DAVIS v. CONTACTABILITY.COM, LLC

Filing 14

ORDER ON 8 DEFENDANT CONTACTABILITY.COM'S MOTION TO DISMISS. The Court GRANTS Defendant Contactability's Motion to Dismiss Plaintiff Davis' Indiana Deceptive Consumer Sales Act claim. Accordingly, Davis' claim under the Indian a Deceptive Consumer Sales Act is DISMISSED WITHOUT PREJUDICE. Davis has 14 days from the date of this order to amend her Amended Complaint. Failure to do so will result in a dismissal of Count II with prejudice. (See Order.) Signed by Judge Larry J. McKinney on 1/31/2017. (LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LAQUANA DONNETTE DAVIS,

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Plaintiff,
vs.
CONTACTABILITY.COM, LLC doing
business as UNITED STATES
INSURANCE,
Defendant.

No. 1:16-cv-02999-LJM-MPB

ORDER ON DEFENDANT CONTACTABILITY.COM’S
MOTION TO DISMISS
This matter comes before the Court on Defendant Contactability.com, LLC doing
business as United States Insurance’s (“Contactability’s”), Motion to Dismiss (Dkt. 8)
Count II of Plaintiff Laquana Donnette Davis’ (“Davis”) Complaint. Dkt. 1. Davis alleges
that Contactability repeatedly called her in violation of both the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, and Indiana’s Deceptive Consumer Sales Act
(“IDCSA”), Ind. Code § 24-5-0.5. Id. Contactability moves to dismiss Davis’ IDCSA claim
pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for failure to state
a claim.
For the reasons set forth below, the Court GRANTS Contactability’s Motion to
Dismiss.

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I.

BACKGROUND

Davis resides in Indianapolis, Indiana. Id., ¶ 4. Contactability is an insurance adtech company that focuses on delivering targeted, high-traffic service to the insurance
industry. Id., ¶ 6. On September 21, 2016, Davis switched cellular phone service
providers and received a new telephone number. Id., ¶ 10. Shortly thereafter, Davis
began receiving calls that originated from Contactability. Id., ¶¶ 12, 14. Davis never had
a prior relationship with Contactability. Id., ¶ 14. Contactability contacted Davis to offer
her an insurance quote.
Contactability.

Id.

Id., ¶ 16.

Davis never requested any services from

On or about October 7, 2016, Davis called Contactability and

demanded that it cease its solicitations. Id., ¶ 17. Davis has also repeatedly asked
Contactability to be placed on its do not call list, but Contactability continues to call Davis’
cell phone. Id., ¶ 18.
II.

STANDARD OF REVIEW

Rule 12(b)(6) permits the dismissal of an action for failure to state a claim upon
which relief can be granted in the pleadings. Under Rule 12(b)(6), the Court must accept
as true all well-pleaded factual allegations and draw all reasonable inferences in favor of
the plaintiff. See Esekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). A pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Federal Rule of Civil Procedure 8(a)(2). Detailed factual allegations are not
required, but a plaintiff’s complaint may not simply state “an unadorned, the defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
“allegations must be enough to raise a right to relief above the speculative level[.]” Bell
Atlantic Corp. v. Twombly, 550, U.S. 544, 555 (2007). “[A] complaint must contain

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sufficient factual matter … 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[,]” not when the plaintiff only raises
a “sheer possibility that the defendant has acted unlawfully.” Id. “[T]he height of the
pleading requirement is relative to the circumstances[,]” Cooney v. Rossiter, 583 F.3d
967, 971 (7th Cir. 2009), and “[d]etermining the plausibility of a claim is a context-specific
task that requires [the Court] to draw on [its] judicial experience and common sense.”
Brown v. JP Morgan Chase Bank, 334 Fed. Appx. 758, 759 (7th Cir. 2009).
III.

