Cotton v. Zitterman Bosh & Associates et al

Filing 16

ORDER and DEFAULT JUDGMENT - Plaintiffs' motion for default judgment (Doc. 15) is granted. Default judgment is entered in favor of Plaintiff and against Defendants Zitterman Bosh & Associates and Damario Turpin in the amount of $5,607.50. Signed by Judge David G Campbell on 8/13/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV11-2024 PHX DGC

Michael Cotton
Plaintiff,

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ORDER AND DEFAULT JUDGMENT

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v.

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Zitterman Bosh & Associates, Damario
Turpin,

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Defendants.

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Plaintiff has filed a motion for default judgment pursuant to Rule 55(b) of the

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Federal Rules of Civil Procedure against Defendants Zitterman Bosh & Associates and

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Damario Turpin. Doc. 15. No response has been filed, and the time for doing so has

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expired. For reasons explained below, the Court will grant the motion.

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I.

Background.

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Plaintiff filed a one-count complaint against Defendants on October 18, 2011

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alleging violations of the Fair Debt Collection Practices Act. Doc. 1. Defendants were

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served with the complaint on November 8, 2011. Docs. 7, 8. Defendants have not

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answered or otherwise responded to the Complaint. On March 14, 2012 the Clerk of the

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Court entered default against Defendants. Doc. 14.

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II.

Plaintiff’s Motion for Default Judgment.

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Plaintiff seeks default judgment against Defendants in the amount of $5,607.50,

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representing statutory damages in the amount of $1,000.00, $4,167.50 in attorneys’ fees,

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and $440.00 in costs. Because default has been properly entered pursuant to Rule 55(a),

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the Court has discretion to grant default judgment under Rule 55(b). See Aldabe v.

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Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

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Factors the Court should consider in deciding whether to grant default judgment

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include (1) the possibility of prejudice to Plaintiff, (2) the merits of the claims, (3) the

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sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a

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dispute concerning material facts, (6) whether default was due to excusable neglect, and

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(7) the policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d 1470,

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1471-72 (9th Cir. 1986). In applying these Eitel factors, “the factual allegations of the

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complaint, except those relating to the amount of damages, will be taken as true.”

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Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. P. 8(d).

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The first Eitel factor weighs in favor of granting Plaintiff’s motion because

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Plaintiff will be prejudiced if this case remains unresolved. Plaintiff served Defendants

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more than nine months ago. Docs. 7, 8. Defendants have not answered or otherwise

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responded to the complaint. If Plaintiff’s motion for default judgment is not granted,

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Plaintiff “will likely be without other recourse for recovery.” PepsiCo, Inc. v. Cal.

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Security Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002).

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The second and third Eitel factors favor a default judgment where the complaint

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sufficiently states a claim for relief under Rule 8. See Cal. Security Cans, 238 F. Supp.

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2d at 1175; Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978)). Plaintiff’s

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complaint states a plausible claim for relief. See Doc. 1.

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Under the fourth Eitel factor, the Court considers the amount of money at stake in

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relation to the seriousness of Defendants’ conduct. See Cal. Security Cans, 238 F. Supp.

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2d at 1176. Defendants constantly and continuously placed collection calls to Plaintiff

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seeking and demanding payment for an alleged debt. On or about May 19, 2011,

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Defendants placed a call to Plaintiff. When Plaintiff’s six year old son answered the

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phone, Defendant stated that if his “Daddy doesn’t call back, I’ll have him arrested.” On

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or about June 1, 2011, Defendants called Plaintiff’s brother-in-law, John Leza, and

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disclosed that Plaintiff owes a debt. Defendants have made a threat to Plaintiff over the
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phone that Defendants are going to sue Plaintiff. Defendants have threatened to have

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Plaintiff arrested. When Plaintiff told Defendants he was represented by an attorney and

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tried to give Defendants his attorney’s phone number, Defendants hung up. This factor

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weighs in favor of a default judgment.

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Pitchometer Propeller, No. C-97-2661-VRW, 1997 WL 7979222, at *1 (N.D. Cal. Dec.

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15, 1997) (granting default judgment where amount of money at stake was reasonable,

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justified, and properly documented). Statutory damages and an award of attorneys’ fees

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and costs constitute a reasonable response to such conduct.

See Bd. of Trs. of Cal. Metal Trades v.

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The fifth Eitel factor also favors a default judgment. Given the sufficiency of the

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Complaint and Defendants’ default, “no genuine dispute of material facts would preclude

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granting [Plaintiff’s] motion.” Cal. Security Cans, 238 F. Supp. 2d at 1177; see Geddes,

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559 F.2d at 560.

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Applying the sixth factor, Defendants were properly served with the summons and

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complaint and yet never responded. Docs. 7, 8. Defendants agreed to a settlement and

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then reneged. Doc. 11. Given these circumstances, Defendants’ failure to answer or

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otherwise respond to the complaint cannot be attributed to excusable neglect.

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Gemmel v. Systemhouse, Inc., No. CIV 04-187-TUC-CKJ, 2008 WL 65604, at *5 (D.

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Ariz. Jan. 3, 2008).

See

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The final Eitel factor weighs against default judgment. “Cases should be decided

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upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. But the mere

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existence of Rule 55(b) “indicates that this preference, standing alone, is not dispositive.”

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Cal. Security Cans, 238 F. Supp. at 1177 (citation omitted). Moreover, Defendants’

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failure to answer or otherwise respond to the complaint “makes a decision on the merits

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impractical, if not impossible.” Id.

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Having reviewed Plaintiff’s motion and supporting memoranda, and having

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considered the Eitel factors as a whole, the Court concludes that the entry of default

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judgment is appropriate against Defendants in the amount of $5,607.50. The Court

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agrees that statutory damages of $1,000 are appropriate in this FDCPA case, and finds the
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amount of attorneys’ fees and costs sought by Plaintiff ($4,607.50) to be reasonable as

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well.

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IT IS ORDERED:

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Plaintiffs’ motion for default judgment (Doc. 15) is granted.

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Default judgment is entered in favor of Plaintiff and against Defendants

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Zitterman Bosh & Associates and Damario Turpin in the amount of $5,607.50.
Dated this 13th day of August, 2012.

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