Heidorn v. BDD Mktg. & Mgmt. Co.

Full title: NICOLAS C. HEIDORN, Plaintiff, v. BDD MARKETING & MANAGEMENT COMPANY, LLC…

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Date published: Aug 19, 2013

Case No. C-13-00229 JCS (N.D. Cal. Aug. 19, 2013)

Opinion

Case No. C-13-00229 JCS

08-19-2013

NICOLAS C. HEIDORN, Plaintiff, v. BDD MARKETING & MANAGEMENT COMPANY, LLC, Defendant.

JOSEPH C. SPERO United States Magistrate Judge

REPORT AND RECOMMENDATION RE MOTION FOR DEFAULT JUDGMENT

Re: Docket No. 29

I. INTRODUCTION

In this action, Plaintiff Nicolas Heidorn, proceeding in pro se, asserts claims under various laws, including the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq., against Defendant BDD Marketing & Management Company, LLC ("BDD"). Plaintiff alleges that BDD or its agents have repeatedly contacted Plaintiff by telephone and email, even though he has registered his telephone number on the national "Do Not Call" registry and has made numerous attempts to get BDD to stop contacting him. BDD has not responded to Plaintiff's complaint or otherwise appeared in this action. Accordingly, the Clerk's Office entered default against BDD pursuant to Rule 55(a) of the Federal Rules of Civil Procedure on May 13, 2013. Plaintiff now brings a Motion for Default Judgment ("Motion") seeking entry of default judgment, an award of damages and injunctive relief. A hearing on the Motion was held on Friday, August 16, 2013 at 9:30 a.m. For the reasons stated below, it is recommended that the Motion be GRANTED.

II. BACKGROUND

A. The First Amended Complaint

In his First Amended Complaint, Plaintiff alleges that "Defendant BDD Marketing & Management Company, LLC, on information and belief, is a Florida limited liability company." First Amended Complaint ("FAC") ¶ 7. Plaintiff further alleges that BDD "operates a website, YourInsuranceResults.com, that promises to give its users automobile insurance quotes comparing the various carriers after they enter personal information purportedly needed for the quote." FAC ¶ 1. According to Plaintiff, the "offer of web insurance quotes is an odious bait-and-switch" in which the Defendant does "not provide the user with insurance quote comparisons, but instead the company uses the information provided to engage in its true business: telemarketing." Id. Plaintiff alleges that "Defendant took my personal information and, for over half a year, proceeded to incessantly call me, trying to connect me with this or that insurance provider (presumably to earn itself a commission)." Id. ¶ 2. Plaintiff further alleges that even after he repeatedly asked Defendant to stop calling him and filed complaints with the Federal Trade Commission and the local police department, Defendant continued calling him. Id. When Defendant finally stopped calling him, Plaintiff alleges, "it sold [his] contact information to private insurers who now spam [his] email address and, in two instances, called [him] directly." Id. ¶ 3.

Plaintiff alleges that on April 19, 2009, he registered his cell phone number, 510-798-3425, with the national "Do Not Call" registry. Id. ¶ 12. He alleges that his registration "is current and has never lapsed." Id. He alleges that on October 30, 2011, he "began an online search to find car insurance." Id. ¶ 13. He found Defendant's website, www.YourInsuranceResults.com, which he alleges "promised to provide a personalized list of auto insurance quotes if certain personal details (including information on my vehicle, my address, and phone number) were provided." Id. According to Plaintiff, "the website did not disclose that [he] would receive phone calls from Defendant (or Defendant's agents) or unsolicited emails from insurance companies." Id. ¶ 14. Plaintiff further alleges that the website did not provide "a side-by-side list of insurance companies and quotes" as promised, and so he "continued to search for insurance quotes by directly contacting various insurance companies." Id. ¶ 15. Ultimately, Plaintiff purchased auto insurance with GEICO later the same day; he alleges "[t]he results from www.yourinsuranceresults.com in no way assisted [him] in finding or purchasing this plan and had no influence whatsoever on the insurance company and plan [he] selected." Id. ¶16.

According to Plaintiff, about three months later, on January 18, 2012, he "received a phone call from Defendant at 616-980-1306 telling [him] they had [his] insurance results." Id. ¶ 17. Plaintiff alleges he asked the caller to call back later because he "was in the middle of something when the call came in and was confused that the caller said [he] had requested these results." Id. Later that same day, Plaintiff alleges, "Defendant called back from 616-980-1306." Id. ¶ 18. Plaintiff further alleges that once he "realized this was a telemarketing call [he] said [he] was not interested and asked Defendant not to call again." Id.

Plaintiff alleges that on January 21, 2012 at 6:29 p.m., "Defendant called from 800-290-5898." Plaintiff alleges that he told them he "was on the do-not-call list and not to call back." Id. ¶ 19. Plaintiff further alleges that he "asked them the name of the company calling and the caller hung up on [him]."

Plaintiff alleges that on February 9, 2012 at 2:00 p.m., "Defendant called from 800-290-5898." Id. ¶ 20. Plaintiff further alleges that he "told them [he] was on the list and not to call back" and that he "asked them the name of the company calling and the caller hung up on [him]." Id.

Plaintiff alleges that on February 12, 2012 at 11:08 a.m., "Defendant called from 800-290-5898." Id. ¶ 21. Plaintiff further alleges that he "told them [he] was on the Do-Not-Call list and not to call back" and that he "asked them the name of the company calling and the caller hung up on him."

Plaintiff alleges that on February 24, 2012 at 11:34 a.m., "Defendant called from 616-980-1306." Id. ¶ 22. Plaintiff further alleges that he "told them [he] was on the Do-Not-Call list and not to call back" and that he "asked them the name of the company calling and the caller hung up on [him]." Id.

Plaintiff alleges that on March 7, 2012 at 1:00 p.m., "Defendant called from 800-290-5898." Id. ¶ 23. Plaintiff further alleges that he "told them [he] was on the Do-Not-Call list and not to call back" and that he "asked them the name of the company calling and the caller hung up on [him]." Id. According to Plaintiff, later on that same day he "called 616-980-1306 and 800-290-5898 to determine who was calling" but "[i]n both cases [his] call went to a voicemail system which did not state the identity of the Defendant." Id. ¶ 24. Plaintiff alleges he did not leave a message because he was "[u]nsure whom [he] was calling." According to Plaintiff, later that day he "filed a complaint against Defendant with the Federal Trade Commission for violating the Do Not Call Registry." Id. ¶ 25.

Plaintiff alleges that on March 17, 2012, "Defendant called from 800-290-5898" three different times, at 10:26 a.m., 1:45 p.m. and 5:54 p.m. Id. ¶¶ 26-28. Plaintiff alleges he did not answer the first call and hung up when he received the second call; when Plaintiff received the third call, "Defendant told [him] they had the insurance results [he] requested." Id. ¶ 28. Plaintiff alleges, he told them that "[he] had asked several times to never be called again and that because they still had not complied [he] filed a complaint with the FTC." Id. According to Plaintiff, "[t]hey hung up." Id.

Plaintiff alleges that on March 23, 2012 at 7:00 p.m., "Defendant called from 800-290-5898" and that he did not answer the call. Id. ¶ 29.

Plaintiff alleges that on April 2, 2012 at 7:37 p.m., "Defendant called from 800-290-5898" and that he "told them not to call again or I would file a lawsuit." Id. ¶ 30.

