Aguilar v. Liberty Bankers Life Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TIMOTHY A. AGUILAR,
Plaintiff,
v.
LIBERTY BANKERS LIFE INSURANCE
COMPANY, et al.,
Defendants.
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CIVIL ACTION NO. H-25-4990
MEMORANDUM AND OPINION
Timothy A. Aguilar, pro se, sued Liberty Bankers Life Insurance Company and John Doe
telemarketers for violating the Telephone Consumer Protection Act (“TCPA”) and similar Texas
laws. (Docket Entry No. 1). Aguilar alleges that Liberty hired insurance agents, including Claudia
Tradari Napoletano, to telemarket Liberty’s insurance products in violation of the Act. (Id. ¶¶ 6–
8). Liberty moved to dismiss for lack of standing and for failure to state a claim. (Docket Entry
Nos. 8, 9). Based on the pleadings, the motion, the record, and the applicable law, the court grants
Liberty Bankers’s motion to dismiss for failure to state a claim, without prejudice; (Docket Entry
No. 8); the court denies Liberty Bankers’s motion to dismiss for lack of jurisdiction; (Docket Entry
No. 9); and the court denies Aguilar’s motion for leave to file an amended complaint, (Docket
Entry No. 27). Aguilar must file a motion for leave to amend consistent with this opinion and Rule
11 by July 31, 2026.
I. 	Background
Timothy Aguilar has been on the federal Do Not Call Registry since 2012 and on the Texas
Do Not Call Registry since August 2023. (Docket Entry No. 1 ¶ 1). Aguilar alleges that he has
“received at least one-hundred sixty-three (163) call from a variety of spoofed phone numbers
from telemarketers soliciting final expense life insurance products on behalf of Liberty.” 	(Id. ¶
United States District Court
Southern District of Texas
ENTERED
July 14, 2026
Nathan Ochsner, Clerk
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27). Aguilar alleges that Liberty Bankers is responsible for the telemarketing calls because Liberty
hired Claudia Tradardi Napoletano and other telemarketers to sell its insurance products. (Id. ¶¶
8, 35). 	To confirm that Liberty Bankers hired Napoletano and other telemarketers, Aguilar
purchased the life insurance product they were selling. (Id. ¶ 36). When Aguilar “received his
Liberty Banker’s life insurance policy in the mail,” he allegedly “confirmed that the final expense
telemarketing solicitation calls had been made on behalf of Liberty Bankers.” (Id. ¶ 37). Aguilar
alleges that the signature on the Liberty Bankers policy is Napoletano’s and that Napoletano spoke
with Aguilar in July and August 2025. (Id. ¶ 38).
In August 2025, Aguilar cancelled his insurance policy and “ended any established
business relationship created.” (Id. ¶¶ 39, 40). Aguilar also sent a notice of intent requesting that
Liberty stop calling his phone number immediately. 	He wrote “[a]ny consent given on July 3,
2025 is hereby revoked on July 4th.” 	(Id. ¶ 40). 	Liberty Bankers returned the proceeds from
Aguilar’s life-insurance policy ($90.36) after Aguilar cancelled it. 	(Docket Entry No. 1 ¶ 69;
Docket Entry No. 1-2 at 17; Docket Entry No. 13 at 40–41). Aguilar alleges that he did not sign
or endorse the check because it has a waiver of rights and claims attached to it. (See Docket Entry
No. 1 ¶ 69; Docket Entry No. 1-2 at 17; Docket Entry No. 19 at 21). Liberty has represented that
there is no “expiration date on the check.” (Docket Entry No. 13 at 28).
II. 	The Legal Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” F ED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at
555). “A claim has facial plausibility 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. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” 	Id. (quoting Twombly, 550 U.S. at 556).
“Conversely, when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure
of time and money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (cleaned up); Eli Lilly & Co. v. Revive Rx, LLC, 812 F. Supp. 3d 708, 723 (S.D. Tex. 2025).
III. 	Analysis
Liberty moves to dismiss Aguilar’s claims for lack of standing and for failure to state a
claim. (Docket Entry Nos. 8, 9). The court reviews Aguilar’s motion to dismiss on the merits and
the complaint allegations, not for lack of jurisdiction. 	Liberty’s motion to dismiss for lack of
standing depends wholly on merits issues of agency liability. See Al-Ahmed v. Twitter, Inc., 648
F. Supp. 3d 1140, 1155 (N.D. Cal. 2023) (rejecting a traceability argument based on a failure to
allege or prove vicarious liability because the argument “conflates Article III standing with the
merits”). If Liberty is liable under “longstanding” agency theories of actual authority, apparent
authority, or ratification, then the alleged misconduct is traceable to Liberty. See TransUnion LLC
v. Ramirez, 594 U.S. 413, 432 (2021). 	This case does not present a novel theory of vicarious
liability that departs substantially from principles “traditionally recognized as providing a basis for
lawsuits in American courts.” Id. at 417; see RESTATEMENT (FIRST ) OF AGENCY §§ 7, 8, 82 (Am.
