Crews v. Sun Solutions AZ LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason Crews, No. CV-23-01589-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Sun Solutions AZ LLC, et al.,

13 Defendants. 14 15 Pending before the Court is a motion for default judgment filed by Plaintiff Jason 16 Crews (“Plaintiff”), who is proceeding pro se, against Defendants Sun Solutions AZ, LLC 17 (“Sun Solutions”) and Justin Villalobos (“Villalobos”) (together, “Defendants”). (Doc. 18 34.) For the following reasons, the motion is granted in part and denied in part. 19 RELEVANT BACKGROUND 20 On August 7, 2023, Plaintiff initiated this action by filing the complaint. (Doc. 1.) 21 The relevant factual allegations in the complaint are as follows. Between July 10, 2023 22 and July 28, 2023, representatives of Sun Solutions used an automatic telephone dialing 23 system (“ATDS”) to send “eight illegal telemarketing calls”1 to Plaintiff’s cell phone, 24 which is not associated with a business and is registered on the Do-Not-Call registry. (Id. 25 1 Although paragraph 16 of the complaint alleges that all of the challenged 26 communications were phone calls, later paragraphs of the complaint indicate that some of the communications were text messages. This distinction is immaterial for liability 27 purposes. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (“The FCC has reasonably interpreted ‘call’ under the [Telephone Consumer Protection Act] to 28 encompass both voice calls and text calls. This interpretation is reasonable and is therefore entitled to deference.”). 1 ¶¶ 2, 14-42.) Plaintiff had no prior business relationship with Sun Solutions and had not 2 consented to the communications. (Id. ¶¶ 18, 20.) 3 More specifically, the complaint alleges that when Plaintiff received the first 4 communication—a call from the phone number 323-529-0640—on July 10, 2023, he was 5 “greeted by an individual who identified himself as Miguel.” (Id. ¶¶ 16, 21.) When that 6 call was “unexpectedly disconnected,” Miguel immediately called back from the same 7 number and sought to persuade Plaintiff to purchase “solar products and services.” (Id. 8 ¶¶ 23-27.)2 Plaintiff “feigned interest in Miguel’s products and services in order to 9 determine the identity of the company responsible” for the call. (Id. ¶ 26.) However, 10 Miguel declined to identify the name of his employer. (Id. ¶¶ 28-29.) Plaintiff told Miguel 11 that he “couldn’t talk” at that time but would “let him know if he was interested in their 12 products and services” and disconnected the call. (Id.) 13 One week later, on July 17, 2023, Plaintiff received a call from a different phone 14 number, 623-533-7343, at 5:17 p.m. (Id. ¶¶ 16, 30.) After Plaintiff did not answer that 15 call, he received another call from the same number. (Id. ¶¶ 16, 31-32.) Plaintiff answered 16 the second call and “was greeted by an individual who later identified himself as 17 [Villalobos].” (Id. ¶ 33.) “Villalobos confirmed that Miguel worked for him and was 18 calling on behalf of his company[,] [Sun Solutions].” (Id. ¶ 34.) Villalobos then 19 “advertised his goods and services to Plaintiff” and “[d]uring the call, and without asking 20 for Plaintiff[’]s consent, . . . sent a text message to Plaintiff with his website [URL].” (Id. 21 ¶¶ 35-36.) Plaintiff, in turn, “requested that Villalobos place Plaintiff on [Sun Solutions’] 22 internal do-not-call list, and to send him a copy of [Sun Solutions’] internal do not call 23 policies,” and Villalobos said he would do so. (Id. ¶¶ 37-38.) 24

25 2 Although the complaint alleges that Sun Solutions “does business as Vehicle Protection Network, and in the business [of] selling extended car warranties” (Doc. 1 ¶ 5), 26 this allegation appears to be at odds with the remainder of the complaint. The Court notes that a complaint Plaintiff filed a month earlier against an apparently unrelated entity 27 contains an identical allegation: “Defendant American Auto Repair Coverage, LLC (‘AARC’), incorporated in Missouri, does business as Vehicle Protection Network, and in 28 the business [of] selling extended car warranties.” Crews v. American Auto Repair Coverage LLC et al, 2:23-cv-01588-DJH, Doc. 1 ¶ 5. 