VonDeylen v. Aptive Environmental LLC

U.S. District Court, District of Minnesota December 9, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kristi VonDeylen, Civil No. 24-2051 (DWF/DJF)

Plaintiff,

v. MEMORANDUM
OPINION AND ORDER
Aptive Environmental LLC,

Defendant.

INTRODUCTION
This matter is before the Court on a motion to compel arbitration and stay
proceedings brought by Defendant Aptive Environmental LLC (“Aptive”). (Doc.
No. 17.) Plaintiff Kristi VonDeylen (“Plaintiff”) opposes the motion. (Doc. No. 24.)
For the reasons set forth below, the Court denies the motion.
BACKGROUND
On February 1, 2006, Plaintiff’s cellular phone number was placed on the national
Do-Not-Call (“DNC”) registry. (Doc. No. 15 (“Am. Compl.”) ¶ 23.) Years later, in May
of 2020, Plaintiff sought out and consented to pest control services to be performed by
Aptive. (Id. ¶ 25.) At that time, Plaintiff signed and agreed to a Service Agreement with
Aptive (the “Aptive Agreement”), under which Aptive would perform quarterly services
for the duration of twelve months. (Id. ¶ 26.) The Aptive Agreement contained the
following arbitration provision:
ARBITRATION. READ THIS ARBITRATION PROVISION
CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS IF THERE IS A
DISPUTE.
Unless you reject this arbitration provision in the manner specified below,
any controversy, dispute or claim between you and [] Aptive arising out of
or relating to this Agreement, or the services performed by Aptive under
this Agreement or any other agreement, or the relationship between you
and Aptive resulting from any of the foregoing, including tort, contract,
equitable and statutory claims, and any claims for personal or bodily
injury or damage to real or personal property, regardless of whether the
controversy or claim arose before or after the execution, transfer or
acceptance of this Agreement, shall be settled by binding arbitration.
However, disputes regarding the scope and enforceability of this arbitration
provision shall be determined by a court, not an arbitrator . . . . IF A
CLAIM IS ARBITRATIED, YOU AND APTIVE WAIVE ANY RIGHT
TO A COURT OR JURY TRIAL. YOU AND APTIVE ALSO WAIVE
THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE.
ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE
ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS
REPRESENTATIVE OR CLASS MEMBER OR TO JOIN OR
CONSOLIDATE CLAIMS WITH CLAIMS OR ANY OTHER PERSONS
(THE “CLASS ACTION WAIVER”). NO ARBITRATOR SHALL HAVE
AUTHORITY TO CONDUCT ANY ARBITRATION IN VIOLATION
OF THIS PROVISION OR TO ISSUE ANY RELIEF THAT APPLIES TO
ANY PERSON OR ENTITY OTHER THAN AND/OR APTIVE
INDIVIDUALLY.

. . . .

This arbitration provision shall survive the termination of this Agreement
. . . .

IF YOU DO NOT WANT THIS ARBITRATION PROVISION TO
APPLY, YOU MAY REJECT IT BY MAILING A SIGNED REJECTION
NOTICE TO APTIVE ENVIRONMENTAL, LLC, ATTN:
ARBITRATION OPT OUT, 5132 N 300 W #150, PROVO, UT 84604
WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE OF
THIS AGREEMENT. ANY REJECTION NOTICE MUST INCLUDE
YOUR NAME, ADDRESS, EMAIL ADDRESS AND TELEPHONE
NUMBER AND STATE THAT YOU REJECT THE ARBITRATION
PROVISON. IF YOU REJECT THIS ARBITRATION PROVISION,
THAT WILL NOT AFFECT ANY OTHER PROVISON OF THE
AGREEMENT.
(Doc. No. 19-2 § 12 (bolded, italicized emphasis added).)
Aptive submits, and Plaintiff does not dispute, that it did not receive a mailed
notice from Plaintiff rejecting this arbitration provision. (Doc. No. 19-1 ¶ 4.)
The Aptive Agreement additionally states that Aptive is permitted to contact
Plaintiff for the purpose of appointment reminders and account communications:

EMAIL AND PHONE NUMBER NOTIFICATIONS; PRIVACY
POLICY: I request that Aptive send me notifications via email, text
message, and/or phone call using the cell phone number, land line number,
and/or emails that I provided to Aptive, to . . . (ii) schedule and/or confirm
service times and dates, and/or (iii) to communicate with me regarding my
account (including, without limitation, to collect outstanding or post due
amounts that I owe to Aptive).

(Doc. No. 19-2 § 13.)
Separate from the Aptive Agreement, there was an additional “Welcome
Checklist” that Plaintiff signed. (Am. Compl. ¶ 27.) The “Welcome Checklist”
contained a clause that allowed Plaintiff to consent to receiving text messages which
stated:
[ ] I agree that Aptive may call, text, and email me for marketing or other
purposes at the phone number(s) and email address(es) I provide to Aptive.
I authorize Aptive to record calls and use an automated dialing system or
prerecorded voice for calls and texts (message and data rates may apply). I
understand this consent is not required to obtain Aptive’s services and that
failure to provide consent does not negate Aptive’s ability to manually call
or text me in accordance with applicable laws.

