# Shank v. Givesurance Insurance Services, Inc.

> District Court, S.D. Ohio · February 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10379607

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10379607

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BROCK SHANK, individually and
on behalf of all persons and
entities similarly situated,
Plainttff,
Vv.
GIVESURANCE INSURANCE
SERVICES, INC., PROGRESSIVE
CASUALTY INSURANCE
COMPANY AND PROGRESSIVE
WEST INSURANCE COMPANY,
Defendants CASE NO. 3:19-CV-136
and JUDGE WALTER H. RICE
GIVESURANCE INSURANCE
SERVICES, INC.,
Third-Party Plaintiff
Vv.
INFORMA MEDIA, INC.,
Third-Party Defendant

DECISION AND ENTRY OVERRULING REFILED MOTION FOR
JUDGMENT ON THE PLEADINGS FILED BY DEFENDANTS,
PROGRESSIVE CASUALTY INSURANCE COMPANY AND
PROGRESSIVE WEST INSURANCE COMPANY (DOC. #43) AND
THIRD-PARTY DEFENDANT INFORMA MEDIA, INC.’S REFILED
MOTION TO DISMISS THE THIRD-PARTY COMPLAINT (DOC. #44-1);
AND SUSTAINING PLAINTIFF'S MOTION TO LIFT STAY (DOC. #45)

Before the Court is a Motion for Judgment on the Pleadings filed by
Defendants, Progressive Casualty Insurance Company and Progressive West
Insurance Company (collectively “Progressive”). Doc. #43. Defendant and Third-
Party Plaintiff, Givesurance Insurance Services, Inc. (“Givesurance”), has filed a
Notice of Joinder in Progressive’s motion. Doc. #50. The Court has considered
Plaintiff's Notice of Opposition and Request to Lift Stay to conduct discovery, Doc.
#45, and Plaintiff's Memorandum in Opposition, Doc. #47, as well as the reply filed
by Progressive, Doc. #48, and Progressive’s Supplemental Authority. Doc. ##49
and 52."
Also, before this Court is a Notice filed by Third-Party Defendant Informa
Media Inc. (“informa”), Doc. #44, refiling its Motion to Dismiss Givesurance’s
Third-Party Complaint, Doc. #26. The Notice attaches the motion as an exhibit.
Doc. #44-1.2 In response, Givesurance filed a Notice, Doc. #50, incorporating its
previously filed Memorandum in Opposition to Givesurance’s motion, Doc. #31,
and although Informa did not refile its reply, Doc. #33, the Court will consider the
original such in ruling on this motion.
The motions are now ripe for decision.

"Doc. #51 is an identical filing without attaching Progressive’s Supplemental Authority.
? Because the Pageld numbers on Doc. #44-1 are illegible, the Court will cite to the
original motion, Doc, #26.

I. The Amended Complaint
On February 11, 2020, Plaintiff, Brock Shank (“Plaintiff”), filed a putative
national class action Amended Complaint alleging that Givesurance, a California
corporation that brokers insurance services using telemarketing through
automated calls, and Progressive, two Ohio corporations that “had day-to-day
control over Givesurance,” violated the Telephone Consumer Protection Act of
1991 (“TCPA”), 47 U.S.C. § 227, Doc. #12, PagelD##46, 50 and 53. The proposed
class is alleged to include the following:
All persons within the United States to whom: (a) Givesurance,
and/or a third party acting on Givesurance’s behalf, made one or
more non-emergency telephone calls; (b) to their cellular telephone
number; (c) using the telephone system(s) used in calling Plaintiff's
cellular telephone number; and (d) at any time in the period that
begins four years before the date of the filing of the original
Complaint to trial.
fd., PagelD#54.
In his Amended Complaint, Doc. #12, Plaintiff alleges that on March 26,
2019, Givesurance, as agent for Progressive, “placed a telemarketing call” to his
cellular telephone and “an automated text then appeared” on his phone asking
him to “’[P]lease contact our office to save you money on you|sic] Progressive
Trucking Insurance| |Policy.’” /d., PagelD##50-54, The text message, according to
Plaintiff, concluded by providing a telephone number and an email address
requesting that he either call or email Givesurance. at PagelD#50. The Caller ID
showed the sender of the text message as an SMS short code of “555888” and the
Amended Complaint further alleged that this short code is registered to

