In Abante Rooter & Plumbing v. Farmers Group, Inc.,  2018 WL 288055, at *6 (N.D.Cal., 2018), Judge Hamilton found that a TCPA Plaintiff had adequately pleaded use of an ATDS used by an alleged Farmers representative in a telemarketing campaign, but found that the Plaintiff had failed to plead enough facts to demonstrate that Farmers should be responsible for the alleged representative’s calls.  Judge Hamilton found that the use of an ATDS was adequately pleaded.
The court finds the complaint’s allegations sufficient to satisfy this element of plaintiff’s TCPA claim. Plaintiff alleges, and defendant’s briefing ignores, that Williams stated “the other agents were Farmers agents calling from a call center using an auto dialed system.” FAC ¶ 37. Further, the complaint alleges that on two of the calls a pause and delay was heard before the representative began talking. FAC ¶¶ 16, 28, 37; see Oliver v. DirecTV, LLC, 2015 WL 1727251, at *3 (N.D. Ill. Apr. 13, 2015) (“momentary pause, along with [ ] other allegations” were sufficient at pleading stage); Lofton v. Verizon Wireless (VAW) LLC, No. 13-05665 C, 2015 WL 1254681, at *5 (N.D. Cal. Mar. 18, 2015) (finding the “telltale pause after plaintiff picked up each call… suggests the use of a predictive dialing system, and thus renders plausible the conclusory allegation that an ATDS was used”). These specific factual allegations do not, as defendant asserts, merely parrot the ATDS definition.
Judge Hamilton found Plaintiff’s agency allegations to bind Farmers deficient, however.
The complaint contains no factual allegations about defendant’s relationship with the purported callers, much less factual allegations about what control defendant exercised over the callers. To state a plausible claim based on actual authority, plaintiff must allege facts showing that defendant had the right to control the representatives and the manner and the means of the calls they made. See Thomas, 583 F.3d App’x at 679-80. It is not enough that each representative identified him or herself as acting on behalf of Farmers Insurance. Such allegations say nothing about whether defendant consented to those representations. And, more importantly, such allegations indicate nothing about the amount of control, if any, defendant purportedly exercised over the representatives.   The only allegation that comes close to connecting the purported agents and defendant is Williams’ profile on defendant’s website and the use of defendant’s mark and trade name. While the profile does show that there is some connection between defendant and Williams, it does not show what that connection is or how that relationship relates to the alleged calls. In fact, the allegations in the complaint leave open the possibility that Williams paid defendant to host his profile to increase Williams’ profitability—rather than the opposite scenario that plaintiff envisions.  The allegations regarding defendant’s mark fare little better. Viewing that allegation in the light most favorable to Abante, the court can infer that there is some relationship between the purported representatives and defendant. But that inference is not enough because it still does not allow the court to infer that defendant exercises control over the representatives. See Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 138 (E.D.N.Y. 2015) (dismissing TCPA claim and concluding that the existence of a contract between two companies does not “necessarily mean that [the principal] had the power to give ‘interim instructions’ to [the agent].”). While plaintiff is entitled to all reasonable inferences, the court is neither required to nor allowed to layer inference upon inference to make plaintiff’s claim for it.