Berger Chiropractic LLC v. Biosense Medical Devices, L.L.C. et al

Filing 22

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiff's amended motion for default judgment is GRANTED in the amount of $500. (Doc. No. 18 .) An appropriate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 11/10/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BERGER CHIROPRACTIC LLC,
CONSTRUCTION LABORERS
WELFARE FUND, individually and as the
representative of a class of similarlysituated persons,
Plaintiffs,
v.
HILLTOP C&I, INC.,
Defendant.

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Case No. 4:16CV00678 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion for default judgment. Plaintiff
claims in this putative class action that Defendant transmitted unsolicited advertisements
via telephone facsimile machines to Plaintiff, and others, in violation of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and state common law of
conversion. Specifically, Plaintiff alleged in its complaint that in April 2016, Plaintiff
received a fax advertisement from Defendant (that did not have an opt-out provision), and
that Plaintiff never gave Defendant prior permission to send a fax advertisement and did
not have an established business relationship with Defendant prior to receipt of the fax.
Plaintiff alleged that other Missouri residents also received violative faxes from Defendant
and sought judgment against Defendant for statutory damages in the amount of $500 for
each violation, trebled because the transmissions were allegedly willful. Plaintiff also
sought injunctive relief enjoining Defendant from violating the TCPA.

On September 23, 2016, the Clerk of Court entered default as to Defendant. In its
motion for default judgment, as amended, Plaintiff seeks judgment against Defendant for
statutory damages in the amount of $500, trebled, for a total judgment of $1,500. Plaintiff
also seeks an injunction.
“Upon default, the factual allegations of a complaint (except those relating to the
amount of damages) are taken as true, but it remains for the court to consider whether the
unchallenged facts constitute a legitimate cause of action, since a party in default does not
admit mere conclusions of law.” Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010)
(citation omitted).
The TCPA provides that “[i]t shall be unlawful for any person within the United
States . . . to use any telephone facsimile machine, computer, or other device to send an
unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C).
The TCPA does not prohibit the sending of unsolicited facsimiles to a recipient who has an
“established business relationship” with the sender. Missouri ex rel. Nixon v. Am. Blast
Fax, Inc., 323 F.3d 649, 657 (8th Cir. 2003). A recipient of a fax that violates the TCPA
may recover actual monetary loss, or $500, whichever is greater, for each TCPA violation.
47 U.S.C. § 227(b)(3)(B); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992,
997 (8th Cir. 2016). Moreover, “the court may, in its discretion, increase the amount of
the award to an amount equal to not more than 3 times the amount available under
subparagraph (B) of this paragraph” for willful or knowing violations. 47 U.S.C.
§ 227(b)(3). The TCPA also allows for injunctive relief. Id.

Here, the allegations set forth in the complaint, as well as in the affidavit
submitted by Plaintiff is support of the motion for default judgment, establishes that
Defendant violated the TCPA on one occasion, for which Plaintiff is entitled to $500 in
statutory damages. Plaintiff, however, has failed to establish that said violation was
willful or knowing. Accordingly, the request for treble damages will be rejected. See
Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1107 (11th Cir. 2015). Nor
has Plaintiff shown a likelihood of future harm. Thus the request for injunctive relief will
also be denied. See id.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s amended motion for default
judgment is GRANTED in the amount of $500. (Doc. No. 18.)
An appropriate Judgment shall accompany this Memorandum and Order.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 10th day of November, 2016.