Whittaker v. Freeway Ins. Servs. Am.

• Decision Date: 12 January 2023
• Docket Number: CV-22-8042-PCT-DGC
• Parties: Brenda Whittaker, individually and on behalf of all others similarly situated, Plaintiff, v. Freeway Insurance Services America, LLC, an Illinois limited liability company, Defendant.
• Court: U.S. District Court — District of Arizona

Brenda Whittaker, individually and on behalf of all others similarly situated, Plaintiff, v. Freeway Insurance Services America, LLC, an Illinois limited liability company, Defendant.

No. CV-22-8042-PCT-DGC

United States District Court, D. Arizona

January 12, 2023

ORDER

DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Brenda Whittaker brings this class action against Defendant Freeway Insurance Services America, LLC. Defendant moves to dismiss the complaint under Rule 12(b)(6) and to strike the class allegations under Rules 12(f). Doc. 17. The motion is fully briefed (Docs. 17, 19, 20), this is not a close call and Defendant's request for oral argument therefore is denied. See Fed.R.Civ.P. 78(b); LRCiv 7.2(f). For reasons set forth below, the Court will deny the motion.

I. Background.

Plaintiff has filed three versions of her complaint. Docs. 1, 11, 15. The operative version is her second amended complaint, filed on August 22, 2022. See Doc. 15. The second amended complaint contains the following allegations.

Plaintiff asserts claims under the Telephone Consumer Protection Act (TCPA) on behalf of herself and two classes of similarly situated individuals. Id. Defendant is a national car insurance provider. Id. ¶ 5.

Plaintiff registered her telephone number with the National Do Not Call Registry (DNC Registry) promulgated by the Federal Trade Commission in December 2017. Id. ¶ 16; see generally Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Jan. 10, 2022). On January 5, 2022, “Plaintiff received an unsolicited telemarketing call from” Defendant. Doc. 15, ¶ 18. That same week, Plaintiff received three more calls from the same telephone number. Id. ¶¶ 18-19. Plaintiff did not answer any of the calls. Id. ¶¶ 18-20.

After the third call, Defendant left a voicemail “which featured the use of a prerecorded or artificial voice.” Id. ¶ 20. The voicemail stated: “Hi, this is Freeway Insurance, sorry I missed you. I'm calling you back about your insurance quote request and look forward to saving you on your car insurance. Thank you for calling us back at this number.” Id. ¶ 20. Plaintiff notes that the message “did not have the cadence of [a] live person” and was “generic.” Id. ¶ 21. Plaintiff identifies seven nearly identical prerecorded voicemails posted online by anonymous users. Id. ¶ 22.

Plaintiff returned the fourth call “to confirm that the caller was Freeway Insurance.” Id. ¶ 23. In February 2022, Plaintiff also called counsel for Freeway Insurance, Val Stiefel, for further information. Id. ¶ 25. Mr. Stiefel “confirmed that Freeway Insurance placed the calls to Plaintiff” regarding “auto insurance.” Id. ¶ 25.

Plaintiff “at no time” consented to receive the calls. Id. ¶ 27. Nor did she have a preexisting relationship with Defendant or “express any interest in Defendant's insurance policies, products, or services.” Id. ¶¶ 27-28.

Plaintiff asserts claims for placing unsolicited prerecorded marketing calls in violation of § 227(b) of the TCPA (Count 1), and for calling DNC Registry members in violation of § 227(c) (Count 2). Id. Defendant moves to dismiss both TCPA claims and, alternatively, to strike the class action allegations. Doc. 17.

II. Motion to Dismiss.

Under Rule 12(b)(6), the well-pled factual allegations of the complaint are taken as true and construed in the light most favorable to Plaintiff. See Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

A complaint that sets forth a cognizable legal theory will survive a motion to dismiss if it contains “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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). Although the plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully[,]” it “is not akin to a ‘probability requirement[]'” Id.

A. Section 227(c).

1. The Complaint Sufficiently Alleges a Solicitation.

The TCPA prohibits initiating “more than one telephone [solicitation] within any 12-month period” to a consumer whose “telephone number [appears] on the national do-not-call registry.” 47 U.S.C. 227(c)(5); 47 C.F.R. 64.1200(C)(2). A telephone solicitation is “a telephone call or message for the purpose of encouraging the purchase of . . . services, which is transmitted to any person.” 47 U.S.C. § 227(a)(4). The Federal Communications Commission has noted, and the Ninth Circuit has agreed, that whether a call is a solicitation turns on the “purpose of the message.” See In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14098 (2003); see Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012).

