Kern et al v. USA Travel Services et al

Filing 190

OPINION; Order and Judgment to enter; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRACE KERN et al.,
Plaintiffs,
Case No: 1:16-CV-8
v.
HON. JANET T. NEFF
VIP TRAVEL SERVICES et al.,
Defendants.
/
OPINION
Plaintiffs Brace Kern and Jessica Huigens brought this action under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, alleging that they received unsolicited phone calls to
cellular telephone numbers that are listed on the national “do-not-call” registry. At this stage of the
proceedings, all Defendants have been dismissed except for United Shuttle Alliance Transportation
Corp (d/b/a USA Travel Services) (“United Shuttle”) and VIP Travel Services (“VIP”). The Court
entered a default against these defendants in February 2017. Before the Court is Plaintiffs’ motion
for entry of judgment against United Shuttle and VIP (ECF No. 187). Defendants have not
responded to the motion. For the reasons stated herein, the motion will be granted in part.
I. Standard
“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). “‘Even when a default judgment is warranted based on a party’s failure to
defend, the allegations in the complaint with respect to the amount of the damages are not deemed
true.’” Vesligaj v. Peterson, 331 F. App’x 351, 355 (6th Cir. 2009) (quoting Credit Lyonnais Sec.

(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d. Cir. 1999)) “[T]he burden of establishing damages
rest[s] squarely and solely on [the plaintiff].” Flynn v. People’s Choice Home Loans, Inc., 400 F.
App’x 452, 457 (6th Cir. 2011).
II. Analysis
A. Liability
The TCPA makes it unlawful to make a call using an “automatic telephone dialing system
or prerecorded device . . . to any telephone number assigned to a . . . cellular telephone service.” 47
U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii). It is also unlawful to initiate a telephone
solicitation to a residential telephone subscriber who has registered his or her telephone number on
the national do-not-call registry, 47 C.F.R. § 64.1200(c)(2), and any person who has “received more
than one telephone call within any 12-month period by or on behalf of the same entity” may bring
suit to enforce this prohibition. 47 U.S.C. § 227(c)(5).
Plaintiffs seek damages for eight calls that they received. According to affidavits attached
to Plaintiffs’ motion for entry of judgment, Plaintiff Kern received five telephone calls to his
residential cellular phone from an automatic telephone dialing system (“ATDS”), and Plaintiff
Huigens received three calls to her residential cellular phone from an ATDS. Plaintiffs’ cellular
telephone numbers were registered on the national do-not-call registry at the time. United Shuttle
allegedly made the calls using the name USA Travel Services and/or VIP Travel Services, and the
purpose of the calls was to solicit the sale of vacation property. Based on these facts, all eight
telephone calls violated both the ATDS provision in § 227(b)(3) and the do-not-call restrictions in
the FCC regulations that are enforceable through § 227(c)(5).

2

B. Damages
For a violation of the ATDS provision, the TCPA permits damages in the amount of “actual
monetary loss” or $500, whichever is greater. 47 U.S.C. § 227(b)(3). For a telemarketing call made
in violation of § 227(c)(5) and the FCC regulations, the statute permits recovery of “actual monetary
loss” or “up to $500,” whichever is greater. 47 U.S.C. § 227(c)(5) (emphasis added). If the Court
finds that the defendant “willfully or knowingly” violated these provisions, the Court “may, in its
discretion,” triple the amount of damages. See 47 U.S.C. § 227(b)(3), § 227(c)(5). A plaintiff may
recover damages under both sections for a call that violates both sections. Charvat v. NMP, LLC,
656 F.3d 440, 449 (6th Cir. 2011).
Plaintiffs do not allege actual monetary loss. Thus, Plaintiffs may be able to recover statutory
damages of between $500 and $3,000 per call. In their motion for entry of judgment, Plaintiffs seek
$1,500 in damages for each of the eight calls, ostensibly relying on treble damages under either
§ 227(b)(3) or § 227(c)(5), but not both.
The Court finds that statutory damages of $500 per call is appropriate. The Court will not
exercise its discretion to triple the amount of damages. The Sixth Circuit has not articulated what
it means for a violation of the TCPA to be “willful” or “knowing,” but the Court need not discuss
this standard because Plaintiffs have not identified what allegations or evidence the Court should
rely upon to determine whether Defendants’ actions were willful or knowing. Instead, Plaintiffs
merely recite the legal standard for damages. It is Plaintiffs’ burden to establish damages. They have
established that they are entitled to the minimum amount provided by the statute, but they have not
articulated a basis for the Court to award anything more, including treble damages.

3

III. Conclusion
In summary, the Court will award damages of $2,500 to Plaintiff Kern for the five calls that
he received and $1,500 to Plaintiff Huigens for the three calls that she received. The Court will hold
United Shuttle and VIP jointly and severally liable because Plaintiffs allege that they are one and
the same entity. Plaintiffs may seek costs in accordance with Rule 54(d)(1) of the Federal Rules of
Civil Procedure.
An order and judgment will enter consistent with this Opinion.
Dated: October 2, 2017

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

4