Cunningham v. Addiction Intervention et al

Filing 60

REPORT AND RECOMMENDATION: The undersigned recommends that Plaintiff be awarded a judgment against Defendants Intervention Now, Inc., A New Day Rehab, Florida House Experience, Ivan Baker, and Andrea Bergman, in the amount of $18,000 (12 calls at $1,500 per call), jointly and severally. The undersigned further recommends that punitive damages not be awarded. Signed by Magistrate Judge E. Clifton Knowles on 2/4/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CRAIG CUNNINGHAM,

)
)
Plaintiff,
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)
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vs.
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ADDICTION INTERVENTION,
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FLORIDA HOUSE EXPERIENCE,
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A NEW DAY REHAB, MIKE
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SLINSKEY, ALBERT CASTELLON,
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IVAN BAKER, SAUL KANE, ALEX
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RILEY, INTERVENTION NOW, INC., )
ANDREA BERGMAN, IMAGINE
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MARKETING GROUP, LLC,
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JOHN/JANE DOE 1-10,
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)
Defendants.
)

CASE NO. 3:14-0770
JUDGE TRAUGER/KNOWLES

REPORT AND RECOMMENDATION
Plaintiff brought this pro se action pursuant to the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, et seq. Plaintiff’s claims are set forth in his “Amended Complaint.”
Docket No. 7. He essentially claims that Defendants, or at least some of them, made automated
telephone calls with a pre-recorded message to his cell phone in 2013 and 2014. The messages
were to the effect that Plaintiff could get help for drug or alcohol addiction. Plaintiff, however,
does not use drugs or alcohol. He never gave any of Defendants his cell phone number. One of
the Defendants, Alex Riley, admitted to Plaintiff that Defendant Addiction Intervention was
getting leads for the two treatment centers listed, the Florida House Experience and A New Day
Rehab, using automated telephone dialing systems with pre-recorded messages.

Plaintiff’s Amended Complaint states in relevant part:
19. These multiple phone calls violated the TCPA in two ways,
first by having a pre-recorded message, and second by the
automated nature of them. The Plaintiff received multiple phone
calls day after day, and sometimes twice in the same day.
...
22. The foregoing actions by the Defendants constitute multiple
breaches of the TCPA by placing unsolicited and unwelcome
telephone calls to the Plaintiff’s cell phone. These phone calls also
violated the TCPA by having and [sic] pre-recorded message.
Docket No. 7, p. 4.
The Amended Complaint sought damages, which Plaintiff refers to as “statutory
damages,” in the amount of $3,000 for each phone call, and punitive damages for “all claims” in
the amount of $150,000.
Judge Trauger has referred the case to the undersigned. Docket No. 4.
On June 30, 2014, the Clerk entered a default against Defendants Intervention Now, Inc.,
A New Day Rehab, and Florida House Experience. Docket No. 31. On August 14, 2014, the
Clerk entered a default against Defendants Ivan Baker and Andrea Bergman. Docket No. 45.
(Hereinafter, unless otherwise noted, the term “Defendants” will be used to refer to the defaulted
Defendants, Intervention Now, Inc., A New Day Rehab, Florida House Experience, Ivan Baker,
and Andrea Bergman.)
Plaintiff subsequently filed a Motion for a Hearing to Determine Damages. Docket No.
49. The Court held the damages hearing on January 8, 2015. Defendants did not attend the
hearing, were unrepresented by counsel, and Plaintiff testified that none of these Defendants had
contacted him with regard to the hearing. Docket No. 56. The Court granted Plaintiff leave to

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submit a post-hearing brief, which he has done. Docket No. 59.
The Court begins with the proposition that the relief available in a default judgment is
restricted to that sought in the Amended Complaint. Fed. R. Civ. P. 54.01(c) provides:
Demand for Judgment; Relief to Be Granted. A default judgment
must not differ in kind from, or exceed an amount, what is
demanded in the pleadings. Every other final judgment should
grant the relief to which each party is entitled, even if the party has
not demanded that relief in its pleadings.
As discussed above, Plaintiff’s Amended Complaint avers only that Defendants
committed multiple breaches of the TCPA by placing unsolicited and unwelcome telephone calls
to the Plaintiff’s cell phone, and that these phone calls also violated the TCPA by having a prerecorded message. Plaintiff cites Charvat v. NMP, LLC, 656 F. 3d 440 (6th Cir. 2011), for the
proposition that the TCPA, specifically 47 U.S.C. § 227(b)(3), prohibits automated/pre-recorded
calls to consumers’ cell phones, and that Plaintiff is entitled to $1,500 in damages per call for
such violations, provided that the violations are “willful or knowing.”1
In his post-hearing brief, however, he also claims that Defendants violated 47 U.S.C. §
227(c) “and corresponding FCC regulations enacted as a result of the TCPA . . . .” Plaintiff
argues that Charvat provides that Plaintiff is entitled to additional damages in the amount of
$1,500 per call for Defendants’ violation of 47 U.S.C. § 227(c) and corresponding FCC
regulations, which pertain to requirements for do-not-call lists.
The Charvat Court stated:

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As will be discussed in greater detail below, § 227(b)(3) provides for damages of $500
per call if the violation was not willful or knowing. The record in this case supports a finding
that Defendants’ violations were willful or knowing, as the proof shows that 12 calls were made
to Plaintiff.
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We therefore conclude that a person may recover statutory
damages of $1,500 for a willful or knowing violation of the
automated-call requirements of 227(b)(3) and $1,500 for a willful
or knowing violation of the do-not-call list requirements of
227(c)(5) – even if both violations occur in the same telephone
call.
Charvat, thus, essentially provides that a person may recover statutory damages of $1,500
per call for willful or knowing violations of the automated-call requirements of § 227(b)(3), and
Plaintiff is entitled to those damages. But because Plaintiff did not raise a claim in his Amended
Complaint that Defendants violated the do-not-call list requirements of the TCPA, he cannot
recover for violations of § 227(c)(5).
Plaintiff testified at the hearing that he had received a total of 12 calls from the
Defendants. At the hearing, Plaintiff essentially argued that Defendants should be jointly and
severally liable for the 12 calls he received at $3,000 per call. He testified that Intervention Now,
which was owned by Defendants Bergman and Baker, placed calls on behalf of Addiction
Treatment Center. In his post-hearing brief, however, Plaintiff states:
16. As there were 2 separate entities that the calls were being
made on behalf of, the the [sic] Deerfield Florida House, Inc., d/b/a
Florida House Experience, and A New Day Rehab, the Deerfield
Florida House, Inc., d/b/a Florida House Experience, should be
liable for $36,000 and A New Day Rehab should be separately
liable for an additional $36,000. These are separate entities
offering separate services and there should be separate awards
against them.
17. Andrea Bergman and Ivan Baker are a married couple and
managers of Intervention Now, Inc., and Andrea was the Marketing
Director for the Florida House Experience at the time of the calls.
Andrea and Ivan through Intervention Now, Inc. were the actual
parties placing the calls, so they should be directly liable for
$72,000 jointly and severally with A New Day Rehab and the
Florida House Experience.
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Docket No. 59, p. 4-5.
Plaintiff’s testimony at the hearing, which was given under oath, was essentially that
Defendants should be jointly and severally liable for 12 calls at $3,000 per call. In his brief,
however, Plaintiff apparently now seeks an award of $36,000 plus a separate award of $72,000
against Defendants Bergman and Baker, jointly and severally with A New Day Rehab and the
Florida House Experience. Docket No. 59, p. 5. With all due respect, the Court does not
understand why Defendants Bergman and Baker should be liable for $72,000, or even $36,000.
At the hearing, Plaintiff also made a request for punitive damages in the amount of five
times the statutory damages. He generally argued that it was easy and cheap for companies to
violate the TCPA and that consequently a number of them did. The Court questioned Plaintiff as
to why these particular Defendants should be liable for punitive damages, and Plaintiff stated he
would “have to look into that.” The Court advised him to be clear on how much punitive
damages he sought against each Defendant.
In his post-hearing brief, Plaintiff argues that punitive damages are necessary in order to
defer “Defendants’ conduct.” Docket No. 59, p. 4. Plaintiff, however, has provided no authority
for the proposition that punitive damages are appropriate in a TCPA case. In this regard, §
227(b)(3) provides as follows:
3. Private right of action. A person or entity may, if otherwise
permitted by the laws or rules of court of the State, bring in an
appropriate court of that State –
(A) an action based on a violation of this subsection
or the regulations prescribed under this subsection
to enjoin such violation,
(B) an action to recover for actual monetary loss
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from such a violation, or to receive $500 in
damages for each such violation, whichever is
greater, or
(C) both such actions.
If 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).
Thus, the statute provides for damages of $500 per call, unless Defendants’ violations
were willful or knowing, in which case the statutory damages are $1,500 per call. The Court
does not believe it would be appropriate to treble the damages from $500 to $1,500 per call, and
then to award punitive damages in the amount of $4,500 per call.
For the foregoing reasons, the undersigned recommends that Plaintiff be awarded a
judgment against Defendants Intervention Now, Inc., A New Day Rehab, Florida House
Experience, Ivan Baker, and Andrea Bergman, in the amount of $18,000 (12 calls at $1,500 per
call), jointly and severally. The undersigned further recommends that punitive damages not be
awarded.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
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Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

E. Clifton Knowles
United States Magistrate Judge

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