United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
E. CLIFTON KNOWLES, Magistrate Judge.
Plaintiff brought this pro se action pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq. Plaintiff's claims are set forth in his "Amended Complaint." Docket No. 7. He essentially claims that Defendants, or at least some of them, made automated telephone calls with a pre-recorded message to his cell phone in 2013 and 2014. The messages were to the effect that Plaintiff could get help for drug or alcohol addiction. Plaintiff, however, does not use drugs or alcohol. He never gave any of Defendants his cell phone number. One of the Defendants, Alex Riley, admitted to Plaintiff that Defendant Addiction Intervention was getting leads for the two treatment centers listed, the Florida House Experience and A New Day Rehab, using automated telephone dialing systems with pre-recorded messages. Plaintiff's Amended Complaint states in relevant part:
19. These multiple phone calls violated the TCPA in two ways, first by having a pre-recorded message, and second by the automated nature of them. The Plaintiff received multiple phone calls day after day, and sometimes twice in the same day....
22. The foregoing actions by the Defendants constitute multiple breaches of the TCPA by placing unsolicited and unwelcome telephone calls to the Plaintiff's cell phone. These phone calls also violated the TCPA by having and [ sic ] pre-recorded message.
Docket No. 7, p. 4.
The Amended Complaint sought damages, which Plaintiff refers to as "statutory damages, " in the amount of $3, 000 for each phone call, and punitive damages for "all claims" in the amount of $150, 000.
Judge Trauger has referred the case to the undersigned. Docket No. 4. On June 30, 2014, the Clerk entered a default against Defendants Intervention Now, Inc., A New Day Rehab, and Florida House Experience. Docket No. 31. On August 14, 2014, the Clerk entered a default against Defendants Ivan Baker and Andrea Bergman. Docket No. 45. (Hereinafter, unless otherwise noted, the term "Defendants" will be used to refer to the defaulted Defendants, Intervention Now, Inc., A New Day Rehab, Florida House Experience, Ivan Baker, and Andrea Bergman.)
Plaintiff subsequently filed a Motion for a Hearing to Determine Damages. Docket No. 49. The Court held the damages hearing on January 8, 2015. Defendants did not attend the hearing, were unrepresented by counsel, and Plaintiff testified that none of these Defendants had contacted him with regard to the hearing. Docket No. 56. The Court granted Plaintiff leave to submit a post-hearing brief, which he has done. Docket No. 59.
The Court begins with the proposition that the relief available in a default judgment is restricted to that sought in the Amended Complaint. Fed.R.Civ.P. 54.01(c) provides:
Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed an amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.
As discussed above, Plaintiff's Amended Complaint avers only that Defendants committed multiple breaches of the TCPA by placing unsolicited and unwelcome telephone calls to the Plaintiff's cell phone, and that these phone calls also violated the TCPA by having a pre-recorded message. Plaintiff cites Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011), for the proposition that the TCPA, specifically 47 U.S.C. § 227(b)(3), prohibits automated/pre-recorded calls to consumers' cell phones, and that Plaintiff is entitled to $1, 500 in damages per call for such violations, provided that the violations are "willful or knowing."
In his post-hearing brief, however, he also claims that Defendants violated 47 U.S.C. § 227(c) "and corresponding FCC regulations enacted as a result of the TCPA...." Plaintiff argues that Charvat provides that Plaintiff is entitled to additional damages in the amount of $1, 500 per call for Defendants' violation of 47 U.S.C. § 227(c) and corresponding FCC regulations, which pertain to requirements for do-not-call lists.
The Charvat Court stated:
We therefore conclude that a person may recover statutory damages of $1, 500 for a willful or knowing violation of the automated-call requirements of 227(b)(3) and $1, 500 for a willful or knowing violation of the do-not-call list requirements of ...