Soto v. Commonwealth Financial Systems Inc.
Filing
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ORDER: Plaintiff Richard Soto's construed Motion for Final Default Judgment 7 is GRANTED. The Clerk is directed to enter a Final Default Judgment in favor of Richard Soto and against Commonwealth Financial Systems, Inc. in the amount of $34,970. The Clerk shall thereafter close this case. Signed by Judge Virginia M. Hernandez Covington on 12/2/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD SOTO,
Plaintiff,
v.
Case No. 8:13-cv-2597-T-33AEP
COMMONWEALTH FINANCIAL SYSTEMS,
INC.,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to “Plaintiff’s
Motion for Default” (Doc. # 7), filed on November 15, 2013,
which this Court construes as a Motion for Final Default
Judgment.
For the reasons that follow, the Court grants the
Motion.
I.
Default
Federal Rule of Civil Procedure 55(a) sets forth the
following regarding an entry of default:
(a) Entering a Default. 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. Houston 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.
Id.
A default judgment has
the effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal.
II.
Id.
Analysis
On October 8, 2013, Plaintiff Richard Soto filed a
Complaint for damages alleging that Defendant Commonwealth
Financial
Systems,
Inc.
violated
Protection Act, 47 U.S.C. § 227.
the
Telephone
(Doc. # 1).
Consumer
Soto effected
service on Commonwealth on October 15, 2013. (Doc. # 4).
Commonwealth failed to file a responsive pleading to the
Complaint.
On November 14, 2013, Soto filed a Motion for
entry of Clerk’s Default. (Doc. # 5).
The Clerk entered a
default against Commonwealth pursuant to Rule 55(a), Fed. R.
Civ. P., on November 15, 2013. (Doc. # 6).
At this juncture,
Soto’s construed request for a Final Default Judgment is
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before the Court.
Based upon the Clerk’s Entry of Default, the well-pleaded
factual
allegations
contained
in
the
Complaint,
and
the
Motion, the Court determines that a Default Judgment is
warranted.
The Court further determines that a hearing on
this matter is not needed because the damages due to Soto are
capable of accurate and ready mathematical computation or
ascertainment.
In the Motion, Soto indicates that Commonwealth placed 69
illegal auto-dialed calls to his cellular phone, entitling him
to damages in the amount of $34,500 ($500 per call).
The
Telephone Consumer Protection Act prohibits “mak[ing] any call
(other than a call made for emergency purposes or made with
the prior express consent of the called party) using any
automatic telephone dialing system” to “any telephone number
assigned to a . . . cellular telephone service.” See 47 U.S.C.
§ 277(b)(1)(A)(iii). A person may bring “an action to recover
for actual monetary loss from such a violation, or to receive
$500 in damages for each such violation . . . .” Id. at
§ 227(b)(3)(B). Soto has attached to the Motion a call ledger
reflecting the date of each of the 69 calls placed to his
cellular phone. (Doc. # 7 at 8-9).
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After considering the Motion and the exhibits attached
thereto, the Court finds that Soto is entitled to a Final
Default
Judgment
$34,500.
$470.
against
Commonwealth
in
the
amount
of
Soto is also entitled to costs in the amount of
Accordingly, the Court directs the Clerk to enter a
Final Default Judgment against Commonwealth and in favor of
Soto in the amount of $34,970.
Thereafter, the Clerk shall
close this case.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff
Richard
Soto’s
construed
Motion
for Final
Default Judgment (Doc. # 7) is GRANTED.
(2)
The Clerk is directed to enter a Final Default Judgment
in
favor
of
Richard
Soto
and
against
Commonwealth
Financial Systems, Inc. in the amount of $34,970.
(3)
The Clerk shall thereafter close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of December, 2013.
Copies: All Parties and Counsel of Record
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