Alvarado v. Featured Mediation, LLC et al

Filing 15

ORDER: Plaintiff's Motion for Default Judgment 13 is granted. Plaintiff is entitled to damages of $1,500.00 for violations of the TCPA, as well as reasonable attorney's fees and costs. Plaintiff shall file documentation in sup port of his request for attorney's fees and costs within fourteen (14) days of this Order. The Clerk is directed to enter judgment in favor of Plaintiff and against Defendant in the amount of $1,500.00, which shall accrue post-judgment interest at the legal rate until paid in full. The Clerk shall terminate all pending motions and close this case. Signed by Judge James S. Moody, Jr. on 5/1/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BENJAMIN ALVARADO,
Plaintiff,
v.

Case No: 8:16-cv-3259-T-30JSS

FEATURED MEDIATION, LLC,
Defendant.

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Default Judgment
(Doc. 13). The Court will grant the default judgment as described herein.
BACKGROUND
On November 23, 2016, Plaintiff Benjamin Alvarado filed his Complaint (Doc. 1)
against Defendant Featured Mediation, LLC, initiating this action. Defendant collects debts
for other parties. Plaintiff alleged that Defendant attempted to collect an unlawful debt from
him using unlawful means, thereby violating the Telephone Consumer Protection Act
(“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”), and the Florida Consumer
Collection Practices Act (“FCCPA”).
Defendant was served with the Complaint on December 21, 2016, but did not
respond. Accordingly, on March 22, 2017, Plaintiff sought an entry of default against
Defendant. The Court entered the default on March 23, 2017. Plaintiff now seeks a default
judgment awarding him statutory damages, reasonable attorney’s fees, and costs.

DISCUSSION
A defendant who defaults is deemed to have admitted all well-pleaded allegations
of fact in a complaint. See Nishimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200,
1206 (5th Cir. 1975). As a result, a court may enter a default judgment against a party who
has failed to respond to a complaint, assuming the complaint provides a sufficient basis for
the judgment entered. Fed. R. Civ. P. 55; Surtain v. Hamlin Terrace Foundation, 789 F.3d
1239, 1245 (11th Cir. 2015) (internal citation omitted). Likewise, a court may award
damages pursuant to a default judgment if those damages are adequately supported by the
record. See Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538,
1544 (11th Cir. 1985) (internal citations omitted). The court may award damages without
a hearing if the amount claimed is a liquidated sum or one capable of mathematical
calculation. Id. at 1543 (internal citation omitted).
I.

TCPA
The TCPA makes it unlawful to place non-emergency telephone calls using an

automatic telephone dialing system or an artificial or prerecorded voice without first
obtaining the recipient’s express consent. 47 U.S.C. § 227(b)(1)(A)(iii). It is the caller’s
burden to prove that it had prior express consent to place the calls. FCC Declaratory Ruling,
FCC 07-232, ¶ 10 (Dec. 28, 2007). The TCPA provides for statutory damages of $500 per
violation of the statute. 47 U.S.C. § 227(b)(3)(B).
Plaintiff’s well-pleaded allegations—which Defendant has admitted due to its
default—demonstrate that Defendant placed three, non-emergency calls to Plaintiff in an
effort to collect on his debt. (Doc. 1 ¶¶ 28, 52.) Defendant made these calls using an

2

automatic telephone dialing system and left voicemails using a prerecorded voice. (Id. ¶¶
27-28.) Given that Defendant defaulted, it has not proven that it had Plaintiff’s prior
express consent to place these calls. Therefore, Defendant is liable for three violations of
the TCPA and $1,500 in statutory damages.
Plaintiff argues that the Court should exercise its discretion to increase Plaintiff’s
TCPA damages from $500 per violation to $1,500 per violation. A court may award treble
damages when a defendant willfully or knowingly violated the TCPA. 47 U.S.C. §
227(b)(3)(C). Plaintiff’s Complaint does not include factual allegations sufficient for the
Court to find that Defendant willfully or knowingly violated the TCPA. Accordingly, the
Court will not award more than $500 per TCPA violation.
II.

FDCPA
The FDCPA prohibits abusive, deceptive, and unfair practices by debt collectors.

See 15 U.S.C. § 1692. The FDCPA has a one-year statute of limitations. 15 U.S.C. §
1692k(d). The claim accrues on the date the violation occurred. Id.
Plaintiff argues that Defendant violated several provisions of the FDCPA when it
left him three voicemails in February 2015 and emailed him a letter on April 1, 2015. (Doc.
1 ¶¶ 28, 44; Doc 1-2.) Although these alleged FDCPA violations occurred in spring of
2015, Plaintiff did not file suit until November 2016. Because it is “apparent from the face
of the [C]omplaint” that Plaintiff’s FDCPA claim is time-barred, the Court must dismiss
this claim. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal
citations omitted).

3

III.

FCCPA

The FCCPA is modeled after the FDCPA and prohibits similar conduct by debt
collectors. It, however, has a two-year statute of limitations. Fla. Stat. § 559.77(4). Among
other things, the FCCPA prohibits debt collectors from attempting to enforce a debt that
they know is illegitimate or asserting the existence of a legal right that they know does not
exist. Fla. Stat. § 559.72(9).
Plaintiff’s Complaint establishes that Defendant violated this provision of the
FCCPA. Plaintiff took out a payday loan in 2009, which was unenforceable under Florida
state law. (Doc. 1 ¶¶ 15-22.) On or around February 2015, Defendant took over the
collection of Plaintiff’s debt. (Id. ¶¶ 23-24.) Even though Defendant knew that Plaintiff’s
debt was illegitimate, it left Plaintiff three voicemails in an attempt to collect the debt. (Id.
¶¶ 24-28.)
The FCCPA provides for actual damages, additional statutory damages “as the court
may allow” of up to $1,000, reasonable attorney’s fees, and costs. Fla. Stat. § 559.77(2).
In this case, Plaintiff has not alleged that he suffered any actual damages due to Defendant’s
violations or even that he was inconvenienced. In addition, Defendant left Plaintiff only
three voicemails, and Defendant will already have to pay Plaintiff $1,500 in damages for
these same voicemails under the TCPA. Accordingly, the Court will not award Plaintiff
additional statutory damages for the FCCPA violations.
For the foregoing reasons, it is ORDERED AND ADJUDGED that:
1.

Plaintiff’s Motion for Default Judgment (Doc. 13) is granted.

4

2.

Plaintiff is entitled to damages of $1,500.00 for violations of the TCPA, as
well as reasonable attorney’s fees and costs.

3.

Plaintiff shall file documentation in support of his request for attorney’s fees
and costs within fourteen (14) days of this Order.

4.

The Clerk is directed to enter judgment in favor of Plaintiff and against
Defendant in the amount of $1,500.00, which shall accrue post-judgment
interest at the legal rate until paid in full.

5.

The Clerk shall terminate all pending motions and close this case.

DONE and ORDERED in Tampa, Florida, on May 1st, 2017.

Copies furnished to:
Counsel/Parties of Record

5