Mohon v. Agentra LLC

• Decision Date: 24 June 2019
• Docket Number: No. CIV 18-0915 JB\KRS,CIV 18-0915 JB\KRS
• Parties: Barbara MOHON, Plaintiff, v. AGENTRA LLC; Tracyann Nicole Hamilton, and Jane Does 1-10, Defendants.
• Court: U.S. District Court — District of New Mexico

400 F.Supp.3d 1189

Barbara MOHON, Plaintiff,

v.AGENTRA LLC; Tracyann Nicole Hamilton, and Jane Does 1-10, Defendants.

No. CIV 18-0915 JB\KRS

United States District Court, D. New Mexico.

Filed June 24, 2019

Sidney Childress, Santa Fe, New Mexico, Attorney for the Plaintiff.

Paul S. Grand, Law Offices of Paul S. Grand, Santa Fe, New Mexico, Michell Lee, William Richmond, Platt Cheema Richmond PLLC, Dallas, Texas, Attorneys for Defendant Agentra LLC.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant Agentra LLC's Motion to Dismiss, filed October 17, 2018 (Doc. 11)("Motion"). The Court held a hearing on February 27, 2019. See Clerk's Minutes at 1, filed February 27, 2019 (Doc. 37). The primary issues are: (i) whether the Court lacks personal jurisdiction over this matter because Defendant Agentra LLC, which itself did not direct or make the alleged telemarketing calls to Plaintiff Barbara Mohon, did not do business in or direct business to the State of New Mexico; (ii) whether Mohon adequately pleas that Agentra LLC is liable directly or indirectly for violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 ("TCPA"), for the alleged telemarketing calls Mohon received on Agentra LLC's behalf; (iii) whether Mohon adequately pleas Agentra LLC's direct or indirect liability for violating the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 ("NMUPA"), with those calls; (iv) whether Mohon adequately pleas a New Mexico common law nuisance claim based on the alleged telemarketing calls; (v) whether Mohon adequately pleas a New Mexico common law trespass-to-chattels claim for the alleged telemarketing calls; and (vi) whether Mohon adequately pleas that Agentra LLC participated with Defendants Tracyann Nicole Hamilton and Jane Does 1-10 in a civil conspiracy to violate federal and state laws through the alleged telemarketing calls. The Court grants the Motion in part and denies it in part. The Court will permit additional discovery on Agentra LLC's relationship with Hamilton to resolve the agency question that underlies the personal jurisdiction, TCPA violation, NMUPA violation, and trespass-to-chattels issues. The Court will dismiss for failure to state a claim the nuisance claim, because Mohon does not allege injury to her real property interests. The Court deems that Mohon states a civil conspiracy claim, because she alleges wrongful acts and a close relationship between Agentra LLC and Hamilton that makes plausible a civil conspiracy by the Defendants to commit unlawful acts.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint for Violations of the Telephone Consumer Protection Act, the Unfair Practices Act and Torts, County of Santa Fe, First Judicial District Court, State of New Mexico (filed in state court August 1, 2018), filed in federal court September 28, 2018 (Doc. 1-1)("Complaint"). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely Mohon's version of events.

This action arises from Mohon's allegation that the "Defendants operate and profit from a massive, nationwide robo-calling¹ conspiracy designed to sell a type of discounted medical benefit plan Defendants imply in their robo-calls is comprehensive insurance." Complaint ¶ 15, at 4. At the calls' times, Mohon and her telephone were in New Mexico. See Complaint ¶ 16, at 5. Mohon had registered her cellular telephone number with the National Do Not Call Registry, and did not consent to the calls or have a business relationship with the Defendants. See Complaint ¶ 46, at 11; id. ¶¶ 51-52, at 12.

Agentra LLC and Hamilton directed telemarketing calls into New Mexico. See Complaint ¶ 17, at 5. The Defendants, through various telephone numbers, repeatedly called Mohon's cellular telephone, at the number 505-501-3610, with "a pre-recorded message or artificial voice which sought to interest her in ‘health insurance,’ " and which left a voicemail when prompted. Complaint ¶¶ 21 at 5. See id. ¶¶ 20-22 at 5-6; id. ¶ 24, at 6. Within the first fifteen seconds that, the caller never identified the call's sponsor. See Complaint ¶ 31, at 8. Because of the changing numbers, Mohon could not block the calls, and neither a call-blocking feature on Mohon's cellular telephone, the calls' built-in opt-out feature, or a request through the customer service line at 866-269-1877 stopped the calls. See Complaint ¶¶ 22-23, at 5-6; id. ¶ 27, at 7. During one call, Mohon reached a live telemarketer -- "Tracy" -- who "hung up the phone" when Mohon asked about the telemarketing operations and to send her an email. Complaint ¶ 25, at 6-7. Mohon could not discern the Defendants' identity or location until she purchased a healthcare plan during a call, after which she began receiving "texts, emails and paperwork" from the Defendants identifying Agentra LLC and Hamilton "as the primary parties responsible" for the robo-calls. Complaint ¶ 29, at 7. During the enrollment, Hamilton -- Agentra LLC's agent -- texted Mohon directly. See Complaint ¶ 43-444, at 10. After the purchase, Mohon stopped receiving the telemarketing calls. See Complaint ¶ 32, at 8.

