govinfo:USCOURTS-mdd-1_20-cv-01094-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
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 Civil No. CCB -20-1094 
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DEBORAH BRADLEY 
v.  
DENTALPLANS.COM 
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MEMORANDUM & ORDER 
On April 28, 2020, Deborah Bradley filed an individual and class action complaint against 
Dentalplans.com (“DentalPlans”) alleging violations of the Telephone Consumer Protection Act 
(“TCPA”)’s prohibitions regarding pre -recorded voice calls and requirements regarding internal 
do-not-call procedures. Now pending is Bradley’s motion for leave to amend her complaint to add 
Cigna Health and Life Insurance Company (“Cigna”)  (ECF 28) as a defendant  based on 
information learned  in discovery that indicates Cigna is vicariously liable for DentalPlans alleged 
violations. Bradley’s motion further seeks leave to remove class allegations from her “do-not-call” 
claims (Count II) and to clarify a few factual issues. (Id.). The motion was made within the deadline 
in the agreed-upon scheduling order for moving for joinder of additional parties and amendment 
of pleadings. (ECF 20). DentalPlans opposes only the joinder of Cigna as a defendant. (ECF 29).  
Leave to amend should be freely granted under Rule 15(a), and amendments are generally 
accepted absent futility, undue prejudice, or bad faith. See Foman v. Davis , 371 U.S. 178, 182 
(1962); Matrix Capital Mgmt. Fund, LP v. BearingPoint , Inc., 576 F.3d 172, 193 (4th Cir. 2009) 
(explaining that leave to amend “should be denied only when the amendment would be prejudicial 
to the opposing party, there has been bad faith on the part of the moving party, or amendment 
would be futile”). An amendment is futile when the proposed amended complaint would not satisfy 
the requirements of the federal rules, U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 
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370, 376 (4th Cir. 2008), including when the proposed amendment “is clearly insufficient” under 
Rule 12 (b)(6) “or frivolous on its face.” Miller v. Md. Dep’t of Natural. R es., 813 F. App’x 869, 
880 (4th Cir. 2020) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986)).1 2 
DentalPlans does not argue that the addition of Cigna as a defendant will cause it prejudice 
or that the amendment is sought in bad fai th; it argues only that amendment is futile because 
Bradley’s claim does not allege sufficient facts to support a plausible theory of Cigna’s vicarious 
liability. Cigna may be vi cariously liable for DentalPlans’s alleged TCPA violations where 
DentalPlans engaged in the alleged conduct on Cigna’s behalf , under common law principles of 
agency. See Hodgin v. UTC Fire & Sec’y Ams. Corp., Inc., 885 F.3d 243, 251–52 (4th Cir. 2018); 
Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 659 (4th Cir. 2019), cert. denied, 140 S. Ct. 676 
(2019); 47 U.S.C. § 227(c)(5). “Under traditional agency law, an agency relationship exists when 
a principal ‘manifests assent’ to an agent ‘that the agent shall act on the principal’s behalf and 
subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.’” 
Krakauer, 925 F.3d at 659–60 (quoting Restatement (Third) of Agency, § 1.01). “‘Generally, the 
existence and scope of agency relationships are factual matters, ’ and are therefore often 
appropriately left to the jury.” Id. at 660 (quoting Metco Products, Inc., Div. of Case Mfg. Co. v. 
NLRB, 884 F.2d 156, 159 (4th Cir. 1989)). 
Factual allegations that may support a claim of vicarious liability under the TCPA include, 
among other things, the existence of a contractual relationship between a company and the third-
party telemarketer such as DentalPlans; authorization given to the third- party telemarketer to use 
 
1 Unpublished opinions are cited for the soundness of their reasoning and not for any precedential value.  
2 Under Rule 20, “[p]ersons . . . may be joined into one action as defendants if: (A) any right to relief is asserted 
against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, 
or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the 
action.” Fed. R. Civ. P. 20. “On motion or on its own, the court may at any time, on just terms, add or drop a party.” 
Fed. R. Civ. P. 21. 
