United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANT CONTACTABILITY.COM'S MOTION TO
J. McKINNEY, JUDGE.
matter comes before the Court on Defendant
Contactability.com, LLC doing business as United States
Insurance's (“Contactability's”), Motion
to Dismiss (Dkt. 8) Count II of Plaintiff Laquana Donnette
Davis' (“Davis”) Complaint. Dkt. 1. Davis
alleges that Contactability repeatedly called her in
violation of both the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, and Indiana's
Deceptive Consumer Sales Act (“IDCSA”), Ind. Code
§ 24-5-0.5. Id. Contactability moves to dismiss
Davis' IDCSA claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) (“Rule 12(b)(6)”) for failure
to state a claim.
reasons set forth below, the Court GRANTS
Contactability's Motion to Dismiss.
resides in Indianapolis, Indiana. Id., ¶ 4.
Contactability is an insurance adtech company that focuses on
delivering targeted, high-traffic service to the insurance
industry. Id., ¶ 6. On September 21, 2016,
Davis switched cellular phone service providers and received
a new telephone number. Id., ¶ 10. Shortly
thereafter, Davis began receiving calls that originated from
Contactability. Id., ¶¶ 12, 14. Davis
never had a prior relationship with Contactability.
Id., ¶ 14. Contactability contacted Davis to
offer her an insurance quote. Id., ¶ 16. Davis
never requested any services from Contactability.
Id. On or about October 7, 2016, Davis called
Contactability and demanded that it cease its solicitations.
Id., ¶ 17. Davis has also repeatedly asked
Contactability to be placed on its do not call list, but
Contactability continues to call Davis' cell phone.
Id., ¶ 18.
STANDARD OF REVIEW
12(b)(6) permits the dismissal of an action for failure to
state a claim upon which relief can be granted in the
pleadings. Under Rule 12(b)(6), the Court must accept as true
all well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff. See Esekiel v.
Michel, 66 F.3d 894, 897 (7th Cir. 1995). A
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Federal Rule of Civil Procedure 8(a)(2).
Detailed factual allegations are not required, but a
plaintiff's complaint may not simply state “an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The “allegations must be enough to raise a
right to relief above the speculative level[.]”
Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555
(2007). “[A] complaint must contain sufficient factual
matter … to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). “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[, ]” not when the plaintiff only raises a
“sheer possibility that the defendant has acted
unlawfully.” Id. “[T]he height of the
pleading requirement is relative to the circumstances[,
]” Cooney v. Rossiter, 583 F.3d 967, 971
(7th Cir. 2009), and “[d]etermining the
plausibility of a claim is a context-specific task that
requires [the Court] to draw on [its] judicial experience and
common sense.” Brown v. JP Morgan Chase Bank,
334 Fed.Appx. 758, 759 (7th Cir. 2009).
seeks dismissal of Davis' IDCSA claim on the grounds that
Davis has failed to allege any facts to establish an
incurable deceptive act.
IDCSA “provides remedies to consumers and the attorney
general for practices that the General Assembly deemed
deceptive in consumer transactions.” McKinney v.
State, 693 N.E.2d 65, 67 (Ind. 1998). The IDCSA
“provides for two kinds of actionable deceptive acts:
‘uncured' deceptive acts and ‘incurable'
deceptive acts.” Id. at 68. To bring a claim
for an uncured deceptive act under the IDCSA, a plaintiff
must provide “not only a complete description of the
actual damage suffered, but also a description of the alleged
deceptive act … so that the supplier has an
opportunity to correct the problem.” A.B.C. Home
& Real Estate Inspection, Inc. v. Plummer, 500
N.E.2d 1257, 1262 (Ind.Ct.App. 1986). See also Ind.
Code § 24-5-0.5-5(a). Davis admits that she seeks
redress only for alleged incurable deceptive acts. Dkt. 11 at
incurable act is done “as part of a scheme, artifice,
or device with intent to defraud or mislead.” Ind. Code
§ 24-5-0.5-2(a)(8). “Intent to defraud or mislead
is thus clearly an element of an incurable deceptive
act.” McKinney, 693 N.E.2d at 68. The
allegedly deceptive act “may be committed where the
facts evince an intent to mislead. That is misleading which
tends to lead astray or into error; to guide wrongly.”
McCormick Piano & Organ Co., Inc. v. Geiger, 412
N.E.2d 842, 849 (Ind.Ct.App. 1980) (internal quotation marks
argues that Davis' IDCSA claim fails to allege an intent
to defraud or mislead and therefore cannot be considered an
incurable act. The Court agrees. Davis does not allege that
Contactability attempted to defraud or mislead her in the
sale of insurance or that she was somehow misinformed about
the services that Contactability attempted to offer her.
Rather, her Complaint describes the calls as frustrating and
constituting harassment. Dkt. 1, ¶¶ 22, 27. This is
not sufficient to state a claim under the IDCSA.
claims that Contactability's method of calling
individuals through an automated system violates the TCPA,
which by itself is considered a deceptive act under the
IDCSA. See Ind. Code § 24-5-0.5-3(b)(19). But
Davis ignores the prerequisite language in determining a
deceptive act: “the following acts, and the following
representations as to the subject matter of a consumer
transaction, made orally, in writing, or by electronic
communication, by a supplier, are deceptive acts: …
(19) The violation by a supplier of [the TCPA].”
Id. In the instant case, Davis has not alleged any
oral or written representations made by Contactability.
Cf. Berghausen v. Microsoft Corp., 765 N.E.2d 592,
598 (Ind.Ct.App. 2002) (plaintiff's failure to allege
oral or written representations by the defendant results in
dismissal of IDCSA claim). The IDCSA “was enacted to
prevent those who regularly engage in consumer sales from
making false or misleading statements about their goods or
services.” Captain & Co. v. Stenberg, 505
N.E.2d 88, 94 (Ind.Ct.App. 1987). Davis has failed to make
any claim regarding products offered by Contactability, let
alone allege how such statements lead her “astray or
into error.” McCormick, 412 N.E.2d at 849
(internal quotation marks omitted).
Davis does not plead sufficient facts to demonstrate that
Contactability's phone calls were made with an intent ...