United States District Court, E.D. Missouri, Eastern Division
MAX MARGULIS, individually and on behalf of all others similarly situated, Plaintiff,
SURREY VACATION RESORTS, INC., d/b/a GRAND CROWNE RESORTS, Defendant.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Sanctions (Doc. 86) and Bill of Costs (Doc. 93). On April 20,
2017, the Court struck Defendant's pleadings and entered
default judgment for Defendant's willful failure to
comply with the Court's November 10, 2016 Order (Doc.
89). The Court entered judgment in favor of Plaintiff and
directed Plaintiff to submit a memorandum and evidence in
support of his damages. Plaintiff complied and seeks
statutory and treble damages, permanent injunctive relief,
and costs, including attorney's fees and expert witness
Telephone Consumer Protection Act (“TCPA”)
prohibits persons from initiating any telephone call to any
residential telephone line using an artificial or prerecorded
voice to deliver a message without the prior express consent
of the called party. 47 U.S.C. § 227 (b)(1)(B). The
plain language of the statute-allowing damages for each
violation of the TCPA- authorizes statutory damages for each
call made without the prior express consent of the called
party, as well as injunctive relief. § 227(b)(3). The
TCPA further authorizes the court to increase the statutory
award to an amount not more than three times the amount if
the Court finds that the defendant willfully or knowingly
violated the TCPA. Id.
TCPA does not define “willful” or provide
guidance as to what a willful or knowing violation of the
TCPA requires. Plaintiff urges the Court to interpret
willfulness to imply only that the act was intentional.
See, e.g. Alea London Ltd. v. Am. Home Servs., Inc.,
638 F.3d 768, 776 (11th Cir. 2011)
(“Importantly though, the intent for treble
damages does not require any malicious or wanton conduct, but
rather is satisfied by merely “knowing”
conduct.”). However, the Court finds Lary v.
Trinity Physician Fin. & Ins. Servs. 780 F.3d 1101,
11007 (11th Cir. 2015) instructive. There, the 11th Circuit
opined that if the TCPA was interpreted to require only that
the violator knew he was making a “call” or
sending a fax, the statute would have almost no room for
violations that are not willful or knowing. Id. at
1106-07 (citing Harris v. World Fin. Network Nat'l
Bank, 867 F.Supp.2d 888, 895 (E.D. Mich. 2012)
(“Such a broad application of ‘willful [ ]'
or ‘knowing' would significantly diminish the
statute's distinction between violations that do not
require an intent, and those willful[ ] and knowing
violations that [C]ongress intended to punish more
severely.”)). Instead, the court found that plaintiff
failed to establish a willful or knowing violation of the
TCPA because he did not prove that the defendants sent the
advertisement knowing it was unsolicited. Id.
there is insufficient evidence that Defendant willfully or
knowingly violated the TCPA, and the Court declines to award
treble damages solely on the basis that Defendant knew it was
making the call to Plaintiff. Therefore, the Court will award
$500 to Plaintiff for the three unauthorized calls identified
in Plaintiff's Memorandum of Law and Evidence in Support
of Damages (Doc. 92 at 8, 12).
Permanent Injunctive Relief
addition to monetary damages, the TCPA permits a person
bringing a private right of action to seek injunctive relief.
47 U.S.C.A. § 227(b)(3)(a). However, the injunctive
relief available under the statute is limited to actions to
enjoin violations of the TCPA. Goans Acquisition, Inc. v.
Merch. Sols., LLC, No. 12-00539-CV-S-JTM, 2013 WL
5408460, at *4 (W.D. Mo. Sept. 26, 2013) (holding that
injunctive relief available under the statute is limited, and
a plaintiff seeking to enjoin the defendant from sending any
unsolicited facsimile transmissions would be of dubious
constitutionality and beyond the scope of the TCPA, as the
statute provides exceptions to the general prohibitions set
forth in the act).
seeks an order permanently enjoining Defendant from directly
or indirectly making unsolicited telephone calls to Plaintiff
or to any other person in Missouri without maintaining
written documentation evidencing express prior permission. He
further seeks that the Court order Defendant to promptly mail
its Do-Not-Call policy within 30 days of any demand made by
recipients of its telemarketing calls. Plaintiff also seeks a
permanent injunction preventing Defendant from entering,
forming, organizing, or reorganizing into any partnership,
corporation, sole proprietorship, or any other legal
structure for the purpose of avoiding compliance with the
terms of the Order and Judgment in this case, as well as the
prevention of future violations of the TCPA.
Court will grant Plaintiff's request to enjoin Defendant
from making unsolicited calls to Plaintiff and direct
Defendant to comply with the TCPA and corresponding FCC
regulations in the future. The other equitable remedies
sought by Plaintiff exceed the scope of the TCPA and are
overbroad, as he does not represent a class.
Expert Witness Fees
54(d) of the Federal Rules of Civil Procedure provides, in
relevant part: “[u]nless a federal statute, these
rules, or a court order provides otherwise, costs-other than
attorney's fees-should be allowed to the prevailing
party.” However, a court may only tax costs as
authorized by statute. See Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 445 (1987) (rejecting claim
that “a federal court is empowered to exceed the
limitations explicitly set out in [28 U.S.C.] §§
1920 and 1821 without plain evidence of congressional intent
to supersede those sections”), superseded on other
grounds, 42 U.S.C. § 1988(c) (1991)). After
Crawford, the Supreme Court decided W.Va. Univ.
Hosps. v. Casey, 499 U.S. 83 (1991), where the issue was
whether fees for services rendered by experts in civil rights
litigation could be shifted to the losing party pursuant to
42 U.S.C. § 1988, which permitted the award of a
reasonable attorney's fee. The Supreme Court restated
that when “a prevailing party seeks reimbursement for
fees paid to its own expert witnesses, a federal court is
bound by the limits of § 1821(b),  absent contract
or explicit statutory authority to the contrary.”
Casey, 499 U.S. at 86, (quoting Crawford,
482 U.S. at 439). The Court then determined that
attorney's fees and expert fees were distinct items of
expense and that the trial court did not have the authority
to shift expert fees absent statutory law permitting
otherwise. Id. at 92, 102. Although Congress later
amended § 1988 to allow recovery of expert witness fees,
Casey remains good law on the construction of Rule
54(d) and 28 U.S.C. §§ 1920 and 1821.
Plaintiff in his Bill of Costs includes
“court-appointed expert” fees totaling $20,
050.00. However, it does not appear from the record that
either of Plaintiff's experts was appointed under Rule
706. Therefore, the Court may only award expert witness fees
if those fees are authorized by statute. The TCPA does not
provide for such an award, nor does Plaintiff point the Court
to any authority that would allow the Court to award
Plaintiff reimbursement for fees paid to ...