).
The Foresters Defendants argue that the Section 227(c)(5)
claim must be dismissed because the Complaint fails to allege that
the telephone numbers on which Plaintiff allegedly received the
calls at issue were residential telephone numbers.

Plaintiff

responds that he adequately pled that the calls were made to a
residential line because he “only uses a cell phone,” and “that is
the only type of telephone [he] had in use at the time at [his]
place of residence.”

(DE #64 at 2.)

“The Court may consider

additional facts alleged in the response to a motion to dismiss if
the facts are consistent with the allegations of the complaint.”
Baker v. Certified Payment Processing, L.P., No. 16-cv-03002, 2016
WL 3360464, at *2 (C.D. Ill. Jun. 1, 2016) (citing Smith v. Dart,
803 F.3d 304, 311 (7th Cir. 2015) (considering the facts alleged
by the pro se plaintiff in letters filed after defendant filed a
motion to dismiss), and Early v. Banks Life & Cas. Co., 959 F.2d
75, 79 (7th Cir. 1992) (noting that “a plaintiff is free, in
defending

against

a

motion

to

dismiss,

to

allege

without

evidentiary support any facts he pleases that are consistent with
the complaint, in order to show that there is a state of facts

24

within the scope of the complaint that if proved . . . would
entitle him to judgment”)).
Plaintiff

are

consider them.

consistent

with

Because the facts proffered by
the

Complaint,

the

Court

will

See Baker, 2016 WL 3360464, at *2 (considering

plaintiff’s proffer that the telephone number at issue was a
residential number in response to defendant’s motion to dismiss
TCPA claim).

Construing all reasonable inferences in favor of

Plaintiff, he has alleged that the calls made to his cellular
telephone numbers were residential telephone numbers.

Therefore,

the Foresters Defendants’ motion to dismiss the TCPA Section
227(c)(5) claim is denied.
Motion to Clarify
Swets moves for clarification of the relief sought in the
Harris Defendants’ motion, specifically, the request to transfer
the case to a federal district court in Florida. Swets, a resident
of Indiana, indicates that he does not consent to the transfer of
this

case

to

Florida.

Because

the

Court

grants

the

Harris

Defendants’ motion to dismiss, their request to transfer the case
to Florida is moot.

Therefore, the Court denies Swets’ motion for

clarification as moot.
CONCLUSION
For the reasons set forth above, the Harris Defendants’
renewed motion to dismiss is GRANTED (DE #26).

Defendant Octavia

Pugh’s motion to dismiss is GRANTED (DE #31), Defendant Gil Swets’

25

motion to clarify relief sought is DENIED AS MOOT (DE #49), and
Foresters Defendants’ motion to dismiss is GRANTED IN PART AND
DENIED IN PART (DE #57).

The claim against FFSI for a violation

of 47 U.S.C. § 227(b) based on a direct theory of liability is
DISMISSED WITHOUT PREJUDICE.
claims

against

Insurance

defendants

Professionals

of

The Clerk is ORDERED to DISMISS the
Angela
America,

Harris
Inc.,

aka

Angela

Octavia

Roach,

Pugh,

and

Foresters Financial Holding Company, Inc., for lack of personal
jurisdiction.

DATED:

January 9, 2018

/s/ RUDY LOZANO, Judge
United States District Court

26