(PS) Aussieker v. TSHB, LLC ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK AUSSIEKER, No. 2:22-cv-01886-DAD-CKD (PS) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN 14 TSHB, LLC, et al., PART AND DENYING IN PART PLAINTIFF’S MOTION FOR DEFAULT 15 Defendants. JUDGMENT 16 (Doc. Nos. 11, 15) 17 18 On October 21, 2022, plaintiff Mark Aussieker filed this civil action against defendants 19 TSHB, LLC and Nico Contreras. (Doc. No. 1.) The Clerk of the Court entered default as to 20 defendants because they were served with the summons and complaint and did not file a timely 21 answer, responsive pleading, or otherwise appear in this action. (Doc. Nos. 5, 6, 7.) On May 25, 22 2023, plaintiff filed the pending motion for default judgment. (Doc. No. 11.) This matter was 23 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 and Local Rule 302. 24 On February 1, 2024, the assigned magistrate judge issued findings and recommendations 25 recommending that plaintiff’s motion for default judgment be granted in part. (Doc. No. 15.) 26 Specifically, the magistrate judge recommended that the court find that defendants had violated 27 the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), and that plaintiff be 28 awarded statutory damages in the amount of $3,000, but that plaintiff’s request for treble damages 1 be denied. (Id.) The pending findings and recommendations were served on plaintiff and 2 contained notice that any objections thereto were to be filed within fourteen (14) days after 3 service. (Id. at 11.) On February 14, 2024, plaintiff filed objections to the pending findings and 4 recommendations. (Doc. No. 16.) 5 In his objections, plaintiff takes issue with only one aspect of the pending findings and 6 recommendations, namely the recommendation to deny plaintiff treble damages. (Id. at 2.) 7 Plaintiff argues that, in considering whether to award treble damages, the assigned magistrate 8 judge erred in considering defendants’ past conduct and whether non-treble damages would be 9 sufficient to deter future misconduct. (Id. at 4–5.) 10 Plaintiff’s objections do not provide any basis upon which to reject the pending findings 11 and recommendations. A district court has discretion over whether to award treble damages 12 under the TCPA, and courts routinely consider a defendant’s past conduct and whether non-treble 13 damages would sufficiently deter misconduct. See 47 U.S.C. § 227(3)(C) (stating that “the court 14 may, in its discretion,” award treble damages); Doyle v. JTT Funding, Inc., No. 18-cv-06145- 15 JAK-AS, 2019 WL 13037025, at *12 (C.D. Cal. Dec. 2, 2019 ) (“To determine whether to impose 16 enhanced statutory damages, courts look to the nature of defendants’ conduct, defendants’ prior 17 TCPA violations and whether non-trebled damages would sufficiently deter future TCPA 18 violations.”); see also Stark v. Bridgepoint Benefits, LLC, No. 3:19-cv-01740-AJB-AGS, 2021 19 WL 347695, at *1 (S.D. Cal. Feb. 2, 2021) (“Plaintiff provides no evidence that Defendant has 20 previously been sued for violating the TCPA or that $3,000.00 will be considered trivial and thus 21 not deter future misconduct.”); Heidorn v. BBD Mktg & Mgmt., LLC, No. 13-cv-00229-YGR, 2013 22 WL 6571168, at *3 (Oct. 9, 2013) (denying treble damages for TCPA violations because the plaintiff 23 failed to present evidence that the amount awarded would be trivial to the defendant or insufficient to 24 have a deterrent effect). In light of the lack of relevant evidence presented by plaintiff in support of 25 the treble damages award sought in the pending motion, the undersigned agrees with the magistrate 26 judge’s assessment that in this case the award of $3,000 in statutory damages is sufficient to 27 accomplish the purposes of the TCPA. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, including plaintiffs 3 | objections, the court concludes that the findings and recommendations are supported by the 4 | record and by proper analysis. 5 Accordingly, 6 1. The findings and recommendations issued on February 1, 2024 (Doc. No. 15) are 7 adopted; 8 2. Plaintiff's motion for default judgment against defendants (Doc. No. 11) is granted 9 in part and denied in part as follows: 10 a. Default judgment is entered in favor of plaintiff and against defendants on 11 plaintiff's claim for violation of the TCPA; 12 b. Plaintiff is awarded statutory damages in the amount of $3,000; 13 C. Plaintiff's request for an injunction enjoining defendants from making any 14 future solicitation calls to plaintiff at (916) 705-8006 is granted; 15 d. Plaintiff's request for punitive damages, costs and pre-judgment interest is 16 denied; and 17 3. The Clerk of the Court is directed to close this case. 18 IT IS SO ORDERED. | Dated: _ February 28, 2024 Da A. 2, axel 20 DALE A. DROZD UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28