If You Don’t Answer, You Lose

My colleague recently covered a serial TCPA plaintiff who won a sizable judgment after the Defendant failed to respond to his Motion for Summary Judgment.  Along the same lines, in Aussieker v. Staccato Prop., LLC, a couple of Pro se Plaintiffs filed a lengthy complaint with TCPA claims.  The Pro se Plaintiffs waited 30 days, and after no answer, they moved for entry of default.  The clerk automatically rubber stamped the entry of default, per standard procedure.  The pro se Plaintiffs followed up with a motion for judgment. The Defendant still failed to contest their advances. 

The Defendant’s failure to respond to the Plaintiffs’ motion, sealed the deal that they win default judgment. The court recited the harrowing standard that upon entry of default judgement, the complaint’s allegations asserting liability are considered the truth, and only the amount of damages are at issue. 

Plaintiffs deserved $500 for ten TCPA violations, so the court meted a $5,000 award for five calls.  The court noted that they could collect $1000 for a single call: $500 under Section 227 (b) (the provision prohibiting using an ATDS and a prerecorded message) and $500 under Section 227 (c) (the provision prohibiting calling numbers on the DNC list). However, the court swatted away the Plaintiffs’ attempt to double dip damages under Section 227(b) for the alleged use of an ATDS, and a prerecorded message, because they’re only allowed one penalty from Section 227 (b) per call.

The court found that the Plaintiffs did not state any facts that could permit an award for willful, trebled damages (the Plaintiffs did not allege that the Defendant was previously sued for similar conduct, or that the Defendant refused to stop despite Plaintiffs protests; “Or that the defendant’s resources are such that the minimum [$500] statutory penalty would fail to deter future conduct.”).  Plaintiffs request for prejudgment interest was also crushed because they failed to ask for that in their complaint. 

In the end, although these lawsuits are a pain, the headache will not get any better by ignoring a Plaintiff’s court filing. May we all have a prosperous 2020 without any of these problems.         

1 Comment

  1. Most TCPA plaintiffs who protect their rights by going after serial defendants like yours, will learn as I did 26 years ago, to spell out everything in a complaint.
    Not to blow my own horn like the Czar, but I can say despite what you read, I do quite well with my complaints now, devoid of using lawyers. And no, due to the sizable awards received, I cannot give you examples.

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