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Cunningham v. Foresters Financial Services, Inc.

United States District Court, N.D. Indiana, Hammond Division

January 9, 2018

CRAIG CUNNINGHAM, Plaintiff,
v.
FORESTERS FINANCIAL SERVICES, INC., OCTAVIA PUGH, FOSTERS FINANCIAL HOLDING COMPANY, INC., GIL SWETS, MICHAEL SAMAROO, MAHENDRA SAMAROO, AMERICA INSURANCE GROUP, LLC, ORACLE SENIOR INSURANCE GROUP, INC., JASON GSOELL, INSURANCE PROFESSIONALS OF AMERICA, INC., ANGELA HARRIS aka ANGELA ROACH, VIPCO ADVISORS, INC., JAY POLITI, APPTICAL CORP., UNITED LIFE ASSOCIATES, LLC, ANDREW DECOS, GLEA GSOELL, PINNACLE SENIOR INSURANCE GROUP CORP., NATIONWIDE SENIOR MARKETING, INC., I CLICK ADVANCED MARKETING COMPANY, KATIE BOLING, NICHOLAS POLITI, NATIONWIDE SENIOR SERVICE INC., AXIS BENEFIT SOLUTIONS INC., AXIS ADVISORY GROUP INC., and RODERIC BOLING, Defendants.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on the Renewed Motion of Defendants Angela Harris aka Angela Roach, and Insurance Professionals of America, Inc., to Dismiss, filed on May 25, 2017 (DE #26), the Motion to Dismiss filed by Octavia Pugh on June 19, 2017 (DE #31), Defendant Gil Swets' Motion to Clarify Relief Sought in Angela Harris aka Angela Roach and Insurance Professionals of America, Inc.'s (together, “Harris Defendants”) Motion to Dismiss and Notice of Non-consent to Transfer, filed on August 10, 2017 (DE #49), and the Motion to Dismiss of Defendants Foresters Financial Holding Company, Inc. and Foresters Financial Services, Inc. (together, “Foresters Defendants”) filed on August 25, 2017 (DE #57). For the reasons set forth below, the Harris Defendants' renewed motion to dismiss is GRANTED (DE #26). Defendant Octavia Pugh's motion to dismiss is GRANTED (DE #31), Defendant Gil Swets' motion to clarify relief sought is DENIED AS MOOT (DE #49), and Foresters Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART (DE #57). The claim against Foresters Financial Services, Inc. for violation of 47 U.S.C. § 227(b) based on a direct theory of liability is DISMISSED WITHOUT PREJUDICE. The Clerk is ORDERED to DISMISS the claims against defendants Angela Harris aka Angela Roach, Insurance Professionals of America, Inc., Octavia Pugh, and Foresters Financial Holding Company, Inc., for lack of personal jurisdiction.

         BACKGROUND

         Plaintiff Craig Cunningham (“Plaintiff”), who is proceeding pro se, brought this action against more than twenty defendants alleging that the Foresters Defendants engaged in a scheme with the other defendants to market their services through the use of pre-recorded messages in violation of the Telephone Consumer Protection Act, 47 U.S.C. §227, et seq. (“TCPA”). In response to the Complaint, the Harris Defendants move to dismiss for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure Rule 12(b)(2) and improper venue. In the alternative, the Harris Defendants move to transfer the case to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). (DE #26.) Plaintiff filed a three-sentence response to the Harris Defendants' motion. (DE #32.) The Harris Defendants did not file a reply brief. Defendant Gil Swets (“Swets”) filed a motion to clarify the relief sought in the Harris Defendants' motion to dismiss. (DE #49.) No. party responded to Swets' motion.

         Defendant Octavia Pugh (“Pugh”) filed a motion to dismiss for lack of personal jurisdiction and failure to state a claim. (DE #31.) Plaintiff filed a response to this motion. Pugh did not file a reply. Finally, the Foresters Defendants filed a motion to dismiss for lack of personal jurisdiction and failure to state a claim. (DE #57.) Plaintiff filed a response to the Forester Defendants' motion, and the Forester Defendants filed a reply brief.

