United States District Court, E.D. Missouri, Eastern Division
CATHERINE GOULD, individually and on behalf of others similarly situated, Plaintiff,
FARMERS INSURANCE EXCHANGE, FARMERS INSURANCE COMPANY, INC., FIRE INSURANCE EXCHANGE, Defendants.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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
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.