“SimpleTexting” which, according to its website, offers “mass text messaging.”
/d., PagelD##50and 51. The Amended Complaint cites to the SimpleTexting
website, “https://simpletexting.com,” and states that it offers “mass text
messaging” as a “’communication service that lets an organization or business
send a single text message to thousands of subscribers at the same time.’” /a.,
PagelD#51.,
Based on these allegations, the Amended Complaint alteges that “the call”
to him was “made using an automatic telephone dialing system (‘ATDS’ or
‘autodialer’)[,] as that term is defined in 47 U.S.C. § 227{a}(1).” /a, PagelD#51. He
further alleges that he had not provided Givesurance any prior express written
consent to call him. /a., PagelD#56.
Plaintiff did not respond to Givesurance’s text message, but alleges that if
he had, the insurance broker would have tried to sell him a Progressive trucking
insurance policy since it was the only trucking insurance policy Givesurance was
authorized to sell. /a., PagelD#51. He further alleges that he and others “were
harmed by these calls” since they were “temporarily deprived” of the “legitimate
use of their phones” during the telemarketing calls. /a. The Amended Complaint
alleges that Plaintiff and the other recipients of the calls had “their privacy”
invaded, that the calls were “frustrating, obnoxious, annoying” and a “nuisance”
that disturbed “the solitude of Plaintiff and of the class.” /a.
On February 25, 2020, Givesurance filed a Third-Party Complaint against
Informa for fraud and negligent misrepresentation. Doc. #16. This pleading

alleged that in February 2013, while researching options for contacting potential
trucking insurance customers, Informa “induced” it to send buik messages
through “FleetSeek, which had a list of telephone numbers belonging to members
of the trucking industry who had opted in to receive text messages and other
communications related to the trucking industry.” /a., PagelD#84. Givesurance
alleged in its Third-Party Complaint that Informa represented it “could partner
with FleetSeek/Informa” and use their data on a mass text messaging platform “to
contact the owners of the ‘opted in’ telephone numbers to offer them products
and services.” /d. As alleged in the pleading, Givesurance agreed to use Informa’s
services, obtained their “opted in” telephone numbers and separately contracted
with SimpleTexting, “a text marketing platform,” to contact those numbers
“whose owners had expressly consented to receive the messages.” /a.
Shortly after the filing of the Amended Complaint and Third-Party
Complaint, Progressive filed their Motion for Judgment on the Pleadings, or, in
the Alternative, Motion to Stay, Doc. #25, and Informa filed a Motion to Dismiss
the Third-Party Complaint. Doc. #26. Responses and replies were filed by the
parties and on July 14, 2020, Progressive filed an Amended Motion to Stay citing
the Supreme Court's recent decision granting certiorari in Facebook, Inc. v.
Duguid, 591 U.S. __, 2020 WL 3865252, *1 (2020). Doc. #35. It asserted a decision
by the Supreme Court would be helpful in resolving the issues before this Court,
since certiorari was granted to determine “whether an autodialer,” an ATDS,
“must have the capacity to generate random or sequential phone numbers.” 591

U. S$. —, 141 S.Ct. 193, 207 L.Ed.2d 1118 (2020). Plaintiff did not oppose the
motion.’ Doc. #37. Progressive’s Amended Motion to Stay was sustained pending
the Supreme Court's decision in Duguid. Doc. #40. On March 31, 2021, the Court
overruled without prejudice to refiling Progressive’s Motion for Judgment on the
Pleadings, Doc. #25, and Third-Party Defendant’s Motion to Dismiss the Third-
Party Complaint, Doc. #26, once the pending Supreme Court decision was issued.
On April 1, 2021, the Supreme Court's decision in Facebook, Inc. v. Duguid,
— U.S. —, 141 S. Ct. 1163, 1171, 209 L.Ed.2d 272 (2021), was announced.
Thereafter, Progressive refiled its Motion for Judgment on the Pleadings, Doc.
#43, and Informa refiled its Motion to Dismiss the Third-Party Complaint. Doc. #44.
In response, Givesurance filed a Notice that it was joining in Progressive’s motion
and reply and incorporating by reference its previously filed Memorandum in
Opposition to Informa’s Motion to Dismiss, Doc. #31. Doc. #50.
The Court will first address Progressive’s Motion for Judgment on the
Pleadings, Doc. #43, followed by Informa’s Motion to Dismiss the Third-Party
Complaint. Doc. #44.

