Boane v. Boane

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

________________________________________________________________

CONNIE BOANE, )

)

Plaintiff, )

) No.11-cv-2565-TMP

v.

)

JAMES A. BOANE )

)

Defendant. )

)

________________________________________________________________

ORDER ENTERING DEFAULT AND GRANTING MOTION FOR DEFAULT JUDGMENT

________________________________________________________________

Before the court is plaintiff Connie Boane’s (“Ms. Boane”)

Motion for Default Judgment against defendant James A. Boane

(“Mr. Boane”).1 (ECF No. 93.) For the reasons discussed below,

the court enters default, grants Ms. Boane’s motion for default

judgment, and enters judgment in the amount of $54,109.39.

I. BACKGROUND

Ms. Boane filed her original complaint on July 26, 2011.

(ECF No. 1.) With the court’s permission, Ms. Boane filed an

amended complaint on January 4, 2013, alleging violations of the

Stored Communications Act (“SCA”), the Computer Fraud and Abuse

Act (“CFAA”), and the Tennessee Personal and Commercial Computer

Act of 2013 (“TPCCA”). (ECF No. 53 at 5-9.) At that time,

1On January 15, 2013, pursuant to the consent of the parties, the

case was referred to the undersigned to conduct all proceedings.

(ECF No. 59.)

defendants James A. Boane and Donna Boane2 were represented by

attorney Thomas A. Sadaka, who was associated with NeJame Law,

P.A. (“NeJame”). (ECF No. 8.) Mr. Boane filed an answer to the

amended complaint on January 22, 2013. (ECF No. 62.) On April

2014, the court granted Ms. Boane’s summary judgment motion on

the issue of Mr. Boane’s liability for violations of the SCA,

the CFAA, and the TPCCA.3 (ECF No. 77.) On May 21, 2013, eight

days after the parties’ final pretrial conference, the court

entered orders staying and administratively closing the case

following Mr. Boane’s Suggestion of Bankruptcy. (ECF Nos. 79;

80; 83; 84.) In December 2014, Sadaka disassociated himself from

NeJame, taking several clients with him, including Mr. Boane.4 On

September 15, 2015, the United States Bankruptcy Court for the

Middle District of Florida sua sponte entered an order in which

it determined that Ms. Boane’s claims for Mr. Boane’s violations

of the SCA, CFAA, and TPCCA were exempted from Mr. Boane’s

discharge pursuant to 11 U.S.C. § 523(a)(6). (ECF No. 93-1.) On

2All claims against defendant Donna Boane were later dismissed.

(ECF Nos. 74; 78 at 1, n.1.)

3The Order on Motions for Summary Judgment is hereby incorporated

by reference and is attached to this order.

4Sadaka was apparently later suspended from the practice of law

and has subsequently been disbarred. (ECF No. 89 at 1.); Member

Profile: Thomas Anthony Sadaka, THE FLORIDA BAR,

https://www.floridabar.org/directories/find-

mbr/profile/?num=915890 (last visited Oct. 19, 2021).

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May 17, 2019, NeJame filed a notice of non-representation and

the court entered an order recognizing the same. (ECF Nos. 89 &

90.)

On May 20, 2019, this court ordered Mr. Boane to inform the

court whether he intended to hire new counsel or proceed pro se

within 30 days of the court’s order. (ECF No. 91.) In its order,

the court warned Mr. Boane that failure to comply “may result in

entry of default, default judgment, an award of money damages,

and other forms of relief” entered against him. (Id. at 2.) The

Clerk of Court mailed this order to Mr. Boane at the address

provided by NeJame in their Notice of Non-representation: Mr.

James A. Boane, 2638 Fallbrook Dr., Oviedo, Florida 32765. (ECF

No. 89.) Over two years have passed, and Mr. Boane has not

complied with the order.

On October 20, 2021, the undersigned entered an order

granting Ms. Boane leave to move for entry of default. (ECF No.

92.) This order was also sent by mail to Mr. Boane’s last known

address. (Id.) Ms. Boane filed a motion for default judgment on

December 17, 2021. (ECF No. 93.)

The undersigned conducted an evidentiary hearing on January

19, 2022 at 10:00 a.m. via video conference to assess Ms.

