Bolling Prescription Lab, Inc. v. Adelphia Supply USA, INC. et al

Filing 18

MOTION by Plaintiff Bolling Prescription Lab, Inc. for judgment and prove-up (Attachments: # 1 Exhibit 1 - Declaration of Tod A. Lewis)(Lewis, Tod)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
BOLLING PRESCRIPTION LAB,
INC., d/b/a ROSELAND
PHARMACY, individually and as the
representative of a class of similarlysituated persons,
Plaintiff,
v.
ADELPHIA SUPPLY USA, INC.,
YUDAH NEUMAN, REUVEN
SOBEL, and JOHN DOES 1-10,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 17 CV 1485
Hon. Manish S. Shah

PLAINTIFF’S MOTION FOR PROVE-UP AND FINAL JUDGMENT
NOW COMES plaintiff, Bolling Prescription Lab, Inc. d/b/a
Roseland Pharmacy (“Plaintiff”), by and through the undersigned
attorneys, submits this Motion for Prove-Up and Final Judgment
pursuant to Rules 55 and 58 of the Federal Rules of Civil Procedure
against Defendants Adelphia Supply USA, Inc. (“Adelphia”), Yudah
Neuman (“Neuman”), and Reuvan Sobel (“Sobel”) (collectively
“Defendants”), jointly and severally, and in Plaintiff’s favor.
Additionally, Plaintiff requests that the Court enter an order enjoining
Defendants from further transmitting unsolicited facsimile

advertisements into the state of Illinois. In support of this motion,
Plaintiff states as follows:
BACKGROUND
1.

On February 27, 2017, Plaintiff filed this action against

Defendants to secure redress for Defendants’ transmission of
unsolicited advertisements to telephone facsimile machines to Plaintiff,
and others, in violation of the Telephone Consumer Protection Act, 47
U.S.C. § 227 (“TCPA”) and the common law of conversion. ECF 1.
2.

On June 6, 2017, Plaintiff filed an Amended Class Action

Complaint stating the same claims as the original complaint. ECF 9.
3.

All three Defendants have been served in this action and

none of the Defendants have filed a responsive pleading, nor filed an
appearance or otherwise communicated with Plaintiff or its counsel
within the twenty-one day period provided by Fed. R. Civ. P. 12.
4.

On August 3, 2017, this Court entered an order of default as

to all three Defendants and granted Plaintiff leave to move for prove up
of damages and final judgment. ECF 16.
5.

Plaintiff seeks entry of a final judgment against Defendants

in the amount of $42,000.00 in statutory damages pursuant to the
2

TCPA.
6.

For an itemization of damages, attached as Exhibit 1 is the

Declaration of Tod A. Lewis.
7.

Attached as Exhibits A-BB to the Declaration of Tod A Lewis

are the subject faxes. See also ECF 9-1 to 9-28.
JURISDICTION AND VENUE
8.

Plaintiff is an independent pharmacy located in Chicago,

Cook County, Illinois. ECF 9 ¶ 8.
9.

Adelphia is a New York corporation with its principal place

of business in Brooklyn, Kings County, New York. Id. ¶ 9. Upon
information and belief, Adelphia was dissolved on June 29, 2016. Id.
10.

Sobel is an individual and resident of New York. Id. ¶ 10.

11.

Neuman is an individual and resident of New York. Id. ¶ 11.

12.

This Court has subject matter jurisdiction under 28 U.S.C. §

1331 as Plaintiff’s claims arise under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227. Id., ¶ 12.
13.

Personal jurisdiction exists over Defendants in Illinois

because Defendants have transacted business and committed tortious
acts within the State. Id., ¶¶ 13, 15-29.
3

14.

Venue is proper in the Northern District of Illinois because

Defendants sent an unsolicited fax advertisement to Plaintiff in this
district. Id., ¶¶ 7, 15-29.
DAMAGES
15.

The TCPA, 47 U.S.C. § 227(b)(1), prohibits the “use [of] any

telephone facsimile machine … to send an unsolicited advertisement to
a telephone facsimile machine.”
16.

Defendants sent 28 junk faxes to Plaintiff for which Plaintiff

seeks recovery under the TCPA. Exhibit 1, ¶ 4.
17.

True and correct copies of the faxes received by Plaintiff

between September 1, 2016 and February 24, 2017 are attached to the
Declaration as Exhibits A-BB. See also ECF 9-1 to 9-28.
18.

A person or entity may bring “an action to recover for actual

monetary loss for such violation, or to receive $500 in damages for each
such violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B).
19.

Furthermore, 47 U.S.C. § 227(b)(3) provides that: “[i]f the

Court finds that the defendant willfully or knowingly violated this
subscription or the regulations proscribed under this subsection, the
court may, in its discretion, increase the amount of the award to an
4

amount equal to not more than 3 times the amount available under
subparagraph (B) of this paragraph.”
20.

The Communications Act of 1943—of which the TCPA is a

part— has clarified the meaning of the term “willful” when determining
administrative sanctions. 47 U.S.C. § 312 (f) (“‘willful’ ... means the
conscious and deliberate commission or omission of such act,
irrespective of any intent to violate” the Act or Commission rules).
Thus, consistent with congressional intent, Commission interpretations
of “willful” do not require intent to engage in a violation.
21.

Defendants did not send the faxes accidentally. Therefore

Defendants sent the fax advertisements to Plaintiff willfully or
knowingly and thus trebling is appropriate. Exhibit 1, ¶ 5.
22.

As a result, Plaintiff is entitled to recover $1,500.00 for each

of the 28 junk faxes Defendants sent them, a total of $42,000.00 for
violating the TCPA.
INJUNCTION
23.

The TCPA also expressly permits injunctive relief. 47

U.S.C.A. § 227 (b)(3)(a) (“A person or entity may . . . bring in an
appropriate court of that State . . . an action based on a violation of this
5

subsection . . . to enjoin such violation.”).
24.

The Court should enter an injunction prohibiting Defendants

from sending unsolicited faxed advertisements to Illinois consumers
pursuant to the TCPA.
25.

Plaintiff will submit a proposed order of final judgment to

[e-mail].
WHEREFORE, Plaintiff respectfully requests that the Court enter
an order of final judgment against defendants Adelphia Supply USA,
Inc. (“Adelphia”), Yudah Neuman (“Neuman”), and Reuvan Sobel
(“Sobel”), jointly and severally, and in Plaintiff’s favor, in the total
amount of $42,000.00; enter an order enjoining Defendants from
sending advertisements by facsimile without prior express invitation or
permission and without a statutorily-compliant opt-out notice; and
award any and all other appropriate relief.

6

Dated: February 9, 2018

Respectfully submitted,
BOLLING PRESCRIPTION LAB,
INC., d/b/a ROSELAND
PHARMACY, individually and as
the representative of a class of
similarly-situated persons,
/s/ Tod A. Lewis

One of its attorneys
Tod A. Lewis (Atty # 6256282)
Bock, Hatch, Lewis & Oppenheim,
LLC
134 N. La Salle St., Ste. 1000
Chicago, IL 60602
Telephone: [phone]
Facsimile: 312-658-5555
[e-mail]

7

CERTIFICATE OF SERVICE
I hereby certify that, on February 9, 2018, I caused the foregoing
to be filed using the Court’s CM/ECF system, on the parties listed below
by depositing the same in the U.S. mail at 134 N. La Salle St., IL 60602
with proper postage prepaid to the following addresses:

/s/ Tod A. Lewis

8