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Rosecrans v. Airamedic LLC

United States District Court, D. Maine

March 30, 2017

SHARON ROSECRANS, et al., Plaintiffs,
v.
AIRAMEDIC, LLC, Defendant.

          ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Following the entry of a default in favor of the plaintiffs and against the defendant in this case, the Court held a damages hearing at which both plaintiffs, a mother and daughter, testified. The defendant failed to appear. In light of its significant concerns about the credibility of the mother, the Court awards her only nominal damages. In light of the credible but limited damages sustained by the daughter, the Court awards her $1, 000.00.

         I. PROCEDURAL BACKGROUND

         On September 6, 2016, Sharon Rosecrans and Lisa Weeks filed a complaint against Airamedic, LLC (Airamedic), claiming that Airamedic was using their images for commercial purposes, that Airamedic failed to obtain their authority to do so, and that Airamedic failed to respond to their demand that it stop doing so. Compl. (ECF No. 1). The Plaintiffs demand damages “sufficiently large to compensate for damages they have suffered as a result of Defendant's conduct including, but not limited to, damages for general and non-economic damages, economic damages, pre-judgment and post judgement (sic) interest, lost wages, punitive damages, costs of this suit, including reasonable attorney fees and costs, injunctive relief and such further relief the Court may deem proper.” Id. at 3-4.

         The Plaintiffs duly served a copy of the Complaint and Summons on Airamedic on September 17, 2016. Aff. of Service (ECF No. 4). On October 17, 2016, after Airamedic failed to respond to the lawsuit, the Plaintiffs moved for default judgment against it, and on October 24, 2016, the Plaintiffs filed a motion for entry of default against Airamedic. Pls.' Mot. for Default J. (ECF No. 5); Pls.' Mot. for Entry of Default (ECF No. 6). On October 24, 2016, the Clerk entered default against Airamedic. Order Granting Mot. for Entry of Default (ECF No. 7).

         On October 25, 2016, the Court dismissed the Plaintiffs' motion for default judgment without prejudice. Order Dismissing Mot. for Default J. at 3 (ECF No. 8). The Court explained that because the Plaintiffs were not alleging a sum certain, the Court “requires plaintiffs to appear before it at a scheduled hearing and make the case for their damage claims by presentation of evidence.” Id. at 2. The Court also noted that “once the hearing date, time and place have been scheduled, the Court requires the plaintiffs to notify the defaulted defendant so that if the defendant wishes to do so, it may appear and contest damages.” Id. at 2-3.

         On November 22, 2016, the Plaintiffs filed a second motion for default judgment seeking “$36, 500.00 plus per diem each.” Pls.' Mot. for Default J. at 2 (ECF No. 9) (Pls.' Second Default J. Mot.). The Court dismissed without prejudice the second motion, explaining that Plaintiffs did not comply with the Court's October 25, 2016 order requiring the Plaintiffs to appear at a scheduled hearing to make the case for their damages claim by presentation of evidence and to notify the defaulted defendant of the hearing once it has been scheduled. Order Dismissing Second Mot. for Default J. at 2 (ECF No. 10). After some delay, on December 28, 2016, the Court set a damages hearing for January 20, 2017 at 11:00 a.m. Notice of Hr'g (ECF No. 13).

         On January 20, 2017, the Court held a damages hearing in the United States District Court in Bangor, Maine. Min. Entry (ECF No. 15). The Plaintiffs failed to comply with the Court's Order dated October 25, 2016, which required them to give prior notice of the hearing to Airamedic. However, at the Court's direction, after the hearing, on January 24, 2017, the Plaintiffs sent Airamedic a Notice of Opportunity for Hearing on Damages, indicating that the Court held a hearing on damages on January 20, 2017 and that Airamedic had the right to appear at the hearing and contest damages upon notifying the Court and Plaintiffs' counsel within fourteen days of the receipt of the notice. Notice of Opportunity for Hr'g on Damages (ECF No. 19); id. Attach. 1 Certified Mail Receipt. Airamedic received the Notice of Opportunity for Hearing on Damages by certified mail on January 27, 2017. Certified Mail, Return Receipt (ECF No. 20). More than fourteen days have passed since Airamedic's January 27, 2017 receipt of the notice of opportunity for hearing and the Court has received no response from Airamedic.

