Fania v. Verified Docu Service, Inc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Anthony Fania, Individually And On

Behalf Of Others Similarly Situated,

Plaintiff,

vs. Case No: 8:22-cv-2652-MSS-CPT

Verified Docu Service, Inc.

Defendant.

ORDER

THIS CAUSE comes before the Court for consideration of Plaintiff Anthony

Fania’s Motion for Default Judgment. (Dkt. 13) Upon consideration of all relevant

filings and case law, and being otherwise fully advised, the Court GRANTS IN PART

and DENIES IN PART Plaintiff’s Motion for Default Judgment.

I. BACKGROUND

On November 17, 2022, Plaintiff, a resident of Florida, brought this action

against Defendant on behalf of herself and a class of similarly situated individuals

seeking damages, an injunction, and declaratory relief for violations of the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and Florida’s Telephone

Solicitation Act (“FTSA”), Fla. Stat. § 501.059. (Dkt. 1) On March 10, 2023, Plaintiff

filed an affidavit of service providing that on December 19, 2022, Defendant was

served with a copy of the Summons and Complaint. (Dkt. 5) To date, Defendant has

not filed an Answer or other responsive pleading in this case. On May 12, 2023, upon

Plaintiff’s motion and amended motion for entry of a clerk’s default, the Clerk entered

a default against Defendant. (Dkts. 6, 8, 10) Plaintiff now seeks entry of a final

judgment of default against Defendant as to Plaintiff’s individual claims pursuant to

Rule 55 of the Federal Rules of Civil Procedure (“Rule 55”).1 (Dkt. 13)

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 55(b)(2), a court may enter a default

judgment against a party who has failed to plead in response to a complaint. Solaroll

Shade & Shutter Corp. v. Bio-Energy Sys., 803 F.2d 1130, 1134 (11th Cir. 1986) (“Rule

55 applies to parties against whom affirmative relief is sought who fail to ‘plead or

otherwise defend.’”). All well-pleaded allegations of fact are deemed admitted upon

entry of default. See Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d

1200, 1206 (5th Cir. 1975). However, a defendant’s default alone does not require the

court to enter a default judgment. DIRECTV, Inc. v. Trawick, 359 F. Supp. 2d 1204,

1206 (M.D. Ala. 2005). To enter a default judgment, there must be a sufficient basis

in the pleadings to support the entry of judgment. Id. “The defendant is not held to

admit facts that are not well-pleaded or to admit conclusions of law. In short, . . . a

default is not treated as an absolute confession of the defendant of his liability and of

the plaintiff's right to recover.” Nishimatsu, 515 F.2d at 1206.

1 The Court notes that, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), Plaintiff filed a

notice of voluntary dismissal of the class claims raised in the Complaint. (Dkt. 14) As such, this Order

only addresses the allegations Plaintiff raised on behalf of himself.

If the facts in the complaint are sufficient to establish liability, then the court

must conduct an inquiry to ascertain the amount of damages. See Adolph Coors Co.

v. Movement Against Racism & the Klan, 777 F.2d 1538, 1543-44 (11th Cir. 1985).

Damages may be awarded only if the record adequately reflects the basis for the award

via a hearing or a demonstration of detailed affidavits establishing the necessary facts.

See id. at 1544. A hearing is not mandatory on the issue of damages if sufficient

evidence is submitted to support the claimed damages. Armadillo Distribution

Enterprises, Inc. v. Hai Yun Musical Instruments Manuf. Co., 142 F. Supp. 3d 1245,

1255 (M.D. Fla. 2015).

III. DISCUSSION

Plaintiff requests an entry of final judgment of default against Defendant for his

claims asserted under Counts I and II (the TCPA claim) and Count III (the FTSA

claim). Upon review, the Court GRANTS IN PART and DENIES IN PART the

Motion for Default Judgment.

a. Service of Process

Federal Rule of Civil Procedure 55(a) provides: “[w]hen a party against whom

a judgment for affirmative relief is sought has failed to plead or otherwise defend, and

that failure is shown by affidavit or otherwise, the clerk must enter the party’s

default.” Fed. R. Civ. P. 55(a). A district court may enter a default judgment against a

properly served defendant who fails to defend or otherwise appear pursuant to Federal

Rule of Civil Procedure 55(b). Directv, Inc. v. Griffin, 290 F. Supp. 2d 1340, 1343

(M.D. Fla. 2003). The plaintiff bears the burden to establish proper service of process

upon a defendant. Brown v. Care Front Funding, No. 8:22-cv-2408-VMC-JSS, 2023

U.S. Dist. LEXIS 60879 at *4 (M.D. Fla. April 6, 2023), report and recommendation

adopted, 2023 U.S. Dist. LEXIS 72933 (M.D. Fla. April 26, 2023).

