Opinion
22-cv-01823-CCC
12-20-2023
ROBERT D. KLINE, Plaintiff, v. TIMOTHY OLADELE JOLAYEMI, JR., Defendant.
CONNER, JUDGE.
REPORT AND RECOMMENDATION
DARYL F. BLOOM, UNITED STATES MAGISTRATE JUDGE.
I. Factual Background
This case comes before us for consideration of the pro se plaintiff's motion for the assessment of damages. (Doc. 14). The plaintiff, Robert Kline, brought this action against the defendant pursuant to the Telephone Consumer Protection Act (“TCPA”). (Doc. 1). Kline asserts that the defendant violated the TCPA on two separate occasions when he initiated telemarketing calls to the plaintiff's cellular phone without his consent. (Id.). Kline alleges that this was done through the use of an automatic telephone dialing system (“ATDS”) by a third party to place a call to the plaintiff's cellular phone, which led to the defendant placing two subsequent calls to the plaintiff's cellular phone without his consent. (Id. ¶¶ 35-46).
The plaintiff filed his complaint and a summons for service was issued. (Docs. 1, 3). Kline later moved for an entry of default, citing the defendant's failure to enter an appearance or otherwise respond to the instant action, and he obtained a clerk's entry of default. (Doc. 8). More than six months passed without any action from Kline, and the Court entered an order directing Kline to show cause why this action should not be dismissed for failure to prosecute. (Doc. 9). Kline subsequently filed a response to the show cause order and a motion for the assessment of damages, which was withdrawn due to the plaintiff's failure to file a brief in support of his motion. (Docs. 10, 12, 13).
Kline has now filed the instant motion for the assessment of damages and supporting brief, contending that he is entitled to filing fees, as well as $1,500.00 per violation of the TCPA, resulting in total damages of $3,657.75. (Docs. 14, 15). Given that Kline has been proceeding in this action pro se, and the defendant has not entered an appearance or responded in any way to the instant action, we recommend that the court treat this motion as a motion for default judgment against the defendant, grant the motion, and direct the plaintiff to provide detailed affidavits regarding the amount of damages to which he has alleged he is entitled.
II. Discussion
Rule 55(b) of the Federal Rules of Civil Procedure permits a plaintiff to apply for an entry of default judgment against a party following a clerk's entry of default. Fed.R.Civ.P. 55(b)(2). “Whether or not to grant a party's motion for entry of default judgment ‘is left primarily to the discretion of the district court.'” Service Employees Int'l Union Local 32BJ, District 36 v. ShamrockClean, Inc., 325 F.Supp.3d 631, 634 (E.D. Pa. 2018) (quoting United States v. $55,518.85 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984)). In considering a motion for default judgment, a court should balance three factors: “(1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). Prior to the consideration of these factors, however, the court must “ascertain whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” Service Employees Int'l Union, 325 F.Supp.3d at 635.
The plaintiff has asserted claims under the TCPA, alleging that the defendant violated the TCPA when the defendant, through a third party, used an ATDS to place a call to the plaintiff's cell phone, which led to the defendant placing two subsequent calls to the plaintiff's cellular phone without his consent. The TCPA prohibits a person from making a call using ATDS to a cellular telephone number without the express consent of the party receiving the call. 47 U.S.C. § 227(b)(1)(A)(iii). This provision provides a private right of action for individuals to recover injunctive relief and/or recover “actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater . . .” § 227(b)(3)(A)-(C). Additionally, the statute authorizes the court to exercise discretion and award up to three times the amount per violation if the court finds that the defendant's conduct was willful. § 227(b)(3).
Here, we conclude that Kline has sufficiently alleged violations of the TCPA. First, Kline alleges that a third party, Eric White, made a call to his cellular phone using an ATDS. He asserts that there was a lengthy pause before White connected with him, and the caller ID number was “spoofed.” (Doc. 1 ¶¶ 36-38). Courts in this circuit have held that such allegations meet the requirement for a plaintiff to sufficiently allege the use of an ATDS. See Landy v. Natural Power Sources, LLC, 2021 WL 3634162, at *5 (D.N.J. Aug. 17, 2021); Hazan v. Wells Fargo Home Mortgage, 2020 WL 919183, at *3 (D.N.J. Feb. 26, 2020).