Plaintiff alleges that on April 28, 2012 at 7:04 p.m., "Defendant called from 800-290-5898" and that he did not answer the call. Id. ¶ 32.

Plaintiff alleges that on May 8, 2012 he filed a police report with the Oakland Police Department claiming Defendant was harassing him. Id. ¶ 33; see also FAC, Ex. B (Police Report). In the "Narrative" section of the police report, Plaintiff states, in part, as follows:

YourInsuranceRequest.com, an insurance telemarketing company, will not stop calling me. Their number is 800-290-5898. I'd estimate they've called, on average, at least once or twice a week since January 2012. Every single time I have spoken to them I have asked them not to call. I have told them I am on the Do Not Call registry. I have asked them to remove my number from their database or to place notes in my account saying do not call.

FAC, Ex. B.

Plaintiff alleges that on May 10, 2012 at 8:32 a.m., "Defendant called from 800-290-5898" and that he did not answer the call. Id. ¶ 34.

Plaintiff alleges that on the same day, at 11:03 a.m., "Defendant called from 800-290- 5898." Id. ¶ 35. According to Plaintiff, he "spoke with 'Tiffany' and told her to stop calling [him]." Id. Plaintiff alleges that he "asked for her to send [him] a copy of the Defendant's Do Not Call policy and she hung up on [him]." Id. He further alleges that "Defendant never mailed [him] a copy of its Do Not Call policy."

Plaintiff alleges that on May 14, 2012, he filed a Freedom of Information Act ("FOIA") request with the Federal Trade Commission ("FTC") "requesting a copy of [his] original complaint, the total number of complaints submitted to that agency against the phone number 800-290-5898 during a three year period (May 14, 2009 through May 14, 2012) for violations of the Do Not Call registry, along with a random sample of 10 such complaints." Id. ¶ 36. Plaintiff further alleges that he was informed by the FTC in its response to the FOIA request that 3,025 complaints had been lodged against that phone number between May 14, 2009 and May 14, 2012. Id.; see also FAC, Ex. C (FOIA response).

Plaintiff alleges that on June 5, 2012 at 11:07 a.m., he received a phone call "from someone purporting to be an agent at State Farm, seeking to sell me car insurance." According to Plaintiff, he "confirmed that [the caller] received his information from Defendant." Plaintiff alleges that he told the caller he "did not consent to such calls and that he should not contact me again." Id. ¶ 37.

Plaintiff alleges that on June 12, 2012 at 12:56 p.m., "Defendant called from 888-559-6054." Id. ¶ 38. Plaintiff alleges he "told them to stop calling and that [he] wanted a copy of the Defendant's Do Not Call policy sent to [him]." Id. He alleges that the caller told him "that they did not have a copy of the policy." Id.

Plaintiff alleges that in June 2012, "in part because of Defendant's telemarketing call, he went over the maximum number of 'Anytime' minutes [his] cell phone plan allotted to [him] and, as a result, had to pay $25 in overage charges." Id. ¶ 39.

Plaintiff alleges that on September 18, 2012 at 9:58 a.m., 11:29 a.m. and 3:56 p.m., "Defendant called from 800-218-2350." Id. ¶¶ 40-42. According to Plaintiff, he did not answer any of the calls. Plaintiff alleges that after the third call, he called the number back; he alleges Defendant answered and "indicated it had insurance results for [Plaintiff]." Id. ¶ 43. Allegedly, when Plaintiff said "something to the extent of 'I don't believe this' . . . Defendant immediately hung up on [him]." Id.

Plaintiff alleges, "on information and belief," that between January and September, 2012, he did not answer between 2 to 5 calls from Defendant" in addition to the calls listed above. Id. ¶ 44.

Plaintiff alleges that on February 14, 2013, he received a phone call from someone at 571-361-6118 attempting to sell him auto insurance. Id. ¶ 45. According to Plaintiff, "[w]hen [he] asked how they got [his] number, they placed [him] on hold and hung up on [him]." Plaintiff alleges on "information and belief" that "this caller got [his] information from the Defendant or is an agent of the Defendant." Id.

Plaintiff alleges that on April 4, 2013 at 10:03 a.m., he received a phone call from "someone at 804-364-0667 trying to sell [him] auto insurance; he mentioned information about [Plaintiff's] vehicle that [he] had provided to the Defendant." Id. ¶ 46. According to Plaintiff, "[w]hen [he] asked how [the caller] got [his] information [the caller] said it was from an "internet online survey." Id. Plaintiff alleges that when he asked the caller what company he was with, the call was either dropped or the caller hung up. Id. Plaintiff alleges on "information and belief" that "this caller got [his] information from the Defendant or is an agent of the Defendant." Id.

Plaintiff alleges that "[n]early eight months after I had signed up at www.yourinsuranceresults.com and after several fruitless months of trying to get Defendant to cease contacting [him] by phone, on or around June 5, 2012 at 1:25 a.m. and 1:26 a.m. [he] received five emails offering [him] insurance based on the information [he] provided to Defendant." Id. ¶ 47. Plaintiff alleges that one email was "from Defendant Jason@YourInsuranceResults.com) stating that 'You recently requested auto insurance quotes online for your 2009, HONDA, CIVIC HYBRID.'" Id. According to Plaintiff, he received five other emails at the same time, purportedly from insurance companies, including emails from Netquote (customerservice@netquote.com ), State Farm (agency01752.cb06@net-lead-apps.net and Jackie.morales-sanchez.r8an@sfgreatquotes.com), and GEICO (onlineauotsales@geicomail.com). Id.

Plaintiff alleges that in the next few months, he received eight more emails offering him insurance "based upon the information Defendant shared with these companies." Id. ¶ 48. In particular, Plaintiff lists the following emails: 1) June 9, 2012, 11:21 p.m. -- agency 01752. cb06@net-lead-apps.net; 2) June 14, 2012, 11:57 p.m. -- agency01752.cb06@net-lead-apps.net; 3) June 19, 2012, 11:17 p.m. -- agency01752.cb06@net-lead-apps.net; 4) July 24, 2012, 11:01 p.m. -- agency 01752.cb06@net-lead- apps.net; 5) August 6, 2012, 2:48 p.m. -- onlineautosales @geicomail.com; 6) August 6, 2012, 2:52 p.m. -- customerservice@netquote.com; 7) August 6, 2012, 3:08 p.m. -- consumerservices@quotescout.com; and 8) August 9, 2012, 9:46 p.m. -- Geico@email1. geico.com. Id.

Plaintiff alleges that after filing the initial complaint in this action he continued to "receive [ ] other spam emails based upon the information Defendant shared with these companies which were filtered out by my email provider's spam protection system." Id. ¶ 49; see also FAC, Ex. D. Plaintiff alleges that the calls and emails were "unwanted, annoying, and harassing" and that "Defendant knew these phone calls and emails were unwanted, annoying, harassing, and in violation of law, yet intentionally, knowingly, and willfully continued to place such calls and send such emails or caused or allowed these calls to be placed and emails to be sent." Id. ¶¶ 51-52.

