Tracfone Wireless, Inc. v. Hernandez

• Decision Date: 20 July 2016
• Docket Number: Case Number: 15-23032-CIV-MARTINEZ-GOODMAN
• Parties: TRACFONE WIRELESS, INC., Plaintiff, v. Juan HERNANDEZ, Defendant.
• Court: U.S. District Court — Southern District of Florida

196 F.Supp.3d 1289

TRACFONE WIRELESS, INC., Plaintiff,

v.Juan HERNANDEZ, Defendant.

Case Number: 15-23032-CIV-MARTINEZ-GOODMAN

United States District Court, S.D. Florida, Miami Division.

Signed July 20, 2016

Filed July 21, 2016

James Blaker Baldinger, Carlton Fields Jorden Burt, P.A, West Palm Beach, FL, Zachary Dean Ludens, Aaron Stenzler Weiss, Carlton Fields Jorden Burt, P.A., Miami, FL, for Plaintiff.

ORDER GRANTING MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT AND PERMANENT INJUNCTION

JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE

THIS MATTER came before the Court upon Plaintiff TracFone Wireless, Inc.'s ("TracFone") Motion for Entry of an Order Entering Default Final Judgment and a Permanent Injunction (the "Motion") (D.E. 22) pursuant to Fed. R. Civ. P. 55(b) and 65 against Defendant Juan Hernandez ("Hernandez"), filed on February 23, 2016.

INTRODUCTION

In its Motion, TracFone seeks entry of final default monetary judgment in the amount of $35,275.00, plus prejudgment interest in the amount of $4,266.72 for a total net monetary judgment of $39,541.72 . TracFone also seeks entry of a permanent injunction prohibiting Hernandez from engaging in the type of conduct that prompted TracFone to file this action. Finally, TracFone asks that the Court order Hernandez to provide certain post-judgment discovery, as provided for by the applicable rules of procedure.

Although Hernandez did not appear in this action to challenge TracFone's allegations, a "defendant, by his default, admits the plaintiff's well-pleaded allegations of fact" as set forth in the operative complaint. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc. , 561 F.3d 1298, 1307 (11th Cir.2009) ; see also Tiramisu Int'l LLC v. Clever Imports LLC , 741 F.Supp.2d 1279, 1285 (S.D.Fla.2010). As additional support to buttress the foundation of facts that Hernandez has admitted as true by virtue of his default, TracFone relies significantly upon the Declaration of Kevin Wehling, the Fraud Investigations Manager for TracFone (the "Wehling Declaration" or "Wehling Dec.") (D.E. 22-1.)

Having reviewed the Complaint (D.E. 1) and the Wehling Declaration (D.E. 22-1), as well as the Motion (D.E. 22), the Court finds that the facts set forth therein are credible. Coupled with the fact that Hernandez's default admitted the well-pleaded allegations of fact made by TracFone in the Complaint, the Court, as set forth in more detail below, makes several findings of fact based upon the default and the Wehling Declaration.

SERVICE OF PROCESS

On August 13, 2015, TracFone filed this lawsuit against Hernandez. (D.E. 1.) TracFone filed a Motion for Order Authorizing Service of Process Pursuant to Fed. R. Civ. P. 4(f) seeking permission to serve Hernandez via international mail and via email. (D.E. 7.) The Court entered an Order authorizing service of process via international mail and email on September 2, 2015. (D.E. 10.) TracFone delivered the Summons and Complaint to the Clerk's Office on September 9, 2015, at which point it was dispatched to Hernandez via international mail. (D.E. 11.) In addition, TracFone served Hernandez with the Summons and Complaint via email on September 8, 2015, in accordance with Fed. R. Civ. P. 4(f). (D.E. 13-1.) Pursuant to Fed. R. Civ. P. 12(a)(1)(A), Hernandez was required to respond to TracFone's Complaint on or before September 29, 2015. Hernandez failed to respond to the Complaint by September 29, 2015, and TracFone moved for entry of Clerk's default on October 6, 2015. (D.E. 14.)

Due to the nature of the foreign service pursuant to Fed. R. Civ. P. 4(f) and the Court's specific Order authorizing this (D.E. 10), TracFone filed a Motion for Clarification Regarding Motion for Entry of Clerk's Default Against Defendant and for Order Directing Clerk to Enter Default. (D.E. 16.) This Court entered an Order Directing the Clerk to Enter a Clerk's Default on January 27, 2016. (D.E. 17.) In so doing, the Court found that service upon Hernandez was proper. The Clerk entered a Clerk's Default against Hernandez on January 27, 2016. (D.E. 18.)

This Court is mindful that since it issued is decision authorizing service by FedEx pursuant to Article 10(a) of the Hague Convention, one district court of this circuit issued an opinion disagreeing with this Court's analysis and conclusion. See Merial Inc. v. Ceva Sante Animale, S.A. , 2016 WL 320141, at *3 (M.D.Ga. Jan. 26, 2016) (finding that service by mail is not permitted under Article 10(a), even where destination state does not object but noting that "several district courts from this circuit have also found that Article 10(a) allows service by mail." (emphasis added)).