(Id.) Plaintiff did not check the box on the checklist. (Id. ¶ 28.) Aptive’s and
Plaintiff’s agreement and services relationship formally ended in January of 2021. (Id.
¶¶ 30-31.)
On June 2, 2023, Plaintiff received an automated text from Aptive requesting that
she set up “autopay.” (Id. ¶ 32.) Plaintiff replied “[S]top,” to this message and received
a message stating that she was unsubscribed. (Id. ¶ 35.) Then on November 23, 2023,

Plaintiff received another automated text message, letting her know that she had an
upcoming appointment, on November 27, 2023. (Id. ¶ 36.) Plaintiff again replied
“[S]top,” and received a message stating that she was unsubscribed. (Id. ¶ 37.) Later
that same day, Plaintiff received another message from Aptive. (Id. ¶ 38.) On
November 27, 2023, Plaintiff received a personalized text message from an Aptive

technician letting her know that she would be at her residence to conduct service later
that morning. (Id. ¶ 40.) In response, Plaintiff told the Aptive technician that she did
not request this service. (Id. ¶ 42.) The technician apologized and explained that there
was a glitch in Aptive’s system that added past customers. (Id. ¶ 43.) Plaintiff received
another text from Aptive that day. (Id. ¶ 44.) Plaintiff responded “[S]top” again and

received an accompanying message letting her know that she was unsubscribed. (Id.
¶ 45.) Still on the same day, Plaintiff received a direct message from an Aptive
representative informing Plaintiff that Plaintiff’s account had been closed since her
home has not been serviced by Aptive since 2021. (Id. ¶ 46.)
Plaintiff filed a class action complaint seeking damages, injunctive relief, and any

other available legal remedy. (Id. ¶ 1.) Plaintiff asserts claims for negligent violation of
the Telephone Consumer Protection Act,

47 U.S.C. §§ 227

 et seq. (the “TCPA”), willful 
violation of the TCPA, and invasion of privacy.  (Id. ¶¶ 59-73.)  Aptive now moves to 
compel arbitration and stay proceedings pending arbitration.  (Doc. No. 17.)  Plaintiff 
opposes the motion.  (Doc. No. 24.)                                       
                          DISCUSSION                                     

I.   Legal Standard                                                       
    A motion to compel arbitration is evaluated under the Federal Rules of Civil 
Procedure either as a Rule 12(b)(6) motion to dismiss or as a Rule 56 motion for 
summary judgment, depending on whether the Court considers matters outside of the 
pleadings.  City of Benkelman v. Baseline Eng’g Corp.,

867 F.3d 875, 881-82

 

(8th Cir. 2017).  Documents “necessarily embraced by the complaint” are considered part 
of the pleadings.  Enervations, Inc. v. Minn. Mining & Mfg. Co.,

380 F.3d 1066, 1069

 
(8th Cir. 2004).  Because the Aptive Agreement is embraced by the complaint, the 
motion to compel arbitration is analyzed under Rule 12(b)(6).  In evaluating a 12(b)(6) 
motion, the Court must accept all factual allegations as true and view all reasonable 

inferences in the light most favorable to the non-moving party.  Bell Atl. Corp. v. 
Twombly,

550 U.S. 544, 555-56

 (2007).  The factual allegations in the complaint must 
“raise a right to relief above the speculative level.”

Id. at 555

.       
II.  Aptive’s Motion to Compel Arbitration                                
    Through the Federal Arbitration Act (“FAA”), Congress has established a strong 

federal policy favoring arbitration.  See Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220, 226

 (1987).  In considering a petition to compel arbitration, a court is 
required to determine whether:  (1) a valid agreement to arbitrate exists between the 
parties; and (2) the specific dispute is within the scope of that agreement.  See Pro Tech 
Indus., Inc. v. URS Corp.,

377 F.3d 868, 871

 (8th Cir. 2004); Houlihan v. Offerman & 
Co., Inc.,

31 F.3d 692, 694-95

 (8th Cir. 1994).  These “threshold questions of arbitrability 
are for a court to decide, unless there is clear and unmistakable evidence the parties 

intended to commit questions of arbitrability to an arbitrator.”  Eckert/Wordell Architects, 
Inc. v. FJM Props. of Willmar, LLC,

756 F.3d 1098, 1100

 (8th Cir. 2014).   
    Plaintiff does not dispute that the arbitration clause in the Aptive Agreement is 
valid.  Instead, the parties dispute whether the arbitration agreement encompasses the 
current dispute.  The Court applies “ordinary state law contract principles to decide 

whether parties have agreed to arbitrate a particular matter.”  Keymer v. Mgmt. Recruiters 
Int’l, Inc.,

169 F.3d 501, 504

(8th Cir. 1999).
Aptive argues that the arbitration clause between the parties is broad, contains no
exclusionary language, and that Plaintiff’s claims under the TCPA are tethered to the
agreement, the services contemplated under the agreement, or the parties’ relationship.