Plaintiff alleges that on August 28, 2012, he "wrote the Defendant at Jason@YourInsuranceResults.com and support@YourInsuranceResults.com (two email addresses from which [he] had received emails from the Defendant) asking what personal information of mine, in the past year, the Defendant disclosed to third parties for direct marketing purposes, as well as the name and address of each third party." Id. ¶ 53. He further alleges that the Jason@YourInsuranceResults.com email bounced back as undeliverable and that he received no response from support@YourInsuranceResults.com email address. Id. Plaintiff alleges "Defendant has willfully, intentionally, or recklessly failed to reply to my request for information." Id. ¶ 54.

Plaintiff alleges that "[a]t no point, up through December 1, 2012, did the homepage of Defendant's website, www.yourinsuranceresults.com link either to a page titled 'Your Privacy Rights' or have any link going to its privacy policy." Id. ¶ 55.

Based on these allegations, Plaintiff asserts the following claims:

1) Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §227 (Statutory and Actual Damages), based on: a) calling Plaintiff without express permission even though his telephone number was listed on national Do Not Call registry; b) failing to place Plaintiff on a private do not call list that companies are required to maintain under TCPA; c) failing to maintain a written do not call list; d) failing to identify itself on calls and failing to provide Plaintiff with a written copy of its do not call policy on request.

2) California Do Not Call List Law, Cal. Bus. & Prof. Code §§17590 et seq. (Injunctive Relief ), based on calling Plaintiff without permission even though his telephone number was listed on national Do Not Call registry and continuing to call even after Plaintiff requested that Defendant stop calling.

3) Unfair Competition Law, Cal. Bus. & Prof. Code §17200 et seq. (Injunctive Relief and Actual Damages) based on: a) illegal business practices, namely, making telephone solicitations in violation of 47 U.S.C. §227 and Cal. Bus. & Prof. Code §§ 17590 et seq.; b) unfair business practices, namely, "contacting me when I was on the national Do Not Call registry, failing to remove me from their call list after numerous requests that it cease from calling me, and giving my information to third parties after I had asked to not be contacted by Defendant again"; and c) fraudulent business practices, namely, "by using deceptive or untrue advertising, in that its advertising promised that I would receive an immediate side-by-side comparison of insurance quotes (which I did not receive) and because its advertising did not warn me that signing up for its service would lead to them soliciting me by phone and giving my information to third parties").

4) Shine the Light Law, Cal. Civ. Code §1798.83 ¹ (Injunctive Relief, Actual Damages, Statutory Damages, and Reasonable Attorney Fees and Costs), based on Defendant's willful failure to respond to Plaintiff's August 28, 2012 request that it disclose the third parties to whom it had revealed Plaintiff's private information.

1 In his FAC, Plaintiff misidentified the code containing this provision, citing the Business and Professions Code instead of the Civil Code. He accurately identified the code section and the name of the law in his FAC. In addition, in FAC ¶ 81 he described the conduct that is prohibited in this provision. Therefore, the Court concludes that Defendant was given adequate notice of the claim and that Plaintiff's error in his FAC is a clerical error that does not prevent him from seeking default judgment as to that claim.

5) California Constitutional Right to Privacy, Cal. Const. Art. I, §1 (Actual and Punitive Damages), based on calling Plaintiff when he requested not to be called and disseminating his personal information to third parties and allegedly engaging in conduct that was oppressive and malicious.

In the Prayer, Plaintiff requests $1,500 per violation of the TCPA, $3,000 per violation of the Shine the Light Law, actual and punitive damages against the Defendant for its "flagrant violation of [Plaintiff's] rights under federal and California statutes, as well as the California Constitution," an injunction prohibiting Defendant from further calling Plaintiff and sharing his personal information, and costs of suit and applicable interest.

B. The Motion

In his Motion, Plaintiff asks the Court to enter default judgment on his claims and award the following relief: 1) $82,500 in statutory damages pursuant to 47 U.S.C. §227(c) and Cal. Civil Code §1798.83; 2) $43.33 in actual damages pursuant to 47 U.S.C. §227(c)(5)(B), Cal. Civil Code §1798.84(b) and Cal. Const. Art. I, §1; 3) $445.62 in litigation costs pursuant to Cal. Civil Code §1798.84(g); 4) $25,000 in punitive damages pursuant to Cal. Const. Art. I, §1 and Cal. Civil Code §3294; and 5) injunctive relief pursuant to 47 U.S.C. §227(c)(5)(A), Cal. Bus. & Prof. Code §17593(b) and Cal. Bus. & Prof. Code §17203. Plaintiff contends entry of default judgment is appropriate because the Court has personal jurisdiction over Defendant and subject matter jurisdiction over Plaintiff's claims. Motion at 5-9. Plaintiff further contends that consideration of the factors articulated in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986) supports entry of default judgment in this case. Id. at 9 - 22.

In a declaration submitted in support of the Motion, Plaintiff states that he has continued to receive unwanted telephone calls that he attributes to Defendant. In particular, he states as follows:

In late April, 2013, I received three phone calls from someone attempting to sell me auto insurance. In each case, the person on the line mentioned information about my vehicle that I had provided to the Defendant. When I asked how they got my information they said it was from an internet survey I had filled out. They would not provide the name of the company they were with. Since October

2011 (when I signed up on the Defendant's website), I have not searched for automobile insurance online. I have had the same insurance on my vehicle for around 2.5 years. Upon information and belief, these callers got my information from the Defendant or is an agent of the Defendant.

Declaration of Nicolas Heidorn in Support of Plaintiff Nicolas Heidorn's Motion for Default Judgment ("Heidorn Decl."), ¶ 9.

III. ANALYSIS

A. Adequacy of Service

"In deciding whether to grant or deny a default judgment, a court must first assess the adequacy of the service of process on the party against whom default is requested." j2 Global Communications, Inc. v. Blue Jay, Inc., 2009 WL 29905, at *4 (N.D. Cal., January 5, 2009) (citation omitted). Plaintiff has provided evidence that he served the complaint by postage pre-paid U.S. mail, requiring a return receipt, to BDD's registered agent, Daniel Shepherd. See Docket No. 13 (proof of service of summons stating that Summons and Complaint were mailed by pre-paid U.S. mail to Daniel Shepherd Esq., at 3896 Burns Road, Suite 101, Palm Beach Gardens, FL 33410); Heidorn Decl., ¶4 ("According to the Florida Department of State, the Defendant's business address is 155 E Blue Heron Blvd, Suite 407, Riviera Beach, FL 33404 UN and the Defendant's Registered Agent is Daniel J. Shepherd, Esq., located at 3896 Burns Rd., Suite 101, Palm Beach Gardens, FL, 33410") & Ex. A (print-out from Florida Secretary of State website listing Jason Shepherd as agent for service of process of BDD and reflecting same address). An employee of Mr. Shepherd, Chris Sanchez, who Plaintiff alleges is authorized to sign on Mr. Shepherd's behalf, signed the receipt. Docket No. 13; Heidorn Decl. ¶ 5. In addition, Plaintiff states in his declaration that on March 21, 2013, Mr. Shepherd spoke to him on the telephone and confirmed to Plaintiff that he had received the complaint. Heidorn Decl., ¶¶ 4-5.

Rule 4(h)(1)(A) of the Federal Rules of Civil Procedure permits service on a corporation, partnership or association in a judicial district of the United States in a manner permitted under the law of the state where the district court is located. Under California law, a corporation may be served by delivering a copy of the summons and complaint to the person designated as agent for service of process. Cal. Code Civ. Proc. § 416.10. Further, California law permits service on a person outside of the state "by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt." Cal. Code Civ. Proc. § 415.40. In Roylance v. ADT Sec. Services, Inc, the court found that an agent of a limited liability company properly may be served pursuant to § 415.40. 2008 WL 2444795, at *1 (N.D. Cal., June 16, 2008).

