United States District Court, W.D. Michigan, Southern Division
JANET T. NEFF, JUDGE
Brace Kern and Jessica Huigens brought this action under the
Telephone Consumer Protection Act (TCPA), 47 U.S.C. §
227, alleging that they received unsolicited phone calls to
cellular telephone numbers that are listed on the national
“do-not-call” registry. At this stage of the
proceedings, all Defendants have been dismissed except for
United Shuttle Alliance Transportation Corp (d/b/a USA Travel
Services) (“United Shuttle”) and VIP Travel
Services (“VIP”). The Court entered a default
against these defendants in February 2017. Before the Court
is Plaintiffs' motion for entry of judgment against
United Shuttle and VIP (ECF No. 187). Defendants have not
responded to the motion. For the reasons stated herein, the
motion will be granted in part.
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).
“‘Even when a default judgment is warranted based
on a party's failure to defend, the allegations in the
complaint with respect to the amount of the damages are not
deemed true.'” Vesligaj v. Peterson, 331
F. App'x 351, 355 (6th Cir. 2009) (quoting Credit
Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151,
155 (2d. Cir. 1999)) “[T]he burden of establishing
damages rest[s] squarely and solely on [the
plaintiff].” Flynn v. People's Choice Home
Loans, Inc., 400 F. App'x 452, 457 (6th Cir. 2011).
TCPA makes it unlawful to make a call using an
“automatic telephone dialing system or prerecorded
device . . . to any telephone number assigned to a . . .
cellular telephone service.” 47 U.S.C. §
227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii). It is
also unlawful to initiate a telephone solicitation to a
residential telephone subscriber who has registered his or
her telephone number on the national do-not-call registry, 47
C.F.R. § 64.1200(c)(2), and any person who has
“received more than one telephone call within any
12-month period by or on behalf of the same entity” may
bring suit to enforce this prohibition. 47 U.S.C. §
seek damages for eight calls that they received. According to
affidavits attached to Plaintiffs' motion for entry of
judgment, Plaintiff Kern received five telephone calls to his
residential cellular phone from an automatic telephone
dialing system (“ATDS”), and Plaintiff Huigens
received three calls to her residential cellular phone from
an ATDS. Plaintiffs' cellular telephone numbers were
registered on the national do-not-call registry at the time.
United Shuttle allegedly made the calls using the name USA
Travel Services and/or VIP Travel Services, and the purpose
of the calls was to solicit the sale of vacation property.
Based on these facts, all eight telephone calls violated both
the ATDS provision in § 227(b)(3) and the do-not-call
restrictions in the FCC regulations that are enforceable
through § 227(c)(5).
violation of the ATDS provision, the TCPA permits damages in
the amount of “actual monetary loss” or $500,
whichever is greater. 47 U.S.C. § 227(b)(3). For a
telemarketing call made in violation of § 227(c)(5) and
the FCC regulations, the statute permits recovery of
“actual monetary loss” or “up to
$500, ” whichever is greater. 47 U.S.C. §
227(c)(5) (emphasis added). If the Court finds that the
defendant “willfully or knowingly” violated these
provisions, the Court “may, in its discretion, ”
triple the amount of damages. See 47 U.S.C. §
227(b)(3), § 227(c)(5). A plaintiff may recover damages
under both sections for a call that violates both sections.
Charvat v. NMP, LLC, 656 F.3d 440, 449 (6th Cir.
do not allege actual monetary loss. Thus, Plaintiffs may be
able to recover statutory damages of between $500 and $3, 000
per call. In their motion for entry of judgment, Plaintiffs
seek $1, 500 in damages for each of the eight calls,
ostensibly relying on treble damages under either §
227(b)(3) or § 227(c)(5), but not both.
Court finds that statutory damages of $500 per call is
appropriate. The Court will not exercise its discretion to
triple the amount of damages. The Sixth Circuit has not
articulated what it means for a violation of the TCPA to be
“willful” or “knowing, ” but the
Court need not discuss this standard because Plaintiffs have
not identified what allegations or evidence the Court should
rely upon to determine whether Defendants' actions were
willful or knowing. Instead, Plaintiffs merely recite the
legal standard for damages. It is Plaintiffs' burden to
establish damages. They have established that they are
entitled to the minimum amount provided by the statute, but
they have not articulated a basis for the Court to award
anything more, including treble damages.
summary, the Court will award damages of $2, 500 to Plaintiff
Kern for the five calls that he received and $1, 500 to
Plaintiff Huigens for the three calls that she received. The
Court will hold United Shuttle and VIP jointly and severally
liable because Plaintiffs allege that they are one and the
same entity. ...