Boane’s damages. Present at the hearing were Ms. Boane and her

counsel, attorneys Trey Jordan and Joseph Baker. Notice of the

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hearing was mailed to Mr. Boane at his last known address, but

he failed to appear. At the hearing, the court heard testimony

from Ms. Boane regarding her damages. The court directed Ms.

Boane’s counsel to submit an affidavit to the court regarding

Ms. Boane’s attorneys’ fees. Ms. Boane’s attorney did so on

January 20, 2022. (ECF No. 96.) Ms. Boane seeks $6,781.61 in

actual damages, $20,000 in statutory damages, $40,000 in

punitive damages, $38,880 in attorneys’ fees, and $1,666.17 in

litigation expenses.

II. ANALYSIS

Federal Rule of Civil Procedure 55 provides a two-step

process for entering a default judgment. The first step is to

obtain an entry of default pursuant to Rule 55(a). Rule

55(a) provides, “When 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. Pro. 55(a). “The fact that Rule 55(a) gives the clerk

authority to enter a default is not a limitation of the power of

the court to do so." 10A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2682 (4th ed. 2021)

(citing Shapiro, Bernstein & Co. v. Continental Record Co., 368

F.2d 426 (2d Cir. 1967)). When default is entered, “the well-

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pleaded factual allegations in the complaint are taken as true .

. ., [but] damages are not.” Ford Motor Co. v. Cross, 441 F.

Supp. 2d 837, 848 (E.D. Mich. 2006); Antoine v. Atlas Turner,

Inc., 66 F.3d 105, 110–11 (6th Cir. 1995).

The second step is to obtain a default judgment pursuant to

Rule 55(b). In cases where the defaulting party has appeared,

the plaintiff “must apply to the court for a default judgment”

and “that party or its representative must be served with

written notice of the application at least 7 days before the

hearing” on the default judgment. Fed R. Civ. P. 55(b)(2). In

order to enter judgment, the court must determine the amount of

damages. Id. Under Rule 55, the court may conduct hearings or

make a referral if it needs to conduct an accounting, determine

the amount of damages, or establish the truth of any allegation

by evidence. Id.

A. Entry of Default

Although Ms. Boane did not move for entry of default before

filing her motion for default judgment, the undersigned

construes the present motion as a motion for entry of default

and default judgment. Entry of default is appropriate under Rule

55 because Mr. Boane failed to defend in this action when he did

not comply with the court’s order that he file notice of whether

he intended to hire new counsel or appear pro se by June 16,

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2019. See Fed. Nat’l Mortg. Ass’n v. Huntington Prop. LLC, No.

2:19-cv-2470-MSN-dkv, 2019 WL 9103423, at *2 (W.D. Tenn. Oct.

30, 2019)(“[D]efault judgment is appropriate ‘when the adversary

process has been halted because of an essentially unresponsive

party.’”)(quoting Int'l Painters & Allied Trades Indus. Pension

Fund v. Zak Architectural Metal and Glass, LLC, 635 F. Supp. 2d

21, 25 (D.D.C. 2009); see also HMP Automotive Consultants, LLC

v. Pierce Prop. Grp., LLC, No. 5:17-CV-226-KKC, 2018 WL 2050135,

at *1 (E.D. Ky. May 2, 2018)(finding entry of default warranted

when defendant failed to comply with court’s order to retain

counsel or file a notice that he intended to proceed pro se).

Over two years have passed since the court’s order, and Mr.

Boane has not had counsel appear on his behalf nor has he

appeared pro se. Mr. Boane has been served at his last known

address with the order granting Ms. Boane leave to file for

entry of default, Ms. Boane’s motion for default judgment, and

the order setting an evidentiary hearing on damages. Mr. Boane

has not responded to any of these filings. Therefore, the

undersigned enters default under Rule 55(a) for failure to

defend. HMP Automotive Consultants, LLC, 2018 WL 2050135, at *1.

B. Default Judgment

Because Mr. Boane has appeared in this case, he was

entitled to notice of the application for default judgment at

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least seven days before the hearing. Fed. R. Civ. P. 55(b).

Here, the notice requirement was met. Mr. Boane was served with

Ms. Boane’s motion for default judgment by physical and

electronic mail on December 17, 2021. (ECF No. 93 at 6.) The

hearing was held thirty-three days later, on January 19, 2022.

