Opinion
No. CV-03-1999-PHX-SMM.
December 14, 2005
DEFAULT JUDGMENT
On December 12, 2005, this Court held a default judgment hearing, as default was entered by the Clerk of Court on November 15, 2005 against Defendants Greg Horne and Larry Krouse. [Doc. No. 52] The Court will direct the Clerk of Court to enter default judgment against Defendants Horne and Krouse, and now considers the scope of damages against them.
BACKGROUND
Plaintiff brought suit against Defendants under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227(b)(1)(C)-(b)(3)(B), due to unsolicited faxes sent by Defendants. As this Court has already recognized [Doc. No. 34], however, this is a diversity action. TCPA provides for a private right of action, and plaintiffs may seek monetary damages, injunctive relief, or both. 47 U.S.C. § 227(b)(3)(A)-(C). A court may award either actual costs, or up to $500 per violation of the TCPA, whichever is greater. 47 U.S.C. § 227(b)(3)(B).
On February 23, 2004, the Court entered default judgment against Defendant Sunbelt Communications and Marketing ("Sunbelt") and in favor of Plaintiff in the amount of $75,000. [Doc. No. 18] The Court also permanently enjoined Sunbelt from sending facsimile transmissions to Plaintiff or any corporation or entity affiliated with Plaintiff. [Id.] The defendants who remain in this case are Greg Horne and Larry Krouse, and both have been properly served. [Doc. No. 47]
DISCUSSION
At the December 12, 2005 default judgment hearing, Plaintiff testified as to statutory damages and injunctive relief sought. After considering Plaintiff's testimony, the Court finds Plaintiff is entitled to judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. At the hearing, Plaintiff requested damages in the amount of $500,000, which represents $500 for each of Defendants' 1000 violations of TCPA, against Defendants Horne and Krouse. Plaintiff also requested permanent injunctive relief from future faxes by Defendants.
The Court notes that TCPA provides for "up to" $500 per violation of the statute, 47 U.S.C. § 227(b)(3)(B), and the Court finds that awarding $125,000 in damages against Defendant Horne and $125,000 in damages against Defendant Krouse strikes the appropriate balance. In addition, the Court will permanently enjoin Defendants Horne and Krouse from sending facsimile transmissions to Plaintiff or any corporation or entity affiliated with Plaintiff.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall enter Default Judgment against Defendant Greg Horne and in favor of Plaintiff, Bert J. Martinez, in the amount of $125,000 inclusive of costs. IT IS FURTHER ORDERED that the Clerk of Court shall enter Default Judgment against Defendant Larry Krouse and in favor of Plaintiff, Bert J. Martinez, in the amount of $125,000 inclusive of costs.
IT IS FURTHER ORDERED that Defendants Greg Horne and Larry Krouse are permanently enjoined from sending facsimile transmissions to Plaintiff, Bert J. Martinez, or any corporation or entity affiliated with Plaintiff.
IT IS FURTHER ORDERED that the Court will retain jurisdiction over this matter for a period of two (2) years from the date of this Default Judgment to enforce the injunctive provisions of this Judgment.
IT IS FURTHER ORDERED that a copy of this Default Judgment be mailed to Plaintiff and the defaulted Defendants, Greg Horne and Larry Krause.
IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action.