3 Plaintiff states that he would not be prejudiced by the stay “because he has already
secured the detailed calling records reflecting more than 50,000 unsolicited telemarketing
texts that were delivered on behalf of Defendants to the putative class utilizing an
automatic telephone dialing system (‘ATDS’).”

li. Defendants’ Motion for Judgment on the Pleadings (Doc. #43)
A. Standard of Review
Motions for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) are analyzed under the same standard as motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6). See Warrior Sports, inc. v. National
Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir, 2010). “For purposes of a
motion for judgment on the pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly entitled to judgment.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal
citation and quotation marks omitted). However, the court need not accept as true
legal conclusions or unwarranted factual inferences. /d. (citing Mixon v. Ohio, 193
F.3d 389, 400 (6th Cir.1999)}).
To withstand a Rule 12(c}) motion for judgment on the pleadings, “a
complaint must contain direct or inferential allegations respecting all the material
elements under some viable legal theory.” Commercial Money Ctr., Inc. v. tllinois
Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The factual allegations in the
complaint need to be sufficient to give notice to the defendant as to what claims
are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the
legal claim plausible, i.e., more than merely possible.” Fritz v. Charter Township
of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. igba/, 556 U.S.
662 (2009)}. A “legal conclusion couched as a factual allegation” need not be

accepted as true, nor are recitations of the elements of a cause of action sufficient.
Hensley Mfg. v. ProPride, inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Be//
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
While the allegations in the complaint are the primary focus in assessing a
Rule 12(c) motion, “matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint[ ] also may be taken into
account.” Barany—-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting
Amini v. Oberlin Coll, 259 F.3d 493, 502 (6th Cir. 2001)).

B. Analysis
Defendants’ first argue that Plaintiff’s claim under the TCPA fails as a matter
of law pursuant to the Supreme Court's decision in Duguid, since the catl made to
him did not come from an ATDS. They next assert that Plaintiff lacks Article Ill
standing, since his receipt of a single text does not constitute an injury-in-fact.
Although Defendants did not file a motion pursuant to Fed. R. 12(b}(1) arguing
lack of subject matter jurisdiction, if the Court finds that Plaintiff has no Article Ill
standing, then the Court lacks jurisdiction to adjudicate this claim. Accordingly,
the Court will first address Defendants’ Article Il standing argument.

“ Because Givesurance has joined in Progressive’s Motion for Judgment on the Pleadings
and Reply, Doc. #50, the Court will refer to Progressive’s motion as being filed by
“Defendants.”

1. Article Ili Standing
To establish standing, the Supreme Court has held that the plaintiff must
establish an injury in fact, traceable to the challenged conduct of the defendant,
and a favorable judgment must be likely to redress that injury. Spokeo v. Robins,
578 U.S. 330, 338 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). An injury in fact
exists if a plaintiff shows “he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” /ad at 339. (quoting, Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L-Ed.2d 351). A concrete injury is not
“necessarily synonymous with ‘tangible’” and “intangible injuries can
nevertheless be concrete. “/a. at 340. A “bare procedural violation” does not
qualify, even if it gives rise to a statutory cause of action. /d. at 342.
Where the injury asserted is an intangible interest, as is the case here,
courts are required to examine both the history of the injury and Congressional
judgment to determine whether Article Ill standing is satisfied. Sookeo, 578 U.S. at
340-342; Buckholz v. Tanick, 946 F.3d 855 6tjh Cir. 2020 (dismissal of Fair Debt
Collection Act claim for tack of Article Ill standing affirmed where plaintiff failed to
show he suffered a harm Congress intended to prevent or that his injury is
analogous to a harm that the common law recognizes}. In the case of the TCPA,
the common law recognizes claims based on privacy and nuisance and the
“solitude of another by committing the ‘tort of intrusion upon seclusion,’”
Gadelhak v. AT&T Servs., inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, J.)

