Jones v. Mut. of Omaha Ins. Co.
| Decision Date | 07 November 2022 |
| Docket Number | Civil Action ELH-22-905 |
| Parties | KEYONNA JONES, individually and on behalf of a class of all persons and entities similarly situated Plaintiff, v. MUTAL OF OMAHA INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Keyonna Jones filed a putative class action suit against Mutual of Omaha Insurance Company (“Mutual of Omaha”) alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). ECF 8 (“First Amended Class Action Complaint”). Plaintiff alleges that Mutual of Omaha “hired a third party to send pre-recorded telemarketing calls to her cellular telephone and those of other putative class members for the purposes of advertising their insurance goods and services, which is prohibited by the TCPA.” Id. ¶ 2.
Mutual of Omaha has moved to dismiss the Amended Complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2), and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6) ECF 9. The motion is supported by a memorandum of law. ECF 9-1 (collectively, the “Motion”). Plaintiff opposes the Motion. ECF 15. Defendant has replied. ECF 18.
The Motion has been fully briefed and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.
Mutual of Omaha is a Nebraska company with its principal place of business in Nebraska. ECF 8, ¶ 6. It offers insurance policies to consumers through its network of agents. Id. ¶ 15.
Plaintiff is a resident of Maryland. Id. ¶ 5. Her cellular phone number is on the National Do Not Call Registry. Id. ¶ 20. Nevertheless, plaintiff received a phone call on March 25, 2022 (id. ¶ 21), with a prerecorded message that attempted to qualify Jones for Mutual of Omaha's products. Id. ¶ 22. The message asked the “call recipient to ‘press 1' if they were over the age of 50.” Id. Plaintiff asserts that the call was prerecorded because “(1) it had an automated message prompt, (2) it had an unnatural pause at the beginning of the call, (3) it was generic and commercial, and (4) it had a voice with an unnaturally consistent tone.” Id. ¶ 23.
Jones responded to the recorded message to identify the caller. Id. ¶ 24. She was transferred to Eric Chambers “who identified himself as an employee of Mutual of Omaha,” id. ¶ 26, and “promoted” Mutual of Omaha's insurance services. Id. ¶ 25. Chambers provided a call back number of (844) 579-5586, which is a number for Mutual of Omaha. Id. ¶¶ 27, 28. Plaintiff asserts that she “received similar calls from spoofed Caller ID numbers on March 22, 2022.” Id. ¶ 29.
According to plaintiff, “[o]ne of Mutual of Omaha's strategies for marketing their insurance policies is telemarketing done by the third parties they hire for that express purpose.” Id. ¶ 16. Additionally, she claims that Mutual of Omaha has told consumers that it “‘partner[s] with third parties who collect names who call people.'” Id. ¶ 37. According to Jones, defendant's telemarketing “includes the use of pre-recorded messages” made to recipients who have not provided consent. ECF 8, ¶¶ 17, 18.
In particular, plaintiff asserts that the third party who called her was required to promote Mutual of Omaha's products, and that Mutual of Omaha derived a benefit from the third party's interaction with the plaintiff by the attempted issuance of an insurance policy. Id. ¶¶ 38, 40. Plaintiff also claims that Mutual of Omaha “knowingly and actively accept[ed] the business that originated through the illegal telemarketing calls through the issuance of insurance policies.” Id. ¶ 39.
Notably, plaintiff alleges that Mutual of Omaha maintained interim control over the third party's actions because it had the ability to prohibit the third party from using prerecorded calls to contact potential customers. Id. ¶¶ 41, 42. Jones also claims that Mutual of Omaha gave “instructions” to the third party by “providing the volume of calling and leads it would purchase” as well as “the states that those companies were allowed to make calls into ....” Id. ¶¶ 44, 45. And, plaintiff asserts that Mutual of Omaha explicitly informed the third party that it could make calls into Maryland. Id. ¶ 46.
Prior to filing suit, plaintiff contacted Mutual of Omaha. Id. ¶ 30. Defendant did not provide any proof that Jones had consented to receive the calls. Id. ¶ 31.
Suit followed on April 13, 2022. ECF 1 (the “Complaint”). Mutual of Omaha moved to dismiss the Complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2), and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). ECF 6. Plaintiff subsequently amended her suit. ECF 8.[2] She added the allegation that “Mutual of Omaha explicitly informed the third party that it could make calls into Maryland and the third party did make such calls into Maryland when contacting the Plaintiff.” ECF 8, ¶ 46.
Defendant renewed its Motion with respect to the Amended Complaint. ECF 9. Specifically, Mutual of Omaha argues that plaintiff does not plausibly allege that defendant is either directly or vicariously liable for the calls at issue. Id. at 1. Additionally, defendant claims that the Court lacks personal jurisdiction over Mutual of Omaha. Id.
In her response, plaintiff states that Mutual of Omaha is vicariously liable for the calls she received based on agency theories of actual authority and ratification. ECF 15 at 9-11. And, she argues that “Mutual of Omaha is subject to specific personal jurisdiction in Maryland based on its agent's intentionally tortious conduct directed to and felt in Maryland.” Id. at 12.
Mutual of Omaha moves to dismiss for lack of personal jurisdiction, predicated on Fed.R.Civ.P. Rule 12(b)(2). ECF 9. “[A] Rule 12(b)(2) challenge raises an issue for the court to resolve, generally as a preliminary matter.” Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016). Under Rule 12(b)(2), a defendant “must affirmatively raise a personal jurisdiction challenge, but the plaintiff bears the burden of demonstrating personal jurisdiction at every stage following such a challenge.” Id.; see UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 350 (4th Cir. 2020). And, the burden is “on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989); see Grayson, 816 F.3d at 267.
When “the existence of jurisdiction turns on disputed factual questions the court may resolve the [jurisdictional] challenge on the basis of a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question.” Combs, 886 F.2d at 676. In its discretion, a court may permit discovery as to the jurisdictional issue. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993). However, neither discovery nor an evidentiary hearing is required in order for the court to resolve a motion under Rule 12(b)(2). See generally 4A WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1351 (4d ed. 2019).
“The plaintiff's burden in establishing jurisdiction varies according to the posture of a case and the evidence that has been presented to the court.” Grayson, 816 F.3d at 268. “When personal jurisdiction is addressed under Rule 12(b)(2) without an evidentiary hearing, the party asserting jurisdiction has the burden of establishing a prima facie case of jurisdiction.” Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 226 (4th Cir. 2019); see Grayson, 816 F.3d at 268. In that circumstance, “the district court must determine whether the facts proffered by the party asserting jurisdiction-assuming they are true-make out a case of personal jurisdiction over the party challenging jurisdiction.” Hawkins, 935 F.3d at 226; accord Sneha Media & Entm't, LLC. v. Assoc. Broad. Co. P Ltd., 911 F.3d 192, 196 (4th Cir. 2018); Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). However, “[u]nlike under Rule 12(b)(6), the court may also consider affidavits submitted by both parties, although it must resolve all factual disputes and draw all reasonable inferences in favor of the party asserting jurisdiction.” Hawkins, 935 F.3d at 226; see UMG Recordings, Inc., 963 F.3d at 350; Grayson, 816 F.3d at 268; Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009); Mylan Labs., 2 F.3d at 62.
Notably, “‘[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.'” Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5 (4th Cir. 2005) (citation omitted).
Mutual of Omaha also moves to dismiss under Rule 12(b)(6). ECF 9. A defendant may test the legal sufficiency of a plaintiff's complaint by way of a motion to dismiss under Rule 12(b)(6). Fessler v. Int'l Bus. Machs. Corp., 959 F.3d 146, 152 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
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