Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND KEYONNA JONES, individuаlly and
on behalf of a class of all persons and
entities similarly situated
Plaintiff , Civil Action No. ELH-22-905
v. MUTAL OF OMAHA INSURANCE
COMPANY,
Defendant .
MEMORANDUM OPINION
Plaintiff Keyonna Jones filed a putative class action suit against Mutual of Omaha Insurance Company (“Mutual of Omaha”) alleging violation of the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (“TCPA”). ECF 8 (“First Amended Class Action Complaint”).
Plaintiff alleges that Mutual of Omaha “hired a third party to send pre-recorded telemarketing calls
to her cellular telephone and those of other putative class members for the purposes of advertising
their insurance goods and services, which is prohibited by the TCPA.” Id. ¶ 2.
Mutual of Omaha has moved to dismiss the Amended Complaint for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), and for failure to state a claim, pursuant to Fed. R. Civ. P.
12(b)(6). ECF 9. The motion is supported by a memorandum of law. ECF 9-1 (collectively, the
“Motion”). Plaintiff opposes the Motion. ECF 15. Defendant has replied. ECF 18.
The Motion has been fully briefed and no hearing is necessary to resolve it. See Local
Rule 105.6. For the reasons that follow, I shall deny the Motion.
I. Factual and Procedural Background [1] Mutual of Omaha is a Nebraska company with its principal place of business in Nebraska.
ECF 8, ¶ 6. It offers insurance policies to consumers through its network of agents. Id. ¶ 15.
Plaintiff is a resident of Maryland. Id. ¶ 5. Her cellular phone number is on the National
Do Not Call Registry. Id. ¶ 20. Neverthеless, plaintiff received a phone call on March 25, 2022
( id. ¶ 21), with a prerecorded message that attempted to qualify Jones for Mutual of Omaha’s
products. Id. ¶ 22. The message asked the “call recipient to ‘press 1’ if they were over the age of
50.” Id. Plaintiff asserts that the call was prerecorded because “(1) it had an automated message
prompt, (2) it had an unnatural pause at the beginning of the call, (3) it was generic and commercial,
and (4) it had a voice with an unnaturally consistent tone.” Id. ¶ 23.
Jones responded to the recordеd message to identify the caller. Id. ¶ 24. She was
transferred to Eric Chambers, “who identified himself as an employee of Mutual of Omaha,” id. ¶
26, and “promoted” Mutual of Omaha’s insurance services. Id. ¶ 25. Chambers provided a call
back number of (844) 579-5586, which is a number for Mutual of Omaha. Id. ¶¶ 27, 28. Plaintiff
asserts that she “received similar calls from spoofed Caller ID numbers on March 22, 2022.” Id.
¶ 29.
According to plaintiff, “[o]ne of Mutual of Omaha’s strategies for marketing their insurance policies is telemarketing done by the third parties they hire for that express purpose.”
Id. ¶ 16. Additionally, she claims that Mutual of Omaha has told consumers that it “‘partner[s]
with third parties who collect names who call people.’” Id. ¶ 37. According to Jones, defendant’s
telemarketing “includes the use of pre-rеcorded messages” made to recipients who have not
provided consent. ECF 8, ¶¶ 17, 18.
In particular, plaintiff asserts that the third party who called her was required to promote Mutual of Omaha’s products, and that Mutual of Omaha derived a benefit from the third party’s
interaction with the plaintiff by the attempted issuance of an insurance policy. Id. ¶¶ 38, 40.
Plaintiff also claims that Mutual of Omaha “knowingly and actively accept[ed] the business that
originated through the illegal telemarketing calls through the issuance of insurance policies.” Id.
¶ 39.
Notably, plaintiff alleges that Mutual of Omaha maintained interim control over the third party’s actions because it had the ability to prohibit the third party from using prerecorded calls to
contact potential customers. Id. ¶¶ 41, 42. Jones also claims that Mutual of Omaha gave
“instructions” to the third party by “providing the volume of calling and leads it would purchase”
as well as “the states that those companies were allowed to make calls into . . . .” Id. ¶¶ 44, 45.
And, plaintiff asserts that Mutual of Omaha explicitly informed the third party that it could make
calls into Maryland. Id. ¶ 46.
Prior to filing suit, plaintiff contacted Mutual of Omaha. Id. ¶ 30. Defendant did not
provide any proof thаt Jones had consented to receive the calls. Id. ¶ 31.