(citation omitted}, and Congress, in passing the TCPA, determined that
“[ujnrestricted telemarketing ... can be an intrusive invasion of privacy” anda
“nuisance.” Pub. L. No. 102-243, § 2, 105 Stat. 2394, 2394 (1991).
Because the Sixth Circuit has not addressed standing under the TCPA,
Defendants rely on an Eleventh Circuit decision, Sa/cedo v. Hanna, 936 F.3d 1162
(11th Cir. 2019). In Sa/cedo, the plaintiff alleged a violation of the TCPA based on
the receipt of a single unsolicited text message. He further alleged that this
message caused him “to waste his time answering or otherwise addressing the
message” and “[w]hile doing so” he “and his cellular phone were unavailable for
otherwise legitimate pursuits.” /d. at 1167. This text message “’resulted in an
invasion’” of both “’his privacy and right to enjoy the full utility of his cellular
device.” /d. The appellate court held that under the TCPA, receipt of a single
unsolicited text message did not create a concrete harm and the plaintiff lacked
standing to bring a putative class action. The Court reasoned that “[T]he chirp,
buzz, or btink of a cell phone receiving a single text message is more akin to
walking down a busy sidewalk and having a flyer briefly waived in one’s face.
Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal
courts.” /d. at 1172.
Unlike the Eleventh Circuit, the Second, Fifth, Seventh and Ninth Circuits
have held that Article Ill standing is satisfied under the TCPA when one or more
unconsented text messages are sent. See Melito v. Experian Mktg. Sols., inc., 923
F.3d 85, 93 (2d Cir. 2019)(receipt of unsolicited text messages, without any other

10

injury, is sufficient to demonstrate injury-in-fact under the TCPA); Cranor v. 5 Star
Nutrition, L.L.C., 998 F.3d 686, 690 (5th Cir. 2021}, (single text message is injury in
fact under the TCPA); Gadefhak v. AT&T Servs., inc., 950 F.3d 458, 461 (7th Cir.
2020) (Barrett, J.}( a “few unwanted automated text messages” from an ATDS
without consent of the recipient violated the TCPA and articulated “a concrete
harm that Congress has chosen to make legally cognizable”), cert. denied, 141 S.
Ct. 2552 (2021}}; and Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043
(9th Cir. 2017) (under the TCPA, two text messages were a “concrete injury in fact
sufficient to confer Article Ill standing”). Although only the Fifth Circuit in Cranor
dealt with a single unsolicited text message, as noted by the Seventh Circuit in
Gadethak, “[Wlhen Spokeo instructs us to analogize to harms recognized by the
common law, we are meant to look for a “close relationship in kind, not degree.”
Gadelhak, 950 F.3d at 473. Although a single unsolicited text message “may be
too minor an annoyance to be actionable at common law,” it poses “the same
kind of harm that common law courts recognize—a concrete harm that Congress
has chosen to make legally cognizable.” /d.
Accordingly, because the Court finds the Amended Complaint alleged
Plaintiff received and was harmed by the unsolicited text, an injury in fact under
the TCPA exists. Defendants’ Motion for Judgment on the Pleadings on the issue
of Articie standing is overruled.

11

2. Pleading an ATDS
The TCPA “proscribes abusive telemarketing practices by, among other
things, imposing restrictions on making calls with an ‘automatic telephone dialing
system.’” Duguid, 141 S. Ct. at 1167. As stated by the Court, uniess there is the
express consent of a telephone call recipient, no person can “make any call...
using any automatic telephone dialing system. .. to any telephone number
assigned to a paging service [or] cellular telephone service.” Campbell-Ewald Co.
v. Gomez, 577 U.S. 153, 156, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). For purposes
of the TCPA, a text message to a cellular telephone is a “call.” /o.; See Duguid, 141
S. Ct. at 1168 n. 2 (text message assumed to qualify as a call “without considering
or resolving the issue”). The statute provides a private right with recovery for “the
‘actual monetary loss’ or $500 for each violation, ‘whichever is greater,’ with
treble damages permitted ‘if the defendant willfully or knowingly violated’ the
Act.” Campbell-Ewald Co., 577 U.S. at 156.
The issue before this Court is whether Plaintiff’ has pled “‘sufficient factual
matter’” that an ATDS was used to send the text message to him making his claim
under the TCPA “plausible” and “more than merely possible.” Fritz, 592 F.3d at
722.
An ATDS is defined as “equipment which has the capacity — (A) to store or
produce telephone numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a){1). As explained by
the Supreme Court in Duguid, such a system has the capacity either to store a

