TracFone Wireless, Inc. v. Trung Truc

281 F.R.D. 692, 2012 U.S. Dist. LEXIS 123071, 2012 WL 1392633
CourtDistrict Court, S.D. Florida
DecidedApril 9, 2012
DocketNo. 11-cv-21871-SCOLA
StatusPublished

This text of 281 F.R.D. 692 (TracFone Wireless, Inc. v. Trung Truc) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TracFone Wireless, Inc. v. Trung Truc, 281 F.R.D. 692, 2012 U.S. Dist. LEXIS 123071, 2012 WL 1392633 (S.D. Fla. 2012).

Opinion

ORDER OF DEFAULT FINAL JUDGMENT AND PERMANENT INJUNCTION

ROBERT N. SCOLA, JR., District Judge.

THIS MATTER is before the Court on Plaintiff TracFone Wireless, Inc.’s (“TracFone’s”) Motion for Entry of Default Final Judgment and Permanent Injunction against Defendant Tran Nguyen Trung True a/k/a Mr. UFO (“True,” ECF No. 41).

I. TRACFONE’S MOTION

In support of its motion TracFone relies on: (1) the declaration of Ovidio Mejia, Associate Vice President of Fraud and Loss Prevention, which discusses True’s conduct and the harm it has caused TracFone — including economic harm; (2) the declaration of Aaron S. Weiss, TracFone’s primary attorney in this matter, which discusses TracFone’s service of process on True, in accordance with this Court’s order on service of process (ECF No. 19), as well as his communications with True about this lawsuit; (3) transcripts of depositions of Deborah Fay, Matthew Mucci, and Paisley Hasit, all of whom were engaged by True and/or a co-conspirator in connection with the Illegal Airtime Fraud Scheme alleged in the first amended complaint (ECF No. 15).

II. SERVICE OF PROCESS AND DEFAULT

As the Court previously noted in its order on service of process, no applicable international agreement exists between the United States and Vietnam governing service of legal documents abroad, and therefore no international law prohibits TracFone from serving Trung True in Vietnam via email pursuant to Federal Rule 4(f)(3). This [694]*694Court’s order is consistent with other rulings from this District and from other courts interpreting the same rule. Federal courts in this District and others have authorized service of process via email pursuant to Rule 4(f)(3) on defendants located outside the United States, and it would be an appropriate and effective method in this case. See, e.g., U.S. Commodity Futures Trading Com’n v. Aliaga, 272 F.R.D. 617, 621 (S.D.Fla.2011) (granting leave pursuant to Rule 4(f)(3) to serve summons, complaint, and all subsequent pleadings on defendant in Honduras via email); Chanel, Inc. v. Zhixian, No. 10-cv-60585, 2010 WL 1740695, *3 (S.D.Fla. Apr. 29, 2010) (authorizing service via email).

In support of the present motion for default final judgment, TracFone submits an email tracking report demonstrating that the summons and complaint were in fact delivered to Truc and follow-up emails between TracFone’s counsel and True discussing the case. See ECF Nos. 28, 41-1. Moreover, True responded to the Court’s service of its order setting forth the Clerk’s default procedure via email, as set forth in the Notice of Court Correspondence. See ECF Nos. 34-35.

Pursuant to Fed.R.Civ.P. 12(a)(1)(A) and this Court’s order on service of process, True’s answer to TracFone’s complaint was due on or before February 8, 2012. See TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F.Supp.2d 1307, 1310 (S.D.Fla.2010) (finding that time period for responding to complaint set forth in Fed.R.Civ.P. 12(a)(1)(A) applies to defendant served abroad); ECF No. 19 (directing defendants to respond within 21 days of receipt of summons and first amended complaint).

It is thus clear to the Court that True had actual notice of this lawsuit and chose not to respond. The Court finds that True was properly served, had notice of this lawsuit, and affirmatively chose not to respond — and is therefore in default.

III. RELIEF

On February 28, 2012, the Clerk entered a Clerk’s Entry of Default against True (ECF No. 33). By virtue of the default entered in this action, the Court finds that Truc has admitted all of the allegations set forth in the first amended complaint, including the allegations pertaining to injunctive relief sought by TracFone. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir.2009) (“A defendant, by his default, admits the plaintiffs well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.”). Accordingly, the Court finds that TracFone is entitled to entry of default judgment and a permanent injunction against True.

The Court finds that the evidence submitted in support of the motion for default— including the depositions of Deborah Fay, Matthew Mucci, and Paisley Hasit — demonstrate that True engaged in, and knowingly facilitated and encouraged others to engage in, unlawful business practices involving the use of stolen credit card information or other stolen funds to unlawfully purchase TracFone prepaid airtime minutes for use on TracFone’s service, and the subsequent resale of those unlawfully obtained TracFone prepaid airtime minutes to consumers across the country, and other violations of federal and state law (the “Illegal Airtime Fraud Scheme”).

TracFone’s proffer is that while True’s failure to fully participate in this litigation has made it difficult to determine the full extent of damage caused by his activities, TracFone has obtained evidence indicating that True and his co-conspirators have used various eBay seller names to conduct at least 300 TracFone prepaid airtime transactions through eBay. See, e.g., ECF Nos. 15-2-15-8 (setting forth evidence of scheme). The Court accepts TracFone’s uncontested proffer on these issues.

TracFone also proffers that True’s Illegal Airtime Fraud Scheme substantially harms TracFone and consumers who purchase the fraudulently obtained prepaid airtime minutes because the consumers are misled as to the source, sponsorship, and origin of their TracFone prepaid airtime minutes, and as to the legitimacy and amount of airtime minutes [695]*695they will be receiving. See ECF No. 41-2 (detailing harm to Tracfone).

TracFone’s proffer is that, based on the 300 violations it was able to identify, TraeFone has suffered actual damages in the amount of $61,637.98. See ECF No. 41-2 at ¶34 (calculating actual damages as sum of amounts paid to credit card companies to cover fraudulent purchases and average revenue per customer for 300 identified transactions). The Court finds that TracFone’s proffer of its actual damages is reasonable.

In addition to actual damages, the Court may, “according to the circumstances of the case,” increase a Lanham Act award by up to three times the amount of actual damages. 15 U.S.C. § 1117(a). The Court finds in light of True’s willful violations of the Lanham Act, use of stolen credit card information or other stolen funds, absence from this case, and the unknown amount of additional unidentified transactions causing damage beyond that confirmed by TracFone’s investigation, trebling is appropriate here. Accordingly, the Court awards TraeFone three times the amount of actual damages proved in this case, or $184,913.94. See Ramada Inns, Inc. v. Gadsden Motel Co., 804 F.2d 1562

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eagle Hospital Physicians, LLC v. SRG Consulting, Inc.
561 F.3d 1298 (Eleventh Circuit, 2009)
Punch Clock, Inc. v. SMART SOFTWARE DEVELOPMENT
553 F. Supp. 2d 1353 (S.D. Florida, 2008)
PetMed Express, Inc. v. MedPets.Com, Inc.
336 F. Supp. 2d 1213 (S.D. Florida, 2004)
TracFone Wireless, Inc. v. Bequator Corp., Ltd.
717 F. Supp. 2d 1307 (S.D. Florida, 2010)
U.S. Commodity Futures Trading Commission v. Aliaga
272 F.R.D. 617 (S.D. Florida, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
281 F.R.D. 692, 2012 U.S. Dist. LEXIS 123071, 2012 WL 1392633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracfone-wireless-inc-v-trung-truc-flsd-2012.