Suit followed on April 13, 2022. ECF 1 (the “Complaint”). Mutual of Omaha moved to dismiss the Complaint for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), and for failure
to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). ECF 6. Plaintiff subsequently amended her suit. ECF 8. [2] She added the allegation that “Mutual of Omaha explicitly informed
the third party that it could make calls into Maryland and the third party did make such calls into
Maryland when contacting the Plaintiff.” ECF 8, ¶ 46.
Defendant renewed its Motion with respect to the Amended Complaint. ECF 9.
Specifically, Mutual of Omaha argues that plaintiff does not plausibly allege that defendant is
either directly or vicariously liable for the calls at issue. Id. at 1. Additionally, defendant claims
that the Court lacks personal jurisdiction over Mutual of Omaha. Id.
In her response, plaintiff states that Mutual of Omaha is vicariously liable for the calls she received based on agency theories of actual authority and ratification. ECF 15 at 9-11. And, she
argues that “Mutual of Omaha is subject to specific personal jurisdiction in Maryland based on its
agent’s intentionally tortious conduct directed to and felt in Maryland.” Id. at 12.
II. Standards of Review
A. Rule 12(b)(2) Mutual of Omaha moves to dismiss for lack of рersonal jurisdiction, predicated on Fed. R.
Civ. P. Rule 12(b)(2). ECF 9. “[A] Rule 12(b)(2) challenge raises an issue for the court to resolve,
generally as a preliminary matter.” Grayson v. Anderson , 816 F.3d 262, 267 (4th Cir. 2016).
Under Rule 12(b)(2), a defendant “must affirmatively raise a personal jurisdiction challenge, but
the plaintiff bears the burden of demonstrating personal jurisdiction at every stage following such
a challenge.”
Id.
;
see UMG Recordings, Inc. v. Kurbanov
,
And, the burden is “on the plaintiff ultimately to prove the existence of a ground for jurisdiction
by a preponderance of the evidence.”
Combs v. Bakker
,
Grayson
,
When “the existence of jurisdiction turns on disputed factual questions the court may resolve the [jurisdictional] challenge on the basis of a separate evidentiary hearing, or may defer
ruling pending receipt at trial of evidence relevant to the jurisdictional question.” Combs , 886 F.2d
at 676. In its discretion, a court may permit discovery as to the jurisdictional issue. See Mylan
Labs., Inc. v. Akzo, N.V. , 2 F.3d 56, 64 (4th Cir. 1993). However, neither discovery nor an
evidentiary hearing is required in order for the court to resolve a motion under Rule 12(b)(2). See
generally 4A W RIGHT & A. M ILLER , F EDERAL P RACTICE & P ROCEDURE § 1351 (4d ed. 2019).
“The plaintiff’s burden in establishing jurisdiction varies according to the posture of a case
and the evidence that has been presented to the court.”
Grayson
,
jurisdiction is addressed under Rule 12(b)(2) without an evidentiary hearing, the party asserting
jurisdiction has the burden of establishing a prima facie case of jurisdiction.” Hawkins v. i-TV
Digitalis Tavkozlesi zrt
.,
circumstаnce, “the district court must determine whether the facts proffered by the party asserting
jurisdiction—assuming they are true—make out a case of personal jurisdiction over the party
challenging jurisdiction.” Hawkins , 935 F.3d at 226; accord Sneha Media & Entm’t, LLC. v.
Assoc. Broad. Co. P Ltd.
,
Pregnancy Ctrs., Inc
.,
the court may also consider affidavits submitted by both parties, although it must resolve all factual
disputes and draw all reasonable inferences in favor of the party asserting jurisdiction.” Hawkins ,
Eng’rs Corp. v. Geometric Ltd
.,
Notably, “‘[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a
рreponderance of the evidence, either at trial or at a pretrial evidentiary hearing.’” Wellington Fin.
Corp. v. Flagship Resort Dev. Corp
.,
B. Rule 12(b)(6) Mutual of Omaha also moves to dismiss under Rule 12(b)(6). ECF 9. A defendant may test the legal sufficiency of a plaintiff’s complaint by way of a motion to dismiss under Rule
12(b)(6).
Fessler v. Int’l Bus. Machs. Corp.