1 On July 28, 2023, Plaintiff received two unsolicited text messages from the phone 2 number 323-740-6436. (Id. ¶¶ 16, 39-42.) The first “claimed to have just finished a 3 remodel” and the second “advertised [Sun Solutions’] website.” (Id. ¶¶ 40, 42.) 4 Although the complaint only provides narrative details regarding the seven 5 communications summarized above—i.e., the two calls from Miguel on July 10, 2023 6 using the telephone number 323-529-0640; the two calls from Villalobos on July 17, 2023 7 using the telephone number 623-533-7343; the text message from Villalobos on July 17, 8 2023, which Villalobos sent during the second call; and the two text messages from an 9 unspecified sender on July 28, 2023 using the telephone number 323-740-6436—the 10 complaint alleges there were eight challenged communications in total. (Id. ¶ 16.) The 11 communication for which no narrative details are provided appears to be a call or text from 12 the phone number 323-740-6436 on July 17, 2023. (Id.)3 13 Based on these allegations, the complaint asserts two claims for violations of the 14 Telephone Consumer Protection Act (“TCPA”). (Id. ¶¶ 68-78.) In Count One, Plaintiff 15 asserts a claim for violating the TCPA’s prohibition against “sending calls, except for 16 emergency purposes, to . . . a cellular telephone service using an ATDS.” (Id. ¶ 69.) In 17 Count Two, Plaintiff asserts a claim for “call[ing] Plaintiff’s private residential number 18 which was registered on the National Do-Not-Call Registry more than thirty-one (31) days 19 prior to the calls, in violation of 47 U.S.C. § 227(c)(3)(F) and 47 C.F.R. § 64.1200(c)(2).” 20 (Id. ¶ 75.) The complaint also alleges that Villalobos, the owner and manager of Sun 21 Solutions, should be held individually liable because he “personally participated in the 22 complained-of actions by personally directing and authorizing the scripting and selecting 23 of calls to be made, selecting, and orchestrating the calling strategy, including by choosing 24 to use pre-recorded calls.” (Id. ¶¶ 6, 11.) 25 On January 5, 2024, the Court authorized Plaintiff to serve Sun Solutions by 26 3 The table in paragraph 16 identifies four challenged communications that were sent 27 on July 17, 2023, with one (from phone number 323-740-6426) occurring at 3:09 p.m. Although no facts were provided regarding this communication aside from the time and 28 phone number, the Court notes that it was sent from the same phone number as the two text messages on July 28, 2023. 1 alternative means. (Doc. 17.) 2 On January 10, 2024, Plaintiff filed proof of service. (Doc. 20.) 3 On January 28, 2024, Plaintiff filed an application for entry of default against Sun 4 Solutions. (Doc. 22.) 5 On February 5, 2024, the Clerk entered the default. (Doc. 24.) 6 On April 1, 2024, the Court authorized Plaintiff to serve Villalobos by alternative 7 means. (Doc. 30.) 8 On April 4, 2024, Plaintiff filed proof of service. (Doc. 31.) 9 On April 25, 2024, Plaintiff filed an application for entry of default against 10 Villalobos. (Doc. 32.) 11 On April 26, 2024, the Clerk entered the default. (Doc. 33.) 12 On April 28, 2024, Plaintiff filed the pending motion for default judgment. (Doc. 13 34.) Neither Defendant responded. 14 DISCUSSION 15 I. Default Judgment Standard 16 The “decision whether to enter a default judgment is a discretionary one.” Aldabe 17 v. Alda be, 616 F.2d 1089, 1092 (9th Cir. 1980). The following factors, known as the Eitel 18 factors, may be considered when deciding whether default judgment is appropriate: (1) the 19 possibility of prejudice to the plaintiff, (2) the merits of the claims, (3) the sufficiency of 20 the complaint, (4) the amount of money at stake, (5) the possibility of factual disputes, (6) 21 whether the default was due to excusable neglect, and (7) the policy favoring decisions on 22 the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 23 “[T]he general rule” for default judgment purposes “is that well-pled allegations in 24 the complaint regarding liability are deemed true.” Fair Hous. of Marin v. Combs, 285 25 F.3d 899, 906 (9th Cir. 2002). “The district court is not required to make detailed findings 26 of fact.” Id. “However, necessary facts not contained in the pleadings, and claims which 27 are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 28 980 F.2d 1261, 1267 (9th Cir. 1992). 