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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 David Hammitt, 9 10 Plaintiff, vs. 11 12 13 Northeast Collection Bureau, Inc., Defendant. 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 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. 17 On February 28, 2014, Plaintiff filed a Complaint (Doc. 1) against Defendant 18 Northeast Collection Bureau Incorporated, bringing claims for violations of the Fair Debt 19 Collections Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. Default was entered 20 against Defendant under Rule 55(a) of the Federal Rules of Civil Procedure (see Doc. 9). 21 Therefore, the Court has discretion to grant default judgment pursuant to Rule 55(b). See 22 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792 F.2d 915, 23 924 (9th Cir. 1986). 24 Factors the Court considers in deciding whether to grant default judgment include: 25 (1) the possibility of prejudice to Plaintiff; (2) the merits of the claims; (3) the sufficiency 26 of the complaint; (4) the amount of money at stake; (5) the possibility of a dispute 27 concerning material facts; (6) whether default was due to excusable neglect; and (7) the 28 policy favoring a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th 1 Cir. 1986). In applying these Eitel factors, “the factual allegations of the complaint, 2 except those relating to the amount of damages, will be taken as true.” Geddes v. United 3 Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). 4 Upon review of Plaintiff’s proof of service (Doc. 7), the Court finds that the 5 Defendant has been properly served as required by Rule 4 of the Federal Rules of Civil 6 Procedure. Defendant was served on March 4, 2014, in a manner authorized by the State 7 in which this District Court sits under Rule 4.2(c) of the Arizona Rules of Civil 8 Procedure. See Fed. R. Civ. P. 4(e)(1). The Court further finds that it has federal-question 9 jurisdiction under 28 U.S.C. § 1331, that venue is proper in this Court because a 10 substantial part of the events giving rise to this claim occurred in this judicial district, and 11 that it has personal jurisdiction over Defendant because their conduct caused harm in this 12 district and they had or should have had an expectation to be hauled into court in this 13 district. 14 Having considered Plaintiff’s motion, which addresses each of the Eitel factors 15 (see Doc. 12 at 8-12), the Court finds that granting default judgment for Plaintiff is 16 appropriate. Defendant has not made an appearance in this case, and the allegations are 17 undefended. Although service was made, Defendant has failed to appear and defend this 18 suit for approximately four months. Consequently, the Court concludes that Defendant’s 19 default is not due to excusable neglect. The complaint alleges several violations of the 20 FDCPA by Defendant, see, e.g., 15 U.S.C. §§ 1692b(2), 1692c(b), 1692e(2)(A), 21 1692e(4), 1692e(5), 1692e(10), 1692f(1), and the material facts required to establish such 22 violations have been sufficiently pled against the Defendant. Defendant’s absence from 23 this case precludes a decision on the merits. Accordingly, the Court will take all factual 24 allegations in Plaintiff’s complaint, except those relating to the amount of damages, as 25 true, and finds Defendant liable for the conduct alleged. 26 Having determined liability, the remaining issue is appropriate relief. In a default 27 judgment action, the amount of damages will not automatically be assumed true. See 28 Geddes, 559 F.2d at 560 (stating that “the factual allegations of the complaint, except 2 1 those relating to the amount of damages, will be taken as true”). Here, Plaintiff requests 2 actual damages, statutory damages, costs, and attorney fees. 3 First, as to statutory damages, the FDCPA permits a statutory award of up to 4 $1,000.00 against each liable debt collector. 15 U.S.C. § 1692k(a)(2)(A). Here, 5 Defendant called Plaintiff’s mother demanding payment of Plaintiff’s alleged debt, 6 discussed with her concerning Plaintiff’s purported debt, and threatened her that unless 7 the debt was paid that day, a warrant would issue for Plaintiff’s arrest. In light of the 8 nature of the conduct used by Defendant in connection with the collection of Plaintiff’s 9 alleged debt, the Court will award Plaintiff statutory damages in the amount of $1,000.00. 10 Second, Plaintiff’s costs and attorney fees are well-documented (see Doc. 12). The Court 11 finds the evidence supports the costs requested and the requested fees are reasonable, and 12 will therefore award $3,430.00 in attorney’s fees and $407.40 in costs pursuant to 15 13 U.S.C. § 1692k(a)(3). 14 Lastly, the FDCPA permits actual damages sustained as a result of the debt 15 collector’s conduct. 15 U.S.C. § 1692k(a)(1). Plaintiff has submitted an affidavit stating 16 that Plaintiff’s mother paid Defendant $345.00 for Plaintiff’s alleged debt, for which 17 Plaintiff was required to repay to his mother. (See Doc. 12-2 at 2.) However, Plaintiff has 18 presented no evidence in support of this statement, such as proof of payment of this 19 amount by Plaintiff’s mother to Defendant, or payment of this amount from Plaintiff to 20 his mother. Therefore, the Court cannot, on the record before it, determine that actual 21 damages should be awarded. Plaintiff will, however, be offered an opportunity to submit 22 evidence to the Court sufficient to establish the amount of actual damages. Accordingly, 23 IT IS ORDERED: 24 1. forth above; 25 26 2. 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; 27 28 That Plaintiff’s Motion for Default Judgment (Doc. 12) is granted as set 3. That Plaintiff is awarded costs and attorney fees pursuant to 15 U.S.C. § 3 1692k(a)(3) in the amount of $3,837.40 against Defendant; and 1 2 3 4 4. 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. 5 6 Honorable Steven P. Logan United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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