Pursuant to Federal Rule of Civil Procedure 4(h)(1)(B), a

corporation, partnership, or other unincorporated association located in a judicial

district of the United States may be served “by delivering a copy of the summons and

of the complaint to . . . any [] agent authorized by appointment or by law to receive

service of process and—if the agent is one authorized by statute and the statute so

requires—by also mailing a copy of each to the defendant[.]”

On May 8, 2023, Plaintiff filed a Motion for Clerk’s Default against Defendant.

(Dkt. 6) On May 9, 2023, Magistrate Judge Christopher P. Tuite denied Plaintiff’s

motion without prejudice. (Dkt. 7) Judge Tuite explained that “[t]he return of service

upon which Plaintiff’s motion is predicated lists the party served with the complaint

as Verified Docu Serve, Inc. (5) even though Defendant is denominated as Verified

Docu Service, Inc (1).” (Id.) Judge Tuite allowed Plaintiff until May 23, 2023, to file

an amended motion for a clerk’s default to address this discrepancy. (Id.) The next

day, on May 10, 2023, Plaintiff filed an amended motion for a clerk’s default. (Dkt. 8)

In the amended motion, Plaintiff stated that “[d]ue to an administrative error, the

proposed summons and issued summons contained a typo, which addressed the

summons to ‘Verified Docu Serve, Inc.’ instead of the true Defendant named ‘Verified

Docu Service, Inc.’ However, Plaintiff contends that service on Defendant was

properly effectuated despite this typo since the address at which Defendant was served

belongs to Defendant Verified Docu Service, Inc.” (Id. at 2 n.1) Counsel for Plaintiff

further provided a declaration in support of the amended motion in which counsel

explained that, after serving the Summons and Complaint against Defendant, he

received a call from Defendant’s counsel, Brent Phillips, who confirmed that

Defendant had been served with the lawsuit and wanted to discuss a potential

resolution. (Dkt. 8-1 at ¶ 5) Counsel for Plaintiff explains that he has not heard back

from Defendant’s counsel since that call, which occurred on January 20, 2023. (Id. at

¶¶ 5-6)

The Court finds that Plaintiff has carried his burden of establishing proper

service upon Defendant. The Affidavit of Service provides that Plaintiff served the

Summons and Complaint to “Verified Docu Serve, Inc., 1952 Roanoke Ave., Tustin,

CA 92780.” (Dkt. 5) While the Defendant’s name in this action is denominated as

“Verified Docu Service, Inc.,” service was nonetheless proper upon Defendant. When

the Complaint was filed on November 17, 2022, the agent for service of process was

listed as “Hitu Bhakta” at the address “1952 Roanoke Avenue Ave., Tustin, CA

92780” according to the California Department of State Division of Corporations

Website.2 See https://bizfileonline.sos.ca.gov/search/business (last visited October 2,

2 The Court takes judicial notice of record searches on the California Department of State’s website,

as it is the verified website of a public agency. The Federal Rules of Evidence allow a court to

“judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(b)(2). “Public records are among the permissible facts that a district court may consider.” Univ.

Express, Inc. v. S.E.C., 177 F. App'x 52, 53 (11th Cir. 2006); see Learning Connections, Inc. v.

Kaufman, Englett & Lynd, PLLC, No. 6:11-cv-368-Orl-19GJK, 2012 U.S. Dist. LEXIS 200721, 2012

WL 13103015, at *6 (M.D. Fla. Jan. 18, 2012) (“official documents from the Secretary of State possess

the ‘requisite level of reliability’ required for a court to take judicial notice.”). A court may take judicial

2023). The Affidavit of Service states that the Summons and Complaint were served

on “Hansa Patel, Co-Occupant to Hitu Bhakta Agent for Service, at the address of

1952 Roanoke Ave., Tustin, CA 92780,” which is the same address noted for

Defendant’s agent for service of process according to the California Department of

