VonDeylen v. Aptive Environmental LLC

Background

Kristi VonDeylen’s phone number had been on the national Do-Not-Call registry since February 1, 2006. In May 2020, she sought and agreed to receive pest-control services from Aptive Environmental LLC under a 12-month service agreement. The agreement included a broad arbitration provision covering disputes arising out of or relating to the agreement, Aptive’s services, or the parties’ relationship. It also stated that the provision would survive termination and provided a 30-day procedure for rejecting it. The parties agree that Aptive did not receive a mailed rejection notice from VonDeylen.

The agreement separately allowed Aptive to send appointment reminders and account communications by email, text message, or phone. A separate welcome checklist included an optional marketing-consent provision, but VonDeylen did not check that box. The parties’ service relationship ended in January 2021.

In June 2023, Aptive sent VonDeylen an automated text asking her to set up autopay. In November 2023, it sent automated and other text messages about an appointment and service, even though VonDeylen said she had not requested the service. She replied “Stop” several times and received messages stating that she had been unsubscribed. VonDeylen filed a class action seeking damages, injunctive relief, and other remedies for alleged negligent and willful violations of the Telephone Consumer Protection Act and invasion of privacy.

Motion and parties’ positions

Aptive moved to compel arbitration and stay the court proceedings. Aptive argued that the arbitration clause was broad, contained no relevant exclusion, and covered VonDeylen’s claims because the parties’ relationship and Aptive’s access to her phone number resulted from the service agreement. Aptive also relied on the clause’s survival provision.

VonDeylen acknowledged that the arbitration language was broad but argued that her claims arose from unsolicited texts sent after the contractual relationship ended. She contended that the texts did not concern services provided under the agreement or the parties’ former relationship.

Court’s analysis

The court explained that a motion to compel arbitration may be evaluated under the rules governing dismissal for failure to state a claim or summary judgment, depending on whether the court considers material outside the pleadings. Because the service agreement was part of the complaint, the court analyzed the motion under Rule 12(b)(6), which requires the court to accept the complaint’s factual allegations as true and draw reasonable inferences for the nonmoving party.

The court stated that it must decide whether a valid arbitration agreement exists and whether the particular dispute falls within its scope, unless the parties clearly assigned those questions to an arbitrator. VonDeylen did not dispute the validity of the arbitration clause. The dispute concerned its scope.

Applying ordinary state-law contract principles, the court considered whether VonDeylen’s claims “touch[ed] matters covered by the arbitration provision.” The court concluded that they did not. The claims focused on unsolicited texts sent more than two years after the contractual relationship ended and concerned whether the texts violated the Telephone Consumer Protection Act because VonDeylen’s number was on the Do-Not-Call registry. The court found that the claims did not relate to services Aptive provided under the agreement.

The court also rejected Aptive’s arguments that the unsigned marketing-consent provision or Aptive’s prior access to VonDeylen’s phone number sufficiently connected the claims to the agreement. The court stated that the claims were based on alleged violations of the Telephone Consumer Protection Act, not on the unsigned consent provision. It further held that the survival clause would apply to a post-termination dispute about services provided under the agreement, but could not extend arbitration to every later claim lacking a connection to the agreement or the parties’ relationship.

Disposition

Judge Donovan W. Frank denied Aptive’s motion to compel arbitration and stay proceedings. The order did not decide whether VonDeylen will ultimately prevail on her Telephone Consumer Protection Act or privacy claims.