Cunningham, Craig v. Montes, Michael et al
Filing
41
Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 40 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket sheet) (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CRAIG CUNNINGHAM,
Plaintiff,
V.
MICHAEL MONTES, TOLLFREEZONE.COM, INC.,
MYDATAGUYS.COM, LLC,
PODMUSICGEAR.COM, INC.,
EMAILMYVMAIL.COM, INC., and
JOHN/JANE DOE 1-10,
OPINION & ORDER
16-cv-7 61-jdp
Defendants.
Plaintiff Craig Cunningham filed suit against defendant Michael Montes and his
businesses, alleging that defendants called Cunningham's cell phone using an autodialer, in
violation of the Telephone Consumer Protection Act (TCPA) , 47 U.S.C. § 227(b) and (c).
Dkt. 1. Montes avoided personal service. So, with the court's permission, Cunningham served
Montes and the defendant businesses by publication. After the answer deadline passed with
no response from Montes, the court entered default, Dkt. 8, and set a hearing on
Cunningham's default judgment motion, Dkt. 9.
Shortly before the hearing, Montes and the defendant businesses answered the
complaint and moved to set aside default and dismiss the case for lack of personal
jurisdiction. Dkt. 13 and Dkt. 14. At the June 20, 2017 hearing, the court determined that
defendants did not show good cause to set aside default, but stayed consideration of
Cunningham's motion for default judgment pending a determination of whether defendants
are subject to the court's personal jurisdiction. Dkt. 26. On July 18, 2017, the court held a
hearing regarding personal jurisdiction. Cunningham appeared pro se; defendants appeared
by counsel. For the reasons stated during the hearing and summarized here, the court finds
that defendants are subject to the court's personal jurisdiction and so will deny defendants'
motions and enter default judgment in Cunningham's favor. 1
The evidence submitted by defendants prior to the hearing indicates that Amy
Montes, Michael Montes's wife, runs an event business from a farm in Somerset, Wisconsin.
Amy and Michael Montes are the settlors and beneficiaries of a trust that owns the Somerset
farm . The Monteses travel to Wisconsin frequently, often for several weeks at a time. In
2016 and 2017, they have spent approximately one third of their time in Wisconsin. Montes
indicated in his declaration that he lives in San Juan Capistrano, California, and has lived
there for the past three years. He also indicated that the defendant businesses are "set up for"
the San Juan Capistrano address. Dkt. 29 , ,r 7.
At the hearing, Cunningham presented a dossier of documents, many of which he
obtained by subpoena, showing that Montes has made numerous payments to Wisconsin
businesses (including a Somerset church) from a bank account registered to defendant
Tollfreezone.com, Inc. The defendant businesses' emails listed a Somerset, Wisconsin, PO
Box address during 2015 and 2016. Montes posted numerous photos on line of childrenCunningham says Montes's children-playing football on the Somerset team and performing
in a Somerset music recital. (Bank records indicate that Montes rented musical instruments
from a Wisconsin business, possibly the same instruments used in the recital.) Montes's
1
The John and Jane Doe defendants were not mentioned in Cunningham's motion or during
either hearing. Because Cunningham did not allege any specific claims against the Doe
defendants in his complaint and default was not entered against them, the court will dismiss
the Doe defendants from the suit.
2
counsel confirmed that Montes and his wife are not separated and that when Montes visits
Wisconsin, he stays at the Somerset farm.
A. Personal jurisdiction
Cunningham bears the burden of proving personal jurisdiction by a preponderance of
the evidence. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.
2003). Cunningham must demonstrate that defendants fall within Wisconsin's personal
jurisdiction statute, Wis. Stat. § 801.05, which has been interpreted to confer "j urisdiction
'to the fullest extent allowed under the due process clause."' Pelland v. Clifton, 682 F.3d 665,
678 (7th Cir. 2012) (quoting Daniel]. HartwigAssocs., Inc. v. Kanner, 913 F.2d 1213, 1217
(7th Cir. 1990)). If Cunningham makes this showing, the burden shifts to defendants to
show that exercising jurisdiction over them would offend due process. Steel Warehouse of Wis.,
Inc. v. Leach, 154 F.3d 712, 714 (7th Cir. 1998).
Here, Cunningham has demonstrated that defendants fall within the general
jurisdiction provision of Wis. Stat. § 801.05. Section 801.05 ( 1) (d) confers jurisdiction over a
defendant who "[i]s engaged in substantial and not isolated activities within this state,
whether such activities are wholly interstate, intrastate, or otherwise." The evidence shows
that Montes's presence in Wisconsin goes far beyond vacations: his family life is here. And
the defendant businesses, which Montes owns, also have substantial contacts with
Wisconsin, too-even if they are "set up" in California. So defendants are subject to general
personal jurisdiction under Wisconsin's jurisdiction statute. 2
2
It appears that Montes also falls within§ 801.05(l)(a), which confers jurisdiction over "a
natural person present within this state when served." Cunningham accomplished service by
publication from March 9 to March 23, 2017. See 0kt. 7-2, at 3. And Montes admits that he
was in Wisconsin from March 22 to April 5, 2017. See 0kt. 29, ,I 5. So Montes was
physically present within the state when service was accomplished.