State Division of Corporations Website. (Dkt. 5) (emphasis in original). Further, a

bizfileonline.sos.ca.gov public records search yields no results for the misspelled entity

on the Affidavit, that is “Verified Docu Serve, Inc.” Rather, Defendant – Verified

Docu Service, Inc. – is the only entity located at the associated address where the

Summons and Complaint were served. See id.;

https://bizfileonline.sos.ca.gov/search/business (last visited October 2, 2023)

As such, the Court finds that the public records search, coupled with counsel

for Plaintiff’s declaration that he received a call from Defendant’s counsel indicating

Defendant had been served with the lawsuit and wanted to discuss a potential

resolution, (Dkt. 8-1), establishes that Plaintiff properly effected service on Defendant

notwithstanding the minor typographical error in the spelling of Defendant’s name on

notice of publicly filed corporate documents, “but such judicial notice must be for the purpose of

noticing the statements therein, not to prove the truth of their contents.” ACG S. Ins. Agency, LLC

v. Safeco Ins. Co., No. 8:19-cv-528-T-36AAS, 2019 U.S. Dist. LEXIS 229659, 2019 WL 8273657, at

*4 (M.D. Fla. Dec. 16, 2019) (citation and quotations omitted).

The Court also notes that, as of May 5, 2023, Defendant no longer has a registered agent for service

of process. But that has no bearing on whether service of the Summons and Complaint was proper.

“Hitu Bhakta” was the registered agent for service of process at the address “1952 Roanoke Avenue

Ave., Tustin, CA 92780” since the company’s formation on March 3, 2021, until his apparent

resignation as agent for service of process on May 5, 2023. See

https://bizfileonline.sos.ca.gov/search/business (last visited October 2, 2023). Because the

Complaint was filed on November 17, 2022, and served upon Defendant at the above address, the

Court deems service to be proper.

the Affidavit of Service. See Malibu Media, LLC v. Danford, No. 2:14-cv-511-FtM-

38CM, 2015 U.S. Dist. LEXIS 13240 at *2 n.2 (M.D. Fla. Feb. 4, 2015)

(acknowledging a typo in the defendant’s address on the Affidavit of Service for the

Summons and Complaint when compared to defendant’s address listed on the

certificate of service for plaintiff’s motion for entry of clerk’s default, but finding that

the error was harmless because it “d[i]d not appear to have effected proper service as

the Return of Service states that process server personally served [defendant] at the

address.”)

Having found that Plaintiff properly served Defendant, the Court turns to

Plaintiff’s specific allegations.

b. TCPA Claim

In Counts I and II, Plaintiff seeks damages for violations of the Telephone

Consumer Protection Act, 47 U.S.C. § 227. (Dkt. 1 at ¶¶ 57-68) In relevant part, the

TCPA provides:

It shall be unlawful for any person within the United States,

or any person outside the United States if the recipient is

within the United States—(A) to make any call (other than

a call made for emergency purposes or made with the prior

express consent of the called party) using any automatic

telephone dialing system or an artificial or prerecorded

voice—

…

(iii) to any telephone number assigned to a paging service,

cellular telephone service, specialized mobile radio service,

or other radio common carrier service, or any service for

which the called party is charged for the call, unless such

call is made solely to collect a debt owed to or guaranteed

by the United States.

47 U.S.C. § 227(b)(1)(A)(iii). In short, the TCPA forbids “any person . . . to make any

call (other than a call . . . made with the prior express consent of the called party) using

any automatic telephone dialing system or an artificial or prerecorded voice . . . to any

telephone number assigned to a . . . cellular telephone service.” Medley v. Dish

Network, LLC, 958 F.3d 1063, 1069 (11th Cir. 2020) (quoting 47 U.S.C. §

227(b)(1)(A)(iii)).

The TCPA further provides for damages in the form of either actual monetary

loss or $500.00 per violation, whichever is greater. Osorio v. State Farm Bank, F.S.B.,

746 F.3d 1242, 1250 (11th Cir. 2014); 47 U.S.C. § 227(b)(3)(B). “The TCPA does not

require any intent for liability except when awarding treble damages.” Alea London

Ltd. v. Am. Home Servs., 638 F.3d 768, 776 (11th Cir. 2011) (citing Penzer v. Transp.

Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008)). If the Court finds that a defendant has

willfully or knowingly violated the TCPA, then the Court may, in its discretion, award

treble damages. 47 U.S.C. § 227(b)(3).