,
Cable Defined Benefit Pension Plan v. Weil
,
2016);
McBurney v. Cuccinelli
,
Young
,
even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int’l Inc. , 248 F.3d
321, 325-26 (4th Cir. 2001);
see also Swierkiewicz v. Sorema N.A.
,
rule provides that a complaint must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to provide the
defendant with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl.
Corp. v. Twombly
,
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.”
Twombly
,
Ashcroft v. Iqbal , 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”); see also Fauconier v. Clarke , 996
F.3d 265, 276 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan , 918 F.3d at
317-18;
Willner v. Dimon
,
“detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly , 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss. , 574
U.S. 10, 10 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally
insufficient to state a claim for relief.
Francis v. Giacomelli
,
(citation omitted).
In other words, the rule demands more than bald accusations or mere speculation.
Twombly
,
2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action,” it is insufficient. Twombly , 550 U.S. at 555. “[A]n
unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of
relief.
Iqbal
,
complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of
action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote
and unlikely.”
Twombly
,
In reviewing a Rule 12(b)(6) motion, “a court ‘must accept as true all of the factual allegations contained in the complaint,’ and must ‘draw all reasonable inferences [from those facts]
in favor of the plaintiff.’”
Retfalvi v. United States
,
in
Retfalvi
) (quoting
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.
,
Cir. 2011));
see Semenova v. Md. Transit Admin.
,
Substitute Tr. Servs., Inc.
,
accept legal conclusions drawn from the facts.”
Retfalvi
,
court decides whether [the pleading] standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual allegations, and then determining whether
those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy
sought.
A Society Without a Name v. Virginia
,
statements, are insuffiсient to survive” a Rule 12(b)(6) motion. Morrow v. Navy Federal Credit
Union
, ___ Fed. App’x ___,
In connection with a Rule 12(b)(6) motion, courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’” King v. Rubenstein ,
(4th Cir. 2020). But, “in the relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc.,
accord Pressley v. Tupperware Long Term Disability Plan,
Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst,
only applies . . . if all facts necessary to the affirmative defense ‘clеarly appear[ ] on the face of
the complaint.
’”
Goodman,
250).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the
‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd. ,
Ordinarily, the court “may not consider any documents that are outside of the complaint, or not
expressly incorporated therein[.]”
Clatterbuck v. City of Charlottesville
,
Cir. 2013),
abrogated on other grounds by Reed. v. Town of Gilbert
,
Bosiger v. U.S. Airways
,
In addition, “a court may properly take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’”
Goldfarb
,
322 (2007);
Katyle v. Penn Nat’l Gaming, Inc.,
565 U.S. 825 (2011); Philips v. Pitt Cty. Mem’l Hosp. , 572 F.3d 176, 180 (4th Cir. 2009).
However, under Fed. R. Evid. 201, a court may take judicial notice of adjudicative facts only if
they are “not subject to reasonable dispute,” in that they are “(1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.”
III. Discussion Fed. R. Civ. P. 4(k)(1)(A) authorizes a federal district court to exercise personal jurisdiction over a defendant in accordance with the law of the state where the district court is located.
Carefirst of Md.
,
nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be
authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction must comport
with the due process requirements of the Fourteenth Amendment.” Id. ; see Clarke Veneers &
Plywood, Inc. v. Mentakab Veneer & Plywood, SDN BHD
,
Maryland’s long-arm statute is codified at Md. Code (2020 Repl. Vol., 2022 Supp.), § 6- 103(b) of the Courts & Judicial Proceedings Article (“C.J.”). It authorizes “personal jurisdiction
over a person, who directly or by an agent,” id. :
(1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply goods, food, services, or manufactured products in the State; (3) Causes tortious injury in the State by an act or omission in the Stаte; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State;
(5) Has an interest in, uses, or possesses real property in the State; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.
Maryland’s courts have “consistently held that the purview of [Maryland’s] long arm statute is coextensive with the limits of personal jurisdiction set by the due process clause of the
Federal Constitution.”
Beyond Systems, Inc. v. Realtime Gaming Holding Co.
,
A.2d 567, 576 (2005) (citing
Mohamed v. Michael
,
see CSR, Ltd. v. Taylor
,
statute authorizes the exercise of personal jurisdiction “‘to the full extent allowable under the Due
Process Clause’” (citation omitted));
Bond v. Messerman
,
(2006);
Pinner v. Pinner
,
Although the long-arm and constitutional due process requirements are distinct, they can
be evaluated in tandem.