1 II. The First, Fifth, Sixth, And Seventh Eitel Factors 2 “In cases like this one, in which Defendants have not participated in the litigation at 3 all, the first, fifth, sixth, and seventh factors are easily addressed.” Zekelman Indus. Inc. v. 4 Marker, 2020 WL 1495210, *3 (D. Ariz. 2020.) 5 The first Eitel factor weighs in favor of default judgment. If the motion for default 6 judgment were denied, Plaintiff would be without recourse for recovery. PepsiCo, Inc. v. 7 Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). 8 The fifth and sixth factors weigh in favor of default judgment or are neutral. Due 9 to Defendants’ failure to participate, there is no dispute over material facts and no 10 indication that default is due to excusable neglect. 11 The seventh factor generally weighs against default judgment, given that cases 12 “should be decided upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 13 1472. However, the existence of Rule 55(b) of the Federal Rules of Civil Procedure, which 14 authorizes default judgments, “indicates that this preference, standing alone, is not 15 dispositive.” PepsiCo, 238 F. Supp. 2d at 1177 (internal quotation marks omitted). “[T]he 16 default mechanism is necessary to deal with wholly unresponsive parties who otherwise 17 could cause the justice system to grind to a halt. Defendants who appear to be ‘blowing 18 off’ the complaint should expect neither sympathy nor leniency from the court.” 2 Gensler, 19 Federal Rules of Civil Procedure, Rules and Commentary, Rule 55 (2023). 20 III. The Fourth Eitel Factor—The Amount Of Money At Stake 21 Under the fourth Eitel factor, the Court considers the amount of money at stake in 22 relation to the seriousness of the defendant’s conduct. Here, Plaintiff seeks $25,631.66, 23 composed of $24,000 in statutory damages and $1,631.66 costs. (Doc. 34 at 3.) The Court 24 has concluded in past cases that when a plaintiff seeks statutory damages and the Court 25 retains discretion to reduce the requested award, the fourth Eitel factor weighs in favor of 26 default judgment or is neutral. See, e.g., Fornix Holdings LLC v. Pepin, 2023 WL 4488976, 27 *2 (D. Ariz. 2023); G&G Closed Circuit Events LLC v. Ray, 2022 WL 836810, *2-3 (D. 28 Ariz. 2022); Schmidt v. AmerAssist A/R Solutions Inc., 2020 WL 6135181, *2 (D. Ariz. 1 2020). Other courts have similarly concluded that the fourth Eitel factor supports default 2 judgment in TCPA cases involving statutory-damage requests. See, e.g., Aussieker v. 3 TSHB, LLC, 2024 WL 379394, *4 (E.D. Cal. 2024). 4 IV. The Second And Third Eitel Factors—Merits And Sufficiency 5 That leaves the second and third Eitel factors—the merits of the claim and the 6 sufficiency of the complaint. “These two factors are often analyzed together and require 7 courts to consider whether a plaintiff has state[d] a claim on which [it] may recover.” 8 Vietnam Reform Party v. Viet Tan-Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. 9 Cal. 2019) (alterations in original) (internal quotation marks omitted). “Of all the Eitel 10 factors, courts often consider the second and third factors to be the most important.” Id. 11 A. Count One 12 With respect to Count One, the second and third Eitel factors weigh against default 13 judgment. As Plaintiff acknowledges, one of the elements of this claim is that the offending 14 communications were sent using an ATDS. (Doc. 34 at 7, citing L.A. Lakers, Inc. v. Fed. 15 Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017)). 16 Although the complaint asserts in conclusory fashion that Defendants used an 17 ATDS, that assertion is not supported by the remaining factual allegations in the complaint. 