Miholich v. Senior Life Ins. Co.

Miholich v. Senior Life Ins. Co.

Opinion

ORDER

HAYES, Judge:

The matter before the Court is the Motion to Dismiss and/or Strike filed by Defendant Senior Life Insurance Company. (ECF No. 9).

I. BACKGROUND

On June 16, 2021, Plaintiff Kyle Miholich filed a Class Action Complaint against Defendant Senior Life Insurance Company, arising from Defendant's alleged violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, et seq. (ECF No. 1). On September 7, 2021, Plaintiff filed a First Amended Class Action Complaint ("FAC"). (ECF No. 8).

On September 21, 2021, Defendant filed a Motion to Dismiss and/or Strike the FAC pursuant to Rules 12(b)(1), 12(b)(6), 12(f), and 23 of the Federal Rules of Civil Procedure. (ECF No. 9). On October 13, 2021, Plaintiff filed an Opposition to the Motion to Dismiss and/or Strike. (ECF No. 15). On October 20, 2021, Defendant filed a Reply. (ECF No. 16).

II. ALLEGATIONS [*2]  IN THE FAC

Plaintiff is an individual who resides in San Diego, California. On or about October 27, 2006, Plaintiff's cellular telephone number ending in 5823 was added to the National Do-Not-Call Registry.

Defendant is a corporation headquartered in Georgia that conducts business in San Diego. "Defendant has sent multiple text messages to Plaintiff on his cellular telephone, between approximately April 27, 2021 and May 12, 2021, from the telephone numbers (855) 383-4711 and (855) 354-7422." (ECF No. 8 P 11). The text messages advertised "Financed Leads," contained a link to a webinar provided by Defendant, and were "an attempt to promote or sell Defendant's services." (Id. ¶¶ 12-14). Plaintiff did not provide Defendant with his cellular telephone number, give Defendant permission to message it, or have an established business or personal relationship with Defendant.

The webinar linked in the text messages "was for the purpose, at least in part, to offer a service in the form of lead financing to prospective contractors." (Id. ¶ 16). The webinar was also for the purpose of "offer[ing] goods in the form of quality life insurance leads to prospective contractors." (Id. ¶ 19). Defendant [*3]  "benefits commercially from the marketing campaign on various levels, including [by] cultivating a network of agents through which Defendant ultimately sells its goods and services." (Id. ¶ 20). Defendant "receives revenue, and compensation in turn, for its service of providing the financed leads." (Id. ¶ 22).

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