See Beyond Sys
,
merges with our constitutional examination.”); accord Stover v. O’Connell Assocs., Inc. , 84 F.3d
132, 135-36 (4th Cir. 1996) (“Because the limits of Marylаnd’s statutory authorization for the
exercise of personal jurisdiction are coterminous with the limits of the Due Process Clause, the
statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries
essentially become one.”). Therefore, I shall consider whether the exercise of personal jurisdiction
over defendant comports with due process.
The Supreme Court has long held that personal jurisdiction over a nonresident defendant is constitutionally permissible so long as the defendant has “minimum contacts with [the forum
state] such that the maintenance of the suit does not offеnd ‘traditional notions of fair play and
substantial justice.’”
Int’l Shoe Co. v. Washington
,
The “constitutional touchstone” of personal jurisdiction is that “‘the defendant’s conduct and
connection with the forum State are such that he should reasonably anticipate being haled into
court there.’”
Burger King Corp. v. Rudzewicz
,
Volkswagen Corp. v. Woodson
,
Courts have separated the analysis into individual “prongs.”
ALS Scan, Inc. v. Digital Serv.
Consultants
,
Inc.
,
“minimum contacts” is met, and they then consider whether the exercise of jurisdiction on the
basis of those contacts is “constitutionally reasonable.” Id.
Due process jurisprudence “recognize[s] two types of personal jurisdiction: ‘general’ (sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’)
jurisdiction.”
Bristol-Myers Squibb Co. v. Super. Ct. of Cal.
, ___ U.S. ___,
(2017) (“ Bristol-Myers ”) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S.
915, 919 (2011)). “A court with general jurisdiction may hear any claim against that defendant,
even if all the incidents underlying the claim occurred in a different State.” Bristol- Myers, 137 S.
Ct. at 1780 (emphasis in original) (citing
Goodyear
,
v. Bauman
,
affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there.” In
particular, as to “‘an individual, the paradigm forum for the exercise of general jurisdiction is the
individual's domicile; for a corporation, it is an equivalent place, one in which the corpоration is
fairly regarded as at home.’”
Id.
(quoting
Goodyear
,
Specific jurisdiction, on the other hand, exists where the “the suit arise[s] out of or relate[s] to the defendant’s contacts with the forum.’” Daimler , 571 U.S. at 127 (citation omitted)
(alterations in original). The Supreme Court recently reiterated: “The contacts needed for this kind
of jurisdiction often go by the name ‘purposeful availment.’” Ford Motor Co. v. Montana Eighth
Judicial District Court
, ___ U.S. ___,
King , 471 U.S. at 472–73 (Specific jurisdiction may be established over a defendant who “has
‘purposefully directed’ his activities at residents of the forum and the litigation results from alleged
injuries that ‘arise out of or relate to’ those activities.”) (citation omitted) (quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall
,
‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State and is therefore subject to the State's regulation.’”
Bristol-Myers
,
Moreover, the “contacts must be the defendant’s own choice and not ‘random, isolated, or
fortuitous.’”
Ford Motor Co.
,
must “show that the defendant deliberately ‘reached out beyond’ its home – by, for example,
‘exploi[ting] a market’ in the forum State or entering a contractual relationship centered there.”
Id. (citations omitted; alterations in Ford Motor Co. ); see Walden v. Fiore , 571 U.S. 277, 285
(2014). And, as noted earlier, “the defendant's conduct and connection with the forum State [must
be] such that he should reasonably anticipate being haled into court there.” Woodson , 444 U.S. at
297.
“For this reason, ‘specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’” Bristol-Myers , 137 S. Ct.
at 1780 (quoting
Goodyear
,
in Ford Motor Co. , 141 S. Ct. at 1026, the Supreme Court rejected a “causation-only
approach . . . .” Notably, specific personal jurisdiction may be established without “a causal
showing,” so long as there is a “strong ‘relationship among the defendant, the forum, and the
litigation’ . . . .” Id. at 1028.
Plaintiff does not assert facts sufficient to show that this Court has general personal jurisdiction over Mutual of Omaha. Instead, plaintiff argues that “Mutual of Omaha is subject to
specific personal jurisdiction in Maryland based on its agent’s intentionally tortious conduct
directed to and felt in Maryland.” ECF 15 at 12. Therefore, I shall consider only whether the
defendant is subject to specific personal jurisdiction in Maryland.