18 Notably, although the complaint acknowledges that “[a]udible pauses, clicks, and beeps 19 are the hallmarks of ATDS systems” (Doc. 1 ¶ 47), the complaint does not allege that 20 Plaintiff heard any pauses, clicks, or beeps when he answered the challenged calls. The 21 complaint merely alleges that Plaintiff was “greeted by” Miguel and Villalobos upon 22 answering their calls and also alleges that Miguel immediately called him back after the 23 first call was inadvertently dropped. (Id. ¶¶ 22, 25, 33.) These details stand in contrast to 24 the situations where courts have accepted the plausibility of ATDS-related allegations. 25 See, e.g., Schmidt, 2020 WL 6135181 at *5 (concluding that “Schmidt has adequately 26 alleged that AmerAssist utilized an ATDS to place those calls” in part because “Schmidt 27 alleges that, upon answering AmerAssist’s phone call, she was met with approximately 28 three seconds of ‘dead air,’ after which she was connected with a live agent”); McCarver 1 v. Cap. One, N.A., 2020 WL 2141804, *3 (C.D. Cal. 2020) (“Courts in this Circuit have 2 held that experiencing ‘dead air’ on several calls may raise a reasonable inference that the 3 caller is using an ATDS.”); Lofton v. Verizon Wireless (VAW) LLC, 2015 WL 1254681, *5 4 (N.D. Cal. 2015) (“[G]eneral allegations [of use of an ATDS] are sufficiently bolstered by 5 specific descriptions of the ‘telltale’ pause after plaintiff picked up each call until the agent 6 began speaking, which suggests the use of a predictive dialing system, and thus renders 7 plausible the conclusory allegation that an ATDS was used.”). 8 Additionally, Plaintiff alleges that he received phone calls on only two dates, with 9 the text messages sent during or less than two weeks after the last call. Courts have 10 declined to credit conclusory ATDS-related allegations under similar circumstances. See, 11 e.g., Gross v. GG Homes, Inc., 2021 WL 4804464, *3 (S.D. Cal. 2021) (concluding that 12 “[t]he targeted nature of the underlying texts contradicts the notion that Plaintiff’s 13 telephone number could have been produced through a random or sequential number 14 generator . . . [and] renders implausible the allegation that Defendant sent the texts using 15 an ATDS” and listing other cases where ATDS allegations were deemed implausible). 16 B. Count Two 17 Count Two, unlike Count One, does not require the use of an ATDS. Drew v. 18 Lexington Consumer Advocacy, 2016 WL 9185292, *4 (N.D. Cal. 2016) (“The TCPA 19 broadly prohibits two types of phone calls: 1) unsolicited phone calls made using automatic 20 dialers [pursuant to 47 U.S.C. § 227(b)]; and 2) phone calls made in violation of do-not- 21 call registries [pursuant to § 227(c)].”) (citations omitted). 22 To prevail on Count Two, Plaintiff must establish “three elements: (1) for each call, 23 plaintiff received more than one other telephone call within any 12-month period; (2) the 24 calls were made by or on behalf of the same entity; and (3) the calls were made in violation 25 of the regulations prescribed under § 227(c).” Aussieker, 2024 WL 379394 at *3. The first 26 two elements are satisfied for all eight communications at issue here—they were all placed 27 in the same month and it is plausible to infer they were all made by or on behalf of Sun 28 Solutions. 1 As for the third element, Plaintiff alleges that his telephone number “was registered 2 on the National Do-Not-Call Registry more than [31] days prior to the calls,” such that 3 solicitations to that number were “in violation of . . . 47 C.F.R. § 64.1200(c)(2).” (Doc. 1 4 ¶ 75.) That regulatory provision “prohibits solicitations to any residential telephone 5 subscriber who has registered his or her telephone number on the National Do-Not-Call 6 Registry.” Aussieker, 2024 WL 379394 at *3.4 7 The first two calls at issue (the calls from Miguel on July 10, 2023) qualify as 8 telephone solicitations because Miguel expressly tried to sell goods and services to Plaintiff 9 during the second call and it is plausible to infer that the first (dropped) call was intended 10 to achieve the same purpose. See 47 U.S.C. § 227(a)(4) (“The term ‘telephone solicitation’ 11 means the initiation of a telephone call or message for the purpose of encouraging the 12 purchase or rental of, or investment in, property, goods, or services, which is transmitted 13

