Health One Medical Center, Eastpointe P.L.L.C. v. Mohawk, Inc.

Filing 34

MEMORANDUM OPINION and ORDER Awarding Damages and Costs, and Denying Without Prejudice Request for Attorney Fees Pursuant to Order Granting Default Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Health One Medical Center,
Eastpointe, P.L.L.C., individually
and as the representative of a class Case No. 16-cv-13815
of similarly-situated persons,
Judith E. Levy
Plaintiff,
United States District Judge
v.

Mag. Judge Stephanie Dawkins
Davis

Mohawk, Inc. d/b/a Mohawk
Medical,
Defendant.
________________________________/
OPINION AND ORDER AWARDING DAMAGES AND COSTS,
AND DENYING WITHOUT PREJUDICE REQUEST FOR
ATTORNEY FEES PURSUANT TO ORDER GRANTING
DEFAULT JUDGMENT
On February 10, 2017, the Court granted plaintiff Health One
Medical Center, Eastpointe, P.L.L.C.’s motion for a default judgment
against defendant Mohawk, Inc., and ordered plaintiff to submit
supporting documentation with regards to damages, fees, and costs.
(Dkt. 20.) Plaintiff filed its supporting documentation, which requests a
total of $13,513.75 from defendant. (Dkt. 27 at 6.)

For the reasons set forth below, the Court awards plaintiff $1,000
in statutory damages and $400 in costs.

The Court denies without

prejudice plaintiff’s request for attorney fees.
I.

Background

On

August

8,

2016,

plaintiff

received

two

unsolicited

advertisements via fax from defendant Mohawk, Inc.

These

advertisements for pharmaceuticals were addressed to the Office
Manager at Health One Medical Center, and listed a number of
pharmaceuticals available and the prices for these products. (See Dkt. 11 at 2; Dkt. 1-2 at 2.) At the bottom of the faxes was information in bold
text regarding how the fax recipient could place orders. And under this
information was a line of text that said, “___ Check here to be removed
from our fax list and fax to 800-567-1638.” (Id.)
After receiving these faxes, on October 26, 2016, plaintiff filed a
complaint against defendant for alleged violations of the Telephone
Consumer Protection Act (“TCPA”), and for common law and statutory
conversion, MICH. COMP. LAWS § 600.2919a. (Dkt. 1.) For the TCPA
violations, plaintiff sought statutory damages for each fax and injunctive

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relief. For the conversion counts, plaintiff sought compensation and
attorney fees and costs. (Dkt.1 at 2.)
Defendant did not respond to the complaint or make an appearance.
On February 7, 2017, plaintiff filed a motion for a default judgment.
(Dkt. 18.) On February 10, 2017, the Court granted the motion and
ordered plaintiff to provide documentation in support of its request for
damages and attorney fees and costs. (Dkt. 20.)
II.

Analysis

Plaintiff requests statutory damages, trebled, pursuant to the
TCPA, 47 U.S.C. § 227(b)(3), and $10,113.75 in attorney fees and $400 in
costs pursuant to Michigan’s conversion statute, MICH. COMP. LAWS
§ 600.2919a. (Dkt. 27 at 6.)
Damages
Pursuant to the TCPA, defendant is entitled to $500 per violation
of the statute.

47 U.S.C. § 227(b)(3).

Plaintiff requests statutory

damages of $500 per fax, and a determination that the TCPA violations
were willful or knowing, which would entitle plaintiff to treble damages,
or $1,500 per fax. (Dkt. 27 at 6.)

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“When 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) (citing Thomson v. Wooster, 114 U.S. 104 (1885); Antoine v. Atlas
Turner, Inc., 66 F.3d 105, 110–11 (6th Cir. 1995)). “[T]he burden of
establishing damages rest[s] squarely and solely on [plaintiff].” Flynn v.
People’s Choice Home Loans, Inc., 400 F. App’x 452, 457 (6th Cir. 2011)
(citing Antoine v. Atlas Turner, 66 F.3d 105, 110 (6th Cir. 1995)).
The Sixth Circuit has not articulated when a violation of the TCPA
is “willful or knowing.”