         II. JURISDICTION

         As of September 6, 2016, the date of the filing of the Complaint, Sharon Rosecrans was a resident of Fort Fairfield, Maine, Lisa Weeks was a resident of Bradley, Maine, and Airamedic was a corporation operating a commercial business in St. Petersburg, Florida. Compl. (ECF No. 1); Pls.' Mot. for Default J. (ECF No. 5). This Court has diversity jurisdiction under 28 U.S.C. § 1332.

         III. THE JANUARY 20, 2017 DAMAGES HEARING

         Sharon Rosecrans and Lisa Weeks appeared at the January 20, 2017 damages hearing and testified on their own behalf; Airamedic did not appear at the hearing.

         A. The Airamedic Brochure

         The Plaintiffs introduced into evidence as Exhibit One an Airamedic brochure. Pls.' Ex. 1. The brochure is about seven and a half by ten inches and is in color. It consists of three equal-sized panels. At the top of the middle panel is a photograph of a small airplane, flying over water. Beneath the airplane appear the words: Airamedic, llc. Air Ambulance, We'll Take Care From Here!

         The brochure describes Airamedic as committed to providing your family with “the safest medical flight to your destination” and says the “medical and flight crew will be the highest trained and experienced with profession (sic) ethics and compassion that are unmatched.” The brochure states that “[s]afety, low cost, and highest quality of medical care and comfort are our primary goals when transporting your patient” and indicates that “we achieve those goals on every flight.” The brochure proclaims “Dedication to Excellence . . .” and says that “[w]e will get your patient home safe, sound, & on time . . .”

         The Airamedic brochure observes that “[m]any air ambulance companies have had fatal air mishaps” and they are a “growing problem in this industry.” Yet, Airamedic “take[s] pride in our company's record with no loss of life and no air mishaps.” Airamedic asks “Is the least expensive doctor or hospital to care for your patients needs contacted?” It answers, “[p]robably not . . . It's the best and safest doctor and hospital for your family member's care.” The brochure asserts that “[w]hen arranging a medical flight for your patient, family members should take the highest precautions necessary for the patient's medical welfare AND provide the safest transportation for their loved one's return to his/her destination . . . along with offering the lowest rates in the industry.” The bottom of this panel has Airamedic's telephone number and web address.

         The top of the panel to the left contains another picture of an airplane, flying over clouds. Beneath the photograph appear the words in bold: “We understand . . .” Beneath these words appear:

your family's and your patient's hardships at this trying time, and we are here to help you and carry your family's burden in coordination of all aspects prior to and after your loved one's medical flight is completed.
We have made great efforts to lower our cost of aircraft transportation nationwide and worldwide. Now from just about all points worldwide we are successfully transporting your patients, their family members, at a fraction of industry cost.
A vast data bank of critical care aviators who insure the safest and highest quality of service . . . and they help lower costs! We Also Offer Commercial Airline Escort Transportation at very low cost.

         At the bottom of this panel is a photograph of the interior of an airplane and an email address for the company.

         The panel to the right contains a three by three and a quarter inch photograph of three people. Most prominent is a male dressed in a white coat with writing over the left outside pocket, wearing a blue and white check shirt and a stethoscope. He is looking down at a young girl with blonde hair and bangs. Only the girl's face is clearly visible. The girl's head is resting against a pillow and she is in bed under a blanket and sheet. The girl appears to be clothed or perhaps in pajamas. She is looking directly at the person to the left of the photograph who is mostly turned away. This person's face is not distinguishable and she is mostly in shadow. Based on the length of hair, this person is likely a woman, though the person could be a male with long hair. She is wearing a blue shirt and is extending her right arm to use a stethoscope to listen to the girl's chest.

         Across the bottom of the photograph are the words: “We'll Take Care From Here!” Under the photograph are the words in quotes: “Professional with ...


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