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Andrews v. All Green Carpet & Floor Cleaning Service

United States District Court, C.D. California

June 11, 2015

PHYLLIS ANDREWS, Plaintiff,
v.
ALL GREEN CARPET & FLOOR CLEANING SERVICE; TRAD TRAD; ZEHAVA TOLEDANO; EYTAN TOLEDANO; KRISTINE DE GUZMAN; and RON HAVER, Defendants.

ORDER DENYING DEFENDANTS' MOTION TO QUASH SERVICE OF SUMMONS [43]; AND GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS [42]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

Plaintiff Phyllis Andrews ("Andrews") brought suit against Defendants Eytan Toledano and Zehava Toledano (collectively "Defendants") for violations of the Telephone Consumer Protection Act ("TCPA") 47 U.S.C. § 227(c)(5)(B). Andrews alleges that Defendants made numerous unsolicited telephone calls to Andrews's phone, which consisted of pre-recorded messages advertising for All Green Carpet & Floor Cleaning Service. Defendants subsequently failed to plead or otherwise defend this action, leading to default being entered and Andrews moving for default judgment. Following Andrews's application for default judgment, Defendants moved to quash service of summons, claiming that service was improper under Federal Rules of Civil Procedure ("FRCP") 4(e) and thus default judgment should not be granted. For the reasons discussed below, the Court DENIES Defendant's Motion to Quash (ECF No. 43), and GRANTS Andrew's Motion for Default Judgment (ECF No. 42).[1]

II. FACTUAL BACKGROUND

Andrews registered her phone number with the National Do Not Call Registry in 2007, making it illegal for businesses to use her telephone number to make unsolicited calls for business purposes. (ECF No. 42, Appl. for Default J. ["ADJ"] 3; ADJ Attach. 1 ["Andrews Decl."], Ex. A.) Starting in April 2013, Andrews received a total of eleven unsolicited and automated calls from three different numbers promoting "All Green Carpet & Floor Cleaning Service" with the same automated message. (ADJ 1-2; ECF No. 26, Second Am. Compl. ["SAC"] ¶¶ 16-19.) The phone calls were received by Andrews on April 25; July 21, 22, 26; September 17, 21, 26, 28; and October 2, 9, 10, in the year 2013. (ADJ 3-4.) These numbers belonged to Defendants and represent a fraction of the approximately 355 telephone numbers purchased by Defendants from Manchester Services, Inc. for the purpose of making such calls. (ADJ 3; ECF No. 45, Sapir Decl., Ex. A, D.) Andrews repeatedly told the caller not to make any future calls, a plea that was ignored, and filed complaints to the Federal Trade Commission. (ADJ 4; Andrews Decl. ¶ 5; Andrews Decl., Ex. D.)

Andrews filed her initial Complaint on January 27, 2014 alleging that Defendants violated the TCPA's provision against repeated unsolicited business calls. 47 U.S.C. § 227(c)(5)(B) (ECF No. 1 ¶¶ 1, 24-32.) After receiving no answer or pleadings from Defendants-despite their counsel being in contact with Andrews's counsel (ECF No. 43, Mot. to Quash Service ["MQS"] 5; MQS, Ex. G-Q) -Andrews moved to enter default against Defendants on March 25, 2015. (ECF No. 36.) The clerk entered default and Andrews applied for default judgment on April 1, 2015, seeking the maximum statutorily allowable damages under the TCPA, $1, 500 for each unsolicited call made by or on behalf of Defendants, totaling $27, 000.[2]

On April 6, 2015, Defendants moved to quash service of summons, claiming that service was conducted improperly. (MQS 5-6.) Specifically, Defendants claimed that service was improper because the address at which the summons was delivered was not the home or dwelling of Defendants as indicated on the proof of service forms. (Id. at 4-5.) The proof of service of summons submitted by Andrews against Defendants shows that service was delivered by substituted service to 23222 Friar St. Woodland Hills, California. (ECF Nos. 34, 35.) A timely opposition and reply were filed. (ECF Nos. 44, 46.) Both Andrews's Application for Default Judgment and Defendants' Motion to Quash Service are now before the Court for consideration.

III. LEGAL STANDARD

FRCP 55(b) authorizes a district court to grant default judgment after the Clerk enters default under Rule 55(a). Local Rule 55-1 requires that the movant submit a declaration establishing (1) when and against which party default was entered; (2) identification of the pleading to which default was entered; (3) whether the defaulting party is a minor, incompetent person, or active service member; and (4) that the defaulting party was properly served with notice.

A district court has discretion whether to enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Upon default, the defendant's liability generally is conclusively established, and the well-pleaded factual allegations in the complaint are accepted as true. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-19 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)).

In exercising its discretion, a court must consider several factors, including: (1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake; (5) the possibility of a dispute concerning material facts; (6) whether the defendant's default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

IV. DISCUSSION

A. Defendants' Motion to Quash Service of Summons

Defendants argue for a literal and uncompromising interpretation of both the Federal and State rules of civil procedure, but the Court is unconvinced that the mere act of a process server checking the wrong box on the service forms denied Defendants proper and actual notice of these proceedings.

FRCP 4(e) delineates the process through which an individual within a judicial district of the United States may be served. Rule 4(e)(1) further dictates that the State in which the proceedings will take place can utilize its own laws governing service of process. California Code of Civil Procedure ("CCCP") section 415.20(b) states that leaving a copy of the summons and complaint at a person's "dwelling house, usual place of abode, usual place of business, ...


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