Bank v. Gohealth, LLC
| Decision Date | 11 May 2021 |
| Docket Number | 19-CV-5459 (MKB) (CLP) |
| Parties | TODD C. BANK, Plaintiff, v. GOHEALTH, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Todd C. Bank, proceeding pro se,1 commenced the above-captioned action against GoHealth, LLC on September 25, 2019, asserting federal claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), and New York General Business Law Section 399-p ("GBL"). (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on February 5, 2020, (Am. Compl., Docket Entry No. 16), and a Second Amended Complaint ("SAC") on February 19, 2020, (SAC, Docket Entry No. 18). On June 5, 2020, Defendant filed a motion to dismiss, and Plaintiff opposes the motion.2 Plaintiff also moves for sanctions against Defendant's counsel for counsel's attempts to prejudice the Court against Plaintiff, (Pl.'s Mem. in Supp. of Sanctions, annexed to Pl.'s Opp'n as Unmarked Ex., Docket Entry No. 28; Pl.'sReply, Docket Entry No. 31), and Defendant opposes, (Def.'s Opp'n, Docket Entry No. 28). On June 6, 2020, the Court referred Defendant's motion to dismiss to Chief Magistrate Judge Cheryl L. Pollak for a report and recommendation. (Order dated June 6, 2020.)
By report and recommendation dated March 8, 2021, Judge Pollak recommended that the Court grant Defendant's motion to dismiss and deny Plaintiff's motion for sanctions, and his request to further amend the SAC, (the "R&R"). (R&R, Docket Entry No. 34.) On March 22, 2020, both parties timely filed objections to the R&R. .) For the reasons set forth below, the Court adopts the R&R in its entirely, grants Defendant's motion to dismiss, and denies Plaintiff's motion for sanctions and his request to further amend the SAC.3
The Court assumes the truth of the factual allegations in the SAC for the purposes of this Memorandum and Order.
Plaintiff commenced this action against Defendant, alleging violations of the TCPA and section 399-p of the GBL. (SAC ¶ 1.) Plaintiff alleges that Defendant — a limited-liability company organized and existing under the laws of Delaware, with a principal place of business in Chicago, Illinois — operates as "a lead-generation business that obtains and sells consumer leads to health-insurance brokers," using a "a lead-generating program that [Defendant] calls the 'GoHealth Virtual Marketing Organization,' or 'GoHealth VMO.'" (Id. ¶¶ 13, 17-18.) TheGoHealth VMO includes an "automatic dialing tool," that promises to "call[] prospects and quality leads." (Id. ¶ 19.)
On August 19, 2019, Plaintiff "received a telephone call" (the "Call") at a "residential telephone number," which number Plaintiff regularly shares with the subscriber of the telephone number.4 (Id. ¶¶ 20, 26-28). A "fabricated" caller identification appeared during the Call, which made it appear to be a local number so "that a person who saw that [caller identification information] would be more likely than otherwise to answer the telephone." (Id. ¶¶ 22-23.)
When Plaintiff answered the Call, a "robotic" voice responded offering discounts for a "Medicare Supplement," which it also referred to as "Medigap." (Id. ¶¶ 29, 30.) After the recording finished, Plaintiff was transferred to "a live person who identified himself as 'Jason,'" and after Plaintiff "told 'Jason' that [he] had Medicare Parts A and B," Plaintiff was transferred to another "live person who identified himself as 'Marc,'" who in turn transferred Plaintiff to a "licensed agent." (Id. ¶¶ 35-36, 39.) While Plaintiff was holding for the "licensed agent," a recorded voice indicated that he might be connected to "an agent who is not affiliated with [Defendant]" and that if he wished "to be placed on [Defendant's] do-not-call list" he should call a number which Plaintiff alleges is associated with Defendant. (Id. ¶¶ 41-42.)
After Plaintiff was placed on hold, "a live person came onto the line, [who] identified himself as 'Jared,'" and told Plaintiff that he was a licensed agent of Defendant. (Id. ¶¶ 45, 54.) Plaintiff provided Jared with his email address and shortly after the call ended, Plaintiff received an email from Jared, to which Plaintiff responded by asking how Jared had obtained Plaintiff'stelephone number. (Id. ¶¶ 53, 60-61.) Jared replied that "[Plaintiff] may have filled something out online." (Id. ¶ 64.)
The Call was "not preceded by the written consent of anyone who had the legal authority to provide such consent," (id. ¶ 67), and the Call was "made with equipment that was capable of storing telephone numbers to be called and was used, either alone or in conjunction with other equipment, to disseminate a prerecorded message to the telephone numbers that were called without the use of an operator," (id. ¶ 68).