12

telephone number using a random or sequential number generator, or to produce
a telephone number using a random or sequential number generator. Duguid,
141 S. Crt. at 1168 - 1173. In Duguid, the Supreme Court held that Facebook,
which notified users of attempts to access their accounts from unknown devices
or browsers by texting them, was not using an “automatic telephone dialing
system” within the meaning of the TCPA, since the notification system used by
them neither stored nor produced numbers using a random or sequential number
generator. /d, at 1170. Instead, Facebook used equipment that called numbers
from a targeted list of subscribers or contacts. Duguid, 141 S.Ct. 1163, 1167 (2021).
Here, Defendants argue the Amended Complaint alleges that “Givesurance
used a communication service that allowed it to reach ‘thousands of subscribers
at the same time.’” (emphasis added) Doc. #12, PagelD#51. They also cite to the
statement from the SimpleTexting website, /o¢., PagelD 51, that users must
“import any existing contacts.” Doc. #24-1, PagelD#118.5 Accordingly, Defendants
argue no claim under the TCPA is alleged since a system that uses “subscribers”
or requires users to “import any existing contacts” is not an ATDS, since it did not
“store or produce telephone numbers to be called, using a random or sequential
number generator.”
In response, Plaintiff argues that the Amended Complaint alleges facts
sufficient to establish an ATDS. Specifically, he asserts that the following factual

Because the Amended Complaint cites to the SimpleTexting website, providing both its
address and statements from its webpage, the Court can consider additional statements
from its webpage. Amini, 259 F.3d at 502.
13

allegations in the Amended Complaint give rise to a reasonable inference that an
ATDS was used: (1) “[T]he call to Plaintiff was made from SMS Code 555888;” (2)
an SMS code is evidence of the use of an ATDS, since they are “used to send out
advertisements en masse;” (3) SimpleTexting advertises its ability to do “mass
text messaging;” (4) the text message was “non-personalized,” generic and part
of a “nationwide telemarketing campaign;” and (5) Plaintiff did not consent to
receiving the text. Doc. #47, PagelD#594, citing Doc. #12, PagelD##50-51. Based
on these facts, the Amended Complaint alleges “that the call was made using an
automatic telephone dialing system. . . as that term is defined in 47 U.S.C.
§ 227(a)(1)." Doc. #12, PagelD#51.
The Court finds that the above-cited allegations allege a plausible claim
under the TCPA. Unlike Duguid, Plaintiff does not allege that his name was
prepopulated or dialed from a legitimate Jist of customer or client contacts and not
through a random or sequential number generator. If discovery shows that no
ATDS device, as defined by Duguid, was used at the time of the alleged violation,
and Plaintiff and the individuals who received the Givesurance text message were
all “subscribers” or imported contacts as Defendants assert, then a motion for
summary judgment may be filed at that time.
Accordingly, Defendants’ Motion for Judgment on the Pleadings, alleging
that no claim under the TCPA exists because Plaintiff has not pled that an ATDS
was used, is overruled.

14

lll. Informa’s Motion to Dismiss the Third-Party Complaint (Doc. #44)
A. Factual and Procedural Background
Givesurance, a California corporation, alleges that in February 2019, it was
“researching options for contacting, on a one-to-one basis, potential customers in
need of trucking insurance.” Doc. #16, PagelD#83. It alleges it responded to a
solicitation from Preston Altman (“Altman”), a representative of Informa, a
Delaware corporation. As alleged in the Third-Party Complaint, Givesurance
was “induced” by him “to receive and utilize the services of ‘FleetSeek’ for
purposes of sending bulk messages” to potential customers. /a The pleading
further alleges Altman told Givesurance “that FleetSeek had a list of telephone
numbers belonging to members of the trucking industry, such as Plaintiff, who
had expressly ‘opted in’ to receive text and other communications related to
products and services of interest to those in the trucking industry.” Informa’s
representative allegedly told Givesurance that it “could partner with
FleetSeek/Informa, obtain the data that it owned and then use a mass text
messaging platform to contact the owners of the ‘opted in’ telephone numbers to
offer them” its products and services. /o., PagelD#84. The Third-Party Complaint
alleges Altman knew that Givesurance would rely on these representations and
further alleges it did so “to its detriment.” /a& Thereafter, it alleges it “agreed to
receive and utilize the services offered by Informa” which included obtaining from
them “the list of ‘opted in’ telephone numbers whose owners had expressly
agreed to receive communications from vendors.” /d@ After receiving this

15

information from Informa, Givesurance alleges it then contracted “with a text
marketing platform called SimpleTexting to contact those phone numbers whose
owners had expressly consented to receive the messages.” /d.
The Third-Party Complaint alleges that Shank, on behalf of himself and
others similarly situated, has sued Givesurance and Progressive under the TCPA
“as a result of a single text massage” that was allegedly sent to him, “by or on
behalf of” Givesurance, concerning his “existing trucking insurance policy with
Progressive Insurance.” Shank has alleged that the text he received was sent
by “an Automatic Telephone Dialing System and without prior express consent”
from him. Givesurance alleges, upon information and belief, that Shank’s
telephone number and the numbers from those in the purported class were
“received from Informa/Fleetseek” and represented by Informa to be individuals
who had “‘opted in’” and “consented” to receive such messages. /d., PagelD#84.
Although it denies liability for Shanks’s claims, it alleges a right to indemnification
for any loss or damage that may result from them. /d., PagelD#85.
Givesurance seeks damages against Informa for fraud and, in the
alternative, for negligent misrepresentation. /o., PagelD#86. It demands
judgment in excess of $75,000.00, interest, attorney fees and “additional
economic and non-economic damages.” /a., PagelD#86.

