Hetland v. Simm Associates, Inc.

Filing 24

ORDER GRANTING DEFAULT JUDGMENT. Signed by Judge Richard Seeborg on 8/22/13. (cl, COURT STAFF) (Filed on 8/22/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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No. C 13-0498 RS

SHIRLEY HETLAND,
Plaintiff,

ORDER GRANTING DEFAULT
JUDGMENT

v.

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SIMM ASSCOICATES, INC.,

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Defendant.
____________________________________/

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I.

INTRODUCTION

Plaintiff Shirley Hetland moves for entry of a default judgment against defendant Simm

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Associates, Inc. under Federal Rule of Civil Procedure 55(b)(2) in the amount of $6,399. Her

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complaint alleges that Simm violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §

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1692e(10) & (11), and the Rosenthal Fair Debt Collection Practices Act (RFDCPA), Cal. Civ. Code

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§1788.30(b), by leaving a voicemail for her that did not disclose that the caller was a debt collector

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calling about a debt, but instead identified the call as from “Simm Associates” about a “business

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matter.” Compl., Dkt. 1, ¶¶16-18. Plaintiff seeks statutory damages totaling $2,000, which

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represents the $1,000 statutory maximum that may be obtained for violations of the FDCPA and the
NO. C 13-0498 RS
ORDER

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RFDCPA. See FDCPA, 15 U.S.C. § 1692(k)(a)(2)(A); RFDCPA, Cal. Civ. Code § 1788.30(c).

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Plaintiff further requests $4,049 for attorneys fees $350 for costs pursuant to those statutes. See id.

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at § 1692(k)(a)(3); § 1788.30(c).
II.

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BACKGROUND

Plaintiff filed the complaint in this case on February 5, 2013. Dkt. 1. Defendant was served

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on February 11, 2013. Dkt. 5. When defendant did not respond within the time period allowed by

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Rule 12, plaintiff moved for an Entry of Default on March 8, 2013. The Clerk entered default

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against Simm on March 12, 2013.

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The complaint avers that plaintiff is a consumer within the meaning of 15 U.S.C. § 1692a(3),

For the Northern District of California

United States District Court

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and that Simm is a debt collector as defined by 15 U.S.C. § 1692a(6). Simm attempted to collect a

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debt from plaintiff that arose from transactions for personal, family and household purposes, thereby

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satisfying the definition of debt in 15 U.S.C. § 1692a(5). Simm placed at least one telephone call to

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plaintiff at her home telephone number in April or May of 2012 and left a voicemail stating:

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Hello Ms. Hetland this is Ginger Wheeler I’m with the office of Simm Associates.
You have a business matter sent to my office that I need to discuss with you or
whoever represents you. Please return my call at 1-800-651-9054. Your
reference number is 6528291.
Compl., Ex. A.
III.

LEGAL STANDARD

Following entry of default, courts are authorized to grant default judgment in their

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discretion. See Fed. R. Civ. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In

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exercising its discretion, the factors the court may consider include: (1) the possibility of prejudice

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to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint,

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(4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts;

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(6) whether the default was due to excusable neglect, and (7) the strong policy underlying the

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Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470,

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1471-72 (9th Cir. 1986). In considering these factors, all factual allegations in the plaintiff’s

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complaint are taken as true, except for those relating to damages. TeleVideo Sys., Inc.

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v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
NO. C 13-0498 RS
ORDER

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IV.

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DISCUSSION

Hetland contends that the single voicemail Simm left for her violated the FDCPA’s

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prohibitions on “[t]he use of any false representation or deceptive means to collect or attempt to

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collect any debt or to obtain information concerning a consumer” and “[t]he failure to disclose in the

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. . . initial oral communication, that the debt collector is attempting to collect a debt and that any

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information obtained will be used for that purpose.” 15 U.S.C. § 1692e(10) & (11). Based on the

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complaint, which must be accepted as true, Hetland has stated a claim upon which relief may be

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granted, at least under Section 1692e(11), which required the representative from Simm who left her

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a voicemail to convey that the call was specifically from a debt collector regarding a debt owed. See

For the Northern District of California

United States District Court

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Costa v. Nat’l Action Fin. Servs., 634 F. Supp. 2d 1069 (N.D. Cal. Dec. 19, 2007) (holding that a

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voicemail failing to state that it is from a debt collector in regards to a debt owed violates Section

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1692e(11)). A violation of the FDCPA is, by definition also a violation of the RFDCPA. See Cal.

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Civ. Code § 1788.17. It is not necessary, therefore, to reach the question of whether a failure

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affirmatively to provide such information, standing alone, would also constitute using a deceptive

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means to collect a debt under Section 1692e(10), given that the voicemail from Simm did not

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contain any statements that are literally false.

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The grounds for default are clearly established. Simm was served with the complaint and

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summons and filed no responsive pleading. There is no indication of good faith mistake or

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excusable neglect justifying Simm’s failure to respond or otherwise defend against plaintiff’s

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allegations, nor would the granting of a default judgment result in substantial prejudice to Simm.

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Plaintiff has, therefore, established the grounds for default judgment and its entitlement to

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relief. The FDCPA allows “in the case of any action by an individual, such additional damages as

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the court may allow, but not exceeding $1,000.00.” 15 U.S.C. § 1692k(2)(A). The RFDCPA

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additionally provides for “a penalty in such amount as the court may allow, which shall not be less

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than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).” Cal. Civ. Code §

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1788.30(b).

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In determining the amount of liability in an individual action under the FDCPA, the court
may look to, among other relevant factors, the frequency and persistence of noncompliance by the
NO. C 13-0498 RS
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debt collector, the nature of such noncompliance, and the extent to which such noncompliance was

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intentional. 15 U.S.C. § 1692k(b)(2). Hetland points to a number of cases in which other plaintiffs

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were awarded the full statutory damages under the FDCPA and RFDCPA that she seeks here—

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$2,000. The behavior warranting such damages was far more egregious than what occurred here,

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involving repeated phone calls, calls to third parties, and harassing statements. By contrast, plaintiff

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here has only alleged that Simm left her a single voicemail that, while technically noncompliant

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with an element of the FDCPA, appears entirely courteous. The circumstances here weigh in favor

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of granting damages at the low end of what is permitted by statute. A default judgment for statutory

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damages totaling $500 shall be entered: $250 for violating the FDCPA and $250 for violating the

For the Northern District of California

United States District Court

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RFDCPA.
Plaintiff further requests an attorney fee award of $4,049, based on an attorney hourly billing

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rate of $285 for 11.9 hours total by three different lawyers and a paralegal hourly billing rate of

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$145 for 0.5 hours. Based on a review of the time records submitted and the record of this case, the

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for purposes of calculating a fee award, the requested amount of time was reasonably expended in

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prosecuting this action to judgment, at a reasonable hourly rate. Accordingly, a fee award in the

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amount of $4,049 will be added to the judgment. Furthermore, $350 in court costs expended on the

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filing fee in this case shall also be included.
V.

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CONCLUSION

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The motion is granted. A separate judgment in plaintiff’s favor will issue.

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IT IS SO ORDERED.

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Dated: 8/22/13
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 13-0498 RS
ORDER

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