Massey v. Everest Asset Management LLC et al

Filing 27

MEMORANDUM OF DECISION AND ORDER: ORDERED that the Court adopts the 26 Report and Recommendation of the Magistrate Judge. ORDERED granting Plaintiff's 25 Amended Motion for Default Judgment. ORDERED that Plaintiff be awarded costs and a ttorney fees in the amount of $5,329.10 against Defendants jointly and severally; statutory damages in the amount of $1,000.00 against Defendants jointly and severally. IT IS FURTHER ORDERED terminating this action. Signed by Senior Judge Stephen M McNamee on 7/18/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marissa Massey,

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Plaintiff,
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v.
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Everest Asset Management, LLC et al., )
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Defendants.
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No. CV-12-1987-PHX-SMM (SPL)

MEMORANDUM OF DECISION AND
ORDER

Pending before the Court is Magistrate Judge Steven P. Logan’s Report and

16 Recommendation advising that this Court grant Plaintiff Marisa Massey’s Amended Motion
17 for Default Judgment. (Doc. 26.) Defendants have filed no objections to the Report and
18 Recommendation, and the time to do so has expired. The Court will affirm Judge Logan’s
19 Report and Recommendation.
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STANDARD OF REVIEW
When reviewing a Magistrate Judge’s Report and Recommendation, this Court must

22 ‘make a de novo determination of those portions of the report . . . to which objection is made,”
23 and “may accept, reject, or modify, in whole or in part, the findings or recommendations made
24 by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d
25 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454
26 (9th Cir. 1983)). Failure to object to a Magistrate Judge’s recommendation relieves the Court
27 of conducting de novo review of the Magistrate Judge’s factual findings; the Court then may
28 decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207,

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208 (9th Cir. 1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir.

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1974)).

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By failing to object to a Report and Recommendation, a party waives its right to

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challenge the Magistrate’s factual findings, but not necessarily the Magistrate’s legal

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conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998) (failure to object to Magistrate’s legal conclusion “is a factor to be weighed in

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considering the propriety of finding waiver of an issue on appeal”); Martinez v. Ylst, 951

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F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.

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1980)).
DISCUSSION1

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After conducting a thorough legal and factual analysis, the Magistrate Judge

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concluded that granting default judgment for Plaintiff is appropriate. (Doc. 26 at 2.)

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Because the Defendants have not made an appearance in this case, the Court took each of the

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factual allegations in the Plaintiff’s complaint, except those relating to damages, as true. (Id.)

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The Magistrate Judge then examined the Eitel factors set forth in Plaintiff’s motion and

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properly reasoned that default judgment is appropriate. (Id.) The Magistrate Judge also

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concluded that because Defendants were personally served, their failure to appear in this case

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is not due to excusable neglect. (Id.)

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Additionally, the Magistrate Judge recommended that Plaintiff be awarded $1,000.00

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for statutory damages, $624.10 for costs and $ 4705.00 for reasonable attorney fees. (Id. at

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3.) The Magistrate Judge found that the costs and attorney fees are well documented and

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reasonable. (Id.) Furthermore, the Fair Debt Collection Practices Act (“FDCPA”) permits

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a statutory award of up to $1,000.00 against each liable debt collector, and representatives

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acting on behalf of Defendants made numerous calls to Plaintiff that resulted in a violation

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of the FDCPA. (Id.) Thus, the Magistrate Judge properly concluded that the Plaintiff is

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The factual and procedural history of this case is set forth in the Magistrate
Judge’s Report and Recommendation. (Doc. 26.)
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entitled to statutory damages of $1,000.00.
Therefore, the Court hereby incorporates and adopts the Magistrate Judge’s Report
and Recommendation. (Doc. 26.)

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CONCLUSION
IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation
of the Magistrate Judge. (Doc. 26.)
IT IS FURTHER ORDERED granting Plaintiff’s Amended Motion for Default
Judgment. (Doc. 25.)
IT IS FURTHER ORDERED that Plaintiff be awarded costs and attorney fees in
the amount of $5,329.10 against Defendants jointly and severally.
IT IS FURTHER ORDERED that Plaintiff be awarded statutory damages in the

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amount of $1,000.00 against Defendants jointly and severally.

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IT IS FURTHER ORDERED terminating this action.

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DATED this 18th day of July, 2013.

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