Here, Plaintiff’s Complaint includes the following allegations: (1) Plaintiff

received three calls from Defendant to his cellular phone, in which a prerecorded voice

asked Plaintiff a few questions regarding debts and student loans before transferring

him to a live agent; (2) each time Plaintiff was transferred to the live agent and began

to ask questions about the business, the live agent promptly hung up on Plaintiff; and

(3) Plaintiff never provided Defendant with his express written consent to be

contacted. (Dkt. 1 at ¶¶ 33-44) Based on Plaintiff’s allegations, which are deemed

admitted by virtue of Defendant’s default, the Court finds that Plaintiff has sufficiently

established his entitlement to recover against Defendant for violations of the TCPA.

The Court now turns to assessing whether Plaintiff is entitled to damages under the

TCPA.

Where a request for monetary relief is made, the Court may enter judgment

without a hearing only if “the plaintiff’s claim against [the] defendant is for a sum

certain or for a sum which can by computation be made certain,” “the amount claimed

is a liquidated sum or one capable of mathematical calculation,” or if the movant

submits sufficient evidence to support the request for damages. See SEC v. Smyth, 420

F.3d 1225, 1231 (11th Cir. 2005); see also Adolph Coors Co. v. Movement Against

Racism and the Klan, 777 F.2d 1538, 1543 (11th Cir. 1985); United Artists Corp. v.

Freeman, 605 F.2d 854, 857 (5th Cir. 1979)).3 Here, Plaintiff has requested the recovery

of $500.00 for each violation as provided under the TCPA. See 47 U.S.C. §

227(b)(3)(B). Since Plaintiff received three calls from Defendant, Plaintiff requests a

total of $1,500 in statutory damages. (See Dkt. 1 at ¶¶ 37, 63)

Upon review, the Court finds that a hearing is not required to determine the

damages award as there is “sufficient evidence in the record to establish Plaintiff's

statutory damages pursuant to the TCPA.” Brown, 2023 U.S. Dist. LEXIS 60879 at

*15-16 (citing Jeffery v. E. Asset Servs., LLC, No. 8:17-cv-1361-T-27-JDW-AAS, 2018

U.S. Dist. LEXIS 141720, 2018 WL 3999663, at *2 (M.D. Fla. July 27, 2018), report

and recommendation adopted by 2018 U.S. Dist. LEXIS 141847, 2018 WL 3999639

3 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.1981) (adopting as binding

precedent all decisions of the former Fifth Circuit issued on or before September 30, 1981).

(M.D. Fla. Aug. 21, 2018) (awarding TCPA damages without requiring hearing)).

First, because “[t]he TCPA does not require any intent for liability except when

awarding treble damages,” the Court finds Plaintiff is entitled to $500 for each of

Defendant’s three calls to Plaintiff’s cellular phone in violation of the TCPA, for a total

of $1,500. See Alea London Ltd., 638 F.3d at 776 (citing Penzer, 545 F.3d at 1311).

Accordingly, the Court GRANTS default judgment as to Count I.

However, default judgment is DENIED as to Count II. In Count II, Plaintiff

seeks treble damages, which as explained above, a court may issue, in its discretion, if

it finds that a defendant “willfully or knowingly violated” the TCPA. 47 U.S.C. §

227(b)(3). “The requirement of ‘willful[] or knowing[]’ conduct requires the violator

to know he was performing the conduct that violates the statute.” Lary v. Trinity

Physician Fin. & Ins. Servs., 780 F.3d 1101, 1107 (11th Cir. 2015). As such, to violate

section 227(b)(1)(A)(iii), a defendant must know (1) that it is using an “automatic

telephone dialing system or an artificial or prerecorded voice”; (2) to make a “call”;

and (3) that the call is directed toward a “telephone number assigned to a . . . cellular

telephone service.” See id.

