Bank v. Caribbean Cruise Line, Inc.
Filing
70
ORDER denying 65 Motion for Permanent Injunction: For the reasons explained in the attached memorandum and order, plaintiff's 65 motion to permanently enjoin defendant is denied without prejudice to renewal as discussed therein. Ordered by Judge John Gleeson on 5/12/2014. (Herling, Adam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION
TODD C. BANK, Individually and on Behalf
of All Others Similarly Situated,
Plaintiff,
- versus -
MEMORANDUM
AND ORDER
12-CV-584
CARIBBEAN CRUISE LINE, INC.,
Defendant.
A P P E A R A N C E S:
TODD C. BANK
119-40 Union Turnpike, 4th Floor
Kew Gardens, NY 11415
Pro Se Plaintiff
GREENSPOON MARDER, P.A.
100 West Cypress Creek Rd., Suite 700
Fort Lauderdale, FL 33309
By:
Richard W. Epstein
Attorneys for Defendants
JOHN GLEESON, United States District Judge:
Todd C. Bank brings this action against Caribbean Cruise Line (“CCL”), alleging
violations of the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227(b)(1)(B),
and a regulation promulgated thereunder, 47 C.F.R. § 64.1200(a)(2). 1 At the final pretrial
conference held on January 17, 2014, Bank agreed to settle his claim for damages against CCL
for $1,500, but retained his claim for injunctive relief. See Minute Entry 1/17/2014. Bank now
moves for a permanent injunction prohibiting CCL from violating 47 U.S.C. § 227(b)(1)(B) and
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The factual background of the case is described in Magistrate Judge Vera Scanlon’s Report and
Recommendation to deny the defendant’s motion for summary judgment, which I adopted on September 30, 2013.
See Report and Rec., at 2-4, ECF No. 49.
47 C.F.R. § 64.1200(a)(2). For the reasons stated below, the motion is denied without prejudice
to supplemental briefing as set forth below.
DISCUSSION
Bank’s motion for a permanent injunction is based on 47 U.S.C. § 227(b)(3),
which provides in pertinent part as follows:
A person or entity may . . . [bring]
(A) an action based on a violation of this subsection [of the TCPA]
or the regulations prescribed under this subsection to enjoin such
violation,
(B) an action to recover for actual monetary loss from such a
violation, or to receive $500 in damages for each such violation,
whichever is greater, or
(C) both such actions.
47 U.S.C. § 227(b)(3). Bank argues that because injunctive relief is authorized by the statute, he
is automatically entitled to it if a violation is shown. See Pl. Mem. at 3 (“Where a statute
provides for injunctive relief, a prevailing plaintiff is automatically entitled to such relief; and,
therefore, the common-law requirements for obtaining injunctive relief are inapplicable.”).
There is wide agreement that irreparable harm need not be alleged or proven for
an injunction to issue when a federal statute – like the TCPA – specifically provides for such
relief. See, e.g., City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115, 121 (2d
Cir. 2010) (“Requiring a party seeking a statutorily-sanctioned injunction to make an additional
showing of irreparable harm, therefore, is not required.”); S.E.C. v. Mgmt. Dynamics, Inc., 515
F.2d 801, 808 (2d Cir. 1975) (“[T]he statutory imprimatur given SEC enforcement proceedings
is sufficient to obviate the need for a finding of irreparable injury at least where the statutory
prerequisite [of] the likelihood of future violation of the securities laws has been clearly
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demonstrated.”); Burlington N. R. R. Co. v. Dep’t of Revenue of State of Wash., 934 F.2d 1064,
1074 (9th Cir. 1991) (irreparable harm to the plaintiff need not be shown when an injunction is
sought based on a federal statute that specifically provides for such relief); Illinois Bell Tel. Co.
v. Ill. Commerce Comm’n, 740 F.2d 566, 571 (7th Cir. 1984) (same); Capital Tool & Mfg. Co. v.
Maschinenfabrik Herkules, 837 F.2d 171 (4th Cir.1988) (“[A] complainant need not allege or
prove irreparable harm when it invokes a statute that authorizes injunctive relief.”). But see Klay
v. United Healthgroup, Inc., 376 F.3d 1092, 1098 (11th Cir. 2004) (“[S]everal of our cases also
suggest that, when Congress authorizes injunctive relief, it implicitly requires that the traditional
requirements for an injunction be met in addition to any elements explicitly specified in the
statute.” (citing, inter alia, Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)).