16

Informa has filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or,
in the alternative, pursuant to Fed. R. Civ. P. 12(c).6 Doc. #26, PagelD#143. It
argues that dismissal is required for the following reasons: (1) the fraud and
negligent misrepresentation claims fail to satisfy the “heightened pleading
standards” of Fed. R. Civ. P. 9(b) and do not state a claim for relief; (2) FleetSeek’s
Terms of Service (“Terms of Service”) bar the tort claims of fraud and negligent
misrepresentation under the economic loss doctrine;’ and (3) this Court lacks
subject matter jurisdiction pursuant to 28 U.S.C. § 1332, since the Terms of
Service limit Informa’s liability to $1,000.00. Informa has attached four exhibits in
support of its motion: the invoice from FleetSeek to Givesurance, Doc. #26-1,
PagelD#161; two sets of emails between Givesurance and Informa dated May
2019, Doc. #26-2, PagelID##162-171, and Doc. #26-3, PagelD##172-184; and the
Terms of Service. Doc. #26-4, PagelD##185-195. Informa has also filed a reply
which includes as exhibits a declaration from an attorney who responded to a
subpoena issued by Givesurance to FleetSeek and an email attached to the
declaration that is alleged to be “a true and correct copy of the February 12,

* A motion to dismiss and a motion for judgment on the pieadings are analyzed under the
same standard. Warrtor Sports, ine. v. National Collegiate Athletic Ass'n, 623 F.3d 281,
284 (6th Cir. 2010).
? Chio's economic-loss doctrine bars recovery in tort for “losses suffered as a result of a
breach of duties assumed only by agreement|,]” Corporex Dev. & Constr. Mgmt, Ine. v.
Shook, inc., 106 Ohio St. 3d 412, 2005-Ohio-5409, 835 N.E.2d 701 (quoting Floor Craft
Floor Covering, Ine. v. Parma Cmty. Gen. Hosp. Ass'n, 54 Ohio St. 3d 1, 7, 560 N.E.2d 206
{1990}).

17

2019[,] demo request” of a Givesurance representative “initiated through the
FleetSeek website.” Doc. #33-1.

B. Standard of Review
Federal Rule of Civil Procedure 8(a) provides that a complaint must contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” The complaint must provide the defendant with “fair notice of what the

... claim is and the grounds upon which it rests.” Se// Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Federal Rule of Civil Procedure 12(b}(6) allows a party to move for dismissal of a
complaint on the basis that it “fail[s] to state a claim upon which relief can be
granted.” The moving party bears the burden of showing that the opposing party
has failed to adequately state a claim for relief. DirecTV, inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.
1991)). The purpose of a motion to dismiss under Rule 12(b}(6) “is to allow a
defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief
even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635,
638 (6th Cir. 1993). In ruling on a 12(b}(6) motion, a court must “construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of
Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting 7reesh, 487 F.3d at 476).

18

Nevertheless, to survive a motion to dismiss under Rule 12{b)(6), the
complaint must contain “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, Unless the facts alleged show that the
plaintiff's claim crosses “the line from conceivable to plausible, [the] complaint
must be dismissed.” /a@. Although this standard does not require “detailed factual
allegations,” it does require more than “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” /d. at555. “Rule 8... does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Ashcroft v. /qgbal, 556 U.S. 662, 678-79 (2009). Legal conclusions
“must be supported by factual allegations” that give rise to an inference that the
defendant is, in fact, liable for the misconduct alleged. /d. at 679.
In ruling on a motion to dismiss, the Court may consider “the Complaint
and any exhibits attached thereto, public records, items appearing in the record of
the case and exhibits attached to defendant's motion to dismiss so long as they
are referred to in the Complaint and are central to the claims contained therein.”
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

C. Analysis
1. Informa’s Exhibits and Declaration
Before addressing the legal arguments in Informa’s motion, the Court must
first determine whether it can consider the exhibits attached to the motion, Doc.
#26, and reply. Doc, #33.