Courts in this district have awarded treble damages where a plaintiff has

adequately alleged that a defendant continued to contact plaintiff after explicitly being

told by plaintiff to stop calling. See, e.g., Milana v. Deca Fin. Servs., LLC, No. 8:18-

cv-450-T-33TGW, 2018 U.S. Dist. LEXIS 127179 at * 8 (M.D. Fla. July 30, 2018)

(awarding treble damages to plaintiff after plaintiff revoked consent by “previously

instruct[ing] Defendant to stop calling her”); Consentino v. Cont’l Fin. Co., No. 8:16-

cv-2808-T-35AAS, 2017 U.S. Dist. LEXIS 234066 at *8-9 (M.D. Fla. May 10, 2017)

(awarding treble damages after finding plaintiff’s allegation that he expressly told

defendant to stop calling his cell phone “sufficient to establish that defendant knew it

did not have consent to call Plaintiff’s cell phone”); Gambon v. R & F Enters., Inc.,

No. 6:14-cv-403-ORL-18, 2014 U.S. Dist. LEXIS 179125 at *14 (M.D. Fla. Jan. 5,

2015) (awarding treble damages after finding plaintiff made multiple requests to

Defendant to be removed from Defendant’s automatic telephone dialing system, but

Defendant “continued to place automated calls to Plaintiff’s cell phones”).

Plaintiff’s allegations, by contrast, fail to demonstrate Defendant “willfully or

knowingly violated” the TCPA. Plaintiff alleges he received three prerecorded calls

from Defendant. (Dkt. 1 at ¶¶ 33-37). Each time, at the conclusion of the recording, he

was transferred to a live agent. (Id. at ¶¶ 34-36) Plaintiff claims that he would then ask

the live agent for the name of the company that was calling his phone or ask questions

about the business, but each time the live agent promptly hung up. (Id.) These

allegations do not establish that Defendant’s conduct was “willful[] or knowing[].” See

47 U.S.C. § 227(b)(3). Notably, unlike the cases mentioned above, Plaintiff does not

allege that he expressly told Defendant to stop calling him, yet Defendant persisted.

Cf. Milana, 2018 U.S. Dist. LEXIS 127179 at * 8; Consentino, 2017 U.S. Dist. LEXIS

234066 at *8-9; Gambon, 2014 U.S. Dist. LEXIS 179125 at *14. Further, unlike

Consentino, in which this Court found that a plaintiff had adequately alleged a

“willful[] or knowing[]” violation because “[d]efendant’s corporate policy was to

initiate calls to individuals using an automated telephone dialing system and/or a

prerecorded or artificial voice message,” no such allegation has been pled here.

Consentino, 2017 U.S. Dist. LEXIS 234066 at *8. In short, Plaintiff’s allegations,

without more, are insufficient to establish that Defendant “willfully or knowingly”

violated the TCPA. 47 U.S.C. § 227(b)(3).

Further, “even in TCPA cases where plaintiffs have expressly stated to

defendants that they do not want to be contacted, ‘when liability is established through

default judgment rather than the merits, courts routinely award the minimum statutory

damages.’” Brown, 2023 U.S. Dist. LEXIS 60879 at *17 (collecting cases). As such,

the Court finds that Plaintiff is entitled to $500 for each of Defendant’s three calls to

Plaintiff in violation of the TCPA for a total of $1,500 under Count I. Plaintiff is not

entitled to an award of treble damages under Count II.

c. FTSA Claim

In Count III, Plaintiff alleges Defendant has “violated Fla. Stat § 501.059(8)(A)

and Fla. Stat § 501.059(1)(G) by using an automatic telephone dialing system and/or

pre-recorded voice messages to make non-emergency telephone calls to the cell

phone[] of Plaintiff . . . without [his] prior express written consent.” (Dkt. 1 at ¶¶ 69-

73)

Section 501.059(8)(a) provides that “a person may not make or knowingly allow

to be made an unsolicited telephonic sales call if such call involves an automated

system for the selection or dialing of telephone numbers or the playing of a recorded

message when a connection is completed to a number called without the prior express

written consent of the called party.” Fla. Stat. § 501.059(8)(a). “Section 501.059(1)(g),

in turn, provides the requirements for a written agreement to establish the ‘prior

express written consent’ of the called party. Id. § 501.059(1)(g).” Brown, 2023 U.S.

Dist. LEXIS 60879 at *8.

The FTSA defines “telephonic sales call,” in pertinent part, as a telephone call

“to a consumer for the purpose of soliciting a sale of any consumer goods or services,

soliciting an extension of credit for consumer goods or services, or obtaining

information that will or may be used for the direct solicitation of a sale of consumer

goods or services or an extension of credit for such purposes.” Fla. Stat. §

501.059(1)(j). “Consumer goods or services,” in turn, is defined as “real property or

tangible or intangible personal property that is normally used for personal, family, or

household purposes.” Id. § 501.059(1)(c). An unsolicited telephonic sales call “means

a telephonic sales call other than a call made . . . [p]rimarily in connection with an

existing debt or contract, if payment or performance of such debt or contract has not

been completed at the time of such call.” Id. § 501.059(1)(k)(2).

