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)

Download PDF
    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV11-2024 PHX DGC Michael Cotton Plaintiff, 10 ORDER AND DEFAULT JUDGMENT 11 v. 12 Zitterman Bosh & Associates, Damario Turpin, 13 Defendants. 14 15 Plaintiff has filed a motion for default judgment pursuant to Rule 55(b) of the 16 Federal Rules of Civil Procedure against Defendants Zitterman Bosh & Associates and 17 Damario Turpin. Doc. 15. No response has been filed, and the time for doing so has 18 expired. For reasons explained below, the Court will grant the motion. 19 I. Background. 20 Plaintiff filed a one-count complaint against Defendants on October 18, 2011 21 alleging violations of the Fair Debt Collection Practices Act. Doc. 1. Defendants were 22 served with the complaint on November 8, 2011. Docs. 7, 8. Defendants have not 23 answered or otherwise responded to the Complaint. On March 14, 2012 the Clerk of the 24 Court entered default against Defendants. Doc. 14. 25 II. Plaintiff’s Motion for Default Judgment. 26 Plaintiff seeks default judgment against Defendants in the amount of $5,607.50, 27 representing statutory damages in the amount of $1,000.00, $4,167.50 in attorneys’ fees, 28 and $440.00 in costs. Because default has been properly entered pursuant to Rule 55(a),     1 the Court has discretion to grant default judgment under Rule 55(b). See Aldabe v. 2 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 3 Factors the Court should consider in deciding whether to grant default judgment 4 include (1) the possibility of prejudice to Plaintiff, (2) the merits of the claims, (3) the 5 sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a 6 dispute concerning material facts, (6) whether default was due to excusable neglect, and 7 (7) the policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 8 1471-72 (9th Cir. 1986). In applying these Eitel factors, “the factual allegations of the 9 complaint, except those relating to the amount of damages, will be taken as true.” 10 Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. P. 8(d). 11 The first Eitel factor weighs in favor of granting Plaintiff’s motion because 12 Plaintiff will be prejudiced if this case remains unresolved. Plaintiff served Defendants 13 more than nine months ago. Docs. 7, 8. Defendants have not answered or otherwise 14 responded to the complaint. If Plaintiff’s motion for default judgment is not granted, 15 Plaintiff “will likely be without other recourse for recovery.” PepsiCo, Inc. v. Cal. 16 Security Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). 17 The second and third Eitel factors favor a default judgment where the complaint 18 sufficiently states a claim for relief under Rule 8. See Cal. Security Cans, 238 F. Supp. 19 2d at 1175; Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978)). Plaintiff’s 20 complaint states a plausible claim for relief. See Doc. 1. 21 Under the fourth Eitel factor, the Court considers the amount of money at stake in 22 relation to the seriousness of Defendants’ conduct. See Cal. Security Cans, 238 F. Supp. 23 2d at 1176. Defendants constantly and continuously placed collection calls to Plaintiff 24 seeking and demanding payment for an alleged debt. On or about May 19, 2011, 25 Defendants placed a call to Plaintiff. When Plaintiff’s six year old son answered the 26 phone, Defendant stated that if his “Daddy doesn’t call back, I’ll have him arrested.” On 27 or about June 1, 2011, Defendants called Plaintiff’s brother-in-law, John Leza, and 28 disclosed that Plaintiff owes a debt. Defendants have made a threat to Plaintiff over the ‐ 2 ‐      1 phone that Defendants are going to sue Plaintiff. Defendants have threatened to have 2 Plaintiff arrested. When Plaintiff told Defendants he was represented by an attorney and 3 tried to give Defendants his attorney’s phone number, Defendants hung up. This factor 4 weighs in favor of a default judgment. 5 Pitchometer Propeller, No. C-97-2661-VRW, 1997 WL 7979222, at *1 (N.D. Cal. Dec. 6 15, 1997) (granting default judgment where amount of money at stake was reasonable, 7 justified, and properly documented). Statutory damages and an award of attorneys’ fees 8 and costs constitute a reasonable response to such conduct. See Bd. of Trs. of Cal. Metal Trades v. 9 The fifth Eitel factor also favors a default judgment. Given the sufficiency of the 10 Complaint and Defendants’ default, “no genuine dispute of material facts would preclude 11 granting [Plaintiff’s] motion.” Cal. Security Cans, 238 F. Supp. 2d at 1177; see Geddes, 12 559 F.2d at 560. 13 Applying the sixth factor, Defendants were properly served with the summons and 14 complaint and yet never responded. Docs. 7, 8. Defendants agreed to a settlement and 15 then reneged. Doc. 11. Given these circumstances, Defendants’ failure to answer or 16 otherwise respond to the complaint cannot be attributed to excusable neglect. 17 Gemmel v. Systemhouse, Inc., No. CIV 04-187-TUC-CKJ, 2008 WL 65604, at *5 (D. 18 Ariz. Jan. 3, 2008). See 19 The final Eitel factor weighs against default judgment. “Cases should be decided 20 upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. But the mere 21 existence of Rule 55(b) “indicates that this preference, standing alone, is not dispositive.” 22 Cal. Security Cans, 238 F. Supp. at 1177 (citation omitted). Moreover, Defendants’ 23 failure to answer or otherwise respond to the complaint “makes a decision on the merits 24 impractical, if not impossible.” Id. 25 Having reviewed Plaintiff’s motion and supporting memoranda, and having 26 considered the Eitel factors as a whole, the Court concludes that the entry of default 27 judgment is appropriate against Defendants in the amount of $5,607.50. The Court 28 agrees that statutory damages of $1,000 are appropriate in this FDCPA case, and finds the ‐ 3 ‐      1 amount of attorneys’ fees and costs sought by Plaintiff ($4,607.50) to be reasonable as 2 well. 3 IT IS ORDERED: 4 1. Plaintiffs’ motion for default judgment (Doc. 15) is granted. 5 2. Default judgment is entered in favor of Plaintiff and against Defendants 6 7 Zitterman Bosh & Associates and Damario Turpin in the amount of $5,607.50. Dated this 13th day of August, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‐ 4 ‐ 

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?