(ECF No. 95.) Because entry of default is appropriate in this

case, the factual allegations in the complaint are taken as

true. Ford Motor Co., 441 F. Supp. 2d at 848. Thus, the

undersigned turns to the assessment of damages. Fed. R. Civ. P.

55(b).

1. Actual Damages

Ms. Boane is entitled to damages under the SCA, CFAA, and

TPCCA. Both the CFAA and TPCCA limit awards to actual damages.

See 18 U.S.C. § 1030(g) (2012)(“Any person who suffers damage or

loss by reason of a violation of this section may maintain a

civil action against the violator to obtain compensatory damages

and injunctive relief or other equitable relief.”); T.C.A. § 39-

14-604(a) (2012)(“Any person whose property or person is injured

by reason of a violation of any provision of this part may file

a civil action and recover for any damages sustained and the

costs of the civil action.”). Because the SCA also allows for

actual damages, to prevent redundancy, the undersigned

exclusively considers damages under that statute.

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“[A]ppropriate relief” for violation of the SCA includes:

(1) such preliminary and other equitable or

declaratory relief as may be appropriate;

(2) damages under subsection (c); and

(3) a reasonable attorney's fee and other litigation

costs reasonably incurred

18 U.S.C. § 2707(b) (2012). Subsection (c) provides:

The court may assess as damages in a civil action

under this section the sum of the actual damages

suffered by the plaintiff and any profits made by the

violator as a result of the violation, but in no case

shall a person entitled to recover receive less than

the sum of $1,000.

Ms. Boane testified that she sustained actual damages of

$6,781.61 in investigating the unauthorized access of her United

Healthcare account arising directly from Mr. Boane’s violation

of the SCA. This testimony is supported by an affidavit from her

former attorney, Mitzi Johnson. (ECF 67 at 1-3.) The undersigned

finds the $6,781.61 was actually and reasonably incurred as a

result of Mr. Boane’s violations. The court awards Ms. Boane

$6,781.61 in actual damages.

2. Statutory Damages

At the hearing, counsel stated that Ms. Boane was also

seeking statutory damages in the amount of $20,000.5 Counsel

argued that the SCA allowed for $1,000 of statutory damages “per

5This argument is not included in Ms. Boane’s briefing.

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data breach occurrence.” Because forty-five total data breaches

occurred, counsel argued that Ms. Boane is entitled to $45,000

in statutory damages, however Ms. Boane only requested $20,000.

As noted above, 18 U.S.C. § 2707(c) states:

The court may assess as damages in a civil action

under this section the sum of the actual damages

suffered by the plaintiff and any profits made by the

violator as a result of the violation, but in no case

shall a person entitled to recover receive less than

the sum of $1,000.

The undersigned does not read this subsection as allowing for

$1,000 of statutory damages per data breach. Rather, the text of

the statute allows a plaintiff to collect actual damages whose

amount cannot be less than $1,000. The $1,000 in subsection (c)

is not a separate statutory damage award, rather, it sets a

floor for an award of actual damages. See Vista Mktg. v.

Burkett, 812 F.3d 968 (11th Cir. 2016). The court has granted

actual damages in the amount $6,781.61, which is an amount

greater than $1,000.

3. Punitive Damages

At the hearing, counsel for Ms. Boane stated that Ms. Boane

is seeking $40,000 in punitive damages. “If the violation [of

the SCA] is willful or intentional, the court may assess

punitive damages.” 18 U.S.C. § 2707(c). Because any SCA

violation requires intentionality, the statute affords little

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guidance as to the nature of conduct warranting punitive

damages. See Vista Mktg., 812 F.3d at 975 n.15 (“[A]s a

practical matter, virtually all violations under § 2707(a) are

subject to an award of punitive damages.”). “[A] key feature of

punitive damages [is] that they are never awarded as of right,

no matter how egregious the defendant's conduct.” Smith v. Wade,

461 U.S. 30, 52 (1983). Rather, once the plaintiff proves that

the defendant's conduct triggers consideration of punitive

damages, the factfinder makes the “discretionary moral judgment”

whether or not to award punitive damages. Id. In exercising his

discretion, the factfinder should consider that “[t]he purpose

of punitive damages is to punish the defendant for his willful

or malicious conduct and to deter others from similar

behavior.” Memphis Comm. School Dist. v. Stachura, 477 U.S. 299,

306 n.9 (1986).