Plaintiff’s allegations as it relates to his FTSA claim are not sufficiently well-

pled to provide a basis for the Court to find that by its default Defendant has admitted

it made an “unsolicited telephonic sales call” in violation of the FTSA. Plaintiff alleges

that when he answered the three calls he received from Defendant, the prerecorded

voice “asked [him] questions regarding debts and student loans.” (Dkt. 1 at ¶ 33; Dkt.

13-1 at ¶¶ 4-7) Plaintiff claims that the live agent to whom he was transferred

“promptly hung up” each time Plaintiff tried to question who was calling him and for

what purpose. (Dkt. 1 at ¶¶ 33-37; Dkt. 13-1 at ¶ 8) Plaintiff does not allege whether

the live agent questioned him about any existing debt he may have owed such that it

could be deemed a solicitation phone call. See Fla. Stat. § 501.059(1)(k)(2).

Plaintiff states, for the first time in his Motion for Default Judgment, that “[t]he

purpose of Defendant’s calls was to solicit personal loans, which is a consumer

service.” (Dkt. 13 at 8) But Plaintiff did not allege as such in his Complaint. (Dkt. 1)

Instead, Plaintiff alleges that Defendant violated the FTSA by “by using an automatic

telephone dialing system and/or pre-recorded voice messages to make non-emergency

telephone calls to the cell phones of Plaintiff and the other members of the putative Class

without their prior express written consent.” (Dkt. 1 at ¶¶ 72) (emphasis added)

However, unlike the TCPA, which prohibits a defendant from making any non-

consensual, non-emergency call to a plaintiff, the FTSA proscribes non-consensual

“telephonic sales calls.” Compare 47 U.S.C. § 227(b)(1)(A)(iii) with Fla. Stat. §

501.059(8)(a). As such, Plaintiff’s claim and Defendant’s admission by default that

Defendant made “non-emergency” calls to him are insufficient to prove the FTSA

Count. (Dkt. 1 at ¶¶ 72)

d. Attorney’s Fees and Costs

As an initial matter, “[t]he TCPA does not provide for an award of attorneys’

fees in a private action.” Brown, 2023 U.S. Dist. LEXIS 60879 at *18-19 (citing 47

U.S.C. § 227; Brooks v. Caliber Home Loans, Inc., No. 8:17-cv-1247-T-27AEP, 2017

U.S. Dist. LEXIS 134317, 2017 WL 3634606, at *2 (M.D. Fla. Aug. 22, 2017)). Thus,

Plaintiff’s request for attorney’s fees only concerns his FTSA claim. (Dkt. 13); Fla. Stat

§ 501.059(11)(a).

Fla. Stat. § 501.059(11)(a) provides that “[i]n any civil litigation resulting from

a transaction involving a violation of this section, the prevailing party, after judgment

in the trial court and exhaustion of all appeals, if any, shall receive his or her reasonable

attorney’s fees and costs from the nonprevailing party.” Fla Stat. § 501.059(11)(a). For

the reasons explained above, however, there is not a sufficient basis in the pleadings

to support the entry of judgment as it relates to Plaintiff’s FTSA Claim under Count

III. Thus, Plaintiff’s request for attorney’s fees is due to be DENIED.

Plaintiff further seeks $472.04 in taxable costs, which includes a filing fee,

service of process charges, and mailing/postage costs. (Dkt. 13 at 18; Dkt. 13-2 at ¶

45) Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute,

these rules, or a court order provides otherwise, costs—other than attorney’s fees—

should be allowed to the prevailing party . . . . The clerk may tax costs on 14 days’

notice.” Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 provides the costs that a judge or

clerk of any court of the United States may tax under Rule 54, which includes fees of

the clerk and marshal. 28 U.S.C. § 1920(1). “However, ‘[w]hile Section 1920 allows

for the taxation of costs, the Clerk must initially tax costs.’” Brown, 2023 U.S. Dist.

LEXIS 60879 at *19 (quoting Lowe v. STME, LLC, No. 8:18-cv-2667-T-33SPF, 2019

U.S. Dist. LEXIS 108293, 2019 WL 2717197, at *3 (M.D. Fla. June 28,

2019) (citing Fed. R. Civ. P. 54(d)(1))). Section 1920 further provides that “[a] bill of

costs shall be filed in the case and, upon allowance, included in the judgment or

decree.” 28 U.S.C. § 1920.