While the individual who actually signed for the complaint and summons in this case was not the registered agent, the Court finds that the evidence submitted by Plaintiff establishes that service was adequate because Plaintiff substantially complied with the requirements for service under applicable California law. See Dill v. Berquist Construction Co., 24 Cal.App.4th 1426, 1437 (1994) (explaining that under California law, substantial compliance is sufficient and thus, service on corporation would be sufficient, even if the summons were not addressed to the correct individual at the corporation, so long as it was received by that individual); see also Cal. Civ. Code § 417.20 (providing that "if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence"). Plaintiff has provided evidence that the complaint and summons were mailed to the address of BDD's registered agent for service of process, as reflected in the records of the Florida Secretary of State, that they were delivered to that address and that they were actually received by BDD's agent for service of process.

B. Personal Jurisdiction

The Court also must determine whether or not it has personal jurisdiction over Defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (holding that the court properly raised sua sponte the question of whether there was personal jurisdiction over Iraq before determining whether default judgment should be entered). In Tuli, the Ninth Circuit explained that where a plaintiff seeks default judgment, the court may not assume the existence of personal jurisdiction, even though ordinarily personal jurisdiction is a defense that may be waived, because a judgment in the absence of personal jurisdiction is void. Id. Where there are questions about the existence of personal jurisdiction in a default situation, the court should give the plaintiff the opportunity to establish the existence of personal jurisdiction. Id.

On default judgment, a plaintiff must make a prima facie showing of the existence of personal jurisdiction. See DFSB Kollective Co. Ltd. v. Bourn, 897 F.Supp.2d 871, 885 (N.D.Cal., 2012). "[T]o establish a prima facie case, plaintiffs are not limited to evidence that meets the standards of admissibility . . . [but] [r]ather, they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain." Mwani, et al. v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir.2005); see also Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (holding on a motion to dismiss that in order to make a prima facie showing, the plaintiff must produce "facts that if true would support jurisdiction over the defendant"). "In evaluating whether a prima facie case is pled, only 'well pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true.'" High Tech Pet Products, Inc. v. Juxin Pet Product Co., Ltd., 2013 WL 1281619, at * 4 (E.D. Cal., March 27, 2013) (quoting Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995)).

When there is no applicable federal statue governing personal jurisdiction, as is the case here, the district court applies the law of the state in which it sits to determine whether it may exercise personal jurisdiction over the defendant. Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998). California law permits courts to exercise personal jurisdiction over a nonresident defendant to the extent permitted by the Due Process Clause of the Constitution. Cal. Code Civ. P. § 410.10. The Due Process Clause, in turn, requires that the defendant have "certain minimum contacts" with the forum "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945) (citations and internal quotation marks omitted).

Personal jurisdiction may be founded on either general jurisdiction or specific jurisdiction. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801-802 (9th Cir. 2004). "For general jurisdiction to exist over a nonresident defendant . . . , the defendant must engage in 'continuous and systematic general business contacts,' Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952)), that 'approximate physical presence' in the forum state. Bancroft & Masters, 223 F.3d at 1086." Id. at 801.

To establish the existence of specific jurisdiction, the plaintiff must establish that: 1) the non-resident defendant "purposefully direct[ed] his activities or consummate[d] some transaction with the forum or resident thereof; or perform[ed] some act by which he purposefully avail[ed] himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;" 2) the claim "arises out of or relates to the defendant's forum-related activities;" and 3) the exercise of jurisdiction "comport[s] with fair play and substantial justice, i.e. it must be reasonable." Id. at 802. "Once minimum contacts [are] shown, a rebuttable presumption arises that the exercise of jurisdiction is reasonable." Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir.1988). The defendant bears a "heavy burden" to overcome this presumption. Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir.1995).

At least one court in this district has held that unsolicited fax advertisements sent to the plaintiff's fax machine from an out-of-state defendant in violation of the TCPA provide a sufficient basis for establishing the existence of personal jurisdiction. See j2 Global Communications, Inc. v. Blue Jay, Inc., 2009 WL 29905, at *10 (N.D. Cal., Jan. 05, 2009). This Court agrees that where an out-of-state defendant contacts a plaintiff who resides in California in violation of the TCPA, those contacts may be sufficient to establish the existence of specific jurisdiction.² As the court in j2 explained, under such circumstances, the defendant has directed its activities at the forum state by calling the plaintiff without the plaintiff's consent, the TCPA claim arises out of that conduct, and exercise of jurisdiction is not unreasonable. 2009 WL 29905, at *5-10.

2 Plaintiff does not contend there is general jurisdiction over Defendant and the Court finds no evidence of contacts between BDD and California that would establish jurisdiction on that basis. See Motion at 5-7.

Here, Plaintiff has alleged that Defendant BDD Marketing and Management Company, LLC "operates" the website YourInsuranceResults.com. FAC ¶ 1. He also alleges in his FAC that he received numerous unsolicited telephone calls and emails from "Defendant." As Plaintiff's claims arise out of these contacts, Plaintiff's allegations are sufficient to establish the existence of personal jurisdiction.

C. Legal Standard under Rule 55(b)

Pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, the court may enter a default judgment where the clerk, under Rule 55(a), has previously entered the party's default based upon failure to plead or otherwise defend the action. Fed. R. Civ. P. 55(b). Once a party's default has been entered, the factual allegations of the complaint, except those concerning damages, are deemed true. Fed. R. Civ. Proc. 8(b)(6); see also Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (stating the general rule that "upon default[,] the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true"). A defendant's default, however, does not automatically entitle the plaintiff to a court-ordered default judgment. Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986).

"Granting or denying a motion for default judgment is a matter within the court's discretion." Landstar Ranger, Inc. v. Parth Enterprises, Inc., 2010 WL 2889490, at *2 (C.D. Cal. Jul.19, 2010) (quoting Elektra Entertainment Group Inc. v. Bryant, No. CV 03-6381 GAF (JTLx), 2004 WL 783123, at *1 (C.D. Cal. Feb.13, 2004)). The Ninth Circuit has directed that courts consider the following factors in deciding whether to enter default judgment:

(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 in the action; (5) the possibility of a dispute concerning the material facts; (6) whether defendant's default was the product of excusable neglect; and (7) the strong public policy favoring decisions on the merits.

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986).

D. Eitel Factors

1. Possibility of Prejudice

Where a plaintiff will have no other remedy if the Court does not enter default judgment, this factor generally favors entry of default judgment. Here, Plaintiff contends he will be prejudiced because: 1) he will be "'without other recourse for recovery' over the harassing calls the Defendant has made;" and 2) "the Defendant will continue to call or provide my contact information to others who will then call me." Motion at 9 (quoting PepsiCo, Inc. v. California Security Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 200)). The Court finds that to the extent denial of default judgment will deprive Plaintiff of these remedies, this factor favors entry of default judgment.

2. Excusable Neglect

In his declaration, Plaintiff establishes that he served Defendant at the address listed with the Florida Department of State for Defendant. Heidorn Decl., ¶¶ 3-4; see also Docket No. 13 (proof of service). The Heidorn Declaration also establishes that Defendant's registered agent, Daniel J. Shepherd, not only received the complaint but contacted Plaintiff to discuss the possibility of settlement. Id. ¶¶ 5, 11. This evidence establishes that Defendant was aware of Plaintiff's action and chose not to respond. Therefore, this factor weighs in favor of entry of default judgment.

