United States District Court, N.D. California, San Jose Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE; ENTERING DEFAULT JUDGMENT AND MODIFIED INJUNCTION AGAINST DEFENDANTS [Re: ECF 14, 17]
BETH LABSON FREEMAN, District Judge.
Before the Court is Magistrate Judge Paul Singh Grewal's March 18, 2015 Report and Recommendation that Plaintiff's Motion for Default Judgment be Granted-in-Part. Report and Recommendation ("R&R"), ECF 17. The time for objecting to the Report and Recommendation has elapsed, and no objections were filed. Fed.R.Civ.P. 72(b)(2). Having read and considered the Report and Recommendation, as well as the record on its face, the Court adopts the Report and Recommendation, as modified, for the reasons herein.
Plaintiff Gerald Roylance, proceeding pro se, alleges that defendants ALG Real Estate Services Inc., d/b/a AmeriFund Lending Group, Mark Augustus, and Donecia La Shaun Augustus violated provisions of the federal Telephone Consumer Protection Act ("TCPA"), California's Unfair Competition Law, California's False Advertising Law and the California Public Utilities Code by making numerous unsolicited and anonymous telephone calls to his residential telephone number. Judge Grewal found that Plaintiff had adequately established that six prerecorded calls he received in 2010 violated 47 U.S.C. §§ 227(b) and (c) because they were unsolicited, prerecorded, failed to identify the caller, and blocked the identity of the caller in contravention of applicable regulations promulgated by the Federal Communications Commission. R&R 7-9. Plaintiff also established that two live phone calls he received violated § 227(c) because they likewise blocked the identity of the caller. Id. at 9. Accordingly, Judge Grewal recommends judgment against defendants ALG and Mark Augustus for statutory and treble damages of $21, 000 for fourteen violations of the TCPA. Id. at 19-23. These findings are well founded in fact and law and the Court adopts Judge Grewal's recommendation with respect to the TCPA claims in its entirety.
Judge Grewal found that Plaintiff had not adequately demonstrated that defendant Donecia August should be held liable for the violations, a conclusion that this Court also adopts. Id. 12-15.
Furthermore, Judge Grewal found that Plaintiff is entitled to injunctive relief under the TCPA and California Business and Professions Code § 17500.3 and recommends that defendant Mark Augustus be "permanently enjoined from violating the TCPA, the regulations promulgated under it and Cal. Bus. & Prof. Code § 17500.3." Id. at 25-26. The TCPA provides for injunctive relief as a remedy. 47 U.S.C. § 227(b)(3)(A); id. § 227(c)(5)(A). Injunctions authorized by statute do not require a showing of irreparable injury, only a showing that a violation of the statue is about to be committed, which Plaintiff has clearly made here. United States v. Laerdal Mfg. Co., 73 F.3d 852, 855 (9th Cir. 1995). The Court therefore finds that Judge Grewal's recommendation of injunctive relief is well founded in fact and law. The recommended injunction is, however, overbroad in enjoining defendant Mark Augustus from violating the law. As such, the Court shall modify the recommended injunction to enjoin defendant Mark Augustus from making unsolicited telephone calls to Plaintiff.
Based on the foregoing, the Court adopts Magistrate Judge Grewal's Report and Recommendation as modified. Plaintiff Gerald Roylance shall have default judgment against ALG and Mark Augustus jointly and severally in the amount of $21, 000. Defendant Mark Augustus is moreover permanently enjoined and restrained from directly or indirectly engaging in any of the following acts: (1) making any call using any automatic telephone dialing system or artificial or prerecorded voice to Plaintiff Gerald Roylance's residential telephone number of (650) 948-1790 without Plaintiff's prior express consent to such call; and (2) making any call to Plaintiff's residential telephone number that blocks the transmission of caller identification information. The Court retains jurisdiction for the purpose of making any further orders necessary or proper for the consideration or modification of this Order, the enforcement thereof, and the punishment for any violations thereof.
Plaintiff is HEREBY ORDERED to serve a copy of this Order, Judge Grewal's Report and Recommendation, and the accompanying default judgment and permanent injunction orders on defendants ALG Real Estate Services Inc. and Mark Augustus.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
Approximately five years ago, Plaintiff Gerald Roylance received the first of multiple unwanted telephone calls offering him a home mortgage at a supposedly "incredible" rate. The calls came at the direction of Defendants ALG Real Estate Services, Inc., Mark Augustus and Donecia La Shaun Augustus. Not satisfied with the Defendants' response-or lack thereof- Roylance filed this suit, alleging that Defendants' actions violated the Telephone Consumer Protection Act, California's Unfair Competition Law, California's False Advertising Law and the California Public Utilities Code.
Because Defendants have not appeared, following an entry of default, Roylance now moves for a default judgment. While the undersigned is persuaded that a default judgment is warranted with respect to at least some of Roylance's claims, Defendants have not consented to magistrate judge jurisdiction pursuant to 28 U.S.C. Section 636(c) and Fed.R.Civ.P. 72(a). The court therefore ORDERS reassignment to a district judge, and recommends that default judgment against defendants be granted in part.
When a party against whom a judgment for affirmative relief is sought "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, " the court may enter default judgment against that party. The court has "broad latitude to impose the sanction of default" at any point to ensure the "orderly and expeditious conduct of litigation." "The district court's decision whether to enter a default judgment is a discretionary one."
The factors the court may consider include: (1) the possibility of prejudice to the plaintiff; (2) the substantive merits of plaintiff's claim; (3) the sufficiency of the complaint; (4) the amount of money at stake; (5) the possibility of dispute as to any material facts in the case; (6) whether default resulted from excusable neglect; and (7) the strong policy of the Federal Rules of Civil Procedure favoring decisions on the merits.
According to his complaint, Roylance received an anonymous prerecorded message on his residential telephone line in May 2010 from a blocked telephone number. The message offered a "thirty-year loan at an incredible interest rate of four point five percent." The message did not state the identity of the caller, provide the caller's telephone number or ask permission to play the message. Instead, Roylance was invited to "press one" to receive more information about the program. After Roylance complied in order to identify the caller, the automated message asked him to provide his name and telephone number, which Roylance did.
Roylance then received a live call about the loan described in the prerecorded call. The call came from a blocked number, but the person on the phone identified himself as Mark Augustus. After some discussion Mark Augustus told Roylance that he would send Roylance some papers. He then called Roylance again from a blocked number seeking more information and told Roylance that "he would mail the papers that day."
The next day, Roylance received papers which offered a mortgage at an interest rate of 4.5 percent for thirty years and identified ALG and listed Donecia Augustus under her former name of Donecia Montgomery as the broker's representative. The papers stated that Roylance should return them to ALG and listed addresses for ALG and Mark Augustus. These papers provided the same telephone name for Mark Augustus and Donecia Augustus.
The next day after that Roylance sent letters by certified mail to the addresses listed for ALG and Mark Augustus on the loan papers. These letters stated that the solicitation was unlawful and asked ALG to place Roylance on and send him a copy of its do-not-call list. Defendants did not respond to his letters. Roylance subsequently received five identical anonymous prerecorded calls on his residential telephone line. All of these calls blocked caller identification.
Roylance then filed this suit, claiming that the defendants violated the Telephone Consumer Protection Act, California's Unfair Competition Law, California's False Advertising Law and the California Public Utilities Code. A summons was subsequently issued.
After Defendants did not appear or otherwise respond to the suit, Roylance moved for entry of default. The ...