United States District Court, E.D. Wisconsin
ESTATE OF BLUMA WEINSTOCK, ROSALEE WEINSTOCK BAMBERGER, GITTA CHAET, and ESTHER ANCEL, Plaintiffs,
ADT LLC d/b/a ADT SECURITY SERVICES, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS (DKT. NO. 3)
PAMELA PEPPER United States District Judge.
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.
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.
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.
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.
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
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.
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.
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
MOTION TO DISMISS
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.
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.)
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
STANDARD FOR MOTION TO DISMISS
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)).
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).
The court will not consider two of the three attachments
to the defendant’s brief in support of the
motion to dismiss.
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.
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)).
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).
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.
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 ...