Gwinn v. Safeguard Recovery LLC et al

Filing 14

ORDER re Plaintiff's motion for default judgment. Signed by Judge David G Campbell on 5/1/2015. (DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marion Gwinn,
Plaintiff,

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No. CV14-1923 PHX DGC
ORDER

v.
Safeguard Recovery LLC, Eckity Capital
Markets, LLC,
Defendants.

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This case is a civil action brought under the Fair Debt Collections Practices Act

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(“FDCPA”). Doc. 1 (citing 15 U.S.C. § 1692 et seq.). Plaintiff filed the complaint on

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August 29, 2014. Id. Defendants have not answered or otherwise responded to the

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complaint. On October 6, 2014, the Clerk entered default as to Defendants. Doc. 10.

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Plaintiff filed a motion for default judgment on March 13, 2015. Doc. 13. No response

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to the motion has been filed. The Court finds Plaintiff’s motion has merit, but further

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evidence is required on the issue of damages.

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Once a party’s default has been entered, the district court has discretion to grant

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default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616

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F.2d 1089, 1092 (9th Cir. 1980). Factors the court may consider in deciding whether to

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grant default judgment include (1) the possibility of prejudice to the plaintiff, (2) the

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merits of the claim, (3) the sufficiency of the complaint, (4) the amount of money at

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stake, (5) the possibility of a dispute concerning material facts, (6) whether default was

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due to excusable neglect, and (7) the policy favoring a decision on the merits. See Eitel

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v.McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

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The Court finds that these factors most likely weigh in favor of a default

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judgment, but that further evidence is needed on the issue of damages. “The general rule

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of law is that upon default the factual allegations of the complaint, except those relating

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to the amount of damages, will be taken as true.” Geddes v. United Fin. Grp., 559 F.2d

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557, 560 (9th Cir. 1977). For Plaintiff’s claims, his allegations are taken as true. But for

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his damages, more evidence is necessary. “In determining damages, a court can rely on

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the declarations submitted by the plaintiff or order a full evidentiary hearing.” Philip

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Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). “A

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default judgment may be entered without a hearing on damages when the amount claimed

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is capable of ascertainment from definite figures contained in the documentary evidence

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or in detailed affidavits.” Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658,

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661 (S.D. Cal. 1997).

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Plaintiff claims under the FDCPA actual damages of $500 and statutory damages

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of $1,000. See 15 U.S.C. § 1692k(a). Plaintiff does not explain the basis of his actual

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damages, and the Court will therefore require Plaintiff to submit an affidavit that so

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explains. Statutory damages of no more than $1,000 may be awarded under the FDCPA

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and do not require a finding of actual damages. Id. § 1692k(a)(2)(A). In assessing the

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appropriate amount of statutory damages, the Court must consider “the frequency and

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persistence of noncompliance by the debt collector, the nature of such noncompliance,

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and the extent to which such noncompliance was intentional.” Id. § 1692k(b)(1). The

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Court finds that an affidavit from Plaintiff or Plaintiff’s attorney addressing these factors

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is necessary.

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Plaintiff also requests attorney’s fees. Under the FDCPA, a successful plaintiff is

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entitled to collect “the costs of the action, together with a reasonable attorney's fee as

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determined by the court.” Id. § 1692k(a)(3). Plaintiff’s attorney may submit, along with

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the other affidavits, a listing of the costs of the action and his attorney’s fees. Plaintiff’s
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attorney must also explain why the requested attorney’s fees are reasonable.

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IT IS ORDERED that Plaintiff and Plaintiff’s attorney shall submit affidavits

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addressing: (1) The basis for Plaintiff’s actual damages; (2) the factors for awarding

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statutory damages under 15 U.S.C. § 1692k(b)(1); and (3) the costs of this action,

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Plaintiff’s attorney’s fees, and an explanation of why the attorney’s fees are reasonable

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on or before May 15. 2015.

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Dated this 1st day of May, 2015.

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