The Fourth Circuit has formulated a three-part test for use in determining whether there is specific jurisdiction over a defendant. The three prongs are: “‘(1) the extent to which the defendant
purposefully availed itself of the privilege of conducting activities in the State; (2) whether the
plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally reasonable.’”
Consulting Eng’rs
,
(quoting
ALS Scan
,
Foods, LLC v. BRF, S.A
.,
specific jurisdiction is assessed on a claim-by-claim basis. See Pan-Am. Prod. & Holdings, LLC
v. R.T.G. Furniture Corp.
,
is asserted, jurisdiction must be established for each claim alleged.”); Gatekeeper, Inc. v. Stratech
Sys., Ltd
.,
rule); W RIGHT & M ILLER , § 1069.7 (“[A] plaintiff also must secure personal jurisdiction over a
defendant with respect to each claim she asserts.”).
The first prong “articulates the minimum contacts requirement of constitutional due process that the defendant purposefully avail himself of the privilege of conducting business under
the laws of the forum state.”
Consulting Eng’rs
,
dispute the purposeful availment requirement, which “ensures that a defendant will not be haled
into a jurisdiction solely as a result of ‘random, fortuitous, or attenuated’ contacts, or of the
‘unilateral activity of another party or a third person.’” Burger King , 471 U.S. at 475 (internal
citations omitted).
A corporation like Mutual of Omaha “can purposefully avail itself of a forum by directing
its agents or distributors to take action there.”
See Daimler
,
relationship exists, then the third-party’s cоntacts with Maryland – including the calls at issue –
may be attributable to Mutual of Omaha.
See Giannaris v. Cheng
,
Md. 2002) (“A court may exercise personal jurisdiction over a non-resident corporation based on
the acts of its agents in Maryland.”).
Jones is a Maryland resident and allegedly received the calls at issue while she was in Maryland. ECF 8, ¶¶ 5, 46. And, “in the context of the TCPA, . . . personal jurisdiction is proper
in the District where an unlawful communication is received.” Mey v. Castle Law Grp. , 416 F.
Supp. 3d 580, 586 (N.D.W. Va. 2019); see also Payton v. Kale Realty, LLC , JHL-13-8002, 2014
WL 4214917, at *3 (N.D. Ill. Aug. 26, 2014) (“[C]ourts have repeatedly held that sending a
message into the forum state in violation of the TCPA is sufficient to confer specific personal
jurisdiction over the defendant.”).
In the Amended Complaint, Jones does nоt allege that Mutual of Omaha made the call to Jones. Rather, she asserts that Mutual of Omaha hired a third party to make the prerecorded call.
ECF 8, ¶ 2. The Court would have personal jurisdiction over the third party based on his call to
Jones. And, the Court may also exercise specific jurisdiction over Mutual of Omaha if the third
party was acting as Mutual of Omaha’s agent, as plaintiff alleges. See Bilek v. Nat’l Cong. Of
Emps., Inc.
,
on an agency theory in a TCPA case).
As noted, pursuant to Rule 12(b)(6), Mutual of Omaha contends that plaintiff fails to state a claim because she does not plausibly allege that defendant is either directly or vicariously liable
for the calls at issue. ECF 6 at 1. Although Mutual of Omaha would not be directly liable for the
calls, it may be vicariously liable if an agency relationship existed between the defendant and the
third party. At this juncture, Mutual of Omaha’s Motion turns on whether plaintiff has adequately
alleged facts sufficient to support a claim of vicarious liability.
Notably, the Federal Communications Commission (the “FCC”) has authorized vicarious liability for violations of the TCPA. In re Joint Petition Filed by Dish Network, LLC , 28 FCC
Rcd. 6574, 6584 (2013). As Judge Blake of this Court recently observed, “[v]icarious liability
plays an essential role in enforcing the TCPA,” as “[s]ellers are ‘in the best position to monitor
and police TCPA compliance by third-party telemarketers,’ and vicarious liability incentivizes
companies to keep their telemarketers in compliance with the law.” Bradley v. DentalPlans.com ,
___ F. Supp. 3d ___, CCB-20-1094, 2022 WL 2973979, at *8 (D. Md. 2022) (quoting Dish
Network , 28 FCC Rcd. at 6588). “The TCPA would no longer offer consumers relief from
intrusive robocalls if sellers could ‘avoid potential liability by outsourcing [their] telemarketing
activities to unsupervised third parties,’ who are often ‘judgment proof, unidentifiable, or located
outside the United States.’”