Second, while the defendant is not alleged to have made this initial call, Kline asserts that the defendant called his cellular phone several days later and mentioned that Eric White was his agent. (Doc. 1 ¶¶ 4445). The TCPA allows for vicarious liability for violations by a third-party when the plaintiff adequately shows that the defendant benefitted from the third-party's marketing calls. Smith v. Vision Solar LLC, 2020 WL 7230975, at *3 (E.D. Pa. Dec. 8, 2020) (citing In re Dish Network LLC, 28 FCC Rcd. 6574 at ¶ 24 (“FCC Statement”); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 168 (2016)). Here, Kline has sufficiently alleged that the defendant benefitted from White's initial telemarketing call by alleging that the defendant followed up with him and referenced White's call several days prior. Kline further alleges that these calls were made without his express consent. (Doc. 1 ¶ 46). Accordingly, we conclude that these unchallenged facts state a legitimate cause of action under the TCPA.
Further, we conclude that a balancing of the Chamberlain factors supports the entry of a default judgment in this case. The first factor- prejudice to the plaintiff-does not weigh heavily in favor of granting a default judgment, as “‘delay in realizing satisfaction on a claim rarely serve[s]' to meet the necessary bar for granting a default.” Eastern Electric Corp. of N.J. v. Shoemaker Const. Co., 657 F.Supp.2d 545, 553 (E.D. Pa. 2009) (quoting Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656-57 (3d Cir. 1982)). However, the two remaining factors-whether the defendant has a litigable defense, and whether the default resulted from the defendant's culpable conduct-weigh in favor of granting a default judgment in this matter. The defendant has not entered an appearance or responded in any way to this action, which has now been pending for over one year. Accordingly, we conclude that a balancing of the Chamberlain factors weighs in favor of granting a default judgment in favor of the plaintiff.
Turning to the issue of the plaintiff's damages, “the Court may make its determination by conducting a hearing or by receiving detailed affidavits from the claimant.” Eastern Electric Corp. of N.J., 657 F.Supp.3d at 552 (citing Durant v. Husband, 28 F.3d 12, 15 (3d Cir. 1994)). There is no requirement that a court conduct a formal hearing, but instead may request that “the parties submit affidavits and other materials from which the court can decide the issue.” Id. (quoting Moore's Federal Practice 3d § 55.32(2)(c)) (internal quotation marks omitted).
Kline asserts that he is entitled to damages in the amount of $3,657.75. (Doc. 14 at 2). This amount includes filing and personal services fees in both state and federal court, which total $249.75 and $402.00, respectively; $6.00 in notary fees; and $1,500.00 for each of the two TCPA violations alleged in the complaint, which he alleges amount to willful misconduct under the statute. (Id.). At this time, the plaintiff has not presented any evidence from which we could conclude that the defendant's violation of the TCPA was willful, such that we should exercise our discretion to award Kline $1,500.00 per violation rather than the baseline $500.00 per violation. With respect to the filing and notary fees, in our view, the plaintiff must submit something more than just an itemized list of expenses to which he claims he is entitled.
Accordingly, while we do not believe that a formal hearing is necessary, in our view, Kline should be directed to submit a more detailed affidavit from which we can decide the issue of damages. Thus, while we recommend that the court grant default judgment in favor of the plaintiff, we further recommend that the court direct Kline to submit a detailed affidavit, along with other materials that may shed light on the extent of his alleged damages before the court enters an award of damages.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the plaintiff's motion for the assessment of damages (Doc. 14) be treated as a motion for default judgment and should be GRANTED IN PART. The Court should grant a default judgment in Kline's favor but direct the plaintiff to provide further affidavits and/or materials to determine the issue of damages.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being
served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.