Clements v. DSM Supply LLC

Filing 25

ORDER granting 24 Plaintiff's Motion for Default Judgment. The Clerk is directed to enter judgment in favor of Plaintiff and against Defendant in the amount of $54,500.00 and thereafter to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 2/13/2014. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DR. KATHY CLEMENTS,
Plaintiff,
v.

Case No. 8:13-cv-1096-T-33EAJ

DSM SUPPLY LLC,
Defendant.
______________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Dr. Kathy Clements’s Motion for Default Judgment
(Doc. # 24) filed on January 23, 2014.

For the reasons

that follow, the Court grants the Motion.
I.

Legal Standard
Federal Rule of Civil Procedure 55(a) provides: “When

a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.”

A district court may enter a

default judgment against a properly served defendant who
fails to defend or otherwise appear pursuant to Federal
Rule of Civil Procedure 55(b)(2). DirecTV, Inc. v. Griffin,
290 F. Supp. 2d 1340, 1343 (M.D. Fla. 2003).

The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment.

See

Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863
(11th Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous.
Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

Rather,

a Court must ensure that there is a sufficient basis in the
pleadings for the judgment to be entered.
judgment

has

plaintiff’s

the

effect

well-pled

of

Id.

establishing

allegations

of

as

the

and

fact

fact
bars

the

defendant from contesting those facts on appeal.
II.

A default

Id.

Discussion
On

April

24,

2013,

Clements

filed

a

single-count

Complaint against Defendant DSM Supply LLC for “violation
of the Telephone Consumer Protection Act, 47 U.S.C. § 227
et seq.”

(Doc. # 1 at 1).

The relevant portion of the TCPA provides:
(b)

Restrictions on use of automated telephone
equipment

(1)

Prohibitions

It shall be unlawful for any person within the
United States . . . .
(C) to use any telephone facsimile machine,
computer, or other device to send, to a
telephone facsimile machine, an unsolicited
advertisement, unless—

2

(i) the unsolicited advertisement is
from a sender with an established
business
relationship
with
the
recipient;
(ii) the sender obtained the number of
the
telephone
facsimile
machine
through(I) the
voluntary
communication
of such number, within the context
of
such
established
business
relationship, from the recipient
of the unsolicited advertisement,
or
(II) a
directory,
advertisement,
or site on the Internet to which
the recipient voluntarily agreed
to make available its facsimile
number for public distribution . .
. ; and
(iii)
the
unsolicited
advertisement
contains
a
notice
meeting
the
requirements under paragraph (2)(D) . .
. .
47 U.S.C. § 227(b)(1)(C).
Among

other

allegations,

Clements

claims

that

DSM

Supply “sent Plaintiff’s office approximately one hundred
(100) facsimiles since September 2011, in an attempt to
solicit business” despite Clements’s numerous requests to
be removed from DSM Supply’s fax solicitation list.
# 1 at 2).

(Doc.

Clements additionally alleges that “Defendant

willfully and/or knowingly violated the TCPA.”

3

(Id. at 3).

On August 28, 2013, Clements filed a purported return
of service executed as to DSM Supply.

(Doc. # 11).

DSM

Supply failed to file a responsive pleading, and Clements
moved for an entry of Clerk’s default on October 4, 2013.
(Doc. # 12).

The Clerk accordingly entered default against

DSM Supply on October 7, 2013.
6,

2013,

Clements

filed

a

(Doc. # 13).

motion

for

On November

default

judgment.

(Doc. # 14).
Upon
Court

evaluating

concluded

the

that

November

Clements

had

6,

2013,

failed

to

proper execution of service as to DSM Supply.
In

an

without

Order

dated

prejudice

December
the

2,

motion

2013,

for

motion,

the

default

the

demonstrate
(Doc. # 16).

Court

denied

judgment

and

directed Clements to file a renewed motion accompanied by a
short brief demonstrating the appropriateness of Clements’s
method of service under the circumstances of this case.
(Id. at 3).
On

December

13,

2013,

in

lieu

of

filing

a

brief

explaining why the allegedly executed service was proper,
Clements filed a motion seeking an extended opportunity to
effect service.

(Doc. # 18).

The Court granted the motion

(Doc. # 19), and on December 23, 2013, Clements filed a
return of service reflecting that Clements effected service

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of process on DSM Supply on December 12, 2013 (Doc. # 20).
DSM Supply again failed to file a responsive pleading, and
Clements moved for an entry of Clerk’s default on January
3, 2014.

(Doc. # 21).

On January 6, 2014, the Court

vacated the October 7, 2013, Clerk’s entry of default and
filed a renewed entry of default in light of DSM Supply’s
failure to respond.

(Doc. ## 22, 23).

Based upon the Clerk’s entry of default, the well-pled
factual

allegations

contained

in

the

Complaint,

the

affidavit filed in support of Clements’s Motion for Default
Judgment (Clements Aff. Doc. # 24-1 at 2), and the Motion
itself, the Court determines that the Motion is due to be
granted

and

further

determines

that

a

hearing

on

this

matter is not needed.
With regard to damages available for a violation of
the statute, the TCPA provides in relevant part:
(3)

Private right of action

A person or entity may, if otherwise permitted by
the laws or rules of court of a State, bring in
an appropriate court of that State . . .
(B) an
action
to
recover
for
actual
monetary loss from such a violation, or to
receive $500 in damages for each such
violation, whichever is greater . . . .
If the Court finds that the defendant willfully
or knowingly violated this subsection or the

5

regulations prescribed under this subsection, the
court may, in its discretion, increase the amount
of the award to an amount equal to not more than
3 times the amount available under subparagraph
(B) of this paragraph.
47 U.S.C. § 227(b)(3).
Clements requests an award of statutory damages in the
amount of $54,500.00, representing 13 faxes received prior
to Clements’s written request to cease the faxes at $500.00
each

(13

faxes

X

$500.00

=

$6,500.00)

plus

32

faxes

received after her written request to cease the faxes at
$1,500.00 each (32 faxes X $1,500.00 = $48,000.00).

The

Court

See

finds

this

calculation

to

be

appropriate.

Tacoronte v. Tate & Kirlin Assocs., No. 6:13-cv-331-Orl37DAB, 2013 WL 5970720, at *8 (M.D. Fla. Nov. 8, 2013)
(finding $11,000, representing “$500 for the first call and
$1,500 each for seven additional willful telephone calls,”
to

be

an

appropriate

award

in

light

of

the

defendant’s

willful or knowing failure to comply with the TCPA).
This

amount

mathematical
affidavit

is

capable

computation
and

Specifically,

other

Clements

or

of

and

ascertainment

exhibits
herself

accurate

filed

provided

from

by
an

ready
the

Clements.

affidavit

in

which she stated that she has “proof of exactly forty-five
(45) facsimiles, of which thirty-[two] (32) facsimiles were

6

received

after

I

had

sent

a

written

contacting me on October 21, 2011.”
24-1 at 3).

request

to

cease

(Clements Aff. Doc. #

Clements attached the forty-five facsimiles at

issue as exhibits to her affidavit.

(Id.).

The Court accordingly directs the Clerk to enter a
final default judgment against DSM Supply and in favor of
Clements in the amount of $54,500.00.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

Dr.

Kathy

Clements’s

Motion

for

Default

Judgment (Doc. # 24) is GRANTED.
(2)

The Clerk is directed to enter judgment in favor of
Plaintiff

and

against

Defendant

in

the

amount

of

$54,500.00, and thereafter to CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of February, 2014.

Copies: All Counsel of Record

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