United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Craig Cunningham filed suit against defendant Michael Montes
and his businesses, alleging that defendants called
Cunningham's cell phone using an autodialer, in violation
of the Telephone Consumer Protection Act (TCPA), 47 U.S.C.
§ 227(b) and (c). Dkt. 1. Montes avoided personal
service. So, with the court's permission, Cunningham
served Montes and the defendant businesses by publication.
After the answer deadline passed with no response from
Montes, the court entered default, Dkt. 8, and set a hearing
on Cunningham's default judgment motion, Dkt. 9.
before the hearing, Montes and the defendant businesses
answered the complaint and moved to set aside default and
dismiss the case for lack of personal jurisdiction. Dkt. 13
and Dkt. 14. At the June 20, 2017 hearing, the court
determined that defendants did not show good cause to set
aside default, but stayed consideration of Cunningham's
motion for default judgment pending a determination of
whether defendants are subject to the court's personal
jurisdiction. Dkt. 26. On July 18, 2017, the court held a
hearing regarding personal jurisdiction. Cunningham appeared
pro se; defendants appeared by counsel. For the reasons
stated during the hearing and summarized here, the court
finds that defendants are subject to the court's personal
jurisdiction and so will deny defendants' motions and
enter default judgment in Cunningham's
evidence submitted by defendants prior to the hearing
indicates that Amy Montes, Michael Montes's wife, runs an
event business from a farm in Somerset, Wisconsin. Amy and
Michael Montes are the settlors and beneficiaries of a trust
that owns the Somerset farm. The Monteses travel to Wisconsin
frequently, often for several weeks at a time. In 2016 and
2017, they have spent approximately one third of their time
in Wisconsin. Montes indicated in his declaration that he
lives in San Juan Capistrano, California, and has lived there
for the past three years. He also indicated that the
defendant businesses are "set up for" the San Juan
Capistrano address. Dkt. 29, ¶ 7.
hearing, Cunningham presented a dossier of documents, many of
which he obtained by subpoena, showing that Montes has made
numerous payments to Wisconsin businesses (including a
Somerset church) from a bank account registered to defendant
Tollfreezone.com, Inc. The defendant businesses'
emails listed a Somerset, Wisconsin, PO Box address during
2015 and 2016. Montes posted numerous photos online of
children- Cunningham says Montes's children-playing
football on the Somerset team and performing in a Somerset
music recital. (Bank records indicate that Montes rented
musical instalments from a Wisconsin business, possibly the
same instruments used in the recital.) Montes's counsel
confirmed that Montes and his wife are not separated and that
when Montes visits Wisconsin, he stays at the Somerset farm.
bears the burden of proving personal jurisdiction by a
preponderance of the evidence. Purdue
Research Found, v. Sanofi-Synthelabo, S.A., 338 F.3d
773, 782 (7th Cir. 2003). Cunningham must demonstrate that
defendants fall within Wisconsin's personal jurisdiction
statute, Wis.Stat. § 801.05, which has been interpreted
to confer "jurisdiction 'to the fullest extent
allowed under the due process clause.'" Felland
v. Clifton, 682 F.3d 665, 678 (7th Cir. 2012) (quoting
Daniel J. Hartwig Assocs., Inc. v. Kanner, 913 F.2d
1213, 1217 (7th Cir. 1990)). If Cunningham makes this
showing, the burden shifts to defendants to show that
exercising jurisdiction over them would offend due process.
Steel Warehouse of Wis., Inc. v. Leach, 154 F.3d
712, 714 (7th Cir. 1998).
Cunningham has demonstrated that defendants fall within the
general jurisdiction provision of Wis.Stat. § 801.05.
Section 801.05(1)(d) confers jurisdiction over a defendant
who "[i]s engaged in substantial and not isolated
activities within this state, whether such activities are
wholly interstate, intrastate, or otherwise." The
evidence shows that Montes's presence in Wisconsin goes
far beyond vacations: his family life is here. And the
defendant businesses, which Montes owns, also have
substantial contacts with Wisconsin, too-even if they are
"set up" in California. So defendants are subject
to general personal jurisdiction under Wisconsin's
burden thus shifts to defendants to show that exercising
jurisdiction over them would offend due process. Under the
Due Process Clause, a "defendant with 'continuous
and systematic' contacts with a state is subject to
general jurisdiction. . . . The threshold for general
jurisdiction is high, the contacts must be sufficiently
extensive and pervasive to approximate physical
presence." Tamburo v. Dworkin, 601 F.3d 693,
701 (7th Cir. 2010). The evidence presented meets this high
standard. Defendants have not shown that their contacts with
Wisconsin are "isolated or sporadic." Id.
Montes's visits to Wisconsin are more than occasional.
Despite Montes' contention that he lives in California,
Cunningham's evidence shows that Montes really lives in
Wisconsin. And there is nothing to suggest that an assertion
of jurisdiction in this case would violate the
"traditional notions of fair play and substantial
justice." Burnham v. Superior Court of Cal, 495
U.S. 604, 610 (1990) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). Montes has rather
persistently sought to evade service in both California and
Wisconsin, so there is nothing unfair about calling him into
court in the state in which it appears that he has the most
substantial personal and business contacts.
defendants are subject to the court's general personal
jurisdiction, and because the court previously determined
that defendants have not shown good cause to set aside
default, the court will deny defendants' motions to set
aside default and to dismiss the case.
establishes defendants' liability for the TCPA violations
alleged in Cunningham's complaint, so the analysis must
next turn to damages. The TCPA allows for $500 in damages for
each violation of certain statutory provisions. Cunningham
indicated in an affidavit that he received 176 phone calls
from defendants and that those phone calls violated §
227(b) and 227(c)(5) of the TCPA, as well as three
regulations prescribed under § 227(c), 47 C.F.R. §
64.1200(b)(1), (b)(2), and (d).
few courts to have considered the question have determined
that a plaintiff may recover multiple statutory damages
awards per phone call when the phone call violates multiple
statutory provisions of the TCPA, but a plaintiff may only
recover one statutory damages award per phone call even if
the phone call violates multiple regulations prescribed under
§ 227(c). See Drew v. Lexington Consumer Advocacy,
LLC, No. 16-cv-200, 2016 WL 1559717, at *12 (N.D. Cal.
Apr. 18, 2016). Under this framework, Cunningham may recover
$1, 000 per phone call because each phone call violated two
statutory provisions of the TCPA.
alleges that defendants committed these violations willfully
and knowingly, which would allow the court, in its
discretion, to increase the amount of the award to not more
than treble damages. The court declines to order treble
damages because Cunningham ...