19

In general, matters outside of the pleadings are not considered in ruling on
a motion to dismiss or motion for judgment on the pleadings. If matters outside of
the pleadings are submitted and are not excluded by the court, the motion must
be treated as one for summary judgment, and all parties must be given a
reasonable opportunity to respond and present materials pertinent to the motion.
Fed. R. Civ. P. 12(d). There are, however, exceptions to this rule. These
exceptions include documents attached to the pleadings under Fed. R. Civ. P.
10{c},° Commercial Money Ctr., inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335 (6th Cir.
2007) and “exhibits attached to defendant's motion to dismiss so long as they are
referred to in the [clomplaint and are central to the claims contained therein.”
Bassett v. Nat'l Collegiate Athietic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
Although a plaintiff is not required to attach to its complaint documents upon
which a claim is based, a defendant may introduce pertinent documents if the
plaintiff fails to do so. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997).
“Otherwise, a plaintiff with a legally deficient claim could survive a motion to
dismiss simply by failing to attach a dispositive document upon which it relied.”
td.
Here, Informa asserts the invoice, emails and Terms of Service should be
considered in ruling on its motion. It argues that the invoice and emails show that
Givesurance’s claim is for breach of contract and that it has no fraud or negligent

® Rule 10(c) states that “[a] copy of a written instrument that is an exhibit to a pleading is
a part of the pleading for all purposes.”
20

misrepresentation claim under the economic loss doctrine. It further contends
that based on the exhibits attached to its reply, Givesurance, on February 12,
2020, accessed the FleetSeek platform, generated a web request for a
demonstration and accepted its Terms of Use. The Terms of Use, among other
things, disclaim all contractual warranties, state that no liability exists for
negligence and limit damages to $1,000.00. Doc. #26, PagelD##150-152.
The invoice, emails, Terms of Service and Declaration, however, are not
“matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint.” Amini, 259 F.3d at 502 (quoting Mieman v.
NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997).° Additionally, the Third-Party
Complaint alleged claims of fraud and negligent misrepresentation against
Informa, referenced no negotiations, agreements or contracts with Informa and
did not cite or reference FleetSeek’s website. Simply stated, it had no “pertinent
documents” to attach to its Third-Party Complaint that are dispositive of its fraud
and negligent misrepresentation claims.

Although the declaration and exhibit attached to the reply are submitted to refute
Givesurance’s assertion in its memorandum in opposition that it did not have
“constructive knowledge, or even. .. access or the ability to review the provisions
contained in the Terms of Service,” Doc. #31, PagelD#238, it is excluded since
Informa has filed pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c) and matters outside
the complaint, with certain limited exceptions discussed above, may not be
considered by the district court. Hensley Mfg. v. ProPride, inc., 579 F.3d 603 (6th
Cir. 2009) (citing Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th
Cir.2008)).

21

Accordingly, these exhibits, Doc. ##26-1, 26-2, 26-3, 26-4 and 33-1, are
excluded fram the Court’s consideration in ruling on the Motion to Dismiss.
Because the above referenced exhibits have been excluded from
consideration, the Court will address Informa’s remaining argument for dismissal
of the Third-Party Complaint, i.e., whether Givesurance has pled fraud and
negligent misrepresentation claims sufficiently to satisfy the “heightened
pleading standards” of Fed. R. Civ. P. 9(b) and has stated claims for relief that
survive a motion to dismiss.
3. Fraud and Negligent Misrepresentation
Count One of the Third-Party Complaint alleges fraud in the inducement
and Count Two pleads, in the alternative, negligent misrepresentation. Fed. R.
9({b) states that a claim for fraud must be stated with “particularity.” The purpose
of this rule is to (1) alert parties to the particulars of the allegations against them
so they can intelligently respond; (2) prevent “fishing expeditions;” (3) protect
reputations against fraud allegations; and (4) whittle down potentially wide-
ranging discovery to only relevant matters. Chesbrough v. VPA, P.C., 655 F.3d 461,
466-67 (6th Cir. 2011). However, “[RJule 9(b)’s additional pleading requirements
“should not be read to defeat the general policy of ‘simplicity and flexibility’ in
pleadings contemplated by the Federal! Rules.” U.S. ex rel. SNAPP, Inc. v. Ford
Motor Co., 532 F.3d 496 (6th Cir. 2008) (quoting Michaels Bldg Co. v. Ameritrust
Co., N.A., 848 F.2d 674, 678 (6th Cir. 1988)}).
A claim for fraudulent inducement, or fraud, requires the following:

22

(1) a false representation concerning a fact or, in the face of a duty to
disclose, concealment of a fact, material to the transaction; (2)
knowledge of the falsity of the representation or utter disregard for
its truthfulness; (3) intent to induce reliance on the representation; (4)
justifiable reliance upon the representation under circumstances
manifesting a right to rely; and (5) injury proximately caused by the
reliance.