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The burden thus shifts to defendants to show that exercising jurisdiction over them
would offend due process. Under the Due Process Clause, a "defendant with 'continuous and
systematic' contacts with a state is subject to general jurisdiction. . . . The threshold for
general jurisdiction is high, the contacts must be sufficiently extensive and pervasive to
approximate physical presence." Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010). The
evidence presented meets this high standard. Defendants have not shown that their contacts
with Wisconsin are "isolated or sporadic." Id. Montes's visits to Wisconsin are more than
occasional. Despite Montes' contention that he lives in California, Cunningham's evidence
shows that Montes really lives in Wisconsin. And there is nothing to suggest that an assertion
of jurisdiction in this case would violate the "traditional notions of fair play and substantial
justice." Burnham v. Superior Court of Cal., 495 U.S. 604,610 (1990) (quotingJnt'Z Shoe Co. v.
Washington, 326 U .S. 310, 316 (1945)). Montes has rather persistently sought to evade
service in both California and Wisconsin, so there is nothing unfair about calling him into
court in the state in which it appears that he has the most substantial personal and business
contacts.
Because defendants are subject to the court's general personal jurisdiction, and
because the court previously determined that defendants have not shown good cause to set
aside default, the court will deny defendants' motions to set aside default and to dismiss the
case.
B. D amages
Default establishes defendants' liability for the TCPA violations alleged in
Cunningham's complaint, so the analysis must next tum to damages. The TCPA allows for
$500 in damages for each violation of certain statutory provisions. Cunningham indicated in
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an affidavit that he received 176 phone calls from defendants and that those phone calls
violated§ 227(b) and 227(c)(5) of the TCPA, as well as three regulations prescribed under
§ 227(c), 47 C.F.R. § 64.1200(b)(l), (b)(2) , and (d).
Those few courts to have considered the question have determined that a plaintiff
may recover multiple statutory damages awards per phone call when the phone call violates
multiple statutory provisions of the TCPA, but a plaintiff may only recover one statutory
damages award per phone call even if the phone call violates multiple regulations prescribed
under § 227(c). See Drew v. Lexington Consumer Advocary, LLC, No. 16-cv-200, 2016 WL
1559717, at *12 (N.D . Cal. Apr. 18, 2016) . Under this framework, Cunningham may
recover $1,000 per phone call because each phone call violated two statutory provisions of
the TCPA.
Cunningham alleges that defendants committed these violations willfully and
knowingly, which would allow the court, in its discretion, to increase the amount of the
award to not more than treble damages. The court declines to order treble damages because
Cunningham has not adduced evidence that defendants willfully or knowingly violated the
TCPA.
This yields a total of $176,000 in statutory damages . Cunningham also seeks $450 in
costs, bringing the total amount of the judgment to $176,450 . Defendants are jointly and
severally liable for this amount.
Cunningham asks the court to freeze the defendant businesses' Wells Fargo bank
accounts so that Montes cannot transfer money to impede Cunningham's collection efforts.
Given Montes's history of evading service, the court finds it appropriate to freeze these
corporate accounts until Cunningham has collected the damages awarded. Defendants may
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move to release funds upon a showing of necessity. Cunningham may move the court to
order funds paid into the court's registry pending appeal.
ORDER
IT IS ORDERED that:
1. Defendants' motion to dismiss, Dkt. 13, and motion to set aside default, Dkt. 14,
are DENIED.
2. Plaintiff Craig Cunningham's motion for default judgment, Dkt. 9, is GRANTED
in part, consistent with the opinion above.
3. Defendants John/Jane Doe 1-10 are dismissed from the case.
4. The clerk of court is directed to enter judgment in favor of plaintiff and against
defendants Michael Montes, Tollfreezone.com, Inc., Mydataguys.com, LLC,
PODmusicgear.com, Inc., and emailmyvmail.com, Inc., in the amount of
$176,450 together with interest at the rate allowed by law and close this case.
5 . All Wells Fargo bank accounts in the name of defendants Tollfreezone.com, Inc.,
PODmusicgear.com, Inc., Mydataguys.com, Inc., and Emailmyvmail.com, Inc., are
frozen. Defendants are restrained and enjoined from withdrawing or transferring
funds in these accounts until further order of the court.
6. Counsel for defendant Michael Montes must, within 24 hours after this order
issues, provide a copy of this order to Wells Fargo. Within 72 hours, counsel must
confirm to the court that a copy of this order has been provided to Wells Fargo.
Entered July 18, 2017.
BY THE COURT:
JESD. PETERSON
District Judge
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