Anton Ewing, no stranger to the role of Telephone Consumer Protection Act (“TCPA”) plaintiff, presumably thought he was home free. The clerk of the Federal District Court in San Diego had entered default judgments against the three remaining defendants in the case he brought alleging that they had “engaged in a scheme to ‘use the wires of the United States to criminally call him’” and thus violated, among other statutes, the TCPA. Mr. Ewing’s motion that the Court formally enter default judgments under Rule 55 of the Federal Rules of Civil Procedure (“FRCP”) was unopposed.

Not so fast, ruled Judge Anthony Battaglia. Applying factors applicable to such motions in the Ninth Circuit, he observed that “although well-pleaded allegations in the complaint are admitted by a defendant’s failure to respond, ‘necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.’”

The Court noted that the TCPA “makes it unlawful to use automatic telephone dialing system [“ATDS”] without the consent of the called party, to call any cellular telephone.” To sufficiently allege such a violation, Mr. Ewing had to plead two elements – “(1) a call to a cellular telephone; (2) via an ATDS.” When it came to Mr. Ewing’s TCPA allegations, his complaint missed the mark.

Although seemingly hinting around the use of an ATDS, the Court found that the complaint never clearly alleged that the defendants used such a device in calling him or which defendants made “automated telephone calls” to him and when. True, in his motion for default judgment, he specified how many times two of the defendants called him – but, as the Court observed, “these allegations are not found in the complaint.”

The plaintiff pleaded that the details regarding one defendant’s calls were set forth in an exhibit attached to the complaint. But the Court found that the exhibits were not in fact “attached to the complaint and …incorporated by reference,” as required under the FRCP. Judge Battaglia observed that the “[p]laintiff does not use the word ‘exhibit’ once in his complaint” and the “Court will not consider the Plaintiff’s voluminous and unreferenced exhibits as support.”

Bottom line: Mr. Ewing, who has a history with this Court, did not state a legally sufficient claim under the TCPA against the three defendants, motion for default judgment was denied and case to be closed. So, in TCPAWorld, the clerk’s entry of default does not always result in to the Court’s ultimate grant thereof.