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the company logo; the company’s knowledge of the telemarketer’s internal policies; whethe r the 
company created scripts for the telemarketers; whether the telemarketer has access to information 
regarding the company’s products; whether the company wr ote or reviewed the telemarketer’s 
scripts; whether the company was aware of the telemarketer’s TCPA violations and failed to take 
effective steps within its power to force the telemarketer to cease that conduct. See Krakauer, 925 
F.3d at 660; Hossfeld v. Gov ’t Emps. Ins. Co., 88 F. Supp. 3d 504, 510–11 (D. Md. 2015) ; In re 
Joint Petition Filed by Dish Network, LLC , 28 F.C.C. Rcd. 6574, 6592–93 (2013) . For example, 
in Hossfeld, the court denied a motion to dismiss TCPA claims against an insurance  company 
where the plaintiffs alleged that the company “contracted with third -party telemarketers, created 
scripts for those telemarketers, knew the third -parties were using automated dialing systems in 
violation of the TCPA, and had the third-parties make calls with those systems before forwarding 
the call to GEICO sales representatives.” Hossfeld, 88 F. Supp. 3d at 510–11. 
Here, Bradley’s amended complaint alleges that DentalPlans has sent multiple pre -
recorded messages to her cell phone number, “for the purpose of selling her good and services, 
including Cigna branded products.” (ECF 28- 1 ¶  14). For those calls selling Cigna branded 
products, Bradley alleges that there existed an agreement between Cigna and Dental Plans which 
authorized Cigna to review, control, and audit DentalPlans’ marketing communications ; gave 
Cigna the power to provide instructions to DentalPlans regarding its telemarketing practices; 
authorized DentalPlans to hold itself out as an “authorized dealer” of Cigna products and services 
and to use Cigna’s name and trademark during telemarketing calls. (Id. ¶¶ 23(a)–23(h)). The court 
disagrees with DentalPlans that these allegations are only conclusory statements of agency 
principles. Similar to Hossfeld , Bradley has alleged that she received calls from DentalPlans, a 
third party telemarketer designed to sell branded products of another company, Cigna, and that 
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there was a contractual relationship between the company and the third party which created control 
for the company over the telemarketer’s practices with respect to selling its products. See 88 F. 
Supp. 3d at 510–11. At this stage  of the proceedings, the court does not believe the se allegations 
are “clearly insufficient” under Rule 12 (b)(6) “or frivolous on [their] face.” Miller, 813 F. App’x 
at 880; Burrows v. Gen. Motors Co., No. 4:12- CV-02823, 2013 WL 3967115, at *5 (D.S.C. July 
31, 2013) (granting motion for leave to amend to add defendant where the proposed amendment 
was not clearly frivolous on its face and noting that the putative defendant “is able to defend itself 
against any allegations directed toward it . . . and raise any appropriate and applicable defenses on 
its own”). That DentalPlans cites some cases in which a vicarious liability claim under the TCPA 
survived a motion to dismiss based on somewhat more detailed allegations, see Hayhurst v. Keller 
Williams Realty, Inc., No. 1:19CV657, 2020 WL 4208046, at *6 (M.D.N.C. July 22, 2020); Smith 
v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765, 775–76 (N.D. Ill. 2014); Valdes v. Century 
21 Real Est., LLC, No. CV 2:19-05411, 2019 WL 5388162, at *4 (D.N.J. Oct. 22, 2019), does not 
persuade the court that Bradley must plead an identical level of detail. A plaintiff “need not plead 
. . . every nuance of the relationship[]” between the alleged principal and agent to state a plausible 
claim. Hossfeld, 88 F. Supp. 3d at 510 n.12. 
Accordingly, it is hereby ORDERED that: 
1. Bradley’s motion to amend the complaint (ECF 28) is GRANTED; 
2. The Amended Complaint and Jury Demand attached to the motion shall be deemed to 
have been filed as of the date of this Order. 
  8/2/2021                                 /S/    
Date       Catherine C. Blake 
United States District Judge 
 
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