         DISCUSSION

         Facts[1]

         Plaintiff's Amended Complaint (“Complaint”) alleges, in relevant part, the following:

         Plaintiff is a natural person living in Nashville, Tennessee. (DE #22, ¶1.) Defendant Foresters Financial Services, Inc. (“FFSI”) is a Tennessee corporation that can be served in Tennessee. (Id., ¶2.) Defendant Foresters Financial Holding Company, Inc. (“FFHCI”) is a Delaware corporation that can be served in Delaware. (Id., ¶4.) Defendant Pugh is a Tennessee licensed insurance agent who can be served in Georgia. (Id., ¶3.) Defendant Swets is a Tennessee licensed insurance agent who can be served in Indiana. (Id., ¶5.) Defendant Insurance Professionals of America, Inc. (“IPA”) is a Florida corporation that can be served in Florida. (Id., ¶19.) Defendant Angela Harris aka Angela Roach (“Harris”) is the sole corporate officer of IPA and can be served in Florida. (Id., ¶20.) The Complaint names 19 additional defendants, all of whom are residents or corporations of the states of Florida, Texas, Mississippi, or North Carolina. (Id., ¶¶ 6-18, 21-26.)[2]

         The Complaint alleges that personal jurisdiction is apparent as the defendants are making calls from the state of Indiana for the purpose of soliciting Tennessee residents to purchase life insurance and engage Indiana and Tennessee licensed insurance agents to sell policies. (Id., ¶28.) Swets is an Indiana resident who allegedly placed illegal telemarketing calls to Plaintiff in an attempt to sell Plaintiff insurance from the Foresters Defendants. (Id., ¶29.) The Foresters Defendants allegedly delegated its marketing duties to the co-defendants, and ratified the conduct of the co-defendants by accepting the referrals and sales generated by the illegal calls on behalf of the Foresters Defendants, and actively participated in the telemarketing calls through the actions of its agents. (Id., ¶33.) The co-defendants allegedly contacted, and/or caused to be contacted on their behalf, Plaintiff without his prior express written consent within the meaning of the TCPA. (Id.)

         The co-defendants allegedly made autodialed and prerecorded message calls on behalf of the Foresters Defendants, who are legally responsible for ensuring that the co-defendants complied with the TCPA. (Id., ¶¶42, 46, 100, 104.) “Foresters relies on a series of third parties (‘Foresters agents') to promote its goods or services. In fact, if an individual wanted to purchase Foresters products, the Foresters website advises ‘You can purchase Foresters quality insurance products through a network of independent life insurance agents. . . .'” (Id., ¶48.) The Foresters Defendants allegedly knew that the telemarketers violated the TCPA on their behalf and failed to take effective steps within their power to force the telemarketers to cease that conduct. (Id., ¶¶47, 101-03.) The Complaint asserts that the Forester Defendants are liable under the theories of direct liability, actual liability, ratification, and apparent authority. (Id., ¶¶53-76.) The Foresters Defendants' agents solicit applications for insurance on the Foresters Defendants' behalf, and the co-defendants did so using pre-recording telemarketing. (Id., ¶61.) The Foresters Defendants directed the quality, timing, geographic location and volume of co-defendants' applicants. (Id., ¶62.)

         In 2016, Plaintiff allegedly received over 40 unwanted automated calls to Plaintiff's cell phones. (Id., ¶¶77-78.) Many of the calls included the following message: “Attention all seniors between the ages of 55 and 85 years of age who may not have life insurance or are concerned they may not have enough. You have been qualified for a plan that will never expire and premiums that will never go up. Press 1 now. There are no medical exams for this coverage and you can be insured as early as tonight.” (Id., ¶79.) Agents of the telemarketers stated that the website for the company was oraclesig.com. (Id., ¶80.) On some calls, Plaintiff was able to speak with agents in the call centers and determined that they were all selling final expense life insurance by the Foresters Defendants. (Id., ¶81.) Plaintiff once spoke with an agent named Dave and asked him where he got the leads for these calls. (Id., ¶81.) Dave responded, “I think they go through a dialer, ” and indicated the calls were initiated using an automated telephone dialing system and that some demographic information was input into a dialer system, such as age, income, and state. (Id., ¶81.) Dave also stated, "Its [sic] a computer program we use, and it is programmed to make phone calls. There is nobody else involved." (Id., ¶83.)

         In another call that was a result of an automated telephone call with a pre-recorded message, Plaintiff spoke with Pugh, who was allegedly an agent/employee of IPA. (Id., ¶88.) Plaintiff also received a call from Pugh's supervisor at her request and the supervisor indicated that they both worked IPA. (Id.) The supervisor indicated that they had several approved lead vendors for agents/employees of IPA to obtain leads, that IPA purchased leads, which are provided to their agents, indicating that IPA paid the telemarketers directly to call Plaintiff. (Id., ¶¶89-90.) Pugh indicated to Plaintiff that she purchased leads from Oracle Senior Insurance Group, Inc., and that was the reason why Plaintiff had received a call for life insurance. (Id., ¶91.)

         The Complaint asserts violations of the TCPA, 47 U.S.C. §§ 227(c)(5) and 227(b), and seeks statutory damages of $3, 000 per phone call, actual damages and pre-judgment interest.

         Motions to Dismiss for Lack of ...


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