Childress v. Desilva Auto. Servs., LLC
| Decision Date | 31 August 2020 |
| Docket Number | No. CIV 20-0136 JB\JHR,CIV 20-0136 JB\JHR |
| Citation | 494 F.Supp.3d 1163 |
| Parties | Marjorie CHILDRESS, Plaintiff, v. DESILVA AUTOMOTIVE SERVICES, LLC; Palmer Administrative Services, Inc. ; Vajira Samaratne; and Paylink Payment Plans, LLC, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Sid Childress, Sid Childress, Lawyer, Santa Fe, New Mexico, Attorney for the Plaintiff.
Greg Biehler, Lewis Brisbois Bisgaard & Smith, LLP, Albuquerque, New Mexico, Allison M. Scott, Ashley R. Fickel, Dykema Gossett LLP, Los Angeles, California, Attorneys for the Defendants.
THIS MATTER comes before the Court on the Motion for Entry of Judgment, filed July 29, 2020 (Doc. 47)("Motion"). The Court held a hearing on August 27, 2020. The primary issues are: (i) whether the Court must enter Judgment in Plaintiff Marjorie Childress’ favor following her acceptance of the Defendants Palmer Administrative Services, Inc., Paylink Payment Plans, LLC, DeSilva Automotive Services LLC and Vajira Samararante's [sic] Rule 68 Offer, filed July 21, 2020 (Doc. 46-1)("Offer of Judgment"), under rule 68 of the Federal Rules of Civil Procedure ; (ii) whether the Court must specify a post-judgment interest rate in the Judgment; (iii) whether the Defendants’ Offer of Judgment under rule 68 includes costs and attorney's fees; and (iv) whether the Defendants are entitled to a statement in the Judgment that they do not admit liability on Childress’ claims under the Telephone Consumer Protect Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 ("TCPA"). The Court concludes that: (i) rule 68 entitles Childress to an entry of Judgment; (ii) the Court specifies a post-judgment interest rate, because the TCPA provides for post-judgment interest; (iii) the Defendants’ Offer of Judgment includes costs and attorney's fees; and (iv) Defendants are entitled to a statement in the Judgment that they do not admit liability.
Childress contends that Defendants DeSilva Automotive, Vajira Samaratne, Palmer Administrative Services, Inc. ("Palmer Services"), and Paylink Payment Plans, LLC ("Paylink Payment"), are engaged in an "autodialing conspiracy." Complaint at 10, filed February 17, 2020 (Doc. 1). Childress alleges that DeSilva Automotive, under Samaratne's direction, either is operating its own call-center or has contracted with a marketing company, to initiate "hundreds of thousands or millions of unlawful robocalls into the State of New Mexico" to market vehicle service contracts ("VSCs"). Complaint ¶ 22, at 5. See id. ¶ 23, at 5-6. Childress alleges that Palmer Services administers these contracts, see Complaint ¶ 23, at 24, and that Paylink Payment "finances the purchase price of Palmer Service's VSCs sold to customers by DeSilva's telemarketing," Complaint ¶ 24, at 12. Childress alleges that DeSilva Automotive and Samaratne direct these calls primarily to elderly New Mexico residents. See Complaint ¶ 31, at 13.
Childress further alleges that Paylink Payment "knows that many of the VSCs it chooses to finance are sold via unsolicited phone calls including robocalls, and that the sellers would not be able to sell the VSCs or even profitably engage in robocalling without the substantial assistance and support of Paylink's services[.]" Complaint ¶ 32, at 13. Childress alleges that Paylink Payment "chooses" not to supervise those who market its services and instead "remain[s] willfully or consciously ignorant of whether or not the marketers" comply with state and federal law. Complaint ¶ 33, at 13. Childress says, however, that "numerous" complaints have brought the robocalling practices to Paylink Payment's attention. Complaint ¶ 31, at 6-7.
Childress says that she owns a cellular telephone ("cellphone") with a New Mexico area code. See Complaint ¶ 48, at 10. Childress’ cellphone number is on the National Do-Not Call Registry ("Registry"), and Childress "never consented" to robocalls from the Defendants. Complaint ¶ 58, at 12. See id. ¶ 56, at 12. DeSilva Automotive, under Samaratne's direction and control, "ha[s] repeatedly called Plaintiff's wireless phone with an automatic telephone dialing system." Complaint ¶ 49, at 10. Childress received all these calls over a twelve-month period. See Complaint ¶ 65, at 12. Childress contends that DeSilva Automotive called her via autodialer, because "whenever she answered one of these calls she was greeted by an artificial voice or prerecorded message that told her [that] her auto warranty was about to expire and she should press ‘1’ to speak to a live telemarketer about it." Complaint ¶ 50, at 11. The use of artificial or prerecorded voices to greet consumers who answer telephone calls is "a tell-tale indicator of mass-marketing by automation as opposed to human-made calls." Complaint ¶ 51, at 11. When Childress requested to speak with a live telemarketer, the live telemarketer never identified the call's sponsor within fifteen seconds of Childress answering "or at any other time." Complaint ¶ 53, at 11. "After months of repeated robocall harassment," Childress spoke with a live telemarketer and purchased a VSC "so she could actually identify Defendants." Complaint ¶ 54, at 11. Childress later received a "VSC booklet" that identified "DeSilva and its co-conspirators," Paylink Payment and Palmer Services. Complaint ¶ 55, at 11-12. Childress says that the Defendants’ calls "aggravated and harassed [her], wasted her time, invaded her privacy, disrupted her days, were an obnoxious nuisance, cost her money to identify Defendants, and cost her electricity to re-charge her phone." Complaint ¶ 60, at 12. Childress alleges that the Defendants knowingly and willfully called her even though her cellphone number is on the Registry. See Complaint ¶ 73, at 14.