In particular, Aptive argues that “but for” the Aptive Agreement, the parties would not
have a relationship and Plaintiff’s phone number would not be in Aptive’s system. In
addition, Aptive points out that while the relationship between the parties had expired,
the arbitration provision contained a survival clause. Plaintiff, on the other hand, while
recognizing the broad language of the arbitration agreement, argues that her claims do not

fall within the scope of the arbitration provision. Instead, Plaintiff argues that her claims
arise from Aptive’s sending of unsolicited text messages that did not relate to the parties’
relationship and that occurred after the expiration of their contractual relationship.
The arbitration clause broadly states that it covers “any controversy, dispute or
claim between [Plaintiff] and [] Aptive arising out of or relating to [the Aptive]
Agreement, or the services performed by Aptive under this Agreement or any other

agreement, or the relationship between you and Aptive . . . .” (Doc. No. 19-2 § 12.)
With this broad language in mind, the Court must consider whether Plaintiff’s claims,
and the underlying factual allegations, “touch matters covered by the arbitration
provision.” See Parm v. Bluestem Brands, Inc.,

898 F.3d 869, 875

 (8th Cir. 2018).  After 
careful consideration, the Court concludes that Plaintiff’s claims are not covered by the 

arbitration agreement.  Plaintiff’s claims center on unsolicited text messages that were 
sent more than two years after the expiration of the parties’ contractual relationship.  
Plaintiff’s claims relate solely to the propriety of the texts in light of Plaintiff’s cell 
number being on the DNC registry.1  The claims do not relate to the services provided to 
Plaintiff under the Aptive Agreement.  That the arbitration clause survives termination 

does not change the Court’s conclusion.  Indeed, had Plaintiff sued Aptive for services 
provided under the Aptive Agreement after the agreement expired, then that provision 
would have applied to the Court’s analysis.  But that provision cannot be used to sweep 

1    Aptive argues that the basis of Plaintiff’s claim is that Plaintiff did not check the 
box in the Welcome Checklist consenting to the receipt of text messages from Aptive.  
Aptive reasons that Plaintiff’s reliance on the lack of consent to support her claims 
demonstrates that Plaintiff’s claims are, indeed, tethered to the Aptive Agreement.  The 
Court respectfully disagrees with Aptive’s argument on this point.  Plaintiff’s claims are 
based on the alleged violation of the TCPA, not on the unsigned consent provision.  See, 
e.g., Gamble v. New Eng. Auto Fin., Inc.,

735 F. App’x 664

, 666 (11th Cir. 2018) (11th 
Cir. May 31, 2018) (“The fact that [defendant] requested, but was refused, [Plaintiff’s] 
consent to receive text messages does not somehow transform the [consent provision] 
into the source of [Plaintiff’s] rights regarding those text messages.”). 
in any post-agreement claim despite the lack of connection to the parties’ agreement or 
relationship.  In the same vein, the fact that Aptive had access to Plaintiff’s phone 
number because of their past relationship is not, in the Court’s view, enough to tether the 

claims to the substance of the Aptive Agreement.  As pointed out by Plaintiff, even broad 
arbitration clauses have limits to what claims will fall within their scope.  See, e.g., 
Telecom Italia, SpA v. Wholesale Telecom Corp.,

248 F.3d 1109, 1116

 (11th Cir. 2001) 
(finding that a dispute that is “not related—with at least some directness—to performance 
of duties specified by the contract” does not “aris[e] out of” the contract so as to be 

covered by a standard arbitration clause); Gamble, 735 F. App’x at 666 (finding that a 
TCPA claim arose from post-agreement conduct that violated a distinct federal law, and 
not from a loan agreement).  Here, Plaintiff’s claims against Aptive do not relate to the 
performance of Aptive’s duties under the Aptive Agreement.  In fact, the parties’ 
relationship under that agreement ended two years before Plaintiff received the text 

messages at issue.  Instead, the claims are only tenuously connected to the Aptive 
Agreement simply because Aptive had access to Plaintiff’s cell number because of the 
past relationship.  The Court does not find that this connection is enough for the claims to 
“arise out of” the agreement.  Therefore, the Court finds that Plaintiff’s claims are not 
covered by the arbitration clause and Aptive’s motion is denied.          

                         CONCLUSION                                      
    For the reasons discussed above, the Court denies Aptive’s motion to compel 
arbitration.

ORDER

    Based upon the foregoing, and the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that Aptive’s motion to compel arbitration and stay proceedings 

(Doc. No. [17]) is respectfully DENIED.                                   

Dated:  December 9, 2024      s/Donovan W. Frank                          
                             DONOVAN W. FRANK                            
                             United States District Judge