CUNNINGHAM v. CAPITAL ADVANCE SOLUTIONS, LLC et al

Filing 64

ORDER that Plaintiff's 63 Motion for Default Judgment is Granted in part and Denied in part. It is further Ordered and Adjudged that Capital is liable to Plaintiff in the amount of $21,400. Signed by Chief Judge Freda L. Wolfson on 12/30/2019. (jmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
CRAIG CUNNINGHAM,
:
:
Plaintiff,
:
Civ. Action No. 17-13050 (FLW)
v.
:
:
ORDER
CAPITAL ADVANCE SOLUTIONS,
:
LLC, et al.,
:
:
Defendants.
:
____________________________________:
THIS MATTER having been opened to the Court by pro se Plaintiff Craig Cunningham
(“Plaintiff”), on a Motion for default judgment against Capital Advance Solutions, LLC
(“Capital”), pursuant to Federal Rule of Civil Procedure 55(b)(2); it appearing that Plaintiff filed
an Amended Complaint in this matter on March 20, 2018, seeking damages resulting from
Capital’s alleged breach of the Telephone Consumer Protection Act (“TCPA”); it appearing that,
on November 20 2018, the Court entered an Order, in which Capital’s Motion to dismiss
Plaintiff’s Amended Complaint was denied; it appearing that, following the Court’s denial of
Capital’s Motion, Capital failed to answer or otherwise respond to the Amended Complaint; it
appearing that, on February 25, 2019, default was entered against Capital by the Clerk of the
Court for its failure to plead, answer, or otherwise defend in this action; it appearing that, on May
20, 2019, Plaintiff moved for default judgment; it appearing that Capital, having been duly
served, has failed to oppose or otherwise respond to the Motion; the Court, having reviewed
Plaintiff’s submissions in connection with its motion pursuant to Fed. R. Civ. P. 78, makes the
following findings:
(1)

In order to obtain a default judgment, pursuant to Federal Rule of Civil
Procedure 55(b), a plaintiff must first secure an entry of default from the clerk

1

of the court under Rule 55(a). Allaham v. Naddaf, 635 F. App’x 32, 36 (3d
Cir. 2015). Once the clerk default has entered default, the non-defaulting
party may move for default judgment pursuant to Rule 55(b)(2), “depending
on whether the claim is for a sum certain.” Id. The Third Circuit has
explained that while the entry of default judgment “is largely within a district
court’s discretion, three factors control this determination: ‘(1) prejudice to
the plaintiff if default is denied, (2) whether the defendant appears to have a
litigable defense, and (3) whether defendant’s delay is due to culpable
conduct.’” Id. (quoting Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir.
2000)). In considering a motion for a default judgment, courts “accept as true
the well-pleaded factual allegations of the complaint, but the court need not
accept the moving party’s legal conclusions or allegations relating to the
amount of damages.” Polidoro v. Saluti, 675 F. App’x 189, 190 (3d Cir.
2017).
(2)

The underlying facts pertaining to this action have been addressed by the
Court in a prior Opinion, issued on November 20, 2018, and are incorporated
herein. Thus, the Court will only provide a brief summary of the pertinent
facts here. Plaintiff alleges that he received multiple telephone calls in 2015
from Capital, which were initiated through the use of an automated telephone
dialing system. In his Amended Complaint, Plaintiff alleges that Capital’s
unsolicited telephone calls violated §§ 227(c)(5) and (b) of the TCPA, 1 and

1

The TCPA was passed by Congress to protect consumers from receiving “intrusive and
unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims
v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012)). To that end, pursuant to 47 U.S.C. § 227
2

constituted “multiple intrusions upon the seclusion of the Plaintiff.” On April
16, 2018, Capital filed a Motion to dismiss Plaintiff’s Amended Complaint,
on the basis that Plaintiff does not qualify as a “residential telephone
subscriber,” as defined under the TCPA, because the cell phone on which he
was contacted is used for business purposes. However, the Court denied
Capital’s Motion on November 20, 2018, finding that Capital’s arguments
were premature on a motion to dismiss. Yet, because Capital 2 never filed an
answer to Plaintiff’s Amended Complaint, notwithstanding the denial of its
dismissal motion, on May 8, 2019, the Clerk of Court entered default against
Capital.
(3)

Thereafter, Plaintiff moved for default judgment as to Capital. In his Motion,
Plaintiff seeks to recover damages in the amount of $63,000, on the basis of
Capital’s TCPA violations. According to Plaintiff, that amount is comprised
of the following: $1,500 in treble damages for each willful and knowing
violation of 47 U.S.C § 227(b) and 47 U.S.C § 227(c), or $3,000 for each of
the 21 alleged total telephone calls. Plaintiff’s Default Judgment Motion, ¶ 4.

