Stark v. Bridgepoint Benefits, LLC

• Court: District Court, S.D. California
• Decided: February 2, 2021
• Docket: 3:19-cv-01740
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Collette Stark, Case No.: 3:19-cv-01740-AJB-AGS Plaintiff, 12 ORDER RE DEFAULT JUDGMENT v. 13 Bridgepoint Benefits, LLC, (Doc. No. 7) 14 Defendant. 15 16 On January 25, 2021, the Court granted Plaintiff Collette Stark’s (“Plaintiff”) motion 17 for default judgment. (Doc. Nos. 7, 8.) However, because of the ambiguity as to the amount 18 of damages Plaintiff sought—Plaintiff sought $0 in damages in her motion, while she 19 sought $1,500 per violation in her Complaint—the Court ordered supplemental briefing, 20 directing Plaintiff to clarify this point. (Doc. No. 8 at 8.) On January 28, 2021, Plaintiff 21 filed supplemental briefing in response to the Court’s order. (Doc. No. 9.) Bridgepoint 22 Benefits, LLC (“Defendant”) has not responded or otherwise appeared in this litigation. 23 This order follows. 24 I. BACKGROUND 25 Plaintiff brings an action against Defendant alleging violation of the Telephone 26 Consumer Protection Act (“TCPA”). (Complaint (“Compl.”, Doc. No. 1.) Plaintiff alleges 27 Defendant called and texted Plaintiff using an automatic telephone dialing system 28 (“ATDS”) without her consent. (Id. ¶ 1.) The allegations state that on September 4 and 10, 1 2019, Shawne Malone, sole owner of Defendant corporation, placed autodialed and 2 prerecorded calls to Plaintiff’s cellphone, advertising student loan forgiveness, reduction 3 or elimination, without her prior express consent. (Id. ¶ 2.) 4 II. DISCUSSION 5 Plaintiff seeks default judgment in the amount of “$9,000 along with an injunction 6 prohibiting Defendant from violating the TCPA.” (Doc. No. 9 at 3.) Both § 227(b) and 7 § 227(c) of the TCPA provide that, in lieu of actual damages, a plaintiff may request 8 statutory damages of up to $500 per violation. Courts considering the issue have allowed 9 separate recoveries for an ATDS violation and one for a violation of the Do Not Call list, 10 even if the violations occurred in the same telephone call. See, e.g., Heidarpour v. Empire 11 Capital Funding Grp., Inc., No. 18-cv-250-YGR (KAW), 2018 WL 6809186, at *6 (N.D. 12 Cal. Oct. 25, 2018); Roylance v. ALG Real Estate Servs., Inc., No. 5: 14-cv-2445-PSG, 13 2015 WL 1522244, at *10 (N.D. Cal. Mar. 16, 2015) (“[T]he fact that the statute includes 14 separate provisions for statutory damages in subsections (b) and (c) suggests that a plaintiff 15 could recover under both.”). 16 Here, Plaintiff explains, “Complaint paragraph 4 sets forth that an employee of 17 Defendant called Plaintiff on September 10, 2019, in violation of the TCPA, two times that 18 day. Plaintiff also set forth in paragraph 6 of the Complaint that Defendant called again on 19 September 4, 2019 at 9:33 AM.” (Doc. No. 9 at 2.) Plaintiff goes on to say that she seeks 20 damages for violations of both 47 U.S.C. § 227(b)(l) and 47 U.S.C. § 227(c)(5). (Id.) This 21 Court agrees that under authority within the Ninth Circuit, separate recoveries may be 22 allowed for each violation. Thus, Plaintiff may recover $3,000.00 total for the three calls 23 made to Plaintiff in violation of the two separate sections of the TCPA—47 U.S.C. 24 § 227(b)(l) and 47 U.S.C. § 227(c)(5). 25 If the Court finds that Defendant willfully or knowingly violated the TCPA, the 26 Court may, in its discretion, treble the amount of the award to $1,500.00 per telephone call. 27 47 U.S.C. §§ 227(B)(3)(c); Sapan v. Authority Tax Servs., LLC, No. 13-cv-2782 JAH 28 (JLB), 2014 WL 12493282, at *2 (S.D. Cal. July 15, 2014). Plaintiff argues that Defendant 1 willfully or knowingly “failed to provide a copy of the DNC policy as they were in email 2 contact with each other. Plaintiff tried to settle this matter, but Defendant did not want to 3 engage further after they reached an impasse.” (Doc. No. 9 at 3.) In its discretion, the Court 4 declines to award treble damages. The damages award of $3,000.00 is sufficient to deter 5 future violations given the minimal number of calls at issue. Also, Plaintiff provides no 6 evidence that Defendant has previously been sued for violating the TCPA or that $3,000.00 7 will be considered trivial and thus not deter future misconduct. See Heidorn v. BDD Mktg. 8 & Mgmt. Co., LLC, No. C-13-00229 JCS, 2013 WL 6571629, at *17 (N.D. Cal. Aug. 19, 9 2013), report and recommendation adopted, No. 13-cv-00229-YGR, 2013 WL 6571168 10 (N.D. Cal. Oct. 9, 2013) (denying treble damages where plaintiff did not provide evidence 11 that the defendant was previously sued under the TCPA or that the statutory minimum 12 would be trivial to the defendant). 13 Lastly, injunctive relief is available under the TCPA. See 47 U.S.C. §§ 227(b)(3)(A), 14 227(c)(5)(A). Because the TCPA authorizes such relief, irreparable injury need not be 15 shown. See Heidorn, 2013 WL 6571629 at *18; United States v. Laerdal Mfg. Corp., 73 16 F.3d 852, 855 (9th Cir. 1995) (“[A] statutory injunction may be imposed when a violation 17 of a statute has been or is about to be committed.”). Here, Plaintiff has established enough 18 to demonstrate entitlement to injunctive relief. Thus, the request for an injunction is 19 GRANTED. 20 III. CONCLUSION 21 For the above-stated reasons, Plaintiff’s motion for default judgment is GRANTED, 22 in the amount of $3,000.00. (Doc. No. 7.) In addition, the Court enters the following 23 permanent injunction: 24 Bridgepoint Benefits, LLC is permanently enjoined and restrained from directly or 25 indirectly engaging in any of the following acts: 26 1) Calling, or sending any text message, using an automatic telephone dialing 27 system, or an artificial or prerecorded voice message, to Collette Stark’s phone 28 1 number (619-347-0726) without Collette Stark’s prior express consent in 2 violation of the TCPA; and 3 2) Calling or sending any text message to Collette Stark’s phone number (619-347- 4 0726), while her number is registered on the national do-not-call registry, in 5 violation of the TCPA. 6 7 IT IS SO ORDERED. 8 Dated: February 2, 2021

10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28