John Lary v. Trinity Physician Financial & Insurance Services
780 F.3d 1101
| 11th Cir. | 2015Background
- Plaintiff John Lary, pro se, alleged Trinity Physician Financial & Insurance Services and Joseph Hong sent unsolicited commercial fax(es) to his emergency fax line in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b).
- Complaint originally alleged one fax (Oct. 2); in a later affidavit supporting default-judgment motion Lary claimed two faxes (Mar. 5 and Oct. 2).
- Defendants filed a notice withdrawing defenses and default was entered; district court required Lary to move for default judgment and denied his discovery motions.
- District court found two unsolicited advertisements in violation of § 227(b)(1)(A)(i) (use of an ATDS to call an emergency line) and § 227(b)(1)(C) (unsolicited fax), but treated each fax as a single violation and awarded $500 per fax (total $1,000).
- District court declined to treble damages (no showing of willful/knowing conduct), denied a permanent injunction (no likelihood of future harm), denied discovery (untimely), and did not award costs (procedural deficiencies).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether one fax can constitute multiple violations under § 227(b) | Each fax violated two separate prohibitions (§ 227(b)(1)(A)(i) and § 227(b)(1)(C)), so each fax yields two violations and $500 per violation | Each fax should count only once for damages | Court: A single fax can violate multiple subparts and thus produce multiple violations, but district court’s contrary error was harmless here because the judgment matched the correct dollar amount for violations pleaded. |
| Whether treble damages are appropriate for willful or knowing violations | Lary argued defendants acted willfully/knowingly and trebled damages should apply | Defendants offered no facts showing knowledge; they used third parties and withdrew defense | Court: Treble damages not warranted—plaintiff failed to plead or prove defendants knew they were calling an emergency line or that the fax was unsolicited. |
| Whether a permanent injunction should issue | Lary sought injunction to stop future violations | Defendants argued no likelihood of future harm and adequate legal remedy exists | Court: Denial affirmed—no showing of likelihood of future injury or inadequacy of legal remedies. |
| Whether district court abused discretion by denying discovery and costs | Lary argued discovery was necessary and costs should be taxed | District court: motions untimely; Lary failed to follow local rule for taxing costs | Court: Denials affirmed—discovery motions were untimely and plaintiff did not follow local rules for cost taxation. |
Key Cases Cited
- Burlison v. McDonald’s Corp., 455 F.3d 1242 (11th Cir. 2006) (statutory interpretation reviewed de novo)
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (private plaintiff enforces TCPA)
- Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011) (same-call violations under different TCPA provisions)
- Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200 (5th Cir. 1975) (default admits well-pleaded factual allegations but not legal conclusions)
- Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768 (11th Cir. 2011) (treble damages require willful or knowing conduct)
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (standing for injunction requires likelihood of future injury)