Micrel, inc. v. TRW, Inc., 486 F.3d 866, 874 (6th Cir. 2007) (citing Cohen v. Lamko,
/ne., 10 Ohio St.3d 167 (1984)}. A plaintiff must prove all elements to recover on
its claim. Graham v. American Cyanamid Co., 350 F.3d 496, 507 (6th Cir. 2003).
To allege a claim for negligent misrepresentation, there must be proof
showing that “[o]ne who, in the course of his business, profession or
employment, or in any other transaction in which he has a pecuniary interest,
supplies false information for the guidance of others tn their business
transactions, is subject to liability for pecuniary loss caused to them by their
justifiable reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.” Defman v. City of
Cleveland Heights, 41 Ohio St.3d 1, 534 N.E.2d 835, 838 (1989) (citing Restatement
(Second) of Torts § 552(1}) {(1965}). A claim for negligent misrepresentation
requires an affirmative false statement and not an omission. See Lea/ v. Holtvogt,
123 Ohio App.3d 51, 702 N.E.2d 1246, 1261 (1998); Textron Fin. Corp. v.
Nationwide Mut. ins. Co., 115 Ohio App.3d 137, 684 N.E.2d 1261, 1269 (1996).
Informa asserts that both the fraud and negligent misrepresentation claims
are “eviscerated,” based on the statements in the emails from “Givesurance’s

23

own principal,” which the Court has excluded, and because “no false statement
was ever made falsely, with knowledge of its falsity or with such utter disregard
and recklessness as to whether it is true or false to infer such knowledge.” Doc.
#26, PagelD#153. Givesurance alleges, however, that in February 2019, Informa,
through Altman, solicited and induced Givesurance to receive and utilize the
services of FleetSeek to send bulk messages. At that time, he represented to
Givesurance that it would be given a list of telephone numbers of “members of
the trucking industry” who had “opted-in” to receive text and other
communications concerning products and services related to the “trucking
industry” and that it could partner with “FleetSeek/informa” to obtain their data
and use a mass text messaging platform to contact the “opted-in” individuals to
offer them the products and services. Givesurance then alleged that it has been
sued by Shank under the Telephone Consumer Protection Act of 1991 (“TCPA”)
for the receipt of a text message through the use of an Automatic Telephone
Dialing System without his prior express consent.
Based on these allegations, Givesurance has pled sufficient detail to allow
Informa to prepare a responsive pleading. MyVitaNet.com v. Kowalski, No.
2:08cv48, 2008 WL 2977889, at *5, (S.D. Ohio July 29, 2008) (citing United States v.
Ford Motor Co., 532 F.3d 496, 504 (6th Cir. 2008)). Moreover, “[A] “A fraudulent
inducement claim often involves a misrepresentation of facts outside the contract
or other wrongful conduct inducing a party to enter into a contract.” Aes. Title
Agency, inc. v. Morreale Real Estate Serv. inc., 314 F.Supp.2d 763, 774 (N.D. Ohio

24

2004) {quoting Meeker v. Shafranek, 112 Ohio App. 320, 323, 176 N.E.2d 293 (Ohio
Ct.App.1960}).
Givesurance has also pled the necessary legal elements of fraud and
negligent misrepresentation in its Third-Party Complaint. Both counts incorporate
the previously alleged factual allegations and, with respect to the alternative claim
of negligent misrepresentation, Givesurance pleads an affirmative representation
and not an omission. Accordingly, Informa’s Motion to Dismiss, is overruled.

IV. Conclusion
For the reasons set forth above, Defendants’ Refiled Motion to Dismiss,
Doc. #43, and Informa’s Motion to Dismiss, Doc. #44-1 and Doc. #26, are
OVERRULED. Plaintiff's Motion to Lift Stay, Doc. #45, is SUSTAINED.

Date: February 23, 2022 (Seam 14, Coxe
WALTER H. RICE

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10379607. Public record. Not legal advice.