3. Possibility of Dispute

The Court also must consider the possibility of dispute concerning material facts. For the purposes of default judgment, the facts alleged in the complaint are assumed to be true and therefore, this factor favors entry of default judgment. See Penpower Technology Ltd. v. S.P.C. Technology, 627 F.Supp.2d 1083, 1092 (N.D.Cal., 2008) (citing Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977)).

4. Sum of Money at Stake

Plaintiff seeks over $100,000.00 in damages, the vast majority of them statutory damages based on the number of calls Plaintiff alleges were made to him in violation of the TCPA. As the TCPA allows for the award of such damages, and the Court has discretion as to these damages as well as the punitive damages Plaintiff seeks on his invasion of privacy claim (Claim Five), this factor weighs in favor of entry of default judgment. See DFSB Kollective Co., Ltd. v. Bing Yang, 2013 WL 1294641, at *13 (N.D.Cal., Mar. 28, 2013) (holding that amount at stake factor weighed in favor of entry of default judgment where plaintiff requested over a million dollars in statutory damages because "the damages sought here are statutory and the amount left to the Court's discretion").

5. Allegations and Substantive Merits

Plaintiff asserts five claims in his complaint. In determining whether entry of default is appropriate, the Court considers whether Plaintiff's allegations state valid claims and the substantive merit of his claims.

a) TCPA, 47 U.S.C. §227

Plaintiff asserts his TCPA claim under 47 U.S.C. § 227(c)(5), which provides that "[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection" may bring an action for injunctive relief, damages or both. Plaintiff alleges that telephone calls from Defendant violated 47 C.F.R. §§ 64.1200(c)(2) and (d), which are regulations promulgated under 47 U.S.C. § 227(c). The Court finds that Plaintiff's allegations are sufficient to state a claim under these provisions.

Section 64.1200(c)(2) provides that it is a violation of the TCPA to call "[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government." 47 C.F.R. § 64.1200(c)(2). This regulation also applies to wireless telephone subscribers who have registered their numbers on the national do-not-call registry. 47 C.F.R. § 64.1200(e). A telemarketer is not liable under this provision if it can show that "[i]t has obtained the subscriber's prior express invitation or permission" to receive telephone calls, which must be "evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed." 47 U.S.C. § 64.1200(c)(ii). However, under 47 C.F.R. § 64.1200(f)(5)(i), "[t]he subscriber's seller-specific do-not-call request, as set forth in paragraph (d)(3) of this section, terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller."

Section 64.1200(d) requires that telemarketers must maintain their own, internal do-not-call lists, and subsection (d)(3) requires that "[i]f a person or entity making a call for telemarketing purposes (or on whose behalf such a call is made) receives a request from a residential telephone subscriber not to receive calls from that person or entity, the person or entity must record the request and place the subscriber's name, if provided, and telephone number on the do-not-call list at the time the request is made." 47 C.F.R. § 64.1200(d)(3). Subsection (d) also sets forth certain requirements in connection with maintaining seller-specific do-no-call lists, including the requirements that: 1) "[a] person or entity making a call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted;" and 2) "Persons or entities making calls for telemarketing purposes must have a written policy, available upon demand, for maintaining a do-not-call list." 47 C.F.R. § 64.1200(d)(5).

Plaintiff has alleged that his cell phone number has been registered on the national do-not-call registry since 2009, that he did not consent to Defendant calling him, and that any consent he might arguably have given by seeking online insurance quotes was revoked when he told the telemarketers who called him that he did not wish to receive telephone calls from them. FAC ¶¶ 12, 14, 18. According to Plaintiff's complaint, he subsequently received over 20 telephone calls from Defendant, in violation of 47 C.F.R. § 64.1200(c)(2). Plaintiff further alleges that Defendant violated the regulations by failing to identify itself when calling and failing to provide him with a copy of its do-not-call policy upon request. FAC ¶¶ 19-23, 35, 38, 45-46. These allegations are sufficient to state a claim under the TCPA.

b) California Do-Not-Call Law

Cal. Bus & Prof. Code §17592(c)(4) prohibits telemarketers from making telephone calls to California telephone numbers that are listed on the national do-not-call registry to "promote any investment, insurance, or financial services." Plaintiff alleges that his telephone number, which is in the 510 area code and thus a California number, has been listed on the national Do -Not-Call registry since 2009 and that Defendant called him 26 times to sell insurance to him. FAC ¶¶ 12, 16, 17, 19-23, 26-32, 34-35, 38, 40-42, 44-46). Accordingly, Plaintiff has stated a claim under this provision.

c) Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§17200 et seq.

California's UCL outlaws "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code, § 17200. A private enforcement action may be brought by "a person who has suffered injury in fact and has lost money or property as a result of the unfair competition." Id. § 17204. Plaintiff has alleged that he had to pay $25.00 in cell phone overcharges due to a call he received from Defendant in June 2012. FAC ¶ 39. Further, as discussed above, his allegations are sufficient to show that Defendant violated the TCPA and therefore, that it engaged in "unlawful" conduct. Therefore, Plaintiff's allegations are sufficient to state a claim under the UCL.

d) Shine the Light Law, Cal. Civ. Code §1798.83

California Civil Code § 1798.83(a) requires that "if a business has an established business relationship with a customer and has within the immediately preceding calendar year" disclosed certain types of personal information, including the person's name, address and telephone number, "and if the business knows or reasonably should know that the third parties used the personal information for the third parties' direct marketing purposes," that business is required to provide to the customer, free of charge, the categories of information that were provided and the names and addresses of the third parties to whom the information was given. The time allowed to respond depends on where the request is received but may never exceed 150 days. Cal. Civ. Code § 1798.83(b)(1)(C).

Here, Plaintiff has alleged that BDD disclosed his information to third parties who contacted him to sell insurance to him, both by telephone and by email, and that Defendant reasonably should have known these third parties would contact Plaintiff for this purpose. FAC ¶ 37, 47-48. Plaintiff further alleges that on August 28, 2012, he sent emails to two email addresses from which he had received emails -- Jason@YourInsuranceResults.com and support@YourInsuranceResults.com, to request a list of third parties who had been given his personal information. FAC ¶ 53. Finally, Plaintiff alleges that Defendant has never responded to these requests. Id; see also Heidorn Decl., ¶ 13. These allegations are sufficient to state a claim under Cal. Civ. Code §1798.83.

e) California Constitutional Right to Privacy

Article I, Section 1 of the California Constitution provides that "[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." The words "and privacy" were added to this provision by an initiative adopted by the voters on November 7, 1972 (the "Privacy Initiative"). Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1, 15 (1994). In Hill, the California Supreme Court explained that while the constitutional right to privacy is not circumscribed by the common law tort of invasion of privacy, courts should look to the common law as a "background" in order to "draw upon the one hundred years of legal experience surrounding the term 'privacy' in identifying legally protected privacy interests and in describing the process by which such interests are compared and weighed against other values." Id. at 27.