L. Inst. 1933) (addressing actual authority, apparent authority, and ratification); see also In re New
Era Enters. Inc. Data Incident Litig., No. CV H-25-732, 2026 WL 303547, at *2 (S.D. Tex. Feb.
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4, 2026) (when courts assess standing, they “assum[e] that on the merits the plaintiffs would be
successful in their claims.” (quoting Polelle v. Fla. Sec'y of State, 131 F.4th 1201, 1211 (11th Cir.),
cert. denied, 146 S. Ct. 298 (2025))).
Most of the motion to dismiss is about agency, and whether Liberty Bankers is liable for
the telemarketers’ phone calls. 	A “seller may be held vicariously liable under federal common
law principles of agency for TCPA violations committed by third-party telemarketers.” In re Joint
Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6584 (2013). But the law does not
presume agency. Suarez v. Jordan, 35 S.W.3d 268, 272 (Tex. App.—Houston [14th Dist.] 2000,
no pet.). Aguilar must allege that Liberty Bankers gave the telemarketers actual authority to place
the illegal phone calls, clothed the telemarketers with apparent authority, or ratified their phone
calls.
A. 	Actual Authority
“Actual authority denotes that authority which the principal intentionally confers upon the
agent, or intentionally allows the agent to believe he has, or by want of ordinary care allows the
agent to believe himself to possess.” 	Suarez, 35 S.W.3d at 273 (citing Spring Garden 79U, Inc.
v. Stewart Title Co., 874 S.W.2d 945, 948 (Tex. App.—Houston [1st Dist.] 1994, no writ)). “For
TCPA cases, the relevant inquiry is ‘whether the principal controlled—or had the right to control—
the “manner and means” of the telemarketing campaign.’” Gonzalez v. Sav. Bank Mut. Life Ins.
Co. of Mass., No. EP-24-CV-00289-DB, 2025 WL 1145266, at *4 (W.D. Tex. Apr. 15, 2025)
(quoting Heller v. Marriott Vacations Worldwide Corp., EP-22-CV-00398-FM-MAT, 2023 WL
6702696 at *5 (W.D. Tex. Oct. 11, 2023)). The plaintiff must allege “both an agency relationship
and ‘actual authority to place the unlawful calls.’” Pascal v. Agentra, LLC, No. 19-CV-02418-
DMR, 2019 WL 5212961, at *3 (N.D. Cal. Oct. 16, 2019) (emphasis in original) (quoting Jones
v. Royal Admin. Servs., Inc., 887 F.3d 443, 449 (9th Cir. 2018)). As to “actual authority to place
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the unlawful calls,” “[a]ctual authority is limited to actions ‘specifically mentioned to be done in
a written or oral communication’ or ‘consistent with’ a principal’s ‘general statement of what the
agent is supposed to do.’” Jones, 887 F.3d at 449 (quoting Salyers v. Metro. Life Ins. Co., 871
F.3d 934, 940 (9th Cir. 2017)).
The complaint includes no factual allegations showing that Liberty Bankers gave
Napoletano or others actual authority to telemarket in violation of the TCPA. (See Docket Entry
No. 1 ¶¶ 23, 24, 41, 50, 51, 89). Aguilar makes only conclusory allegations that Napoletano and
others are Liberty Bankers’s agents and that they could telemarket on Liberty Bankers’s behalf.
That is insufficient, because the complaint must allege “actual authority to place the unlawful
calls.” Pascal, 2019 WL 5212961, at *3 (quoting Jones, 887 F.3d at 449).
In addition, Liberty Bankers proffered its contracts with Napoletano and its telemarketing
firms based on these complaint allegations. This court can consider them under Rule 10(c). See
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); Inclusive
Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019). 	The
Napoletano agreement expressly prohibits the use of an automatic telephone dialing system, pre-
recorded messages, or calling numbers on a do-not-call registry as was any conduct that violated
state and federal telemarketing laws. (Docket Entry No. 9 at 22).
Aguilar did not adequately allege that Napoletano and other telemarketers had actual
authority to make telephone calls in violation of the federal and Texas TCPA.
B. 	Apparent Authority
“Apparent authority . . . is based on estoppel, arising ‘either from a principal knowingly
permitting an agent to hold [himself] out as having authority or by a principal’s actions which lack
such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably
prudent person to believe that the agent has the authority [he] purports to exercise.’” Gaines v.