14 4 In his motion for default judgment, Plaintiff seems to suggest that 47 C.F.R. § 64.1200(c)(2) is not the only regulatory provision underlying Count Two and that liability 15 may also be based, in the alternative, on violations of § 64.1200(d)(1) and/or § 64.1200(d)(6). (Doc. 34 at 9-10.) However, this is not the theory of liability alleged in 16 the complaint. Count Two is premised only on § 64.1200(c)(2). (Doc. 1 ¶ 75.) See generally Simmons v. Charter Comm’s, Inc., 222 F. Supp. 3d 121, 137-38 (D. Conn. 2016) 17 (“Unlike subsection (c), this subsection [(d)] has nothing to do with the national DNC registry. Rather, it is focused on the caller’s procedures for maintaining its own DNC 18 list.”). At any rate, any claim arising under § 64.1200(d)(1) or (d)(6) would fail because the complaint does not allege facts that plausibly establish a violation of those provisions. 19 Under § 64.1200(d)(1), “[p]ersons or entities making . . . calls for telemarketing purposes must have a written policy, available upon demand, for maintaining a do-not-call list.” Id. 20 Here, the complaint does not allege that Sun Solutions lacks such a policy, and any inference to that effect would be implausible in light of the fact that Plaintiff stopped 21 receiving communications from Sun Solutions reasonably soon after he made his do-not- call request on July 17, 2023 (and well before the expiration of the 30-day grace period 22 discussed elsewhere in this order). In a related vein, although the complaint alleges that Plaintiff requested a copy of Sun Solutions’ internal do-not-call policy (Doc. 1 ¶¶ 37-38), 23 it does not allege that Sun Solutions failed to comply with that request. And even assuming Sun Solution failed to comply, “Plaintiff cannot recover simply for [a defendant’s] failure 24 to send him the policy. Plaintiff must plausibly allege that [the defendant] did not have an internal do-not-call policy while making calls to Plaintiff.” Shelton v. Merchant Flow Fin. 25 Corp., 2018 WL 6839562, *7 (D.N.J. 2018). Meanwhile, under § 64.1200(d)(6), “[a] person or entity making . . . any call for telemarketing purposes must maintain a record of 26 a consumer’s request not to receive further calls. A do-not-call request must be honored for 5 years from the time the request is made.” Id. Here, the complaint does not allege that 27 Sun Solutions failed to maintain a record of Plaintiff’s do-not-call request, and any inference to that effect would be implausible in light of the fact that Plaintiff stopped 28 receiving communications from Sun Solutions reasonably soon after that request (and well before the expiration of the 30-day grace period). 1 to any person, but such term does not include a call or message (A) to any person with that 2 person’s prior express invitation or permission, (B) to any person with whom the caller has 3 an established business relationship, or (C) by a tax exempt nonprofit organization.”). 4 The wrinkle as to the remaining calls is that, during his second call with Miguel, 5 Plaintiff “feigned interest in Miguel’s products and services” in an effort to learn the name 6 of Miguel’s employer and indicated that although Plaintiff “couldn’t talk” at that time, he 7 might still be interested in Miguel’s products and services. (Doc. 1 ¶¶ 26, 29.) This 8 exchange is significant because, as noted above, a phone call does not qualify as a 9 “telephone solicitation” under the TCPA if “the caller has an established business 10 relationship” with the recipient. 47 U.S.C. § 227(a)(4). An “established business 11 relationship,” in turn, is “formed by a voluntary two-way communication between a person 12 or entity and a residential subscriber . . . on the basis of the subscriber’s inquiry or 13 application regarding products or services offered by the entity within the three months 14 immediately preceding the date of the call, which relationship has not been previously 15 terminated by either party.” 47 C.F.R. § 64.1200(f)(5). See also 47 U.S.C. § 227(a)(2) 16 (incorporating definition of “established business relationship” from 47 C.F.R. § 64.1200). 