FemHealth USA, Inc. v. Williams et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
FEMHEALTH USA, INC. d/b/a
CARAFEM,
Plaintiff,
v.
RICKEY NELSON WILLIAMS, JR., et
al.,
Defendants
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NO. 3:22-cv-00565
JUDGE CAMPBELL
MAGISTRATE JUDGE FRENSLEY
MEMORANDUM and ORDER
Pending before the Court is Plaintiff’s Motion for an Award of Damages. (Doc. No. 217).
Through the Motion, Plaintiff requests the Court award statutory damages in the amount of
$5,000.00 in accordance with the Freedom of Access to Clinic Entrances Act (“FACE Act”), 18
U.S.C. § 248. Defendants Rickey Nelson Williams, Jr., Bevelyn Z. Williams, and Edmee
Chavannes (collectively “Defendants”) filed a response in opposition (Doc. No. 229), Plaintiff
filed a reply (Doc. No. 230), and Defendants filed a sur-reply (Doc. No. 231). For the reasons
stated below, Plaintiff’s Motion is GRANTED.
I. 	PROCEDURAL BACKGROUND
The Court previously granted summary judgment in favor of Plaintiff and against
Defendants on Plaintiff’s claim for violation of the FACE Act, and for state law claims of trespass,
assault, and nuisance. (See Order, Doc. No. 199, adopting Report and Recommendation, Doc. No.
195). Defendants filed a “Rule 60(b) Motion for Relief from Judgment,” and motion to stay
enforcement of the judgment, both of which were denied. (See Doc. Nos. 204, 207). Defendants
filed a Notice of Appeal and Amended Notice of Appeal. (Doc. Nos. 208, 214). The Sixth Circuit
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dismissed the appeal for lack of appellate jurisdiction. (See Doc. Nos. 222, 223). Now before the
Court is Plaintiff’s motion for an award of statutory damages for the FACE Act claim. (Doc. No.
217).
II. 	ANALYSIS
The FACE Act provides that, “[i]n any action under subparagraph (A), the court may award
appropriate 	relief, 	including 	temporary, 	preliminary 	or 	permanent 	injunctive 	relief 	and
compensatory and punitive damages, as well as the costs of suit and reasonable fees for attorneys
and expert witnesses. With respect to compensatory damages, the plaintiff may elect, at any time
prior to the rendering of final judgment, to recover, in lieu of actual damages, an award of statutory
damages in the amount of $5,000 per violation.” 18 U.S.C. § 248(c)(1)(B). Plaintiff has elected to
recover statutory damages in lieu of actual damages in this matter. (See Miller Declaration, Doc.
No. 218-1). Plaintiff seeks an award of statutory damages in the amount of $5,000 based on the
grant of summary judgment in its favor on its FACE Act claim.
Defendants oppose an award of statutory damages. They argue that courts routinely deny
statutory damages “when the plaintiff fails to show actual harm” or “when the defendants acted
without malice, particularly when unrepresented.” (Doc. No. 229 at 4). The “legal authority” relied
upon by Defendants consists of fabricated statutory language and quotations from nonexistent
cases. (Id. at 3-5). When Plaintiff identified the fabricated authority, rather than offer an apology
or explanation, Defendants responded that “Plaintiff seeks to distract the Court with irrelevant case
citations, accusations of dishonesty, and procedural threats.” (Doc. No. 231 at 1). Defendants then
argue that the use of the word “may” in the statute means that a statutory damages award is
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discretionary and that the Court should exercise its discretion not to award damages because of
“service failures” and “violation of due process standards.”1 (See Doc. Nos. 229, 231).
Defendants’ fabrication of legal authority is troubling. All persons before the Court have
an obligation to ensure that the legal and factual representations in their filings are accurate and
failure to do so results in an ineffective legal argument and wastes the time and resources of the
Court and opposing counsel. Defendants are cautioned that citation to fabricated caselaw may
result in sanctions. For purposes of the pending motion, those citations and arguments are stricken
from the response and have not been considered.
Defendants’ arguments about “service issues” and “violation of due process standards” are
unfounded. With regard to the instant motion, Defendants’ assertion that they had no notice of or
opportunity to respond is belied by the record and their response and sur-reply to the motion. (See
Pl. Ex. A, Doc. 230-1 (tracking details for service of motion); Defs. Resp., Doc. No. 229; Defs.
Sur-reply, Doc. No. 231). Plaintiff’s service of other filings also raises no due process concerns.
The Federal Rules of Civil Procedure allow for service by mailing the motion or other filing to a
person’s “last known address” and provide that service is complete upon mailing. See Fed. R. Civ.
P. 5(b)(2)(C). The record indicates that service was made to Defendants’ addresses of record
provided to the Court. Despite some mail to Bevelyn Williams and Chavannes being returned
undelivered, each of them received actual notice of the filings at issue and, despite knowing that
they had not received filings and Orders, neither claims to have provided the Court or Plaintiff
with an updated address. Moreover, Defendants concede that filings were delivered to the
1 	Defendants also accuse Plaintiff of retaliatory litigation conduct, misrepresenting a motion to
modify a case management order as unopposed, and argue Plaintiff’s request for attorney’s fees and interest
is premature. (See Doc. No. 229 at 5-6). A review of the record shows the accusations concerning Plaintiff’s
litigation conduct to be unfounded. No request for attorney’s fees is currently before the Court. However,
Plaintiff states that it intends to seek attorney’s fees after the entry of final judgment in accordance with
Local Rule 54.01(b)(1).
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mailroom of their apartment complex. (Doc. No. 231 at 2). Defendants argue that Plaintiff should
have ensured that they retrieved the mailings from the mail room or otherwise provided notice of
the mailings, but the Federal Rules of Civil Procedure and due process impose no such obligation.
Because Plaintiff was awarded summary judgment on its FACE Act claims, Plaintiff is
entitled to an award of statutory damages in the amount of $5,000, for which Defendants are jointly
and severally liable. See United States v. Gregg, 226 F.3d 253, 258 (3d Cir. 2000) (holding that
statutory damages are imposed per violation and jointly and severally among the defendants who
participated in the blockade).
III. 	CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Award of Damages (Doc. No. 217) is
GRANTED. Final judgment will enter by separate Order.
It is so ORDERED.
_______________________________________
WILLIAM L. CAMPBELL, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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