Man’s telemarketing claims dismissed

Where a man suing over an alleged unwanted telephone solicitation call failed to plead facts making it plausible that the defendant made the call, his lawsuit was dismissed.

Background

This action stems from John Bryant’s purported receipt of a single unwanted telephone call soliciting insurance policies that purportedly violated federal and state telemarketing laws. AccuQuote moves to dismiss the first amended class action complaint.

Standing

To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” The court finds that plaintiff has sufficiently alleged an injury in fact based on purported privacy violations, annoyance and harassment.

The second requirement presents the central question: whether the injury is fairly traceable to AccuQuote’s purported conduct. According to plaintiff, “[d]uring discovery in this action, Mutual of Omaha has revealed that Accuquote, or a vendor they retained, made this pre-recorded call.” But that assertion is clearly not supported by the allegations in the first amended complaint, which contains only broad, conclusory and ambiguous allegations about AccuQuote’s involvement; and “a complaint may not be amended by the briefs in opposition to a motion to dismiss.”

And if “they” refers to Mutual of Omaha, then plaintiff has failed to plead with sufficient detail that the telemarketing call was “fairly traceable” to AccuQuote. But even if the court reads “they” as referring to AccuQuote, the allegations are still insufficient to plausibly allege liability on the part of AccuQuote, as opposed to this mysterious vendor that AccuQuote may have “retained.” And without any indication of the nature of the relationship or terms of agreement between AccuQuote and its unknown vendor, the connection between the wrongful conduct and AccuQuote is entirely speculative and not fairly traceable to it.

Similarly, because plaintiff has not sufficiently alleged traceability, he cannot show that a favorable judicial decision is likely to redress his injury. Therefore, plaintiff has failed to establish standing and the court is thus without subject matter jurisdiction and will grant the motion under Rule 12(b)(1).

Plausibility

In the alternative, AccuQuote urges dismissal under Rule 12(b)(6) of the Telephone Privacy Protection Act and Virginia Telephone Privacy Protection Act claims on the grounds that plaintiff “does not allege AccuQuote placed the call itself and does not allege facts to support a theory of vicarious liability for the actions of an unidentified third party.” “[A]t the pleading stage, plaintiff must allege facts to support his conclusion or belief that defendant is the party that made the calls to plaintiff’s cellular phone.” The same requirements apply to the Virginia Telephone Privacy Protection Act claim.

Here, plaintiff has adduced no facts to suggest that AccuQuote initiated the telephone call outside of conclusory allegations and unspecified discovery from Mutual of Omaha that was both (a) devoid of supporting fact and detail and (b) inconclusive as to whether AccuQuote, one of AccuQuote’s vendors or another one of Mutual of Omaha’s vendors completely unrelated to AccuQuote placed the call. Therefore, plaintiff has failed to state a claim on the Telephone Consumer Protection Act or Virginia Telephone Privacy Protection Act counts under a direct liability theory.

Telephone Privacy Protection Act liability may also attach to a defendant through formal/actual authority, express or implied or apparent authority; while such inquiries are typically fact-driven, they can be resolved pre-trial “where the evidence would not permit a reasonable jury to find for the nonmoving party.” If “they” in paragraph 32 of the first amended complaint refers to Mutual of Omaha, then clearly there can be no vicarious liability.

But even if, assuming for arguments sake, plaintiff was alleging that the single call was made by a vendor retained by AccuQuote, vicarious liability cannot attach without identifying this vendor and what instructions may have been given to it. Accordingly, plaintiff has failed to state a claim on the Telephone Consumer Protection Act or Virginia Telephone Privacy Protection Act counts under a vicarious liability theory.

Defendant’s motion to dismiss granted.

Bryant v. Byron Udell & Associates Inc., Case No. 1:23-cv-00414, Aug. 11, 2023. EDVA at Alexandria (Trenga). VLW 023-3-483. 13 pp.