The United States Supreme Court has noted that an award

of punitive damages is subject to constitutional limitations.

Pursuant to the Due Process Clause of the Fourteenth Amendment,

a “grossly excessive” punishment may not be imposed. BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 562 (1996). In evaluating

whether an award is “grossly excessive,” the BMW court analyzed

three factors: (1) the degree of reprehensibility of the

defendant's conduct; (2) the difference between the harm or

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potential harm suffered by the plaintiff and

the punitive damages award; and (3) the difference between the

remedy and the civil penalties imposed in comparable

cases. Id. at 575; Cooper Indus., Inc. v. Leatherman Tool

Group, 532 U.S. 424, 435 (2001); State Farm Mut. Auto. Ins. Co.

v. Campbell, 538 U.S. 408, 123 (2003).

Among these factors, the Court noted that the “most

important indicium of reasonableness of a punitive damages award

is the degree of reprehensibility of the defendant's conduct.”

BMW, 517 U.S. at 575. To determine the reprehensibility of a

defendant's conduct, a court must consider whether: “the harm

caused was physical as opposed to economic; the tortious conduct

evinced an indifference to or a reckless disregard of the health

or safety of others; the target of the conduct had financial

vulnerability; the conduct involved repeated actions or was an

isolated incident; and the harm was the result of intentional

malice, trickery, or deceit, or mere accident.” Campbell, 538

U.S. at 419.

With respect to the second factor, the Court recognized

that an award of punitive damages must bear a “reasonable

relationship” to the amount of compensatory damages. BMW, 517

U.S. at 580 (finding that a $2,000,000 award of punitive damages

did not bear a reasonable relationship to the $4,000 award of

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compensatory damages because it was 500 times the amount of the

actual harm). While “reject[ing] the notion that the

constitutional line is marked by a simple mathematical formula,”

id. at 582, the court has suggested that the relevant ratio is

“not more than 10 to 1.” Id. at 581. On other occasions, the

Court has advised that “few awards exceeding a single-digit

ratio between punitive and compensatory damages . . . will

satisfy due process”, Campbell, 538 U.S. at 425, and that “an

award of more than four times the amount of compensatory damages

might be close to the line of constitutional impropriety.” Id.

(citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23

(1991)). Furthermore, “[w]hen compensatory damages are

substantial, then a lesser ratio, perhaps only equal to

compensatory damages, can reach the outermost limit of the due

process guarantee.” Campbell, 538 U.S. at 425 (stating that a

compensatory award of “$1 million for a year and a half of

emotional distress” was substantial and “likely would justify

a punitive damages award at or near the amount of compensatory

damages”).

Applying the first factor, Mr. Boane’s access of Ms.

Boane’s medical and health insurance records on her United

online account was clearly intentional. Courts have settled that

determining whether there was unauthorized access under

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the SCA is akin to determining whether there was trespass to

property. Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d

967, 976 (M.D. Tenn. 2008)(citing Theofel v. Farey–Jones, 359

F.3d 1066, 1072–73 (9th Cir.2004)). “A big distinction between

committing the tort of common law trespass and violating

the SCA, of course, is that intentional conduct is required to

violate the SCA, i.e., a highly culpable state of mind is

required.” Id. In order to gain access to Ms. Boane’s private

medical information, Mr. Boane, “indicated that the password for

the account had been forgotten . . . and reset Connie Boane’s

password to her United online account and accessed the account

with the new password.” (ECF No. 77 at 3.) While accessing her

account Mr. Boane accessed and viewed “approximately 50 online

health benefit account entries.” (ECF No. 53 at 3.) The court

finds Mr. Boane’s intentional wrongful access to Ms. Boane’s

private medical information reprehensible, especially since it

was done in connection with the pending post-divorce

proceedings.

