United States District Court, N.D. Mississippi, Oxford Division
INTERNAL MEDICINE RURAL HEALTH CLINIC OF NEW ALBANY, P.A., d/b/a NEW ALBANY MEDICAL GROUP PLAINTIFF
THE LANGMAS GROUP, INC. DEFENDANT
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
before the Court is the Plaintiffs motion for default
judgment [Doc. No. 14] against the Defendant The Langmas
Group, Inc. Upon due consideration of the motion, the Court
is of the opinion that the motion should be granted in part
and denied in part - the Court shall grant the portion of the
Plaintiffs motion seeking entry of default judgment against
the Defendant as to liability in favor of the named Plaintiff
itself; the Court shall deny the remainder of the Plaintiffs
motion for the reasons set forth below.
September 7, 2018, the Plaintiff filed its Complaint [Doc.
No. 1] against the Defendant, seeking statutory damages for
four separate violations of the Telephone Consumer Protection
Act, 47 U.S.C. § 227 ("TCPA"), which
restricts, among other things, the sending of unsolicited
advertisements via fax. See 47 U.S.C. § 227.
Specifically, the Plaintiff alleges that on four separate
occasions (December 20, 2017; January 17, 2018; February 17,
2018; and March 14, 2018), it received unsolicited fax
advertisements from the Defendant that did not have an
opt-out provision; that the Plaintiff never gave the
Defendant prior permission to send fax advertisements; and
that the Plaintiff did not have an established business
relationship with the Defendant prior to receipt of the
faxes. See Pl.'s Compl. at ¶¶ 15-19.
Plaintiff further alleges, based solely upon information and
belief, that an uncertain number of other putative class
members received similar faxes from Defendant. See
Pl.'s Compl. at ¶ 24. Plaintiff seeks statutory
damages in the amount of $500.00 for each violation, trebled
because the transmissions were allegedly willful, and
injunctive relief. See Pl.'s Compl. at
¶¶ 34, 35, 40. Plaintiff served Defendant with
service of process on November 6, 2018, and the Clerk of
Court entered a Default on February 28, 2019. See
Doc. No. 13. The Defendant has failed to respond to the
Plaintiffs Complaint or the present motion.
TCPA provides that "[i]t shall be unlawful for any
person within the United States... to use any telephone
facsimile machine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited advertisement
[unless certain conditions are met]...." 47 U.S.C.
§ 227(b)(1)(C). The TCPA does not prohibit the sending
of unsolicited facsimiles (faxes) to a recipient who has an
"established business relationship" with the
sender, and a recipient of a fax that violates the TCPA may
recover actual monetary loss, or $500, whichever is greater,
for each TCPA violation. 47 U.S.C. § 227(b)(3)(B).
Moreover, "the court may, in its discretion, increase
the amount of the award to an amount equal to not more than 3
times the amount available under subparagraph (B) of this
paragraph" for willful or knowing violations. 47 U.S.C.
§ 227(b)(3). The TCPA also allows for injunctive relief.
47 U.S.C. § 227(b)(3)(A).
well settled that "[t]he defendant, by his default,
admits the plaintiffs well-pleaded allegations of fact,"
but "[t]he defendant is not held to admit facts that are
not well-pleaded." Nishimatsu Constr. Co. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Here, the well-pleaded allegations set forth in the
Complaint, including the Exhibits that evidence the faxes
that Defendant sent to Plaintiff, establish that the
Defendant violated the TCPA on four separate occasions with
respect to the Plaintiff, for which Plaintiff is entitled to
$2, 000.00 in statutory damages ($500.00 per fax). Plaintiff,
however, has failed to allege sufficient facts to establish
that the violations were willful or knowing. Instead,
Plaintiff simply states that "Defendant's actions,
and/or those of their agents, have shown that Defendant
willfully or knowingly violated the TCPA." See
Pl.'s Compl. at ¶ 35. This is insufficient to
demonstrate a knowing or willful violation of the Act.
Ashcroft, 556 U.S. at 678; Lary v. Trinity
Physician Fin. & Ins. Servs., 780 F.3d 1101, 1107
(11th Cir. 2015). Accordingly, the Plaintiffs request for
treble damages is denied. See Id. As for Plaintiffs
request for injunctive relief, Plaintiffs allegations
establish neither a likelihood of future harm nor the
inadequacy of its remedy at law; accordingly, it is not
entitled to an injunction. City of Los Angeles v.
Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1667, 75
L.Ed.2d 675 (1983). Thus, the Plaintiffs request for
injunctive relief is not well-taken and will also be denied.
Id. Finally, the Plaintiff has wholly failed to
plead sufficient facts to indicate that any other putative
class members received unsolicited faxes from the Defendant;
instead, the Plaintiff solely bases those allegations, which
are not well-pleaded, on "information and belief,"
which is insufficient when not accompanied by factual
information that makes the inference of culpability
plausible. See Ashcroft, 556 U.S. at 678-79.
Accordingly, Plaintiffs requests regarding putative class
members are denied.
the Court ORDERS AND ADJUDGES that Plaintiffs unopposed
motion for default judgment [Doc. No. 14] is GRANTED IN PART
against Defendant The Langmas Group, Inc. and a final
judgment is entered in favor of Plaintiff Internal Medicine
Rural Health Clinic of New Albany, P.A., d/b/a New Albany
Medical Group against Defendant The Langmas Group, Inc. in
the amount of $2, 000.00 to accrue interest at the current
federal rate of 2.44% from the date of entry until the
judgment is satisfied. The remainder of the Plaintiffs motion
is DENIED. The Plaintiff may seek an award of costs pursuant
to L.U.CIV.R. 54(c) within thirty days of entry of judgment.
default judgment in accordance with this order shall issue
 "[D]etailed factual allegations
are not required, but the pleading must present more than an
accusation." Ashcroft v. Iqbal,556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A pleading
that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action
will not do" nor does "a complaint suffice if it