17 By feigning interest in the offered products and services and inquiring about the 18 company that offered them, Plaintiff formed an “established business relationship” with 19 Sun Solutions during his second call with Miguel. Thus, any calls placed or text messages 20 sent during the existence of this “established business relationship” were not “solicitations” 21 within the meaning of the TCPA. 22 An “established business relationship” can be “terminated by either party.” 47 23 C.F.R. § 64.1200(f)(5). The regulations provide that a “seller-specific do-not-call request, 24 as set forth in paragraph (d)(3) of this section, terminates an established business 25 relationship for purposes of telemarketing and telephone solicitation even if the subscriber 26 continues to do business with the seller.” Id. § 64.1200(f)(5)(i). Paragraph (d)(3) exists in 27 two versions—one that is effective now and one that is “delayed until announcement of 28 effective date in the Federal Register.” Id. § 64.1200(d)(3). The currently effective version 1 provides that entities “must honor” a seller-specific do-not-call request “within a 2 reasonable time from the date such request is made” which “may not exceed 30 days from 3 the date of such request.” Id. 4 The complaint alleges that during his second call from Villalobos on July 17, 2023, 5 Plaintiff “requested that Villalobos place Plaintiff on [Sun Solutions’] internal do-not-call 6 list” and asked Villalobos “to send him a copy of their internal [do-not-call] policies.” 7 (Doc. 1 ¶ 37.)5 The complaint further alleges that on July 28, 2023, i.e., 11 days later, Sun 8 Solutions sent Plaintiff two additional text messages. (Id. ¶ 16.) Because those messages 9 were sent within a reasonable time (not to exceed 30 days) after Plaintiff made his do-not- 10 call request, they are not actionable under the TCPA. See, e.g., Barr v. Macys.com, LLC, 11 2023 WL 6393480, *6 (S.D.N.Y. 2023) (“Neither has Plaintiff significantly alleged a 12 violation of subsection (d)(3) for failure to honor Plaintiff’s request to not be contacted. 13 Plaintiff texted his request to not be contacted to Defendant on July 16, 2022. He alleges 14 Defendant contacted him on July 19, 2022, three days and one business day after his 15 request. But the mere fact that he received a call after his request is not a subsection (d)(3) 16 5 The complaint appears to imply that Defendants should not have contacted Plaintiff 17 after the second July 10, 2023 phone call because Plaintiff “told Miguel that [he] couldn’t talk, and would let him know if he was interested in their products and services.” (Doc. 1 18 ¶¶ 26, 29.) The complaint implies that the follow-up calls Plaintiff received from Villalobos on July 17, 2023 were inappropriate because Plaintiff had given Miguel a “clear 19 indication that [Plaintiff] would call Defendants if he was interested.” (Id. ¶ 30.) But “I’ll call you” is only half of the old chestnut, “Don’t call me; I’ll call you.” Having already 20 feigned interest, Plaintiff’s assertion that he would contact Sun Solutions if he was “interested” (presumably if he wanted to move forward with purchasing products and/or 21 services) was not an affirmative request that Sun Solutions stop contacting him. Because Plaintiff did not ask Miguel to place him on Sun Solutions’ internal do-not-call list or 22 otherwise state that he wanted Sun Solutions to refrain from contacting him, it was permissible under the TCPA for Villalobos, in the hope of rekindling Plaintiff’s (feigned) 23 interest, to follow up. Plaintiff knew how to request that he be placed on the company’s internal do-not-call list—he demonstrated this one week later, when he requested just that. 24 Indeed, Plaintiff is a plaintiff in over two dozen cases filed in the District of Arizona between 2022 and 2024, most if not all of which assert similar TCPA claims. Plaintiff’s 25 statement that he would “let [Miguel] know” if he was interested was not the kind of conduct required to terminate an established business relationship. Cf. Van Patten v. 26 Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th Cir. 2017) (“Revocation of consent must be clearly made and express a desire not to be called or texted. That was not done 27 here. No evidence in the record suggests that Van Patten told Defendants to cease contacting him on his cell phone. Some ways Van Patten could have communicated his 28 revocation include, but are not limited to, plainly telling Defendants not to contact him on his cell phone . . . or messaging ‘STOP’ after receiving the first text message.”). 