In applying the second factor, the court finds a punitive

damages award equal to Ms. Boane’s compensatory damages to be

appropriate. This is well within the lines of constitutional

propriety. Regarding the third factor, there is a significant

range of punitive damages awards in cases involving violations

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of the SCA. See, e.g., Vista Mktg., 812 at 975 n.15 (affirming

zero-dollar punitive damages award by jury in a case where

defendant viewed her ex-husband’s emails); Brown Jordan Int’l,

Inc. v. Carmichle, 0:14-CV-60629-ROSENBERG/BRANNON, 2016 WL

815827, at *44 (S.D. Fla. Mar. 2, 2016)(awarding $38,322.11 in

punitive damages, an amount equal to actual damages, where

company accessed employee’s personal email accounts multiple

times over six months); Wyatt Tech. Corp. v. Smithson, No. 05-

1309-DT (RZx), 2006 WL 5668246, at *9, *11 (C.D. Cal. Aug. 14,

2006), rev. on other grounds, 345 F. App'x 236 (9th Cir.

2009) (awarding $100,000 in punitive damages where violator

obtained trade secrets by setting up system to continuously

monitor victim's email account). Under the facts of this case,

the court finds the award of $6,781.61 in punitive damages is

appropriate.

4. Attorney’s Fees

Ms. Boane’s attorney submitted an affidavit and attached

statements detailing Ms. Boane’s attorneys’ fees, which total

$38,880 in fees and $1,666.17 in litigation expenses. “In the

case of a successful action to enforce liability under [the

SCA], the court may assess the costs of the action, together

with reasonable attorney fees determined by the court.” 18

U.S.C. § 2707(c). “The trial court's initial point of departure,

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when calculating reasonable attorney fees, is the determination

of the fee applicant's ‘lodestar,’ which is the proven number of

hours reasonably expended on the case by an attorney, multiplied

by a reasonable hourly rate.” Isabel v. City of Memphis, 404

F.3d 404, 415 (6th Cir. 2005). “The question is not whether a

party prevailed on a particular motion, nor whether, in

hindsight, the time expended was strictly necessary to obtain

relief achieved; instead, the question is whether a reasonable

attorney would believe the work to be reasonably expended in

pursuit of success at the time when the work was

performed.” Hunter v. City of Copper Hill, Tenn., No. 1:09-cv-

238, 2013 WL 5278673, at *3 (E.D. Tenn. Aug. 26, 2013) (internal

citation and quotation omitted), adopted by, 2013 WL 5278673, at

*1 (E.D. Tenn. Sept. 19, 2013).

Ms. Boane retained McDonald Kuhn, PLLC at an hourly rate of

$215 for partners and $175 for associate attorneys. (ECF No. 96

at 2.) Both of Ms. Boane’s attorneys attest that this rate is

below the amount typically charged in federal court litigation

involving statutory claims. (Id.) Ms. Boane’s attorneys

submitted billing statements showing $19,368.00 in fees for

105.6 hours of work performed between June 2, 2011 and June 24,

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2012,6 $18,125.50 in fees for 97.5 hours of work performed

between September 21, 2012 and March 19, 2014,7 and $2,386.50 in

fees for 11.1 hours of work performed February 11, 2019 through

January 20, 2022.8 (ECF No. 96 at 2.)

This case has been pending before the court for over ten

years and was very close to trial when Mr. Boane’s suggestion of

bankruptcy was filed. (ECF No. 80.) Additionally, the fees are

below market value. As a result, the court finds the attorneys’

fees and litigation expenses to be reasonable. The court awards

$38,880 in attorneys’ fees and $1,666.17 in litigation expenses.

III. CONCLUSION

For the reasons discussed, Ms. Boane’s motion for entry of

default and default judgment is GRANTED. Judgment is awarded in

the amount of $54,109.39. The Clerk of Court shall mail this

order to Mr. Boane at the following address: Mr. James A. Boane,

2638 Fallbrook Dr., Oviedo, Florida 32765.

6Attorney Baker performed 83.40 hours of work at a rate of

$175.00 per hour. Attorney Jordan performed 22.20 hours of work

at a rate of $215.00 per hour.

7Attorney Baker performed 76.30 hours of work at a rate of

$175.00 per hour. Attorney Jordan performed 22.20 hours of work

at a rate of $215.00 per hour.

8Attorney Baker performed 7.50 hours of work at a rate of $215.00

per hour. Attorney Jordan performed 3.60 hours of work at a rate

of $215.00 per hour.

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IT IS SO ORDERED.

s/ Tu M. Pham

TU M. PHAM

Chief United States Magistrate Judge

February 3, 2022

Date

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