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Gould v. Farmers Insurance Exchange

United States District Court, E.D. Missouri, Eastern Division

January 19, 2018

CATHERINE GOULD, individually and on behalf of others similarly situated, Plaintiff,
v.
FARMERS INSURANCE EXCHANGE, FARMERS INSURANCE COMPANY, INC., FIRE INSURANCE EXCHANGE, Defendants.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         Plaintiff Catherine Gould ("Gould") alleges in this putative class action matter that Defendants Farmers Insurance Exchange, Farmers Insurance Company, Inc., and Fire Insurance Exchange (collectively, "Defendants" or "Farmers") sent her text messages in contravention of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Farmers moved to dismiss Gould's complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action and failure to establish Article III standing. Based upon the record before me and for the reasons that follow, I will deny Farmers' motion to dismiss.

         I. Background

         Gould's First Amended Complaint (the "FAC") pleads the following facts, which I accept as true for purposes of the motion to dismiss. Farmers is in the business of marketing insurance products. Between May 2, 2017 and July 27, 2017, Gould received and reviewed a series often text messages on her cell phone which were allegedly sent by Farmers and/or its insurance agents. Gould did not expressly consent to be called or texted by Farmers. The messages sent to Gould were addressed to "Catherine" and attributed to various parties, including "Jim with the Jim Lohse agency with Farmers Insurance, " "the Jim Lohse Insurance Agency with Farmers Insurance, " "Jessica with the Joe Ridgway Agency with Farmers Insurance, " and "Joe Ridgway Agency with Farmers Insurance." The messages stated, inter alia, that the insurance agents wanted to follow up with Gould in order to update and finalize her insurance quote. The messages were sent in three separate sets with nearly identical repeating content during the months of May, June, and July 2017.[1]

         Agents Jody Ridgway and Jim Lohse are identified as Farmers agents on a Farmers website. Gould alleges that Farmers' agents may only sell Farmers insurance policies, which are guaranteed by Farmers. Gould further alleges that upon an agent's sale of a policy, Farmers receives the policy premium and pays the agent commission. Gould asserts that Farmers could choose to accept or decline applications obtained through text message marketing, and received premiums for sales resulting from text messaging.

         Gould alleges that the text messages were sent en masse by an automatic telephone dialing system to several phone numbers, including hers. Gould asserts that software called "Touchpoints" allowed Farmers to deliver the texts en masse, to send the texts at scheduled intervals, and to automatically populate each recipient's name in the text. Gould alleges that the text messages violated her privacy rights and those of the other class members, and constituted an annoying and harassing nuisance. Gould states that she and other class members wasted time addressing or otherwise responding to the texts. Gould also suggests that some class members suffered economic harm by being charged for the text messages. Gould brought this purported class action against Farmers under TCPA.

         II. Legal Standard

         When ruling on a motion to dismiss, I must accept as true all factual allegations in the complaint and view them in light most favorable to the Plaintiff. Fed.R.Civ.P. 12(b)(6); Erickson v. Pardus, 551 U.S. 89, 94 (2007). The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To survive a motion to dismiss, a plaintiffs factual allegations "must be enough to raise a right to relief above the speculative level. Id. at 555. In ruling on a motion to dismiss, I must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Hager v. Ark. Dep't of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). Under the federal rules, a plaintiff need not provide '"detailed factual allegations, '" but must provide "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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679.

         III. Discussion

         The TCPA prohibits sending text message solicitations using an automatic telephone dialing system without the prior express written consent of the called party. See 47 U.S.C. § 227; Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667 (2016) (text message solicitations made to cell phones qualify as calls under TCPA). Gould alleges that Farmers violated TCPA by sending the offending text messages. Farmers asserts that Gould fails to state a claim to relief under TCPA. For the reasons that follow, I will deny Farmers' motion to dismiss and allow Gould's claim to proceed.

         a. Standing

         Farmers asserts that Gould has not sufficiently pled an injury in fact in order to establish Article III standing. Standing under Article III presents a "threshold inquiry" requiring "general allegations" of injury, causation, and redressability. In re SuperValu, Inc., 870 F.3d 763 (8th Cir. 2017) (internal citations omitted). To have constitutional standing, the plaintiff must have suffered an injury in fact, the injury must be fairly traceable to the defendant's actions, and the injury must be likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S.Ct. 1540, 1547 (2016) (holding that bare allegation concerning procedural violation of federal statute was insufficient to satisfy injury in fact requirements). "To establish injury in fact, a plaintiff must show that she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. at 1548; see also Braitberg v. Charter Commc'ns, Inc., 836 F.3d 925, 930 (8th Cir. 2016) (requiring plaintiff to demonstrate "material risk of harm" beyond mere procedural violation for standing purposes).

         Gould asserts that the text messages caused her and the other class members to suffer concrete and particularized harm. Most significantly, Gould alleges that the intrusiveness of the messages violated her privacy rights. See Hunsinger v. Gordmans, Inc., 2016 WL 7048895 (E.D. Mo. December 5, 2016) (finding that alleged injury in fact was sufficient to create post-Spokeo standing under TCPA where plaintiff claimed that unwanted text messages presented invasion of privacy). Likewise, Gould asserts that the messages constituted an annoying and harassing nuisance. Gould states that she and the other class members wasted time addressing or otherwise responding to the texts. Gould also suggests that some class members suffered economic harm by being charged for the text messages. Farmers argues that Gould's conclusory allegations do not provide specific facts as to whether she suffered harm, as she omits details demonstrating that she noticed, heard, or was charged for the text messages. However, Gould pleads facts beyond the mere procedural requirements of the TCPA statute. On the whole, Gould's allegations concerning the invasion of privacy, nuisance, and wasted time constitute an injury in fact which is adequate to establish Article III standing.

         b. Factual ...


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