1 violation. Under 47 C.F.R. § 64.1200(d)(3), a defendant must comply with a DNC request 2 within 30 days.”) (cleaned up); Orsatti v. Quicken Loans, Inc., 2016 WL 7650574, *7 (C.D. 3 Cal. 2016) (explaining that the current version of § 64.1200(d)(3) “allows the Defendant a 4 reasonable [time] to honor the [do-not-call] request, not to exceed 30 days” and operates 5 as a “safe harbor provision” barring liability unless subsequent communications are 6 “outside of the 30 day window”); Simmons v. Charter Comm’s, Inc., 222 F. Supp. 3d 121, 7 140 (D. Conn. 2016) (no liability, even though plaintiff “received three additional calls” 8 after making do-not-call request, because the defendant “honored Simmons’ request within 9 30 days”); Ott v. Mortg. Invs. Corp. of Ohio, 65 F. Supp. 3d 1046, 1065-66 (D. Or. 2014) 10 (discussing the “30-day grace period . . . to process internal do-not-call requests”).6 11 For these reasons, the four communications on July 17, 2023 were not actionable 12 “solicitations” under the TCPA because they were made while an “established business 13 relationship” existed between Sun Solutions and Plaintiff. Meanwhile, the two text 14 messages sent 11 days later were not actionable because they were sent during the 30-day 15 grace period following Plaintiff’s seller-specific do-not-call request. Thus, of the eight 16 communications at issue here, only the first two (the phone calls placed by Miguel on July 17 10, 2023) are actionable. 18 Finally, those calls are actionable only as to Sun Solutions, not as to Villalobos. 19 Because the allegations in the complaint establish that Villalobos had “direct, personal 20 participation” in only three of the eight communications—all of which occurred on July 21 17, 2023, and thus are not actionable due to the then-existing “established business 22 relationship” between Plaintiff and Sun Solutions—the allegations are insufficient to 23 establish that Villalobos should be held personally liable. Cf. Mora v. Zeta Interactive 24 6 Alternatively, even if liability might theoretically be available for a communication 25 sent during the 30-day grace period, see, e.g., Gill v. Align Tech., Inc., 2022 WL 1540016, *3-4 (E.D. Wisc. 2022) (denying motion to dismiss where defendant had an “internal 26 protocol” of automatically placing phone calls to persons who asked to be placed on its do- not-call list, because “[t]his escalation in contact, seemingly in direct response to Plaintiff’s 27 requests to stop contact, plausibly indicates that [the defendant] violated the TCPA’s regulations by failing to honor Plaintiff’s do not-call requests within a reasonable amount 28 of time”), the complaint is devoid of facts that plausibly suggest Sun Solutions fails to honor do-not-call requests in a reasonable amount of time. 1 Corp., 2016 WL 3477222, *2 (E.D. Cal. 2016) (“Numerous district courts have held that 2 corporate actors may be held individually liable for violating the TCPA where they had 3 direct, personal participation in or personally authorized the conduct found to have violated 4 the statute.”) (cleaned up); Ott, 65 F. Supp. 3d at 1056-57 (“[C]orporate officers may be 5 held individually liable under the TCPA if, as alleged here, they personally participated in 6 or otherwise authorized the commission of wrongful acts, even if done on behalf of a 7 corporation.”). The allegation that Villalobos “personally participated . . . by personally 8 directing and authorizing the scripting and selecting of calls to be made” and by 9 “orchestrating the calling strategy, including by choosing to use pre-recorded calls” (Doc. 10 1 ¶ 11) is conclusory and unsupported by specific facts. This allegation also appears to be 11 boilerplate, as there is no indication in the complaint that Sun Solutions used any “pre- 12 recorded calls,” nor does the complaint allege that Miguel seemed to be speaking from a 13 script. 