Donaca v. Metro. Life Ins. Co.

Donaca v. Metro. Life Ins. Co.

Opinion

ORDER DENYING DEFENDANTS' MOTION TO STRIKE

On August 2, 2013, plaintiff Matthew Donaca commenced this putative class action on his own behalf and on behalf of those similarly situated, against Metropolitan Life Insurance Company ("MetLife") and Safeguard Health Plans, Inc. ("Safeguard") (collectively "defendants").¹ Donaca filed a first amended complaint on October 3, 2013.² On October 21, 2013, defendants [*2]  filed a motion to strike portions of Donaca's first amended complaint.³ Donaca opposes the motion.⁴ Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds this matter appropriate for decision without oral argument. The hearing calendared for January 27, 2014 is therefore vacated, and the motion is taken off calendar.

I. BACKGROUND

Donaca alleges that MetLife had a policy, practice, or procedure of accepting new customers obtained through telemarketing calls.⁵ Donaca alleges that on October 5, 2009, he received a prerecorded telemarketing call, which was made without his consent, promoting the sale of MetLife insurance products.⁶ He contends the call was made either by SafeGuard, an affiliate of MetLife, or a telemarketer calling at the direction of Safeguard or Metlife.⁷ He asserts that Safeguard's involvement was confirmed by a SafeGuard employee named "Robert," whom Donaca called shortly after receiving the October 5 call.⁸

On December 16, 2009, Donaca wrote MetLife to request that it cease making telemarketing calls to him, that it place him on its internal do not call list, and that it send him a copy of MetLife's internal do not call policy.⁹ Donaca alleges that, despite his request and without his [*3]  consent, he received a second prerecorded call on June 6, 2013, marketing dental insurance.¹⁰ The message prompted Donaca to press "1" to receive more information; he did so to determine who had made the call, and provided his telephone number.¹¹ Donaca then received a call from Russell Herbert, who allegedly told Donaca that he was calling from a MetLife office selling dental insurance "administered and underwritten" by Safeguard, which is owned by MetLife.¹² Herbert sent Donaca an email describing the MetLife Dental Insurance Program.¹³ He also directed Donaca to a website containing a MetLife schedule of benefits, a description of SafeGuard as a "MetLife Company" and "an affiliate of MetLife," and an 800 number for MetLife's customer service department.¹⁴

Donaca pleads a single claim under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227.¹⁵ Congress passed the TCPA in 1991, prompted by "[v]oluminous consumer complaints about abuses of telephone technology." Mims v. Arrow Fin. Servs., 565 U.S. 368, 132 S.Ct. 740, 744, 181 L. Ed. 2d 881 (2012). The TCPA makes it unlawful to use an autodialer to call any cellular phone, except for emergency purposes or in cases where the person receiving the call has given "prior express consent." 47 U.S.C. § 227(b)(1)(A)(iii). Calls made to a party with whom the caller [*4]  has an established business relationship are also permitted. 47 C.F.R. § 64.1200(a)(2)(iv); Watson v. NCO Grp., Inc., 462 F.Supp.2d 641, 644 (E.D. Pa. 2006). The TCPA expressly authorizes private suits to enforce these provisions. St. Louis Heart Ctr., Inc. v. Forest Pharms., Inc., No. 4:12-CV-02224, 2013 U.S. Dist. LEXIS 35563, 2013 WL 1076540, *2 (E.D. Mo. Mar. 13, 2013) (citing 47 U.S.C. § 227(b)(3)).

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.