United States District Court, S.D. Texas, Houston Division
Ken W. Matthews, Plaintiff,
The Giving Days Foundation, Inc., d/b/a Ray Reynolds Survived, Defendant.
MEMORANDUM OPINION AND ORDER
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE
before the court is a motion for default judgment filed by
plaintiff Ken W. Matthews. Dkt. 11-2. Defendant the Giving
Days Foundation, Inc., d/b/a Ray Reynolds Survived, was
served on March 27, 2019, but has not answered Matthews's
complaint or otherwise appeared. See Dkt. 7.
Matthews filed his motion for default judgment on September
10, 2019, and he sent it to the defendant via certified mail
return receipt requested as required by Local Rule 5.5. The
defendant has not responded. After considering the motion,
the complaint, and the applicable law, the court is of the
opinion that the motion for default judgment should be
contends that he began receiving unsolicited robo-calls from
the defendant on his cellular phone in late 2017. Dkt.1.
During the calls, the defendant allegedly provided a number
the plaintiff could select to opt out of the calls.
Id. However, Matthews attempted to opt out using
this number during the first ten robo-calls, and he continued
to receive the calls. Id. The defendant also
allegedly sent Matthews several unsolicited text messages.
Id. Matthews replied “stop, ” but the
text messages did not stop. Id. Matthews contends
that the defendant placed or caused to be placed 101
harassing phone calls and text messages from late 2017 until
the present day. Id. Matthews also contends that the
defendant harassed him on back to back days. Id. He
asserts that the defendant's “wanton and malicious
conduct” severely impacted his daily life and general
well being, that he had to expend time consulting with
attorneys due to this harassment, and that he was unduly
inconvenienced by the defendant's attempts to solicit his
business. Id. He asserts claims for violations of
the Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227, as the defendant used an automatic
telephone dialing system or prerecorded messages on the calls
and a telephone facsimile machine for transmitting text for
the text messages. Id. He contends that the
defendant is liable for a minimum of $500 per phone call
under 47 U.S.C. § 227(b)(3)(B) and that the
defendant's willful and knowing violations trigger the
court's discretion to triple the damages under 47 U.S.C.
§ 227(b)(3)(C). Id. In the complaint, Matthews
seeks these damages as well as costs and reasonable
attorney's fees, and injunction prohibiting the defendant
from further contacting Matthews, and any other relief the
court deems just and appropriate. Id.
motion for default judgment, the plaintiff seeks $60, 000
pursuant 47 U.S.C. §§ 227(b)(3)(B) & (C) for at
least 40 phone calls at $1, 500 per call. Dkt. 11. He also
seeks $3, 282.75 in reasonable attorney's fees and costs
as well as interest on the judgment. Id. He served
the motion for default on the defendant via certified mail,
return receipt requested and he filed an affidavit that
supports the request for attorney's fees and states that
the defendant, a business, is not in the military. Dkts. 11,
Federal Rule of Civil Procedure 55(a), “[w]hen a party
against whom judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party's default.” Fed.R.Civ.P. 55(a). Under Rule
55(b)(2), a party may apply for the court to enter a default
judgment, and the “court may conduct hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to: (A)
conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D)
investigate any other matter.” Fed.R.Civ.P. 55(b)(2).
default judgment is a “drastic remedy, not favored by
the Federal Rules[, ] and resorted to by courts only in
extreme situations.” Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th
Cir. 1989). “The Federal Rules of Civil Procedure are
designed for the just, speedy, and inexpensive disposition of
cases on their merits, not for the termination of litigation
by procedural maneuver.” Id. A default
judgment, thus, “must be ‘supported by
well-pleaded allegations' and must have ‘a
sufficient basis in the pleadings.'” Wooten v.
McDonald Transit Assoc., Inc., 788 F.3d 490, 498 (5th
Cir. 2015) (quoting Nishimatsu Constr. Co. v. Hou.
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
The well-pleaded allegations in the complaint are assumed to
be true. Nishimatsu, 515 F.2d at 1206.
may not enter a default judgment against a minor or
incompetent person unless the person is represented by a
general guardian, conservator, or other like fiduciary who
has appeared. Fed.R.Civ.P. 55(b). Additionally, a court may
not enter a default judgment if the plaintiff does not file
an affidavit regarding the defendant's military status.
50 App. U.S.C. § 521(1). If the defendant is in the
military service, “the court may not enter a judgment
until after the court appoints an attorney to represent the
defendant.” Id. § 521(2). Local Rule 5.5
requires that motions for default judgment “be served
on the defendant-respondent by certified mail (return receipt
requested).” S.D. Tex. L.R. 5.5.
the court finds that Matthews has satisfied the procedural
requirements for obtaining a default judgment. It now turns
to the substance of his claims.
47 U.S.C. § 227(a), the term “automatic telephone
dialing system” means “equipment which has the
capacity . . . to store or produce telephone numbers to be
called, using a random or sequential number generator; and .
. . to dial such numbers.” The types of calls Matthews
contends he was receiving from the defendant in his complaint
meet this definition. See Dkt. 1. Matthews alleges
he was also receiving texts in his complaint, but he only
seeks a default judgment as to 40 phone calls. See
Dkt. 1, Dkt. 11. Under 47 U.S.C. § 227(b)(1)(A)(iii), it
is unlawful to “make a call . . . using any automated
telephone dialing system or an artificial or prerecorded
voice . . . to any telephone number assigned to a . . .
cellular telephone service . . . .” Taking the
allegations in Matthews's complaint as true, the
defendant violated this statute by causing robo-calls with
prerecorded messages to be made to his cellular device.
See Dkt. 1. Under 47 U.S.C. § 227(b)(3), a
person may bring a private right of action for violations of
47 U.S.C. § 227(b) to recover “actual monetary
loss from such violation, or to receive $500 in damages for
each such violation, whichever is greater . . . .”
Additionally, if the “court finds that the defendant
willfully and 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)(B)-(C). The court finds that the facts pled,
taken as true, indicate that the defendant knowingly and
willfully violated the subsection and continued to call
Matthews even after he used the process to inform the
defendant not to call any more. See Dkt. 1.
seeks $1, 500 each for 40 phone calls, which includes $500
per call in statutory damages under 47 U.S.C. §
227(b)(3)(B) and $1, 000 per call in statutory damages under
47 U.S.C. § 227(b)(3)(C). Dkt. 11. The court finds that
additional damages in the amount of $500 per call is
reasonable for these knowing and willful violations.
Accordingly, Matthews's request for a default judgment
under 47 U.S.C. § 227(b)(3)(B) for the violations is
GRANTED, and Matthews is AWARDED $500 per call for the 40
calls for which he now seeks recovery. His request for
additional damages for willful and knowing conduct under 47
U.S.C. § 227(b)(3)(B)-(C) is GRANTED IN PART, and
Matthews is AWARDED $500 additional damages per each of the
also seeks attorney's fees pursuant to 15 U.S.C. §
1692k(a)(3). Dkt. 11-2. However, § 1692k(a)(3) relates
to awarding attorneys' fees in cases involving debt
collectors. 15 U.S.C. § 1692k(a)(3). According to
Matthews's complaint, the defendant here is a credit
solutions company. Dkt. 1. “The Telephone Consumer
Protection Act is not a fee-shifting statute, ” and the
American Rule that litigants must cover their own legal costs
applies. Ho ...