Bradley
,
Rcd. at 6588);
accord Hossfield v. Gov’t Employees Ins. Co.
,
2015) (“[A] seller cannot avoid liability simply by delegating placing the call to a third-party.”).
Nevertheless, vicarious liability under the TCPA “is not unlimited liability; sellers are not
strictly liable for all actions taken by their telemarketers.”
Bradley
,
Rather, a “defendant may be held vicariously liable for TCPA violations where the plaintiff
establishes an agency relationship, as defined by federal common law, between the defendant and
a third-party caller.”
Gomez v. Campbell-Ewald Co.
,
U.S. 153 (2016);
Hodgin v. UTC Fire & Sec. Am. Corp., Inc.
,
accord Henderson v. United Student Aid Funds
,
. . . must show that there is an agency relationship between a defendant and a third-party caller for
there to be vicarious liability for TCPA violations.”). Accordingly, “vicarious liability under the
TCPA is governed by the federal common law of agency,” under which an agency relationship
may be established by way of (1) actual authority; (2) apparent authority; or (3) ratification.
Hodgin
,
Under traditional vicarious liability rules, principals are vicariously liable for the tortious acts of their agents within the scope of their authority. Krakauer v. Dish Network, LLC , 925 F.3d
643, 660 (4th Cir. 2019) (citing Restatement (Third) of Agency § 1.01). “Three traditional
characteristics are relevant to the existence of an agency relationshiр: ‘(1) the agent’s power to
alter the legal relations of the principal; (2) the agent’s duty to act primarily for the benefit of the
principal; and (3) the principal’s right to control the agent.’” Worsham v. Disc. Power, Inc. , RDB-
20-0008,
Wa., LLC
,
relationship is the principal’s control over the agent’s actions.” Wilson v. PL Phase One
Operations L.P.
,
§ 1.01 cmt. f).
“In the TCPA context, courts characterize the control necessary to establish agency as whether the principal ‘controlled or had the right to control [the agent] and, more specifically, the
manner and means of the [telecommunications] campaign they conducted.’” Id. at 980.
“‘Generally, the existence and scope of agency relationships are factual matters,’ and are therefore
often appropriately left to the jury.”
Krakauer
,
of Case Mfg. Co. v. NLRB
,
Plaintiff has made a prima facie showing of an agency relationship based on actual authority. Her Amended Complaint provides specific allegations regarding Mutual of Omaha’s
ability to control the third party’s telemarketing methods. In particular, Jones alleges that Mutual
of Omaha had control over the manner and means of the third party’s telemarketing methods by
(1) having the ability to prohibit the use of prerecorded technology to generate customers but
failing to do so (ECF 8, ¶¶ 41-43), and (2) providing instructions regarding the volume of calls
and the states in which those calls could be made. Id. ¶¶ 44, 45. Moreover, Jones alleges that
Mutual of Omaha “explicitly informed the third party it could make calls into Maryland[.]” Id. ¶
46. These allegations are similar to those made in other TCPA cases in this Court. See Hossfeld
v. Gov't Emples. Ins. Co.,
to accept telemarking call transfers, sellers must tell their telemarketers and lead generators the
speed and volume of calls so that its operators do not become overwhelmed.’”) (internal citations
omitted).
Additionally, just as in
Hossfield
,
another company who had control over the telemarketer’s practices with respect to selling its
products. ECF 8, ¶¶ 2, 16, 41. Specifically, Jones alleges that the third party “was required to
promote Mutual of Omaha’s products[.]” Id. ¶ 38. Plaintiff also alleges that during the
“solicitation”, Mutual of Omaha’s insurance services “were promoted.” Id. ¶ 25. Moreover, she
was then transferred to Eric Chambers, who identified himself as an employee of Mutual of
Omaha. Id. ¶ 26.
