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Estate of Weinstock v. ADT LLC

United States District Court, E.D. Wisconsin

July 7, 2016



          HON. PAMELA PEPPER United States District Judge.

         On November 23, 2015, the plaintiffs filed a complaint against the defendant, alleging four claims over which this court has diversity jurisdiction: breach of contract, negligence, negligent hiring, and fraudulent misrepresentation. Dkt. No. 1. On January 4, 2016, the defendant filed a motion to dismiss. Dkt. No. 3. The parties have fully briefed the motion. For the reasons stated below, the court will grant in part and deny in part the motion to dismiss.

         I. FACTS

         Bluma Weinstock passed away on December 6, 2014. Dkt. No. 1 at ¶32. This case focuses on the events leading to and surrounding her death. Though over ninety years old, Mrs. Weinstock “lived alone in her apartment.” Id. at ¶8. As a result, her daughters, Rosalee Weinstock Bamberger, Gitta Chaet, and Esther Ancel, “urged their mother to get an emergency medical response service.” Id. In December of 2012, she “purchased ADT’s services, ” and, on January 14, 2013, she “enter[ed] into a Home Health Security Services Contract with ADT.” Id. at ¶11. The package included “a medical alert system” that ADT “installed at her home in Bayside, Wisconsin.” Id.

         Through the installed services, Mrs. Weinstock “could press the ADT alarm button whenever she felt she was in need of medical assistance.” Id. at ¶15. As provided in the contract, an ADT representative then would attempt to contact Mrs. Weinstock through ADT’s “Two-Way Voice” or by calling the customer’s telephone number. Id. at ¶13. If, after an emergency alert, ADT could not reach Mrs. Weinstock or could not confirm that she was not in need of assistance, ADT would reach out to her “emergency contacts.” Id. Mrs. Weinstock listed her daughters as her three emergency contracts. Id. at ¶14.

         “On December 4, 2014[, ] at approximately 4:29 a.m., Mrs. Weinstock triggered her ADT alarm.” Id. at ¶16. The “emergency medical dispatcher” (“EMD”) attempted to contact her “on the ADT two-way intercom system.” Id. The EMD did not “receive any response, ” and “called [her] telephone which rang numerous times before Mrs. Weinstock finally answered.” Id.

         The parties disagree on the nature of the phone call that took place. According to the plaintiffs, Mrs. Weinstock’s “speech was slurred, ” and “[h]er speech pattern and responses indicated that she was confused and disoriented.” Id. at ¶17. The defendant argues that Mrs. Weinstock told the operator on four occasions that “she was fine.” Dkt. No. 4 at 2. The conversation concluded, and “[t]he EMD did not call . . . any . . . emergency contact listed in the ADT Contract, nor did the EMD call paramedics.” Id. at ¶20.

         About three and a half hours later, at around “8:00 a.m. on December 4, 2014, Rosalee Weinstock Bamberger called Mrs. Weinstock.” Id. at ¶21. “She immediately detected slurred speech and suspected a possible stroke.” Id. Rosalee went to her mother’s house (the defendant contends that she arrived “about 25 minutes later, ” Dkt. No. 4 at 3) and, upon arrival, “noticed that the left side of Mrs. Weinstock’s mouth was droopy, that she could not keep her dentures in, and that her speech was slurred.” Dkt. No. 1 at ¶22. So, Ms. Bamburger called 911. The paramedics arrived, evaluated Mrs. Weinstock, and “transferred her to Columbia St. Mary’s Hospital in Milwaukee, Wisconsin.” Id. at ¶23.

         At the hospital, the doctors discovered that Mrs. Weinstock likely had suffered a stroke, and that “she was outside the three-hour window of time advocated for” a specific, early stroke treatment. Id. at ¶¶26-27. Four days later-on Monday, December 8, 2014-her “condition worsened.” Id. at ¶29. That day, the doctors performed a CT scan of Mrs. Weinstock, “which revealed that [she] had previously suffered a massive stroke.” Id. at ¶30. The hospital moved Mrs. Weinstock to hospice on December 9, 2014. Id. at ¶31. She died five days later. Id. at ¶32.

         The plaintiffs allege that the EMD failed to follow ADT’s protocol and, as a result, did not “recognize a medical emergency in Mrs. Weinstock.” Id. at ¶34. They allege that ADT has a “stroke assessment, ” but that the EMD did not perform it. Id. They argue that the failure “to contact emergency medical personnel, ” and the failure “to contact any of Mrs. Weinstock’s emergency contacts, ” resulted in delayed treatment and her ultimate death. Id. at ¶¶34-35.


         The defendant asks the court to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 4. ADT argues that it fulfilled its contractual obligation to Mrs. Weinstock; it did not contract to diagnose her over the telephone, only to contact her if the alarm was activated. Id. at 7. ADT contends that the plaintiff’s claims amount to an assertion that ADT had a duty to “override” Mrs. Weinstock’s repeated assertions that she was fine. Id. at 8.

