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Health One Medical Center v. Mohawk, Inc.

United States District Court, E.D. Michigan, Southern Division

March 27, 2017

Health One Medical Center, Eastpointe, P.L.L.C., individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
Mohawk, Inc. d/b/a Mohawk Medical, Defendant.

          Stephanie Dawkins Davis, Mag. Judge

          OPINION AND ORDER AWARDING DAMAGES AND COSTS, AND DENYING WITHOUT PREJUDICE REQUEST FOR ATTORNEY FEES PURSUANT TO ORDER GRANTING DEFAULT JUDGMENT

          Judith E. Levy United States District Judge

         On February 10, 2017, the Court granted plaintiff Health One Medical Center, Eastpointe, P.L.L.C.'s motion for a default judgment against defendant Mohawk, Inc., and ordered plaintiff to submit supporting documentation with regards to damages, fees, and costs. (Dkt. 20.) Plaintiff filed its supporting documentation, which requests a total of $13, 513.75 from defendant. (Dkt. 27 at 6.)

         For the reasons set forth below, the Court awards plaintiff $1, 000 in statutory damages and $400 in costs. The Court denies without prejudice plaintiff's request for attorney fees.

         I. Background

         On August 8, 2016, plaintiff received two unsolicited advertisements via fax from defendant Mohawk, Inc. These advertisements for pharmaceuticals were addressed to the Office Manager at Health One Medical Center, and listed a number of pharmaceuticals available and the prices for these products. (See Dkt. 1-1 at 2; Dkt. 1-2 at 2.) At the bottom of the faxes was information in bold text regarding how the fax recipient could place orders. And under this information was a line of text that said, “___Check here to be removed from our fax list and fax to 800-567-1638.” (Id.)

         After receiving these faxes, on October 26, 2016, plaintiff filed a complaint against defendant for alleged violations of the Telephone Consumer Protection Act (“TCPA”), and for common law and statutory conversion, Mich. Comp. Laws § 600.2919a. (Dkt. 1.) For the TCPA violations, plaintiff sought statutory damages for each fax and injunctive relief. For the conversion counts, plaintiff sought compensation and attorney fees and costs. (Dkt.1 at 2.)

         Defendant did not respond to the complaint or make an appearance. On February 7, 2017, plaintiff filed a motion for a default judgment. (Dkt. 18.) On February 10, 2017, the Court granted the motion and ordered plaintiff to provide documentation in support of its request for damages and attorney fees and costs. (Dkt. 20.)

         II. Analysis

         Plaintiff requests statutory damages, trebled, pursuant to the TCPA, 47 U.S.C. § 227(b)(3), and $10, 113.75 in attorney fees and $400 in costs pursuant to Michigan's conversion statute, Mich. Comp. Laws § 600.2919a. (Dkt. 27 at 6.)

         Damages

         Pursuant to the TCPA, defendant is entitled to $500 per violation of the statute. 47 U.S.C. § 227(b)(3). Plaintiff requests statutory damages of $500 per fax, and a determination that the TCPA violations were willful or knowing, which would entitle plaintiff to treble damages, or $1, 500 per fax. (Dkt. 27 at 6.)

         “When a defendant is in default, the well pleaded factual allegations in the Complaint, except those relating to damages, are taken as true.” Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 848 (E.D. Mich. 2006) (citing Thomson v. Wooster, 114 U.S. 104 (1885); Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995)). “[T]he burden of establishing damages rest[s] squarely and solely on [plaintiff].” Flynn v. People's Choice Home Loans, Inc., 400 F. App'x 452, 457 (6th Cir. 2011) (citing Antoine v. Atlas Turner, 66 F.3d 105, 110 (6th Cir. 1995)).

         The Sixth Circuit has not articulated when a violation of the TCPA is “willful or knowing.” But this Court need not determine the appropriate standard because plaintiff has not articulated which of its allegations ...


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