Jones also alleges that Mutual of Omaha had the right to prohibit the third-party from using prerecorded messages as well as the right to provide “interim instructions” to the third-party with
regard to the volume of calling and leads it would purchase. Id. ¶¶ 41-45. That Mutual of Omaha
cites some cases in which a vicarious liability claim under the TCPA survived a motion to dismiss
based on somewhat more detailed allegations does not persuade the Court that Jones’s suit is
subject to dismissal for failure to plead an identical level of detail. See Hossfeld, 88 F. Supp. 3d
at 510 n.12 ("Plaintiffs 'need not plead the identity of every player in the allеged scheme nor every
nuance of the relationships . . . ; indeed, the information necessary to connect all the players is
likely in [GEICO’s] sole possession’”) (quoting Kristensen v. Credit Payment Servs., 12 F. Supp.
3d 1292, 1302 (D. Nev. 2014)).
At the motion to dismiss stage, plaintiff need only make a prima facie showing of an agency relationship. Therefore, at this stage of the proceedings, Jones need not demonstrate that Mutual
of Omaha actually controlled the manner and means of the telemarketing campaign; rather,
evidence of Mutual of Omaha’s “‘ right to control’ the campaign will suffice.” Bradley , 2022 WL
2973979, at *12 (quoting
Wilson
,
most favorable to plaintiff, Jones has sufficiently alleged that Mutual of Omaha is vicariously
liable based on an agency theory of actual authority.
As mentioned, plaintiff also argues that Mutual of Omaha is vicariously liable for the calls she received based on the agency theory of ratification. ECF 15 at 9-11. “Ratification is the
affirmance of a prior act done by another, whereby the act is given effect as if done by an agent
acting with actual authority.”
Hodgin v. UTC Fire & Sec. Americas Corp.
,
Cir. 2018) (citing Rest. (3d) of Agency § 4.01(1)). A party “may ratify an act by failing to object
to it or to repudiate it,” or by “receiving or retaining [the] benefits it generates.” Rest. (3d) of
Agency § 4.01, cmts. f, g. A purported principal, however, “is not bound by a ratification made
without knowledge of material facts involved in the original act when the [party] was unaware of
such lack of knowledge.” Id. at § 4.06.
It is unclear whether Mutual of Omaha affirmed or knowingly acquiesced in the third party’s telemarketing scheme. On the one hand, plaintiff alleges that Mutual of Omaha
“knowingly and actively accept[ed] the business that originated through the illegal telemarketing
calls through the issuance of insurance policies.” ECF 8, ¶ 39. On the other, defendant points out
that there are no allegations that Mutual of Omaha knew that the third-party was making calls on
its behalf using a prerecorded voice. ECF 18 at 9. However, the Court need not decide the
ratification issue, because Jones has stated a prima facie claim that the third party was acting as
Mutual of Omaha’s agent under the agency theory of actual authority.
And, the second and third prongs of the Fourth Circuit’s specific personal jurisdiction test are easily met. The second prong asks whether the plaintiff’s claims arise out of those activities
directed at the State. See Consulting Eng’rs , 561 F.3d at 278. Here, plaintiff alleges that she
received a prerecorded call in Maryland on March 25, 2022, which attеmpted to qualify her for
Mutual of Omaha’s products and that resulted in her talking to Eric Chambers, an employee of
Mutual of Omaha. ECF 8, ¶¶ 21, 22, 26. And, because the Court has personal jurisdiction over
the third-party based on its call to Jones, the Court may also exercise personal jurisdiction over
Mutual of Omaha.
The third and final prong asks whether exercising jurisdiction would be constitutionally reasonable. Mutual of Omaha – a national corporation – would face little burden defending a
lawsuit in Maryland. Plaintiff alleges that Mutual of Omaha “offers insurances services in this
Distriсt as a result of telemarketing calls into this District that it authorized.” Id. ¶ 8. Additionally,
Mutual of Omaha is quite familiar with the laws of this jurisdiction, having provided insurance
services to Marylanders in offices throughout the state. Accordingly, the exercise of jurisdiction
over Mutual of Omaha is constitutionally reasonable.
IV. Conclusion For the reasons stated above, I shall deny the Motion. An Order follows, consistent with this Memorandum Opinion.
Date: November 7, 2022 _______/s/______________ Ellen L. Hollander
United States District Judge
Notes
[1] The facts are derived from the Amended Complaint and are construed in the light most favorable to the plaintiff.
[2] In light of the filing of the Amended Complaint, I shall deny, as moot, defendant’s initial motion to dismiss (ECF 6).