Monette v. Continental Finance Company LLC

Filing 13

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 1/30/2018. 10 Plaintiff's MOTION for default judgment GRANTED. Plaintiff awarded $11,000 in statutory damages and $4,338.62 in attorney fees and costs. Case DISMISSED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TWANA MARIE MONETTE,
Plaintiff,
v.

Case No. 17-cv-1412-pp

CONTINENTAL FINANCE COMPANY, LLC,
Defendant.

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT (DKT. NO. 10),
ENTERING JUDGMENT AND DISMISSING CASE

On January 19, 2018, this court reviewed the plaintiff’s motion for
default judgment (dkt. no. 10), and ordered the plaintiff to file documentation
in support of her request for damages. Dkt. No. 11. Although the plaintiff had
established liability under the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. §227, et seq. and the Wisconsin Consumer Act (“WCA”), Wis. Stat. §427,
et seq., the court found that she had not provided the court with
documentation that she had, in fact, received twenty-four calls from the
defendant. Dkt. No. 11 at 7. The plaintiff since has provided both an affidavit
(dkt. no. 12) and a copy of the call history she obtained in connection with the
block she put on her phone (dkt. no. 12-1). Based on this evidence, the court
will grant the motion for default judgment, and will award damages of
$15,388.62.

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I.

Default Judgment

Under Federal Rule of Civil Procedure 55, a plaintiff may obtain a default
judgment against an opponent who does not “plead or otherwise defend,” if the
plaintiff shows that failure “by affidavit or otherwise.” Fed. R. Civ. P. 55(a). “As
a general rule, a ‘default judgment establish[es], as a matter of law, that
defendants [are] liable to plaintiff as to each cause of action alleged in the
complaint.’” Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722
F.2d 1319, 1323 (7th Cir. 1983) (quoting Breuer Electric Mfg. Co. v. Toronado
Systems of America, Inc., 687 F.2d 182, 186 (7th Cir. 1982)). “Upon default,
the well-pleaded allegations of a complaint relating to liability are taken as
true.” Id.
The plaintiff filed the complaint on October 16, 2017. Dkt. No. 1. The
executed summons shows that the plaintiff served the complaint on the
defendant’s registered agent on October 23, 2017, as well as on an
administrative assistant at the defendant’s offices. Dkt. No. 8 at 2. The
defendant had twenty-one days—until November 13, 2017, or so—to answer or
otherwise respond. It did not do so, and on November 15, 2017, the plaintiff
requested entry of default. Dkt. No. 9. The clerk entered default the next day.
The court finds, accepting the allegations in the complaint as true, that
the plaintiff has demonstrated that the defendant is liable under the TCPA and
the WCA.

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II.

Damages

A plaintiff who shows violations of the TCPA may obtain statutory
damages of $500 per violation. 47 U.S. §227(b)(3)(B). Reasonable costs and
attorney fees are available under the WCA. Wis. Stat. §425.308(1)-(2).
The plaintiff filed an affidavit on January 19, 2018, stating that in
August 2017, she began receiving phone calls from the defendant to her
cellular phone. Dkt. No. 12 at ¶1. She informed the defendant’s agent that her
identity had been stolen and that the debt did not belong to her. Id. at ¶4. The
defendant continued to call until the plaintiff filed the pending case. Id. at ¶6.
The plaintiff attached a printout from the Call History Manager application on
her cell phone, and represents that the defendant called her at least twenty-two
times after she told it to stop calling her cell phone. Id. at ¶¶7-8; 12-1. The
twenty-two highlighted calls on Exhibit A were placed by the defendant
between September 1, 2017 and October 2, 2017—after the plaintiff first
received the call in August and revoked her consent. Dkt. No. 12 at ¶8; 12-1.
Although the chart reveals that the plaintiff did not answer some of the calls,
violations occur at the time the defendant makes the call using an automatic
telephone dialing system. 47 U.S.C. §227(b)(1)(A)(iii). The plaintiff explained in
her affidavit that, when she did answer calls from the defendant, she
experienced a significant pause lasting several seconds, before a live
representative began to speak. Dkt. No. 12 at ¶2.
The court will award damages under the TCPA in the amount of $11,000
(twenty-two phone calls at $500 per call). 47 U.S. §227(b)(3)(B). Based on the

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the affidavit of Nathan C. Volheim and exhibit A to the motion setting forth
costs and fees, the court will award $4,338.62 under the WCA, Wis. Stat.
§425.308(1)-(2).
III.

CONCLUSION

The court GRANTS the plaintiff’s motion for default judgment. Dkt. No.
10.
The court AWARDS the plaintiff $11,000 in statutory damages under the
TCPA, and $4,338.62 in reasonable attorney fees and costs under the WCA.
The court ORDERS the entry of judgment in the amount of $15,338.62 in favor
of the plaintiff. The court DISMISSES this case. The clerk will enter judgment
accordingly.
Dated in Milwaukee, Wisconsin this 30th day of January, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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