Nonetheless, the position advocated by the court in Merial Inc. continues to be a clear minority position: At least seven other federal district court opinions have sided with this Court's position just in the few months since the decision was issued. See Leon v. Cont'l AG , 176 F.Supp.3d 1315, 1318, 2016 WL 1388950, at *2 (S.D.Fla. Apr. 1, 2016) (King, J.) (noting that "the contrary authority is at odds with the official position of the United States as set forth by the Department of State."); Super 8 Worldwide, Inc. v. 3082649 Nova Scotia, Ltd. , 2016 WL 1118497, at *3 (D.N.J. Mar. 22, 2016) (acknowledging circuit split and deciding to "follow that majority view and find acceptable service of process through postal channels under the Hague Service Convention and Rule 4(f)(1)."); Zobel v. Contech Enterprises , 170 F.Supp.3d 1041, 1048-49, 2016 WL 1117592, at *6 (S.D.Ohio Mar. 21, 2016) (acknowledging circuit split and adopting the majority view that Article 10(a) includes service of process, especially because "The Hague Convention's own practical handbook—authored by members elected by the signatory countries—explicitly states that Article 10(a) includes service of process." (citing Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters) ); Amirault v. Ferrari , 2015 WL 6870119, at *3 (N.D.Ohio Nov. 6, 2015) ; Lewis v. Madej , 2015 WL 6442255, at *11, n. 4 (S.D.N.Y. Oct. 23, 2015) ; SHLD, LLC v. Hall , 2016 WL 659109, at *3 (S.D.N.Y. Feb. 17, 2016) ; Altos Ho rn os de Mexico, S.A.B. de C.V. v. Rock Res. Ltd. , 2015 WL 6437384, at *2 (S.D.N.Y. Oct. 19, 2015).

Additionally, the Fourth Circuit recently strongly suggested it was of the same view as this Court. See U.S. ex rel. Walterspiel v. Bayer AG , 639 Fed.Appx. 164, 167 (4th Cir.2016) (noting that "Article 10(a) of the Hague Service Convention states that the 'Convention shall not interfere with ... the freedom to send judicial documents, by postal channels, directly to persons abroad,' " and then holding that service was not permissible on a party served by postal channel in Germany because Germany specifically objected to such service and "the Article permits a 'State of destination' to object to the delivery of judicial documents by postal channels.").

Likewise, the Second District Court of Appeal in Florida reached the same conclusion as this Court in Portalp Int'l SAS v. Zuloaga , 198 So.3d 669, 670-75, 2015 WL 9258496, at *1–4 (Fla. 2d DCA Dec. 18, 2015). There, the court was deciding whether service was proper under Fla. Stat. § 48.194(1), which provides, in part, that "[s]ervice of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters." Id. In Portalp Int'l SAS , the court held, on the same basis as this Court, that "[i]t is apparent that interpreting article 10(a) to permits service of process by mail is consistent with the intent and expectations of the signatories" to the Hague Service Convention. Id.

This Court continues to be of the position that Article 10(a) of the Hague Service Convention allows for service abroad by postal channel, provided that the destination country does not object to such service. The nine reported opinions supporting this view issued since the Court's Order of September 2, 2015 (D.E. 10), confirm the validity of adopting this majority view.¹

Also, because TracFone is seeking a default judgment against an individual, it must demonstrate compliance with the Servicemembers Civil Relief Act ("SCRA"), 50 U.S.C. App'x § 501 et seq. SeeNautilus Ins. Co. v. Feliz , 2011 WL 3897968, at *3 (M.D.Fla. Aug. 3, 2011)report and recommendation adopted , 2011 WL 3897861 (M.D.Fla. Sept. 6, 2011) (citing 50 U.S.C. App'x § 521(b)(1)). This "requires, inter alia , the filing of an affidavit by the plaintiff:

(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or

(B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service."

Accordingly, as required by the SCRA in support of its Motion, TracFone filed a Non-Military Affidavit to show that Hernandez was not in the service of the armed forces of the United States or our allies during this time period. (D.E. 21-1.). The Court finds that TracFone has indeed complied with the SCRA through facts set out in its Non-Military Affidavit.

FINDINGS OF FACT

The Court finds that TracFone has established that TracFone is the largest provider of prepaid wireless telephone service ("TracFone Service") in the United States, and markets its service under the Clearway Wireless, Net 10, Page Plus, SafeLink Wireless, Simple Mobile, Straight Talk, TelCel America, Total Wireless, and TracFone brands, many of which bear TracFone's trademarked spiracle logo (the "TracFone Brands"). D.E. ¶ 19; Wehling Dec. ¶ 3. Next, the Court finds that TracFone owns valid and enforceable trademark rights in the trademarks identified in the Complaint (the "Marks"). D.E. 1 ¶ 21; Wehling Dec. ¶ 4. The Court...