Christopher Laccinole v. Cova Home Realty LLC, et al.

Summary

This United States Magistrate Judge’s Report and Recommendation addresses pro se plaintiff Christopher Laccinole’s motion for default judgment against Kelly Liedtke and KD Homes VA LLC. The action concerns alleged telemarketing calls and text messages in violation of the Telephone Consumer Protection Act and Virginia Telephone Privacy Protection Act. The court considers service, jurisdiction, standing, default-judgment standards, and vicarious liability, and recommends that the motion be granted in part and denied in part.

Holdings

1. Service of process was properly effected on Liedtke individually and on KD Homes through Liedtke as its registered agent; personal jurisdiction and venue were therefore adequate for consideration of default judgment.
2. Plaintiff sufficiently alleged Article III standing under the TCPA and VTPPA.
3. Default does not automatically establish liability; the court must determine whether the well-pleaded allegations state a claim supporting the requested relief.
4. Plaintiff failed to allege sufficient facts to hold Liedtke vicariously liable for the solicitations.
5. Plaintiff sufficiently alleged that Villaflor acted as an agent of KD Homes, or with its apparent authority, for five solicitations between September and December 2021, but not for the remaining solicitations.
6. Plaintiff could not recover under Count I because 47 U.S.C. § 227(c)(5) authorizes a private action predicated on violations of FCC regulations but does not itself provide the separate cause of action asserted in Count I.
7. Plaintiff sufficiently alleged five violations of 47 C.F.R. § 64.1200(c)(2), actionable under 47 U.S.C. § 227(c)(5), based on solicitations by KD Homes through Villaflor to a residential wireless number registered on the National Do-Not-Call Registry.
8. Plaintiff failed to establish liability under the TCPA claims concerning a written do-not-call policy, employee training, and caller identification.
9. Plaintiff failed to establish violations of the VTPPA provisions governing solicitation hours and identification information.
10. Plaintiff sufficiently alleged five violations of Va. Code Ann. § 59.1-514 based on KD Homes' solicitations to a number registered on the National Do-Not-Call Registry.
11. Plaintiff should receive $2,500 in TCPA statutory damages, $16,500 in VTPPA statutory damages, $402 in court costs, and post-judgment interest, but not treble damages, injunctive relief, attorney fees, prejudgment interest, or referral to the Virginia Attorney General.

Questions Presented

1. Whether service of process, personal jurisdiction, subject matter jurisdiction, and venue were adequate for entry of default judgment.
2. Whether the well-pleaded allegations established Article III standing.
3. Whether the allegations established an agency relationship or apparent authority making Liedtke and KD Homes vicariously liable for the callers' conduct.
4. Whether the allegations supported liability under the TCPA and its implementing regulations for solicitations to a number registered on the National Do-Not-Call Registry.
5. Whether the allegations supported liability under the Virginia Telephone Privacy Protection Act.
6. Whether plaintiff was entitled to statutory damages, costs, post-judgment interest, injunctive relief, attorney fees, prejudgment interest, or referral to the Virginia Attorney General.

Disposition

other