"The party claiming a violation of the constitutional right of privacy established in article I, section 1 of the California Constitution must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest." Int'l Fed'n of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal.4th 319, 338 (2007). These factors are considered threshold elements to "screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision." Sheehan v. San Francisco 49ers, Ltd., 45 Cal.4th 992, 999 (2009). Once this threshold has been met, the court must "weigh[ ] and balance[e] the justification for the conduct in question against the intrusion on privacy resulting from the conduct." Id.

With respect to the first factor, the California Supreme Court has explained that there are two types of legally protected privacy interests: "(1) interests in precluding the dissemination or misuse of sensitive and confidential information ('informational privacy'); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ('autonomy privacy')." Id. (citing Hill, 7 Cal.4th at 35). The court in Hill explained that informational privacy is a core value underlying the Privacy Initiative. 7 Cal. 4th at 35. It held that "[a] particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity." Id.

The second factor, whether there is a reasonable expectation of privacy, turns on whether there is an "objective entitlement founded on broadly based and widely accepted community norms" under the specific circumstances of the case. Id. at 1000 (citing Hill, 7 Cal. 4th at 36).

As to the third factor, "[a]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right." Hill, 7 Cal.4th at 37.

Turning to the facts of this case, the Court finds that Plaintiff has alleged that he has a legally protectable privacy interest. Although it is not entirely clear what "personal information" Defendant allegedly took, see FAC ¶ 2 ("Defendant took my personal information"), a reasonable inference can be drawn from the allegations in the FAC that at least Plaintiff's cellular telephone number and email address are at issue. The California Supreme Court has recognized that "home contact information is generally considered private" because of the strong interest in avoiding unwanted communication, particularly in the home. County of Los Angeles v. Los Angeles County Employee Relations Com., 56 Cal.4th 905, 927 (2013). That interest is implicated here because Plaintiff's telephone number has been used by Defendant to repeatedly call him despite his requests that the calls stop. These harassing calls give rise to an autonomy interest sufficient to meet the first element of the test set forth above.

Next, the Court must determine whether Plaintiff has satisfied the second prong of the test, requiring a reasonable expectation of privacy. Plaintiff alleges that he affirmatively requested insurance quotes online, and he provided at least his telephone number and his email address when he requested the quotes. Under these circumstances, a reasonable person's expectation of privacy would likely be diminished somewhat as to communications responding to the online request, at least as to an initial contact from the defendant. Once a defendant is informed, however, that the individual does not wish to receive any further telephone communications, the individual has a reasonable expectation as to any subsequent communications. As Plaintiff alleges that he repeatedly told Defendant not to call (and that his telephone number was registered on the national do-not-call registry), he had a reasonable expectation of privacy as to subsequent telephone communications from Defendant.

Finally, the Court addresses whether the calls made by Defendant constitute a "serious" invasion of privacy. Although the Court has not found any cases directly on point, the California Supreme Court's decision in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360 (2007) offers some guidance. That case involved a class action lawsuit against Pioneer Electronics in which the plaintiff class sought to obtain, through discovery, the contact information for 700 to 800 Pioneer customers who had submitted complaints to Pioneer regarding its products. Id. at 366. The district court had ordered Pioneer to send letters to the complaining Pioneer customers informing them of the plaintiffs' request for their contact information, as well as their right to object to release of that information and to further inform them that their failure to respond would be treated as consent to release of the information. Id. Pioneer Electronics challenged the order, arguing that the information should be released only if the complaining customers affirmatively consented to the release. Id. The California Supreme Court rejected that argument, finding that where customers had complained to the vendor about a product, they had a diminished expectation of privacy as to future contacts relating to their complaints. Id. at 372. The Court reasoned, "it seems unlikely that these customers, having already voluntarily disclosed their identifying information to that company in the hope of obtaining some form of relief, would have a reasonable expectation that such information would be kept private and withheld from a class action plaintiff who possibly seeks similar relief for other Pioneer customers, unless the customer expressly consented to such disclosure." Id.

Turning to the question of whether the invasion of privacy was serious, the California Supreme Court held that it was not, both because the customers had a diminished expectation of privacy and because they were to be given notice of the release and a chance to object. Id. The Court further found that the invasion of privacy was not serious because no sensitive personal information was to be disclosed ; it noted that contact information regarding potential class members is generally discoverable and "[s]uch disclosure involves no revelation of personal or business secrets, intimate activities, or similar private information." Id. at 373. Finally, it pointed out that the disclosures were not serious because they did not threaten "undue intrusion into one's personal life, such as mass-marketing efforts or unsolicited sales pitches." Id.

Here, as in Pioneer, the information at issue appears to be basic contact information, rather than any particularly sensitive information. However, the conduct of Defendant, unlike in Pioneer, appears to fall in the category of "mass-marketing efforts or unsolicited sales pitches." While this language is dicta in Pioneer, it supports the conclusion that repeatedly contacting an individual by telephone to sell insurance, even after the individual has informed the Defendant that he does not wish to receive telephone calls and that his telephone number is listed on the national do-not-call registry, does not constitute just a "trivial" invasion of privacy under California law.

The Court finds some support for its conclusions in case law addressing whether debt collection telephone calls may give rise to a claim for invasion of seclusion. In Fausto v. Credigy Services Corp., for example, the court denied summary judgment on an invasion of seclusion claim -- as well as a request for punitive damages based on that claim -- where the plaintiffs had produced evidence that the defendant "made over ninety calls to their home, . . . that the content of those calls was harassing in violation of state and federal laws. . . .[and] that Defendants failed to identify themselves when calling, and would allow the phone to ring repeatedly when calling, only to call back immediately after Plaintiffs hung up the phone." 598 F.Supp.2d 1049, 1056 (N.D. Cal., 2009). In support of its conclusion, the court stated that "[c]ourts have held that 'repeated and continuous calls in an attempt to collect a debt give rise to a claim for intrusion upon seclusion.'" Id. (citing Panahiasl v. Gurney, 2007 WL 738642, at *3 (N.D. Cal., March 8, 2007); Joseph v. J.J. MacIntyre Cos., LLC, 238 F.Supp.2d 1158, 1169 (N.D. Cal. 2002)).

Finally, the Court notes that the Sixth Circuit has held the right to privacy under Ohio law may be violated by repeated calls from telemarketers. Charvat v. NMP, LLC, 656 F.3d 440, 452-454 (6th Cir. 2011). In that case, the court found that a tort claim for invasion of privacy was improperly dismissed for failure to state a claim where the plaintiff alleged that thirty-one prerecorded telemarketing calls were made to him, during mid-day, over a three-month period. Id. at 452. The Court pointed to the commentary of the Restatement (2d) of Torts (also cited in Ohio case law) stating as follows:

It is only when telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the Plaintiffs that becomes a substantial burden to his existence that the Plaintiffs' privacy is invaded.

Id. at 454 (quoting Irvine v. Akron Beacon Journal, 147 Ohio App.3d 428, 440 (2002) (alterations omitted) and citing Restatement (2d) of Torts § 652B cmt. d³). While the court acknowledged that it is difficult to determine the exact number of calls required to constitute "hounding," it found that the 31 calls made in that case were sufficient to at least state a claim. Id. The fact that the plaintiff had alleged that 30 of the 31 calls were received after he had asked the defendant not to call him was found by the Sixth Circuit to be an "important fact" that the district court had failed to consider in dismissing the plaintiff's invasion of privacy claim. Id.