Childress alleges five claims for relief. See Complaint ¶¶ 80-91, at 16-17. First, Childress alleges that the Defendants violated the TCPA, 47 U.S.C. § 227(b). See Complaint ¶ 80, at 16. Second, Childress alleges that the Defendants violated the TCPA, 47 U.S.C. § 227(c), because the Defendants called her more than once in a twelve-month period. See Complaint ¶ 82, at 16. Third, Childress asserts a common-law claim for trespass to chattels "and for their civil conspiracy to direct an illegal telemarketing campaign into the State of New Mexico and to Plaintiff in particular." Complaint ¶ 84, at 16. Fourth, Childress alleges that the Defendants violated the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 ("NMUPA"). See Complaint ¶¶ 87-91, at 17. Specifically, Childress alleges that each of the Defendants’ calls to her violate N.M. Stat. Ann. § 57-12-22(A), (B)(1), and (C)(1). See Complaint ¶¶ 88-89, at 17. Childress contends that, for each of her claims, DeSilva Automotive is directly liable for its telephone calls to Childress, and that Samaratne, Paylink Payment, and Palmer Services are vicariously liable, because DeSilva Automotive acted as their agent. See Complaint ¶¶ 72-73, at 14.
On July 10, 2020, the Defendants submitted a notice that they had made an offer of judgment under rule 68. See Notice of Offer of Judgment at 1, filed July 10, 2020 (Doc. 45). In their Offer of Judgment, the Defendants "offer to allow judgment to be taken against Defendants in this matter in the sum of $25,000.00," which "includes all sums for reasonable attorneys’ fees incurred to date." Offer of Judgment at 1. The Defendants further state that neither the Offer of Judgment "nor any judgment that may result from this offer may be construed either as an admission of liability of the part of Defendants or that Plaintiff has suffered any damage." Offer of Judgment at 1. Childress submitted a notice that she had accepted the Defendants’ Offer of Judgment on July 21, 2020. See Notice Accepting Offer of Judgment at 1, filed July 21, 2020 (Doc. 46)("Acceptance"). In the Acceptance, Childress asserts that rule 68 provides that the " ‘clerk must then enter judgment,’ " and requested that the "Clerk of Court enter a Judgment against the Defendants for $25,000.00 plus post-judgment interest at the statutory rate." Acceptance at 1 (quoting Fed. R. Civ. P. 68(a) ). Childress has since attempted to have the Clerk of Court enter Judgment in her favor, but the Clerk of Court has sought the Court's guidance in disposing of Childress’ request. See Motion at 1.
On July 29, 2020, Childress asked that the Court enter Judgment in her favor. See Motion at 1. Childress asserts that she "has made a good-faith request for concurrence of defense counsel as to the relief requested," but that the Defendants "will not approve a form of Judgment to be submitted to the Court for entry, despite having served a Rule 68 Offer of Judgment." Motion at 1. In her proposed form of Judgment, Childress avers that "Judgment should be entered in accordance with [ rule] 68," and that "[t]here is no just reason for delay." Proposed Final Judgment at 1, filed July 29, 2020 (Doc. 47-1)("Childress’ Proposed Judgment"). She further proposes that the Court enter Judgment in her favor "in the amount of $25,000.00 , which shall earn and bear 8.75% simple per annum interest until paid." Childress Proposed Judgment at 1 (emphasis in original).
The Defendants responded on August 12, 2020. See Defendants’ Response to Plaintiff's Motion for Entry of Judgment at 1, filed August 12, 2020 (Doc. 49)("Response"). They assert that the proposed Judgment which Childress submitted to them "included objectional language," such as that there is no just reason for delay. Response at 2. They further assert that Childress’ Proposed Judgment does not mirror their rule 68 Offer of Judgment, because: (i) "it includes a reference to post-judgment interest not included in the offer"; (ii) "it fails to specify that the $25,000.00 is inclusive of attorney fees and costs"; (iii) "it fails to include that the judgment is not an...
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