But this Court need not determine the

appropriate standard because plaintiff has not articulated which of its
allegations would support a finding that the violations were willful or
knowing.
In its supporting documentation, plaintiff claims the complaint
alleges the violations were willful or knowing, “and Defendant has not
disputed that,” and therefore the Court should find the violations willful
or knowing. (Dkt. 27 at 6.) But in the complaint, plaintiff never expressly
alleges defendant’s conduct was willful or knowing. Instead, plaintiff
recited the statutory provision indicating that a court may impose treble
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damages if it finds the violations were willful or knowing. Even if the
complaint could be construed to allege the violations were willful or
knowing, plaintiff has failed to articulate what actions or conduct would
support such a finding. And, as set forth above, plaintiff must establish
the extent of its damages, and therefore cannot rely only on the fact that
defendant failed to respond.

Thus, without more, plaintiff has not

established that it is entitled to treble damages.
Pursuant to 47 U.S.C. § 227(b)(3), plaintiff is therefore entitled to
$1,000 in statutory damages, which results from the two faxes sent in
violation of the TCPA.
Attorney Fees and Costs
Plaintiff requests $10,113.75 in attorney fees and $400 in costs
pursuant to Michigan’s conversion statute, MICH. COMP. LAWS
§ 600.2919a, which provides that “[a] person damaged as a result of
[violations of this section] may recover . . . costs and reasonable attorney
fees.” (Dkt. 27 at 6.)
To calculate a “reasonable attorney fee,” the Court uses the lodestar
method. The N.E. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686,
702 (6th Cir. 2016) (citing Blum v. Stenson, 465 U.S. 886, 888 (1984);
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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “The lodestar is ‘the
number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.’” Hensley, 461 U.S. at 433. The party seeking an
award of fees must submit “evidence of the hours worked and the rates
sought.” The N.E. Ohio Coal. for the Homeless, 831 F.3d at 702.
This evidence must be “sufficiently detailed to enable courts to
review the reasonableness of the hours expended.” Imwalle v. Reliance
Med. Prods., Inc., 515 F.3d 531, 552 (6th Cir. 2008). And if the court
determines the documentation is inadequate, the court may reduce the
award accordingly. The N.E. Ohio Coal. for the Homeless, 831 F.3d at
702. After determining the lodestar for each attorney, the court may also
“within limits, adjust the ‘lodestar’ to reflect relevant considerations
peculiar to the subject litigation.” See Adcock-Ladd v. Sec’y of Treasury,
227 F.3d 343, 349 (6th Cir. 2000) (citing Reed v. Rhodes, 179 F.3d 453,
471–72 (6th Cir. 1999)).
In this case, plaintiff has attached a billing statement that lists the
attorneys and paralegals who worked on the case, the number of hours
they expended, descriptions of the tasks performed, and their hourly
billing rates.

(Dkt. 27-1 at 7–8.)
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No other information about the

attorneys and paralegals, such as their positions at the firm, years of
experience, or other information that would allow the Court to determine
whether the hourly rates requested are reasonable is provided. Thus, the
Court lacks sufficient information to calculate the lodestar for each
individual requesting fees. See Gonter v. Hunt Valve Co., Inc., 510 F.3d
610, 618 (6th Cir. 2007) (“[t]o arrive at a reasonable hourly rate, courts
use as a guideline the prevailing market rate, defined as the rate that
lawyers of comparable skill and experience can reasonably expect to
command within the venue of the court of record”). Accordingly, the
Court denies without prejudice the request for attorney fees. Plaintiff
may submit supplemental briefing in support of its request for attorney
fees no later than April 10, 2017.
Finally, plaintiff seeks the $400 filing fee as costs. This request is
reasonable, and sufficiently supported by the affidavit of Robert Piper,
an attorney for plaintiff, and a copy of the electronic receipt. (See Dkt.
27-1 at 3, 5.) Accordingly, plaintiff is entitled to recover $400 in costs.
III. Conclusion
For the reasons set forth above, the Court awards plaintiff $1,000
in statutory damages and $400 in costs.
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Plaintiff’s request for attorney fees is DENIED WITHOUT
PREJUDICE. Plaintiff may submit additional documentation in support
of its request for attorney fees no later than April 10, 2017.
IT IS SO ORDERED.
Dated: March 27, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 27, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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