3 Comment d states, in its entirety, as follows:

There is likewise no liability unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. Thus there is no liability for knocking at the plaintiff's door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.

Restatement (2d) of Torts § 652B cmt. d

Because the California Supreme Court, like the Ohio Supreme Court, looks to the common law governing invasion of privacy to define the contours of the state constitutional right to privacy, see Hill, 7 Cal. 4th at 26 (citing Restatement (2d) Torts § 652B), the Court finds that the reasoning in Charvat supports its conclusion in this case that the conduct alleged by Plaintiff amounts to a serious violation of privacy under the California constitution.

6. Conclusion

Based on the foregoing analysis, the Court concludes that the Eitel factors support entry of default judgment in this action.

E. Remedy

1. Statutory Damages

a. TCPA Claim

The TCPA allows "[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection" to bring "an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater." 47 U.S.C. § 227(c)(5)(B). In addition, the court has the discretion to award up to 3 times the amount available under 47 U.S.C. § 227(c)(5)(B) if it finds that "the defendant willfully or knowingly violated the regulations prescribed under this subsection." 47 U.S.C. § 227(c)(5).

Plaintiff contends he is entitled to statutory damages of $79,500 on his TCPA claim based on what he contends were 53 separate violations of the TCPA. Motion at 23. In particular, he asserts he received 27 calls from Defendant that violated 47 C.F.R. §64.1200(d) and that 26 of those calls also violated 47 C.F.R. § 64.1200(c). Id. As explained above, §64.1200(d) requires that telemarketers adhere to certain procedures to ensure that they do not make calls to individuals who do not wish to receive telemarketing calls, while §64.1200(c) prohibits telemarketers from calling telephone numbers that are listed on the national do-not-call registry.⁴ Plaintiff seeks a basic award of $500 for each of these 53 violations, which he asks the Court to treble to $1500 based on Defendant's willful conduct. Id. at 22.

4 Plaintiff implicitly concedes that the second call on January 18, 2012 was a call-back that does not violate 47 C.F.R. § 64.1200(c).

The Court first addresses the question of how many violations of the TCPA Plaintiff has established. In his Complaint, Plaintiff identifies 22 specific telephone calls he received from Defendant. See FAC ¶¶ 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 34, 35, 38, 40, 41, 42, 44, 45, 46. In addition, Plaintiff alleges that "[b]etween January and September 2012, on information and belief I did not answer between 2 and 5 calls from Defendant, in addition to those unanswered calls already identified in the preceding paragraphs." FAC ¶ 44. In his Motion, Plaintiff requests statutory damages for five violations of §64.1200(c) and another five violations of §64.1200(d) based on these calls, giving rise to $15,000 in damage. However, the Court finds that Plaintiff's allegations in ¶ 44, made only on information and belief, are too vague and conclusory to establish these violations. In particular, in contrast to the other calls alleged in the FAC, Plaintiff does not provide the date or time of the calls or, more importantly, the numbers from which the calls were made. These telephone numbers are significant because they establish that Plaintiff had some basis for concluding that the calls were from Defendant or an agent of Defendant.⁵ As to the other calls alleged in the complaint, Plaintiff alleged that he answered the calls from the numbers from which they were made at least once, or, as to the unanswered calls from 800-218-2350, Plaintiff subsequently called the number back and was told the caller had insurance results for him. FAC ¶¶ 40-43. Therefore, the Court concludes that the Plaintiff is not entitled to statutory damages based on the calls alleged in ¶ 44.

5 On May 9, 2013, the Federal Communications Commission issued a Declaratory Ruling that "while a seller does not generally 'initiate' calls within the meaning of the TCPA, it nonetheless may be held vicariously liable under the federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers." 28 F.C.C.R. 6574.

The Court next addresses as to the calls that Plaintiff contends violated both 47 C.F.R. §64.1200(c) and §64.1200(d) whether these violations should be counted as separate violations for the purposes of damages. The Court concludes they should not. The plain language of the statute allows a an individual who has received "one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection" to bring "an action to recover for actual monetary loss from such a violation." 47 U.S.C. § 227(c) (emphasis added). This language indicates that a telephone call that violates more than one provision of the regulations is considered to be a single violation rather than multiple violations. Consequently, Plaintiff is entitled to statutory damages based on 22 violations of the TCPA, that is, the number of telephone calls from Defendant that were adequately alleged in the complaint to have been made in violation of the regulations, regardless of whether the telephone calls violated only one provision or multiple provisions of the regulations.

Having concluded that Plaintiff is entitled to statutory damages for 22 violations of the TCPA, the Court turns to the appropriate amount of statutory damages that should be awarded. In contrast to 47 U.S.C. § 227(b)(3),⁶ which sets a floor for statutory damages of $500 per violation, section 227(c) provides that the amount of damages per violation may be up to $500 per violation. The court has found only one federal case that addresses the factors that should be considered in determining an appropriate amount of statutory damages under this section, Charvat v. NMP, LLC, 2012 WL 4482945 (S.D. Ohio) (Sept. 27, 2012). In that case, the court looked to the purpose of the do-not-call provision of the TCPA, that is, "to prevent repeated unwanted telemarketing calls by punishing those telemarketers who fail to honor do-not-call requests." Id. at * 4 (citation omitted). The court went on to explain:

6 47 U.S.C. § 227(b)(3) allows individuals to assert claims based on calls made using automated telephone equipment. Plaintiff does not allege a violation of Section 227(b) in this action.

That purpose is relevant to a damages determination because, in awarding damages, a court must be mindful of how that award comports with the purpose of the statute. This inquiry, under other, similar statutes giving the Court discretion to award damages, can involve criteria such as "the severity or minimal nature of the violation; whether there was actual damage to the victim; the extent of any intrusion into the victim's privacy; the relative financial burdens of the parties; whether there was a reasonable purpose for the violation; and whether there was any useful purpose to be served by imposing the statutory damages amount." See DirecTV v. Rawlins, 523 F.3d 318, 325-26 (4th Cir.2008) (interpreting the Wiretap Act, 18 U.S.C. § 2511). Some statutes, like the Fair Debt Collection Practices Act, actually list the relevant factors (although the TCPA does not). See 15 U.S.C. § 1692k(b) (requiring the Court to consider "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional ...").

Id. The plaintiff had alleged that the defendant had made 44 calls to plaintiff after he had requested, in a single telephone call, that the telemarketer stop calling him. Id. Considering the factors set forth above, the court recognized that there were competing considerations; on the one hand, the TCPA regulations allow a 30-day grace period for telemarketers to honor a residential subscribers do-not-call request. Id. The court also noted that the plaintiff in that case had not alleged that he ever placed his name on the national do-not-call register or that he had made any subsequent attempts to stop the calls. Id. On the other hand, there was "nothing to show that [the defendant] had any purpose for violating the law; its conduct is precisely the type of conduct which Congress and the FTC intended to prohibit and punish." Id. To reflect these competing considerations, the court awarded $250.00 for each call made after the 30-day grace period had expired and $50 for each call made prior to the expiration of the grace period. Id. at * 5.

