Suing Phone Spammers in Washington
Small Claims Court (a Division of County District Court)
November 30, 2002
Use of ADAD's for commercial purposes is illegal under both federal and state law. Both authorize individuals to act as "private attorneys general" to enforce the law by bringing actions in small claims courts.
"No person may use an automatic dialing and announcing devices [ADAD's] for purposes of commercial solicitation. This section applies to all commercial solicitation intended to be received by telephone customers within the state." RCW 80.36.400(2).
"A violation of this section is a violation of chapter 19.86 RCW [consumer protection act]. It shall be presumed that damages to the recipient of commercial solicitations made using an automatic dialing and announcing device are five hundred dollars." RCW 80.36.400(3).
The plaintiff "may bring a civil action in the district court to recover his or her actual damages, except for damages which exceed the amount specified in RCW 3.66.020, and the costs of the suit, including reasonable attorney's fees. The district court may, in its discretion, increase the award of damages to an amount not more than three times the actual damages sustained, but such increased damage award shall not exceed the amount specified in RCW 3.66.020." RCW 19.86.090.
Prevailing plaintiffs in small claims court will be awarded their filing fee and costs of service. RCW 12.40.040. Costs of service are limited to the amounts chargeable by sheriffs. RCW 12.40.045.
Congress created a private right of action for junk fax and ADAD's that can be litigated exclusively in state courts. 47 U.S.C. § 227(b)(3). The constitutionality of this statute has been upheld against federalism challenges. See Murphey v. Lanier, 204 F.3d 911 (9th Cir. 2000). The statute does not preempt any more stringent state laws. 47 U.S.C. § 227(e)(1).
"It shall be unlawful for any person within the United States ... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." 47 U.S.C. § 227(b)(1)(B).
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State ... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater." 47 U.S.C. § 227(b)(3)(B).
"If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph [$500, for a total of $1500]." 47 U.S.C. § 227(b)(3). There is no provision for fees or costs under the federal statute.
File the claim using the preprinted form, available in the clerk's office. RCW 12.40.040. Filing fee in King County is $21.
"The notice of claim can be served either as provided
for the service of summons or complaint and notice in civil actions or by
registered or certified mail if a return receipt with the signature of the
party being served is filed with the court." RCW 12.40.040. "The notice of claim shall be
served promptly after filing the claim. Service must be complete at least ten
days prior to the first hearing."
Id.
District courts have subject matter jurisdiction over claims for money damages less than $15,000. RCW 3.66.020. The small claims division of the district court may hear cases for money damages less than $4000. RCW 12.40.010.
The Consumer Protection Act, RCW 19.86.090, gives the district court jurisdiction to hear consumer protection act cases that fall within the court's jurisdictional limits.
RCW 3.66.020(3) gives the district court jurisdiction to hear "actions for a penalty." Awards under the Consumer Protection Act are considered penalties. Strenge v. Clarke, 89 Wn.2d 23 (1977).
"For the purposes of [district courts], the residence of a corporation defendant shall be deemed to be in any district where the corporation transacts business or has an office for the transaction of business or transacted business at the time the cause of action arose or where any person resides upon whom process may be served upon the corporation, unless herein otherwise provided." RCW 3.66.040(7).
The court has personal jurisdiction over defendants residing in King County.
Actions for recovery of a penalty imposed by statute shall be tried "in the county where the cause, or some part thereof, arose." RCW 4.12.020.
"Any person, whether or not a citizen or resident of this state, ... submits ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of ...: (a) The transaction of any business within this state; (b) The commission of a tortious act within this state." RCW 4.28.185(1). This long-arm jurisdiction statute authorizes jurisdiction to the full extent allowed by the due process clause of the federal constitution. Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 771, 783 P.2d 78 (1989).
Long-arm jurisdiction permits personal service out of state, RCW 4.28.180, 185(2), but "Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law," RCW 4.28.185(6).
The clerks prefers that you file in the division where the defendant resides. Divisions are Seattle, Aukeen, Bellevue, Federal Way, Issaquah, Northeast, Shoreline, and Southwest. However, "If a civil or small claims action is filed in the wrong division, the court may on its own motion or at the request of any party, transfer the case to the proper division." LCRLJ 3.2.
"An action arising under RCW 3.66.020 (3) [penalty] ... shall be brought in the district in which the cause of action, or some part thereof arose." RCW 3.66.040(3). See also RCW 4.12.020.
"An action against a nonresident of this state may be brought in any district where service of process may be had, or in which the cause of action or some part thereof arose, or in which the plaintiff or one of them resides." RCW 3.66.040(5).
In small claims court, "If the losing party fails to pay the judgment within thirty days or within the period otherwise ordered by the court, the judgment shall be increased by: (1) An amount sufficient to cover costs of certification of the judgment under RCW 12.40.110 [$6]; and (2) the amount specified in RCW 36.18.012(2) [$15], without regard to the jurisdictional limits on the small claims department." RCW 12.40.105. See also RCW 12.40.110 (if not paid, small claims judgment will be certified as a district court judgment).
You have ten years to collect on a judgment. RCW 6.17.020.