(b)(1)(A)(iii), the TPCA restricts the use of any automated telephone equipment that uses
artificial or prerecorded voice to call “any telephone number” assigned to, inter alia, a cellular
phone. In addition, 47 U.S.C. § 227(c) prohibits solicitation telephone calls to residential
telephone subscribers who have registered their phone numbers on the national Do-Not-Call
registry.
2

On March 18, 2019, the Court granted Christopher D. Devanny, Esq.’s motion to
withdraw as counsel for Capital. Although more than six months have passed since the motion to
withdraw was granted, Capital, which, as a corporate entity, is precluded from appearing pro se,
has not obtained new representation. See Rowland v. California Men’s Colony, 506 U.S. 194,
201-02 (1993); see also Simbraw, Inc. v. United States, 367 F.2d 373, 373 (3d Cir. 1966)
(holding that “a corporation [must], to litigate its rights in a court of law, employ an attorney at
law to appear for it and represent it in the court.”).
3

In addition, Plaintiff requests $1,100 in filing, “service,” and traveling
expenses.” Id. I, however, find that Plaintiff has not shown that he is entitled
to an award of $63,000 in damages.
(4)

Pursuant to the TCPA, a claimant is entitled to “to receive $500 in damages
for each . . . violation.” 47 U.S.C. § 227(b)(3)(B). Moreover, “[i]f the court
finds that the defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, 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.” 47 U.S.C. §
227(b)(3). 3 Courts have found that a TCPA violation is willful and knowing
where the defendant contacted the claimant, even though it knew that it did
not have his or her express consent. See, e.g., Robert W. Mauthe, M.D., P.C.
v. MCMC LLC, 387 F. Supp. 3d 551, 557 (E.D. Pa. May 13, 2019) (citing
cases).

(5)

Here, Plaintiff has alleged violations pursuant to 47 U.S.C § 227(b)(3) (the
automated call subsection) and 47 U.S.C § 227(c)(5) (the do-not-call-list
subsection), and, therefore, he is entitled to recover damages under both
provisions for each alleged call. 4 However, Plaintiff has not shown that an

3

47 U.S.C. § 227(c)(5), too, allows for $500 in damages for each violation, and permits
the Court to grant an award of treble damages not to exceed $1,500, for each willful and
knowing solicitation call.
4

The Court notes that, although the Third Circuit has not had the occasion to address this
issue, the Sixth Circuit and district courts within this Circuit have concluded that a claimant is
entitled to recover damages under separate subparts of the TCPA, even if the alleged violations
arose from the same telephone call. See, e.g., Charvat v. NMP, LLC, 656 F.3d 440, 449 (6th Cir.
2011) (“We therefore conclude that a person may recover statutory damages [pursuant to §
4

enhanced award of $1,500 is appropriate, on the basis of Capital’s alleged
willful and knowing conduct. Indeed, in his Motion for default judgment,
Plaintiff states that “the calls should be deemed willful and knowing,” without
citing to case law or providing an explanation in support of his position.
Plaintiff’s Default Judgment Motion, ¶ 4. With nothing but Plaintiff’s selfserving remarks, I cannot find that Capital was more than negligent in
violating the TCPA. Thus, the Court declines to grant treble damages, and,
instead, finds that Plaintiff is entitled to the regular amount of $500 under
both 47 U.S.C § 227(b)(3) (the automated call subsection) and 47 U.S.C
§ 227(c)(5) of the TCPA for each alleged telephone call, totaling $21,000, 5
and $400 in costs for his filing fee, 6 for a total of $21,400.
Accordingly,
The Court having reviewed Plaintiff’s submissions in connection with the motion,
pursuant to Fed. R. Civ. P. 78, for the reasons set forth herein, and for good cause shown:
IT IS on this 30th of December, 2019,

227(b)(3) and § 227(c)(5),] even if both violations occurred in the same telephone call.”); see
also Shelton v. FCS Capital LLC, No. 18-3723, 2019 U.S. Dist. LEXIS 213179, at *7 (E.D. Pa.
Dec. 11, 2019) (awarding damages pursuant to the TCPA for each alleged violation of
§ 227(b)(3) and § 227(c)(5)).
5

Although Plaintiff requests a hearing to ascertain damages, such a proceeding is not
required, because he is only entitled to statutory damages, as explained in this Order, and has
made no claims for actual damages.
6

In addition to an award of $21,000, Plaintiff is entitled to recoup his $400 filing fee.
Although Plaintiff also requests $600 in traveling expenses and service costs, at no point was he
required to travel in order to litigate this proceeding, and, he has not explained his “service”
costs. Therefore, Plaintiff’s additional requests for traveling expenses and service costs are
denied.
5

ORDERED that Plaintiff’s Motion for Default Judgment is GRANTED in part and
DENIED in part; it is further
ORDERED and ADJUDGED that Capital is liable to Plaintiff in the amount of $21,400.
ORDERED that this case shall be marked CLOSED.

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge

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