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Kelly, 235 S.W.3d 179, 182 (Tex. 2007) (quoting Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d
945, 948 (Tex. 1998)). 	“[T]he principal must either have affirmatively held the agent out as
possessing the authority or the principal must have knowingly and voluntarily permitted the agent
to act in an unauthorized manner.” Suarez, 35 S.W.3d at 273. “[T]he principal’s full knowledge
of all material facts is essential to establish a claim of apparent authority based on estoppel,” and
“when making that determination, only the conduct of the principal is relevant.” 	Gaines, 235
S.W.3d at 182. 	“[T]he standard is that of a reasonably prudent person, using diligence and
discretion to ascertain the agent’s authority.” 	Id. at 182–83. “Thus, to determine an agent’s
apparent authority [a court must] examine the conduct of the principal and the reasonableness of
the third party’s assumptions about authority.” Id. at 183.
Aguilar’s apparent-authority theory fails because there is no allegation that Liberty Bankers
itself made representations to Aguilar about the telemarketers or their authority to telemarket in
violation of the TCPA. There is no allegation in the complaint that Aguilar spoke with a Liberty
Bankers employee. He alleges only that he spoke with agents or contractors for whose actions he
wants to hold Liberty Bankers liable. 	Because apparent authority requires reliance on the
representations or acts of the principal and Aguilar does not allege reliance on representations
made by the principal, Liberty Bankers, his apparent-authority theory fails.
C. 	Ratification
“Ratification is the affirmance by a person of a prior act which when performed did not
bind him . . . .” 	Disney Enters., Inc. v. Esprit Fin., Inc., 981 S.W.2d 25, 31 (Tex. App.—San
Antonio 1998, pet. dism’d w.o.j.). “Ratification, in this context, is not a form of authorization, but
a legal concept in agency law describing the relations between parties after affirmance by a person
of a transaction done or purported to be done for him.” 	Id. (citing RESTATEMENT (SECOND) OF
AGENCY § 82 cmt. a, b (Am. L. Inst. 1958)). Ratification occurs when “the individual for whom
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an act was done retains the benefits of the transaction after acquiring full knowledge of the
transaction.” Id. (citing Land Title Co. of Dallas v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex.
1980)).
In TCPA cases, evidence that the plaintiff purchased the defendant’s product, that the
defendant knew of the unlawful telemarketing scheme, and that the defendant retained the profits
from that purchase can be sufficient to establish ratification. 	See Aranda v. Caribbean Cruise
Line, Inc., 179 F. Supp. 3d 817, 833 (N.D. Ill. 2016) (denying summary judgment on a ratification
theory because there was evidence that “some or all of the calls being made were unlawful under
the TCPA and that each of them continued to accept business flowing from the campaign.”).
Aguilar purchased a Liberty Bankers life insurance policy. (Docket Entry No. 1 ¶¶ 36–37). But
Liberty Bankers returned Aguilar’s life-insurance payments ($90.36) after Aguilar cancelled the
policy. (See Docket Entry No. 1 ¶ 69; see also Docket Entry No. 13 at 40–41). Liberty Bankers
did not ratify the allegedly unlawful TCPA calls because it retained no benefit from them.
Aguilar argues in response that he did not sign or endorse the check because it has a waiver
of rights and claims attached to it. (See Docket Entry No. 1 ¶ 69; Docket Entry No. 19 at 21). This
fact is immaterial. Liberty Bankers has ceded back to Aguilar any and all benefits that it gained
from the allegedly unlawful TCPA calls. The settlement language on back of the check is unclear
on whether it settles all legal claims—including this TCPA suit—or is limited to debts or liabilities
under the life-insurance policy. (See Docket Entry No. 1-2 at 17). Even if the settlement language
covered this suit, that would not mean Liberty Bankers ratified the allegedly unlawful calls. 	If
Aguilar accepts the check, he settles claims that are not viable, precisely because Liberty Bankers
sent the check to him.
Liberty Bankers did not ratify its agents allegedly unlawful telemarketing because it
returned the life-insurance proceeds to Aguilar.
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IV. 	Conclusion
For these reasons, the court grants Liberty Bankers’s motion to dismiss for failure to state
a claim. (Docket Entry No. 8). The court denies Liberty Bankers’s motion to dismiss for lack of
jurisdiction. (Docket Entry No. 9). The court denies Aguilar’s motion for leave to file an amended
complaint. (Docket Entry No. 27).
Aguilar’s dismissal is without prejudice. By July 31, 2026, Aguilar must file a motion for
leave to amend, of no more than five pages, explaining how his amended complaint adequately
alleges vicarious liability. 	His motion for leave to amend should attach his proposed amended
complaint.
SIGNED on July 14, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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