14 V. Conclusion As To Eitel Factors 15 Having weighed the Eitel factors, the Court concludes that Plaintiff is entitled to 16 default judgment against Sun Solutions on Count Two for two of the eight communications 17 and is otherwise not entitled to default judgment. 18 VI. Damages 19 Plaintiff calculates his request for $24,000 in statutory damages as follows: “16 20 violation[s] times $500 per violation, times treble damages.” (Doc. 34 at 11.) 21 “The TCPA imposes a statutory penalty of $500 per violation and gives the court 22 discretion to award up to three times that amount for knowing or willful violations. . . . To 23 determine whether to impose enhanced statutory damages, courts look to the nature of 24 defendants’ conduct, defendants’ prior TCPA violations and whether non-trebled damages 25 would sufficiently deter future TCPA violations.” Aussieker, 2024 WL 379394 at *5 26 (citations omitted). 27 As discussed above, there are only two actionable violations, so the statutory penalty 28 is $1,000 (two violations times $500 per violation). Although Plaintiff contends that treble 1 damages should be awarded because “[t]he calls invaded Plaintiff’s privacy and were 2 frustrating, annoying, and obnoxious” and continued even after he asked them to stop (Doc. 3 35 at 10-11), Plaintiff “has not put forth evidence that [Defendants] has previously violated 4 the TCPA or that non-trebled damages are insufficient to deter future TCPA violations.” 5 Aussieker, 2024 WL 379394 at *5. Indeed, the Court suspects an award of $1,000 against 6 Sun Solutions—a business so small that its owner, who may or may not live with his 7 parents (Doc. 27-1 at 3), personally makes sales calls—will have a significant deterrent 8 effect. 9 Finally, Plaintiff is entitled to costs in the amount of the $402 filing fee. Plaintiff is 10 also entitled to his service costs, because he prevailed against Sun Solutions and because 11 Villalobos (despite being the prevailing party in relation to Plaintiff) failed, without good 12 cause, to accept Plaintiff’s offer to waive service of process.7 Alflex Corp. v. Underwriters 13 Lab., Inc., 914 F.2d 175, 178 (9th Cir.1990) (per curiam) (holding that “service of process 14 [is] a taxable item” for a prevailing party); Estate of Darulis v. Garate, 401 F.3d 1060, 15 1064 (9th Cir. 2005) (“Rule 4(d)(2) provides for an award of [service] costs regardless of 16 which party can recover other costs pursuant to Rule 54(d)(1).”). However, Plaintiff has 17 not substantiated his claim that his service costs totaled $1,229.66 (Doc. 34 at 11), nor has 18 Plaintiff explained which portion of that sum applies to each defendant. Plaintiff may 19 submit documentation substantiating his service expenses—and demonstrating which 20 expenses were spent on which defendant—within 14 days of the date of this order. 21 Accordingly, 22 IT IS ORDERED that Plaintiff’s motion for default judgment (Doc. 34) is granted 23 in part and denied in part. The Clerk of Court is ordered to enter judgment in favor of 24 Plaintiff and against Sun Solutions in the amount of $1,402, after which the Clerk of Court 25 shall terminate this action. 26 7 Plaintiff mailed a waiver-of-service request to Villalobos on August 11, 2023. (Doc. 27 13-1 at 1, 6.) It was sent to the same address at which the Court later authorized alternative service as to Villalobos. (Doc. 30.) The Court is thus satisfied that Villalobos “fail[ed], 28 without good cause, to sign and return a waiver requested by a plaintiff,” which triggered Plaintiff’s entitlement to service costs under Rule 4(d)(2). 1 IT IS FURTHER ORDERED that Plaintiff may file documentation regarding his 2 || service expenses within 14 days of the date of this order. Plaintiff need not establish legal 3 || support for the expenses but must provide documentation establishing the separate service- 4|| related expenditures for each defendant. The Court retains jurisdiction for the limited 5 || purpose of imposing service-related expenses pursuant to Rule 4(d)(2). 6 Dated this 10th day of June, 2024. 7 8 Lam a’ 9 f CC —— Dominic W. Lanza 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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