Plaintiff seeks to represent two separate classes of similarly situated persons — the "Federal Class," which encompasses claims arising "during the period beginning four years prior to the commencement of this action" — and the "New York Class," which encompasses claims arising "during the period beginning three years prior to the commencement of this action." (Id. ¶¶ 3-6.) Plaintiff alleges that during the respective class periods, Defendant initiated numerous telephone calls to residential telephones, using a prerecorded voice to encourage the purchase of services provided by Defendant without "the written consent of anyone who had the legal authority to provide such consent." (Id. ¶¶ 65-67.)
Judge Pollak recommended that the Court (1) grant Defendant's motion to dismiss Plaintiff's TCPA claim for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (2) decline to exercise supplemental jurisdiction over Plaintiff's state law GBL claim, and (3) deny Plaintiff's motion for sanctions. (R&R 32.)
In so finding, Judge Pollak rejected Defendant's argument that Plaintiff lacked Article III standing for failing to allege facts demonstrating an injury-in-fact traceable to Defendant and redressable by a favorable outcome in this case, (R&R 9 (citing Def.'s Mem. 7-10, 18-19)), anddetermined that Plaintiff has established injury in fact by alleging "he received an unsolicited robocall," (id. at 11). In addition, Judge Pollak concluded that because Plaintiff "was subsequently transferred to a person who identified himself as an agent of [Defendant]" and that "there was an automated message instructing him to call a phone number associated with [Defendant] if he wished to be placed on [Defendant's] do-not-call list," Plaintiff's "injury is traceable to [Defendant] and, if proven, [is] likely . . . redressable . . . [by] a favorable outcome in the case." (Id. at 11-12.)
Likewise, Judge Pollak rejected Defendant's argument that Plaintiff lacks statutory standing under the TCPA because he does not qualify as a "called party."5 (Id. at 15 (citing Def.'s Mem. 10-14).) With regard to statutory standing, Judge Pollak concluded that: (1) Plaintiff's allegation that he "regularly shared" the receiving number with the subscriber "satisf[ies] the bare minimum required in order to allege that [P]laintiff has standing under the TCPA," (R&R 17); (2) "[P]laintiff plausibly alleges that no consent for the call was given by anyone," (id. at 19); (3) "[w]hether the time that [P]laintiff spent at his mother's house was of a quantity and nature such that he was a 'customary user' appears to be a question of fact that it would be inappropriate to decide at this stage, in light of his allegation that he 'regularly shared' the telephone line with the subscriber," (id. at 20); and (4) Stoops v. Wells Fargo Bank, N.A., 197F. Supp. 3d 782, 801 (W.D. Pa. 2016), is distinguishable because, unlike Stoops, in which "the plaintiff purchased nearly [forty] cellphones in the hope of receiving a large number of calls in violation of the TCPA," Plaintiff "argues that his mother's phone [number] was not maintained for the sole purpose of filing lawsuits," (id. at 19 n.7).
However, Judge Pollak recommended Plaintiff's claim be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as Plaintiff does not contest that he fails to establish direct liability under section 227(b)(1) of the TCPA, (see Pl.'s First Opp'n 13-16; Def.'s Mem. 14-16), and Plaintiff also fails to state a plausible claim for vicarious liability, (R&R 24-25). Judge Pollak concluded that the factual allegations in the SAC are insufficient to support an agency relationship and Plaintiff's reliance on apparent authority also fails because he "does not allege that he believed the Call was authorized or initiated by [Defendant], the employer of his third contact" or "that the [Defendant's] employee with whom [P]laintiff eventually spoke and corresponded with, Jared, made any representations of a relationship or purpose underlying the initial Call or two subsequent transfers." (Id.)
Plaintiff does not object to the substantive recommendations of the R&R, but requests that if the Court adopts the R&R and dismisses the SAC, it "modify that portion of the [R&R] that recommends that such dismissal be without leave to replead." (Pl.'s Obj. 3.) In support, Plaintiff argues that: (1) the R&R wrongly "relies upon the fact that '[P]laintiff has already amended the substantive allegations in his Complaint once after reviewing the arguments raised by [D]efendant in support of dismissal,'" as the relevant inquiry is not "whether a plaintiff, in amending the complaint, has had the benefit of the defendant's point of view, but, rather of the court's point of view, which would be the case if the Court were to adopt the [R&R's] finding offailure to state a claim," (id.); (2) the "multiple-transfer scenario" distinguishes the...
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