Perrong v. All Star Chimney Solutions, Inc.

Filing 13

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER re: 10 MOTION for Default Judgment as to All Star Chimney Solutions, Inc. filed by Andrew Perrong. (MacDonald, Gail)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ANDREW PERRONG,

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Plaintiff,
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v.
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ALL STAR CHIMNEY SOLUTIONS, INC., *
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Defendant.
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Civil Action No. 1:21-cv-10084-IT

MEMORANDUM & ORDER
TALWANI, D.J.

June 7, 2021

Plaintiff Andrew Perrong brought this suit alleging knowing and willful violations of the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227, by Defendant All Star Chimney
Solutions, Inc. (“All Star”). Compl. [#1]. All Star was served on January 19, 2021. Summons
Returned Executed [#4]. All Star did not enter an appearance nor file a response and was
accordingly defaulted on February 22, 2021. Not. of Default [#6].
On March 13, 2021, Perrong filed the pending Motion for Default Judgment [#10]. He
filed an Affidavit of Service [#11] on May 17, 2021, indicating that the motion and exhibits were
successfully served on All Star earlier that day.
I.

Standard of Review
Rule 55 of the Federal Rules of Civil Procedure establishes a two-step process for entry

of a default judgment. The first step is a clerk’s entry of a default under Rule 55(a), which
provides that “[w]hen 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.” Fed. R. Civ. P. 55 (a). The second step requires entry of a default

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judgment by the clerk if the plaintiff’s claim is for a sum certain, or otherwise by the court, on an
application for a default judgment. Fed. R. Civ. P. 55(b).
When a defendant has failed to respond to the complaint, the court presumes that all wellpleaded factual allegations relating to liability are true. See Sec. & Exch. Comm’n v.
Tropikgadget FZE, 146 F. Supp. 3d 270, 275 (D. Mass. 2015). So, when determining liability, a
defendant’s default functions as an admission of the plaintiff’s well-pleaded allegations of fact.
Id. However, the court does not presume that any factual allegations relating to the amount of
damages suffered are true. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
The court must ensure that the damages awarded are reasonable and demonstrated by the
evidence. Fed. R. Civ. P. 55(b)(2)(C).
II.

Discussion
Subject to limited exceptions not applicable in this case, the TCPA makes it illegal to

“make any call . . . using any automatic telephone dialing system or an artificial or prerecorded
voice” to “emergency telephone line[s],” to “guest room[s] or patient room[s] of a hospital,” or
“to any telephone number assigned to a paging service[ ] or cellular telephone service” without
the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). The statute defines an
“automatic telephone dialing system” as “equipment which has the capacity—(A) to store or
produce telephone numbers to be called, using a random or sequential number generator; and (B)
to dial such numbers.” Id. § 227(a)(1). The TCPA provides for statutory damages of $500 per
“violation.” Id. § 227(b)(3). In addition, the court may treble the statutory damages if the caller
“willfully” or “knowingly” violated the prohibition. Iion

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Here, Perrong has alleged and attested to four automated transmissions in violation of 47
U.S.C. § 227(b)(1)(A). Compl. ¶ 42 [#1]; Perrong Decl. ¶ 5 [#10-1]. He is accordingly entitled to
$2,000 in damages for these violations.
Subsection (c)(5) of the TCPA creates a private right of action to a “person” who receives
more than one telephone call within a twelve-month period by a caller violating the regulations
implemented under section (c). 47 U.S.C. § 227(c)(5). The two regulations at issue in this case
are 47 C.F.R. 64.1200(c)(2), which prohibits calling a number on the national do-not-call
registry, and 47 C.F.R. 64.1200(d), which requires companies making automated calls to keep a
written policy, available upon demand, for maintaining a do-not-call list. Like violations under
section (b), those under section (c) carry the same $500 penalty, which may be trebled by the
court upon a finding that “the defendant willfully or knowingly violated the regulations”
implemented under the section. Id. § 227(c)(5)(C).
Perrong has alleged and attested to the fact that his phone numbers were on the national
do-not-call registry. Compl. ¶¶ 34, 38 [#1]; Perrong Decl. ¶ 5 [#10-1]. He has further alleged that
All Star did not have a written policy, available on demand, pertaining to do-not-call requests.
Compl. ¶¶ 53, 88 [#1]. Perrong claims that he is entitled to $500 per regulatory violation for each
of the four calls, for a statutory award of $4,000 under section (c). Perrong Decl. ¶ 5 [#10-1].
While the court agrees that each call of a number on the national do-not-call registry
constitutes a separate violation of 47 C.F.R. 64.1200(c)(2), the court does not agree that the
failure to maintain a written policy, available on demand, pertaining to do-no-call requests would
constitute a separate violation based on each call. Where Perrong alleges that he sent All Star an
email requesting a copy of the policy and received no reply, the court concludes that he has
alleged one violation of 47 C.F.R. 64.1200(c)(2). Accordingly, Perrong is entitled to $2,500 for

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five violations by All Star of section (c)—four for calling numbers on the national do-not-call
registry and one for failing to make the policy available on demand.
Perrong’s Motion for Default Judgment [#10] requests that the court treble all these
statutory damages on the ground that All Star’s violations were knowing and/or willful. Mot. for
Default J. 2, 11-12 [#10]. The court declines to do so. Given the posture of the case, the thin
record, and the absence of any request for a further hearing “to determine the truth of [the]
allegation[s of intent] by evidence,” see Fed. R. Civ. P. 55(b)(2)(C), the court cannot make a
finding that All Star engaged in a willful or knowing violation of the law, as required by 47
U.S.C. §§ 227 (b)(3) and (c)(5).
Accordingly, the court orders judgment in favor of Perrong and against All Star in the
total amount of $4,500, based on four calls in violation of 47 U.S.C. § 227(b)(3) and (c)(5) and
one violation of 47 U.S.C. § 227(c)(5) for All Star’s failure to make a written policy pertaining to
do-not-call requests available to Perrong on demand.
IT IS SO ORDERED.
June 7, 2021

/s/ Indira Talwani
United States District Judge

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