Defendant argues that the calls Plaintiff received were not solicitations, but instead were “merely informational” communications. Doc. 17, 1. Defendant urges the Court to accept as true the caller's statement (as captured in the recorded voicemail) that the call was “about [Plaintiff's] insurance quote request.” Id. at 5. This statement, Defendant contends, shows that the call was made in response to Plaintiff's inquiry and was not a solicitation.

But Plaintiff alleges that she did not have a preexisting relationship with Defendant and never “express[ed] any interest in Defendant's insurance policies, products, or services.” Doc. 15, ¶¶ 27-28. The Court must accept this allegation as true in ruling on Defendant's motion, and it defeats any argument that the calls were made in response to Plaintiff's inquiry.

The Court must also approach the purpose of the message “with a measure of common sense.” Chesbro, 705 F.3d at 918. “[I]t is the purpose behind a call that controls, not what happened during the call.” Bennett v. GoDaddy.com LLC, No. CV-16-03908-PHX-ROS, 2019 WL 1552911, at *8 (D. Ariz. Apr. 8, 2019). Except for encouraging the purchase of its products, it is hard to imagine why an insurance company would contact a consumer not already insured by it and state that it looked forward to saving the consumer money, as did the recorded message in this case. See Mantha v. Quotewizard.com, LLC, No. CV 19-12235-LTS, 2021 WL 6061919, at *7 (D. Mass. Dec. 13, 2021), report and recommendation adopted, No. CV 19-12235-LTS, 2022 WL 325722 (D. Mass. Feb. 3, 2022) (likening insurance quotes to purchase prices). The cases Defendant cites concerned free goods, services, and opportunities, and are not persuasive. Horton v. Tarrant Cnty. Hosp. Dist., No. 4:22-CV-9-P, 2022 WL 702536, at *3 (N.D. Tex. Feb. 4, 2022), report and recommendation adopted, No. 4:22-CV-0009-P, 2022 WL 620950 (N.D. Tex. Mar. 3, 2022) (text message providing information about the availability of a free vaccine); Vallianos v. Schultz, No. C19-0464-JCC, 2019 WL 4980649, at *3 (W.D. Wash. Oct. 8, 2019) (text message sharing a link to a speech that was free to access); see also Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-CV-02072-MCS-SP, 2020 WL 7768722, at *3 (C.D. Cal. Dec. 21, 2020) (phone call about free weatherization services).

2. The Complaint Sufficiently Alleges More than One Call.

Defendant argues that the complaint fails to show more than one telephone solicitation. Defendant contends that the three calls Plaintiff did not answer - and resulted in no voicemail- cannot be considered as telephone solicitations.

The Court does not agree. Multiple calls from the same telephone number over the course of a few days suggests a common purpose in the calls, and the recorded voicemail clearly suggests the purpose of the calls. See Chapman v. Nat'l Health Plans & Benefits Agency, LLC, No. 22-10229, 2022 WL 3130225, at *7 (E.D. Mich. Aug. 4, 2022) (denying a motion to dismiss “[b]ecause the four calls all came from the same phone number”); Spurlark v. Dimension Serv. Corp., No. 2:21-CV-3803, 2022 WL 2528098, at *3 (S.D. Ohio July 7, 2022) (denying a motion to dismiss even though the plaintiff initially ignored calls from the same phone number).

B. Section 227(b).

The TPCA prohibits calls without prior express consent of the called party “using any automatic telephone dialing system or an artificial or prerecorded voice[.]” 47 U.S.C. § 227(b)(1)(A)(iii). A complaint must show that “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system or prerecorded voice; (3) without the recipient's prior express consent.” Schick v. Compass Lending Corp., No. CV-19-01736-PHX-JJT, 2019 WL 6050256, at *2 (D. Ariz. Nov. 15, 2019) (cleaned up); see Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing 47 U.S.C. § 227(b)(1)). Defendant argues that Plaintiff fails to show the second and third elements.

1. The Complaint Sufficiently Alleges a Prerecorded Voice.

A complaint must allege sufficient facts to allow the Court to reasonably infer the use of a prerecorded voice. See Winters v. Quicken Loans Inc., No. CV-20-00112-PHX-MTL 2020 WL 5292002, at *4 (D. Ariz. Sept. 4, 2020); Baker v. Caribbean Cruise Line, Inc., No. CV 13-8246-PCT-PGR, 2014 WL 880634, at *3 (D. Ariz. Mar. 6, 2014) (noting that sufficient facts may include the content, length, and timing of calls). Both parties rely on Johansen v. Vivant, Inc., No. 12 C 7159, 2012 WL 6590551 (N.D. Ill.Dec. 18, 2012), which found that pleading the prerecorded nature of messages is a factual matter, not a legal conclusion. Id. at *3. “Still, when a fact is itself an element of the claim, . . . it is...