Several courts have applied this principle to § 227(b)(3) and issued injunctions
under the TCPA without requiring a showing of irreparable harm. See J2 Global Commc’ns, Inc.
v. Blue Jay Inc., 75 Fed. R. Serv. 3d 267, at *8 (N.D. Cal. 2009) (“The TCPA provides for
injunctive relief as a remedy. Because injunctions are authorized by statute, irreparable injury
need not be shown.”) (internal citation omitted); Lynn v. Monarch Recovery Mgmt., Inc., No. 11CV-2824, 2013 WL 1247815, at *7 (D. Md. Mar. 25, 2013) on reconsideration in part, 953 F.
Supp. 2d 612 (D. Md. 2013) (“A complainant need not allege or prove irreparable harm when it
invokes a statute that authorizes injunctive relief.”) (internal quotation and alteration omitted);
Edwards v. Emperor’s Garden Rest., 122 Nev. 317, 325 (2006) (same).
There is, however, some disagreement regarding whether a plaintiff must show a
likelihood of future violations before a court may properly issue an injunction pursuant to §
227(b)(3). In Lynn, the court granted an injunction based only on a showing of a violation of the
statute, without considering the likelihood of future violations. See 2013 WL 1247815, at *7
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(“47 U.S.C. § 227(b)(3) authorizes injunctive relief for a violation of the subsection. Further,
[the plaintiff] has shown that [the defendant] violated that subsection’s call charged provision, §
227(b)(1)(A) (iii). Injunctive relief is therefore warranted.”) (internal citation omitted). Other
courts, however, have come to the opposite conclusion, and have either explicitly or implicitly
taken into account whether a likelihood of future violations has been shown in determining
whether to issue injunctive relief under § 227(b)(3). See J2 Global, 75 Fed. R. Serv. 3d at *8
(considering likelihood of future violations in deciding to issue injunction pursuant to §
227(b)(3)); Minn. ex rel. Hatch v. Sunbelt Commc’ns & Mktg., 282 F. Supp. 2d 976, 980 (D.
Minn. 2002) (same); Hamilton v. Voxeo Corp.,No. 07-CV-404, 2009 WL 1868541, at *2 (S.D.
Ohio June 25, 2009) (same); Edwards, 122 Nev. at 325 (holding that even if the plaintiff has
“shown that the statutory conditions have been met, [he still] must demonstrate a likelihood of
future violations before an injunction will issue [under § 227(b)(3)]”).
The Second Circuit has explained that even in the context of a statutory
injunction, “the ‘critical question’” in determining whether to issue injunctive relief, “is whether
‘there is a reasonable likelihood that the wrong will be repeated.’” Mgmt. Dynamics, Inc., 515
F.2d at 807 (quoting S.E.C. v. Manor Nursing Ctr., Inc., 458 F.2d 1082, 1100 (2d Cir. 1972) and
collecting cases); see also Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 935
(7th Cir. 2008) (“Circuit courts have upheld orders granting injunctive relief . . . when, in an
action for a statutory injunction, a violation was demonstrated and there was a reasonable
likelihood of future violations.”). Accordingly, I decline to issue an injunction pursuant to §
227(b)(3) absent a showing that there is a reasonable likelihood that CCL will engage in future
violations of the TCPA. Bank has not made such a showing and therefore his motion for
injunctive relief is denied.
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It appears from the papers submitted by Bank in support of this motion that if I
deny the motion he wishes to further litigate the issue. See, e.g., Pl. Reply Mem., at 2. The
likelihood of future violations was not addressed in CCL’s previous motion for summary
judgment. As such, I propose that the parties address this topic in the first instance through
supplemental Rule 56 briefing. Specifically, any party seeking summary judgment on the
question of whether there is a likelihood of future violations shall file a motion for summary
judgment on that issue by May 30, 2014. Opposition papers to any motion shall be filed by June
13, 2014. Reply papers, if any, shall be filed by June 20, 2014. I will determine upon receipt of
the motion(s) whether oral argument is appropriate.
CONCLUSION
For the reasons stated above, Bank’s motion to permanently enjoin CCL from
violating the TCPA is denied without prejudice to renewal as discussed above.
So ordered.
John Gleeson, U.S.D.J.
Dated: May 12, 2014
Brooklyn, New York
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