Aussieker v. Staccato Props., LLC

MARK AUSSIEKER and KIMBERLY AUSSIEKER, Plaintiffs, v. STACCATO PROPERTIES, LLC, et al., Defendants.

No. 2:19-cv-0089 TLN DB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 26, 2019

FINDINGS AND RECOMMENDATIONS

Plaintiffs Mark Aussieker and Kimberly Aussieker are proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court is plaintiffs' motion for default judgement against defendant Staccato Properties, LLC, ("Staccato Properties").¹ (ECF No. 8.) This motion came on for hearing before the undersigned on May 17, 2019. (ECF No. 16.) Plaintiff Mark Aussieker appeared in person on his own behalf. No appearance was made by, or on behalf of plaintiff Kimberly Aussieker or the defendant.

Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that plaintiffs' motion be granted.

BACKGROUND

Plaintiffs, proceeding pro se, commenced this action on January 14, 2019, by filing a complaint and paying the required filing fee. (ECF No. 1.) Therein, plaintiffs allege that defendant Staccato Properties, a California Limited Liability Corporation, placed direct-to-voicemail calls to plaintiffs on three occasions using an automatic dialer in violation of the Telephone Consumer Protection Act, ("TCPA"), 47 U.S.C. § 227, et. seq. (Compl. (ECF No. 1) at 2, 5.²)

On February 14, 2019, plaintiffs filed proof of service on defendant Staccato Properties. (ECF No. 7.) That same day, plaintiffs requested entry of Staccato Properties' default. (ECF No. 8.) The Clerk of the Court entered Staccato Properties' default on February 15, 2019. (ECF No. 9.)

On March 18, 2019, plaintiffs filed the pending motion for default judgment. (ECF No. 15.) Plaintiffs' motion seeks damages and prejudgment interest. (Id. at 8.) On May 17, 2019, a hearing was held before the undersigned on the motion for default judgement. (ECF No. 16.) Despite being served with notice of the motion and hearing, defendant did not appear at the hearing and did not file an opposition to the motion for default judgement. (ECF No. 15 at 11.)

LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).

Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be enteredwithout a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).

Granting or denying default judgment is within the court's sound discretion. Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice ¶ 55-05[2], at 55-24 to 55-26).

ANALYSIS

A. Appropriateness of the Entry of Default Judgment under the Eitel Factors

Plaintiffs' motion for default judgement seeks judgement on the complaint's claims that the defendant violated the TCPA. (Pl.'s MDJ (ECF No. 15) at 6.) The factual allegations of plaintiffs' complaint are taken as true pursuant to the entry of default against the defendant.

1. Factor One: Possibility of Prejudice to Plaintiffs

The first Eitel factor considers whether plaintiffs would suffer prejudice if default judgment is not entered. When a defendant has failed to appear and defend the claims, a plaintiff will be without recourse and suffer prejudice unless default judgment is entered. Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014) (granting a default judgement for a disabled plaintiff suing under the ADA and Unruh Act, relying upon this rationale).

Here, the defendant has failed to appear and defend against plaintiffs' claims. Absent entry of default judgement, plaintiffs would likely be without recourse against the defendant. Because plaintiffs will suffer prejudice if they are without recourse, this factor weighs in favor of entry of default judgment.

2. Factors Two and Three: The Merits of Plaintiffs' Substantive Claims and the Sufficiency of the Complaint

The second and third factors are (1) the merits of plaintiff's substantive claim, and (2) the sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. Thus, the second and third Eitel factors require plaintiff to state a claim on which plaintiff can recover. PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d, 1172, 1175 (2002); see Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). Given the close relationship between the two inquiries, factors two and three are considered together.

As mentioned above, plaintiffs seek default judgment on claims that the defendant violated the TCPA. "The TCPA establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent." Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (citation and quotation omitted). Specifically, 47 U.S.C. § 227(b) of the TCPA make is "unlawful 'to make any call (other than . . . with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.'" Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068, 1071 (9th Cir. 2019) (quoting 47 U.S.C. § 227(b)(1)(A)(iii)). And 47 U.S.C. § 227(c) of the TCPA is violated when a call is placed to a "[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government." 47 C.F.R. § 64.1200(2)(c). "This regulation also applies to wireless telephone subscribers who have registered their numbers on the national do-not-call registry." Heidorn v. BDD Marketing & Management Company, LLC, Case No. C-13-0229 JCS, 2013 WL 6571629, at *10 (N.D. Cal. Aug. 19, 2013) (citing 47 C.F.R. § 64.1200(e)). "[D]irect-to-voicemail messages are a 'call' under the TCPA[.]" Saunders v. Dyck O'Neal, Inc., 319 F.Supp.3d 907, 912 (W.D. Mich. 2018).

Here, the complaint alleges that plaintiff Mark Aussieker's cellular number was added to the "do-not-call registry in February of 2003." (Compl. (ECF No. 1) at 4.) And plaintiff Kimberly Aussieker's cellular number was added to the do-not-call registry "in 2005[.]" (Id.) OnJanuary 11, 2019, defendant "caused two calls to be made" to "force[] a message on to" plaintiff Kimberly Aussieker's voice mail. (Id.)

On January 12, 2019, defendant "caused two calls to be made" to plaintiff Mark Aussieker's phone resulting in "a message on" plaintiff's "voice mail[.]" (Id. at 5.) The calls were made simultaneously using an "automatic telephone dialing system," "for the purpose of delivering the pre recorded voice message" to plaintiff. (Id.) The caller on the voice mail message purported to have "just driven by" plaintiffs' property. (Id. at 6.) Plaintiffs do not own property in Sacramento. (Id.) Plaintiff Kimberly Aussieker received the same voice mail minutes earlier "without missing a call." (Id.) Defendant did not have plaintiffs' prior consent for these calls. (Id. at 5, 11.)

The undersigned finds that the complaint has stated claims for violation of the TCPA. See Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) ("Thus, the three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent."); Drew v. Lexington Consumer Advocacy, Case No. 16-cv-0200 LB, 2016 WL 9185292, at *7 (N.D. Cal. Aug. 11, 2016) ("Mr. Drew thus states a claim for violation of § 64.1200(c)(2) because Lexington messaged him while his phone number was on the do-not-call registry."). The second and third Eitel factors thus weigh in favor of the entry of default judgment.

3. Factor Four: The Sum of Money at Stake in the Action

Under the fourth factor cited in Eitel, "the court must consider the amount of money at stake in relation to the seriousness of Defendant's conduct." Eitel, 782 F.2d at 1471-72; see also Philip Morris USA, Inc v. Castworld Prods., Inc., 219 F.R.D. 494, 500. (C.D. Cal. 2003). Plaintiffs' motion for default judgment inconsistently states that it "seeks $15,000 in statutory damages" but requests "judgment in the amount of $9,000," plus $500 in costs.³ (Pls.' MDJ (ECF No. 15) at 7-8.) Even assuming $15,000 is at stake, the undersigned does not find the overall sum of money at stake to be so large or excessive as to militate against the entry...