This Court finds the approach taken by the court in Charvat to be reasonable. Here, as in Charvat, there appears to be no justification for Defendant's failure to adhere to the requirements of the TCPA. On the other hand, Plaintiff's efforts to protect himself from unwanted telemarketing calls have been more significant than the efforts of the plaintiff in Charvat. Plaintiff's telephone number was registered on the national do-not-call registry at all relevant times. When he received telemarketing calls from Defendant, he repeatedly asked not to be called. He filed a criminal complaint with the local police station and he informed Defendant in the course of one of the calls that he intended to bring legal action against it. And when he received telephone calls he suspected were from Defendant, he called back to inform the caller that he was on the national do-not-call registry and that he did not want to receive any further calls. Under these circumstances, the Court concludes that an award of $500 per violation is appropriate, that is, $11,000.

Finally, the Court must decide whether an enhancement of statutory damages is appropriate because the conduct at issue here was willful. The Court concludes that it is not. Although Plaintiff's allegations are sufficient to establish that Defendant acted willfully, it finds that the $11,000.00 statutory damage award is sufficient to accomplish the purposes of the TCPA. See j2 Global Communications, Inc. v. Blue Jay Inc., 2009 WL 4572726 (N.D. Cal. Dec. 1, 2009) (on default judgment awarding treble damages in the amount of $42,000 under § 227(b)(3) based on 28 faxes sent in violation of TCPA because deemed admissions established that defendant had been sued under the TCPA several times before and a judgment had been entered against him and therefore treble damages were necessary to accomplish the purpose of the TCPA of deterring future violations) (Hamilton, J., adopting Report & Recommendations of Chen, M.J.). Plaintiff has not provided evidence to show that BDD has been sued before under the TCPA, or that the company is so large that an award of statutory damages in the amount of $11,000 would be deemed trivial. Therefore, the Court rejects Plaintiff's request for treble damages under the TCPA.

Based on the foregoing analysis, the Court recommends an award of statutory damages under the TCPA in the amount of $11,000.

b. Cal. Civ. Code § 1798.83(c)

Plaintiff also requests $3,000 in statutory damages under California's Shine the Light law. Cal. Civ. Code § 1798.84(c) provides that "for a willful, intentional, or reckless violation of Section 1798.83, a customer may recover a civil penalty not to exceed three thousand dollars ($3,000) per violation." As discussed above, Plaintiff has alleged a violation of this provision on the basis of his allegations that he provided his information to Defendant in connection with his request for an online quote, that he subsequently requested that Defendant provide him with a list of recipients of his information and that Defendant never provided such a list. Further, as discussed above, the violation was willful. Finally, while the statute allows the court to award a penalty that is less than $3,000, for the reasons discussed in connection with the TCPA statutory damages, the Court concludes that an award of the full amount is warranted. Therefore, the Court recommends an award of $3,000.00 as a penalty under Cal. Civ. Code § 1798.84(c).

2. Actual Damages

Plaintiff requests $43.33 in actual damages, citing the TCPA, the Shine the Light law and the California Constitution. Actual damages are permitted under the TCPA, 47 U.S.C. § 227(c)(5)(B) and therefore Plaintiff is entitled to such damages. Plaintiff has produced evidence that Defendants' calls resulted in a $5.00 overcharge. Heidorn Decl. ¶ 14. This amount should be awarded to Plaintiff. The Court also recommends that Plaintiff be awarded nominal damages in the amount of $1.00 per call (the amount requested by Plaintiff) for violation of Plaintiff's right to privacy under the California constitution based on annoyance, the time Plaintiff was not able to bill at work due to interruptions and the value of his regular cell phone minutes. See Motion at 23. As discussed above, the Court finds that the allegations establish 22 unwanted telephone calls and therefore, it is recommended that the Court award $22 in nominal damages.

3. Punitive Damages

Plaintiff asks the Court to award $25,000 in punitive damages based on his invasion of privacy claim under the California Constitution, citing Cal. Civ. Code § 3294. Section 3294 provides, in part, as follows:

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

Cal. Civ. Code § 3294(a). It further provides that "[w]ith respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation." Cal. Civ. Code § 3294(b).

Defendant is a limited liability company. "A limited liability company is a hybrid business entity formed under the Corporations Code." ( Witkin, Summary of California Law (2005) Partnership, § 136, p. 697). A limited liability company "has a legal existence separate from its members" and "provides members with limited liability to the same extent enjoyed by corporate shareholders." Id. Therefore, the Court concludes that Defendant is a corporate employer that is subject to the requirements of Cal. Civ. Code § 3294(b). Further, given the "clear and convincing evidence" required to award punitive damages under § 3294(a), and because Plaintiff has not alleged any facts showing that the conduct that violated of his privacy was on the part of an "officer, director, or managing agent" of Defendant, the Court finds that Plaintiff has failed to establish that an award of punitive damages on his constitutional invasion of privacy claim are appropriate. It recommended that Plaintiff's request for $25,000 in punitive damages be denied.

4. Injunctive Relief

Plaintiff requests that the Court enter an injunction against Defendant ordering Defendant to:

A) contact all third parties it shared Plaintiff's information with and inform them that Plaintiff does not wish to be contacted further, (B) cease contacting the Plaintiff, and (C) delete all of Plaintiff's contact information in its possession other than what information may be necessary to place the Plaintiff on Defendant's private do-not-call list.

Proposed Order, ¶ 5. Injunctive relief is permitted under the TCPA. 47 U.S.C. § 227(c)(5)(A) (permitting a private right of action "based on a violation of the regulations prescribed under this subsection to enjoin such violation"). Because injunctive relief is authorized under the TCPA, irreparable injury need not been shown. j2 Global Communications, Inc. v. Blue Jay Inc., 2009 WL 4572726 (N.D. Cal. Dec. 1, 2009) (citing United States v. Laerdal Mfg. Co., 73 F.3d 852, 855 (9th Cir. 1995) ("a statutory injunction may be imposed when a violation of a statute has been or is about to be committed")). Plaintiff's allegations establish multiple violations of the TCPA. Further, his declaration attests that he continues to receive telephone calls from individuals stating that they are calling in response to his request for an insurance quote, despite his efforts to stop receiving such calls. Therefore, the Court concludes that Plaintiff's request for injunctive relief should be granted.

5. Costs

In the Motion, Plaintiff requests litigation costs in the amount of $445.62. Motion at 24. In his supporting declaration, Plaintiff states that his costs are for: 1) the filing fee in this action ($350); 2) service costs ($22.50) and 3) postage ($73.12). Plaintiff is entitled to an award of costs under Rule 54(d) of the Federal Rules of Civil Procedure on the basis that he is a prevailing party. Civil Local Rule 54-3 and 28 U.S.C. § 1920 expressly permit an award of costs for filing fees and service of process and therefore, Plaintiff is entitled to $372.50 in costs for those items. Postage, however, is not a taxable cost under either the local rule or section 1920. See Walter v. Drayson 2007 WL 2694393, at *5 (D.Hawai'i, Sept. 12, 2007). Therefore, Plaintiff's request for postage should be denied.

IV. CONCLUSION

For the reasons stated above, it is recommended that the Motion be GRANTED. It is further recommended that the Court award the following: 1) $11,000 in statutory damages under the TCPA; 2) a statutory penalty of $3,000 under Cal. Civ. Code § 1798.83(c); 3) actual damages of $5.00; 4) nominal damages of $22.00; 5) injunctive relief (as stated above and in Plaintiff's proposed order, ¶ 5); and 6) costs in the amount of $372.50. Dated: August 19, 2013

/s/_________

JOSEPH C. SPERO

United States Magistrate Judge