Humana Motion to Dismiss TCPA Case Is ‘Substantively Deficient,’ Says Plaintiff

The U.S. District Court for Northern Illinois in Chicago should deny Humana’s May 1 motion to dismiss plaintiff Antionette Woodard's Telephone Consumer Protection Act putative class action for lack of personal jurisdiction (see 2304280006), said Woodard’s memorandum Tuesday (docket 1:23-cv-00979) in support of her opposition. Humana’s motion to dismiss is “procedurally and substantively deficient,” it said. Woodard alleges Humana is vicariously liable for the incessant insurance solicitation calls its third-party telemarketing vendor, Healthhubb, made on Humana's behalf to her cellphone, though her number was listed on the national do not call registry since Sept. 25 (see 2302170038). Humana denies it ever had a business relationship with Healthhubb. Though Humana’s motion is “styled” as a Rule 12(b)(2) motion, it’s actually “a thinly veiled effort to obtain a merits judgment without discovery,” said the memorandum. The 7th Circuit has said a motion to dismiss for lack of jurisdiction shouldn’t allow for this “where a plaintiff otherwise adequately pleads a basis for jurisdiction, as here,” it said. Woodard met her burden to allege personal jurisdiction in the complaint, and her allegations “are in fact substantiated by the non-conclusory averments in the self-serving declaration Humana submits as the evidence to support its motion,” it said. The complaint’s allegations and the evidence presented “show that Humana can still be held vicariously liable because it accepted the benefits of Healthhubb’s telemarketing calls on its behalf,” it said. “As such, Humana’s motion should be denied outright.”