Hammitt v. Northeast Collection Bureau Incorporated

Filing 13

ORDER, Plaintiff's Motion for Default Judgment 12 is granted as set forth in this order; Plaintiff is awarded statutory damages pursuant to 15 U.S.C. §1692k(a)(2)(A) in the amount of $1,000.00 against Defendant; Plaintiff is awarded costs and attorney fees pursuant to 15 U.S.C. §1692k(a)(3) in the amount of $3,837.40 against Defendant; Plaintiff shall have until 8/4/14 to file evidence in support of its request for actual damages pursuant to 15 U.S.C. § 1692k(a)(1). Signed by Judge Steven P Logan on 7/21/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Hammitt,

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Plaintiff,
vs.

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Northeast Collection Bureau, Inc.,
Defendant.

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No. CV-14-00391-PHX-SPL
ORDER

Before the Court is Plaintiff David Hammitt’s Motion for Default Judgment (Doc.
12). Oral argument has not been requested.

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On February 28, 2014, Plaintiff filed a Complaint (Doc. 1) against Defendant

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Northeast Collection Bureau Incorporated, bringing claims for violations of the Fair Debt

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Collections Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. Default was entered

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against Defendant under Rule 55(a) of the Federal Rules of Civil Procedure (see Doc. 9).

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Therefore, the Court has discretion to grant default judgment pursuant to Rule 55(b). See

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Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792 F.2d 915,

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924 (9th Cir. 1986).

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Factors the Court considers in deciding whether to grant default judgment include:

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(1) the possibility of prejudice to Plaintiff; (2) the merits of the claims; (3) the sufficiency

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of the complaint; (4) the amount of money at stake; (5) the possibility of a dispute

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concerning material facts; (6) whether default was due to excusable neglect; and (7) the

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policy favoring a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th

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Cir. 1986). In applying these Eitel factors, “the factual allegations of the complaint,

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

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Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977).

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Upon review of Plaintiff’s proof of service (Doc. 7), the Court finds that the

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Defendant has been properly served as required by Rule 4 of the Federal Rules of Civil

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Procedure. Defendant was served on March 4, 2014, in a manner authorized by the State

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in which this District Court sits under Rule 4.2(c) of the Arizona Rules of Civil

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Procedure. See Fed. R. Civ. P. 4(e)(1). The Court further finds that it has federal-question

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jurisdiction under 28 U.S.C. § 1331, that venue is proper in this Court because a

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substantial part of the events giving rise to this claim occurred in this judicial district, and

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that it has personal jurisdiction over Defendant because their conduct caused harm in this

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district and they had or should have had an expectation to be hauled into court in this

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district.

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Having considered Plaintiff’s motion, which addresses each of the Eitel factors

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(see Doc. 12 at 8-12), the Court finds that granting default judgment for Plaintiff is

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appropriate. Defendant has not made an appearance in this case, and the allegations are

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undefended. Although service was made, Defendant has failed to appear and defend this

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suit for approximately four months. Consequently, the Court concludes that Defendant’s

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default is not due to excusable neglect. The complaint alleges several violations of the

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FDCPA by Defendant, see, e.g., 15 U.S.C. §§ 1692b(2), 1692c(b), 1692e(2)(A),

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1692e(4), 1692e(5), 1692e(10), 1692f(1), and the material facts required to establish such

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violations have been sufficiently pled against the Defendant. Defendant’s absence from

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this case precludes a decision on the merits. Accordingly, the Court will take all factual

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allegations in Plaintiff’s complaint, except those relating to the amount of damages, as

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true, and finds Defendant liable for the conduct alleged.

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Having determined liability, the remaining issue is appropriate relief. In a default

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judgment action, the amount of damages will not automatically be assumed true. See

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Geddes, 559 F.2d at 560 (stating that “the factual allegations of the complaint, except
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those relating to the amount of damages, will be taken as true”). Here, Plaintiff requests

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actual damages, statutory damages, costs, and attorney fees.

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First, as to statutory damages, the FDCPA permits a statutory award of up to

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$1,000.00 against each liable debt collector. 15 U.S.C. § 1692k(a)(2)(A). Here,

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Defendant called Plaintiff’s mother demanding payment of Plaintiff’s alleged debt,

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discussed with her concerning Plaintiff’s purported debt, and threatened her that unless

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the debt was paid that day, a warrant would issue for Plaintiff’s arrest. In light of the

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nature of the conduct used by Defendant in connection with the collection of Plaintiff’s

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alleged debt, the Court will award Plaintiff statutory damages in the amount of $1,000.00.

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Second, Plaintiff’s costs and attorney fees are well-documented (see Doc. 12). The Court

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finds the evidence supports the costs requested and the requested fees are reasonable, and

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will therefore award $3,430.00 in attorney’s fees and $407.40 in costs pursuant to 15

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U.S.C. § 1692k(a)(3).

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Lastly, the FDCPA permits actual damages sustained as a result of the debt

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collector’s conduct. 15 U.S.C. § 1692k(a)(1). Plaintiff has submitted an affidavit stating

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that Plaintiff’s mother paid Defendant $345.00 for Plaintiff’s alleged debt, for which

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Plaintiff was required to repay to his mother. (See Doc. 12-2 at 2.) However, Plaintiff has

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presented no evidence in support of this statement, such as proof of payment of this

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amount by Plaintiff’s mother to Defendant, or payment of this amount from Plaintiff to

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his mother. Therefore, the Court cannot, on the record before it, determine that actual

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damages should be awarded. Plaintiff will, however, be offered an opportunity to submit

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evidence to the Court sufficient to establish the amount of actual damages. Accordingly,

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IT IS ORDERED:

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forth above;

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That Plaintiff is awarded statutory damages pursuant to 15 U.S.C. §
1692k(a)(2)(A) in the amount of $1,000.00 against Defendant;

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That Plaintiff’s Motion for Default Judgment (Doc. 12) is granted as set

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That Plaintiff is awarded costs and attorney fees pursuant to 15 U.S.C. §
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1692k(a)(3) in the amount of $3,837.40 against Defendant; and

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That Plaintiff shall have until August 4, 2014, to file evidence in support of
its request for actual damages pursuant to 15 U.S.C. § 1692k(a)(1).

Dated this 21st day of July, 2014.

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Honorable Steven P. Logan
United States District Judge

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