United States District Court, D. Maine
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
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).
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.
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.
THE JANUARY 20, 2017 DAMAGES HEARING
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.
The Airamedic Brochure
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!
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 . . .”
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
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
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.
bottom of this panel is a photograph of the interior of an
airplane and an email address for the company.
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.
the bottom of the photograph are the words: “We'll
Take Care From Here!” Under the photograph are the
words in quotes: “Professional with ...