         ADT further asserts that even if it did fail to fulfill its contractual obligations to Mrs. Weinstock, she contractually stipulated to $250 in damages. Id. at 9. (The complaint seeks compensatory damages for both economic and non-economic losses, pecuniary damages, punitive damages, and fees and costs. Dkt. No. 1 at 13.)

         ADT argues that the plaintiff’s tort claims must fail because ADT had no common-law duty of care to Mrs. Weinstock. Dkt. No. 4 at 14. ADT posits that the plaintiff’s consumer misrepresentation claim fails for a variety of reasons. And finally, ADT states that punitive damages are not available, due to a lack of common-law duty and a failure to plead “outrageous” conduct. Id. at 21.


         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must state a claim for relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court “draw[s] all reasonable inferences and facts in favor of the nonmovant, ” but the court “need not accept as true any legal assertions.” Id. (citing Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014)).

         “To state a plausible claim, a plaintiff is not, however, required to plead specific or detailed facts.” Modovi Dairy Sys., Inc. Empl. Benefit Plan v. Blue Cross and Blue Shield of Wisconsin, No. 15-CV-826, 2016 WL 109965 (E.D. Wis. Jan. 8, 2016) (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007)). “‘[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’” Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir. 2013) (quoting Twombly, 550 U.S. at 556).

         IV. ANALYSIS

         A. The court will not consider two of the three attachments to the defendant’s brief in support of the motion to dismiss.

         The first basis for dismissal that defendant raises is its argument that the plaintiff cannot state a claim for breach of contract, because ADT fulfilled its contractual obligations. Dkt. No. 4 at 7-9. In support of this argument, the defendant asks the court to review the contract between the parties, Dkt. No. 4-1; the transcript of the emergency phone call, Dkt. No. 4-3; and the audio recording of the phone call, Dkt. No. 5, all of which the defendant filed in support of the motion.

         As discussed above, a court does not decide the substance of a plaintiff’s claims in the context of a motion to dismiss. “A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. Dismissal of an action under this motion is warranted if the plaintiff can prove no set of facts in support of its claim that would entitle it to relief.” Gen. Elec. Cap. Corp. v. Lease Res. Corp., 128 F.3d 1074, 1080 (7th Cir. 1997) (citations omitted). “In response to an ordinary 12(b)(6) motion, a court simply examines the allegations in the complaint to determine whether they pass muster.” Id. (citation omitted). “If a district court considers matters outside the pleadings, our procedural rules require that ‘the motion shall be treated as one for summary judgment’ under Fed.R.Civ.P. 56.” Id. (quoting Fed.R.Civ.P. 12(b)).

         There is, however, one exception to the requirement that if a judge is going to consider outside matters, the judge must convert the motion to dismiss to a motion for summary judgment. In Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002), the Seventh Circuit held that in a case in which the plaintiff had attached a document to the complaint, that document “became a part of [the complaint] for all purposes, ” and thus that “the judge could consider it in deciding the motion to dismiss without having to convert the motion to one for summary judgment.” (Citing Fed.R.Civ.P. 10(c); Beanstalk Group, Inc. v. AM Gen. Corp., 283 F.3d 856, 858 (7th Cir. 2002)). While the Tierney court did not precisely define the contours of this exception, it posited that “perhaps [the exception] is or should be limited to cases in which the suit is on a contract or the plaintiff, if he has not attached, has at least quoted from, the document later submitted by the defendant.” Id. at 739. Lower courts have determined that the Tierney “rule allows matters outside the pleadings to be considered if they were referred to in the complaint and central to the plaintiff’s claim.” Verfuerth v. Orion Energy Sys., Inc., 65 F.Supp.3d 640, 649 (E.D. Wis. 2014). See also City of Sterling Heights Police & Fire Ret. Sys. v. Kohl’s Corp., No. 13-C-1159, 2015 WL 1478565, at *1 (E.D. Wis. Mar. 31, 2015) (“Documents submitted with a motion to dismiss may be considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to a claim.”). “This rule prevents parties from surviving a motion to dismiss by artful pleading or by failing to attach relevant documents to the complaint.” Id. (citing 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, at 735 (7th Cir. 2002)). “The exception is narrow; it is aimed at situations in which a plaintiff quotes from a document or the case requires interpretation of an unattached contract, for instance.” Id. (citing Tierney, 304 F.3d at 738).

         The plaintiffs did not attach to the complaint any of the three pieces of evidence that the defendant filed in support of the motion to dismiss. The complaint does, however, quote from the contract. For that reason, the court concludes that, under the Tierney rule, it can consider the contract when considering the defendant’s motion to dismiss, and that doing so does not require the court to convert the motion to dismiss to a motion for summary judgment.

         Neither the audio recording of the conversation nor the transcript fall under the exception defined in Tierney. For that reason, the court will not consider those two ...

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