Here, Plaintiff has not filed a bill of costs associated with this matter for the

Clerk to consider. As such, “the proper procedure is for [Plaintiff] to file a verified bill

of costs with the Clerk. If the Clerk taxes costs upon the filing of that bill of costs,

[Defendant] may object and seek judicial review within five days.” Brown, 2023 U.S.

Dist. LEXIS 60879 at *19 (quoting Lowe, 2019 U.S. Dist. LEXIS 108293, 2019 WL

2717197, at *3; see also Neurocare Inst. of Cent. Fla., P.A. v. US Cap. Access, Inc.,

No. 6:13-cv-1233-Orl-31DAB, 2014 U.S. Dist. LEXIS 73909, 2014 WL 12873038, at

*5 (M.D. Fla. May 14, 2014), report and recommendation adopted, 2014 U.S. Dist.

LEXIS 73910, 2014 WL 12873040 (M.D. Fla. May 30, 2014) (denying without

prejudice plaintiff’s request to tax costs subject to plaintiff’s filing of a bill of costs with

the clerk). Consequently, the Court finds that Plaintiff’s request for costs relating to

the filing fee, service of process, and mailing, is denied without prejudice subject to

Plaintiff’s filing of a verified bill of costs and sufficient supporting documentation with

the Clerk.4

4 To the extent Plaintiffs seeks costs related to postage, the Court notes that “postage is not recoverable

under § 1920.” Brown, 2023 U.S. Dist. LEXIS 60879 at *19 n. 4 (quoting First Home Bank v. Extreme

Elecs. Grp., LLC, No. 8:17-cv-02087-EAK-AEP, 2018 U.S. Dist. LEXIS 220454, 2018 WL 4656293,

at *4 (M.D. Fla. July 13, 2018) (citing Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir.

1996))).

Furthermore, to the extent Plaintiff seeks costs related to service of process, the Court notes that

“although ‘private service of process is not explicitly provided for in [28 U.S.C. §§ 1920 or 1921], the

Court may authorize taxation of such costs so long as they do not exceed the statutory fees authorized in 28

U.S.C. § 1921.’” Brown, 2023 U.S. Dist. LEXIS 60879 at *19 n. 4 (quoting Scotlynn USA Div., Inc. v.

Cold Ground Transp., LLC, No. 2:15-cv-152-FtM-38CM, 2016 U.S. Dist. LEXIS 142455, 2016 WL

IV. CONCLUSION

Upon consideration of the foregoing, it is hereby ORDERED as follows:

1. Plaintiff’s Motion for Default Judgment (Dkt. 13) is GRANTED IN PART and

DENIED IN PART.

2. The Motion is GRANTED as to Count I, alleging a violation of the TCPA and

seeking statutory damages. The Clerk is directed to enter final judgment in favor

of Plaintiff Anthony Fania and against Defendant Verified Docu Service, Inc.

as to Count I in Plaintiff’s Complaint (Dkt.1) Plaintiff shall be awarded $1,500

in statutory damages pursuant to the Telephone Consumer Protection Act, 47

U.S.C. § 227.

3. The Motion is DENIED as to Count II, alleging a willful or knowing violation

of the TCPA and seeking treble damages.

4. The Motion is DENIED WITHOUT PREJUDICE as to Count III, to the

extent Plaintiff seeks an award of statutory damages for Defendant’s alleged

violation of the FTSA. The Court dismisses Count III without prejudice.

5. The Motion is further DENIED as it relates to Plaintiff’s request for attorney’s

fees. However, the Motion is DENIED WITHOUT PREJUDICE as it relates

to Plaintiff’s request for costs, subject to Plaintiff’s filing of a bill of costs with

the Clerk. Plaintiff shall have fourteen (14) days from the date of this Order to

file a bill of costs with the Clerk.

6066682, at *4 (M.D. Fla. Oct. 14, 2016) (emphasis added) (citing U.S. E.E.O.C. v. W&O, Inc., 213

F.3d 600, 624 (11th Cir. 2000))).

6. The Clerk is directed to CLOSE the case.

DONE and ORDERED in Tampa, Florida, this 8" day of March 2024.

(x 7 a i : ff)

MARYS. SCRIVEN

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Any Unrepresented Person

18