ANALYSIS

Contactability seeks dismissal of Davis’ IDCSA claim on the grounds that Davis
has failed to allege any facts to establish an incurable deceptive act.
The IDCSA “provides remedies to consumers and the attorney general for
practices that the General Assembly deemed deceptive in consumer transactions.”
McKinney v. State, 693 N.E.2d 65, 67 (Ind. 1998). The IDCSA “provides for two kinds of
actionable deceptive acts: ‘uncured’ deceptive acts and ‘incurable’ deceptive acts.” Id. at
68. To bring a claim for an uncured deceptive act under the IDCSA, a plaintiff must
provide “not only a complete description of the actual damage suffered, but also a
description of the alleged deceptive act … so that the supplier has an opportunity to
correct the problem.” A.B.C. Home & Real Estate Inspection, Inc. v. Plummer, 500 N.E.2d
1257, 1262 (Ind. Ct. App. 1986). See also Ind. Code § 24-5-0.5-5(a). Davis admits that
she seeks redress only for alleged incurable deceptive acts. Dkt. 11 at 3-4.

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An incurable act is done “as part of a scheme, artifice, or device with intent to
defraud or mislead.” Ind. Code § 24-5-0.5-2(a)(8). “Intent to defraud or mislead is thus
clearly an element of an incurable deceptive act.” McKinney, 693 N.E.2d at 68. The
allegedly deceptive act “may be committed where the facts evince an intent to mislead.
That is misleading which tends to lead astray or into error; to guide wrongly.” McCormick
Piano & Organ Co., Inc. v. Geiger, 412 N.E.2d 842, 849 (Ind. Ct. App. 1980) (internal
quotation marks omitted).
Contactability argues that Davis’ IDCSA claim fails to allege an intent to defraud or
mislead and therefore cannot be considered an incurable act. The Court agrees. Davis
does not allege that Contactability attempted to defraud or mislead her in the sale of
insurance or that she was somehow misinformed about the services that Contactability
attempted to offer her. Rather, her Complaint describes the calls as frustrating and
constituting harassment. Dkt. 1, ¶¶ 22, 27. This is not sufficient to state a claim under
the IDCSA.
Davis claims that Contactability’s method of calling individuals through an
automated system violates the TCPA, which by itself is considered a deceptive act under
the IDCSA. See Ind. Code § 24-5-0.5-3(b)(19). But Davis ignores the prerequisite
language in determining a deceptive act: “the following acts, and the following
representations as to the subject matter of a consumer transaction, made orally, in writing,
or by electronic communication, by a supplier, are deceptive acts: … (19) The violation
by a supplier of [the TCPA].” Id. In the instant case, Davis has not alleged any oral or
written representations made by Contactability. Cf. Berghausen v. Microsoft Corp., 765
N.E.2d 592, 598 (Ind. Ct. App. 2002) (plaintiff’s failure to allege oral or written

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representations by the defendant results in dismissal of IDCSA claim). The IDCSA “was
enacted to prevent those who regularly engage in consumer sales from making false or
misleading statements about their goods or services.” Captain & Co. v. Stenberg, 505
N.E.2d 88, 94 (Ind. Ct. App. 1987). Davis has failed to make any claim regarding products
offered by Contactability, let alone allege how such statements lead her “astray or into
error.” McCormick, 412 N.E.2d at 849 (internal quotation marks omitted).
Because Davis does not plead sufficient facts to demonstrate that Contactability’s
phone calls were made with an intent to defraud, her IDCSA claim must fail.
IV.

CONCLUSION

For the reasons stated herein, the Court GRANTS Defendant Contactability’s
Motion to Dismiss Plaintiff Davis’ Indiana Deceptive Consumer Sales Act claim.
Accordingly, Davis’ claim under the Indiana Deceptive Consumer Sales Act is
DISMISSED WITHOUT PREJUDICE. Davis has 14 days from the date of this order to
amend her Amended Complaint. Failure to do so will result in a dismissal of Count II with
prejudice.
IT IS SO ORDERED this 31st day of January, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Nathan C. Volheim
SULAIMAN LAW GROUP, LTD.
[e-mail]
Anthony J. Hornbach
THOMPSON HINE LLP
[e-mail]

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