Agentra LLC markets its products through insurance brokers, like Hamilton, who act for it, enter contracts on its behalf, and have access to its exclusive information, as Agentra LLC's authorized, apparent, or ratification agent. See Complaint ¶¶ 39-40, 42-43, at 10-11; id. ¶ 45, at 12. Mohon argues that Agentra LLC controlled Hamilton's conduct and had authority to prevent the telemarketing, should have known about the calls and acted to prevent the calls, and ratified the actions when it accepted the calls' benefits, i.e., the customers. See Complaint ¶¶ 39-42, at 10; id. ¶¶ 54-56, at 12. According to Mohon, Agentra LLC and Hamilton:

a) authorized the phone calls;

b) directly or indirectly controlled the persons who actually made or initiated the calls;

c) allowed the telemarketers access to information and operating systems within Agentra LLC's control for the purpose of selling goods and services;

d) allowed the telemarketers to enter consumer information into Agentra's sales, dialing or operational systems;

e) approved, wrote or reviewed the telemarketing sales script; OR

f) Hamilton reasonably should have known or consciously avoided knowing that the actual telemarketers were violating the TCPA and Hamilton failed to take effective steps within her power to require compliance with the TCPA.

Complaint ¶ 38, at 9-10.

PROCEDURAL BACKGROUND

Mohon alleges that: (i) the Defendants and/or their agents violated the TCPA by repeatedly calling her telephone and refusing to identify themselves; (ii) the same actions constitute a nuisance, trespass to chattels, and a civil conspiracy; and (iii) these actions violated NMUPA § 57-12-22. See Complaint ¶¶ 57-65, at 12-13. On October 17, 2018, Agentra LLC filed the Motion asking the Court to dismiss the Complaint under rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. See Motion at 14. Mohon responded on October 25, 2018. See Plaintiff's Response to Agentra LLC's Motion to Dismiss, filed October 25, 2018 (Doc. 14)("Response").

1. The Motion.

First, Agentra LLC argues that Mohon has not adequately pled a TCPA violation. See Motion ¶ 14, at 4. Agentra LLC explains: "To sufficiently allege a claim against Defendant Agentra LLC for a TCPA violation, Plaintiff would have to allege that Agentra LLC (a) made a call to Plaintiff; (b) without Plaintiff's prior express consent; and (c) using an automatic telephone dialing system or an artificial or prerecorded voice." Motion ¶ 10, at 3 (citing 47 U.S.C. § 227(b)(1)(A) ). Agentra LLC contends that Mohon has alleged no identifying information for the call including associated caller-ID numbers, or the calls' dates. See Motion ¶ 11, at 3. Further, Agentra LLC complains that Mohon recounts allegations against all the Defendants and in only one paragraph attributes an action to Agentra LLC. See Motion ¶ 11-12, at 3-4. According to Agentra LLC, the paragraph directly addressing Agentra LLC reflects that Agentra LLC's emailed Mohon, but the TCPA does not protect against emails. See Motion ¶ 12, at 3-4. Agentra LLC avers that it never called Mohon and that she has not alleged that it did. See Motion ¶ 13, at 4 (citing 47 U.S.C. § 227(b)(1)(A) ; Declaration of Cindy Dale ¶¶ 4-8, at 1 (executed October 15, 2018), filed October 17, 2018 (Doc. 11)("Dale Decl.")).

Second, Agentra LLC argues that Mohon has not adequately pled her NMUPA claim. See Motion ¶ 19, at 4 (citing Complaint ¶ 65, at 13). Agentra LLC contends that the NMUPA prohibits calls to landline telephones and not to cellular telephones, like Mohon's. See Motion ¶ 16, at 4 (citing Complaint ¶ 19, at 5). Agentra LLC draws this conclusion from § 57-12-22's use of the phrase " ‘residential subscriber.’ " Motion ¶ 17, at 5 (quoting/citing N.M. Stat. Ann. § 57-12-22.D(4)). Agentra LLC again contends that Mohon has not alleged that it as an entity: "(a) placed an outbound call to Plaintiff; (b) using automatic dialing and recorded message equipment and; (c) failed to identify itself within 15 seconds of the call." Motion ¶ 19, at 5 (citing Dale Decl. ¶¶ 4-8, at 1).

Third, Agentra LLC avers that Mohon has not pled plausible private nuisance, trespass-to-chattels, or civil conspiracy claims. See Motion ¶ 20, at 5. According to Agentra LLC, Mohon's private nuisance claim is inadequate, because Mohon "does not allege any interest in land that was impacted by the alleged calls." Motion ¶ 21, at 6 (citing Padilla v. Lawrence, 1984-NMCA-064 ¶ 9, 101 N.M. 556, 685 P.2d 964, 967 ). Likewise, in Agentra LLC's view, because Mohon does not allege "physical contact with any of Plaintiff's property ..., the claim for trespass fails." Motion ¶ 22 at 6 (citing Restatement (Second) of Torts § 158 comment i, § 217 comment e (1965)...