Hering v. Halsted Financial Services, LLC
Filing
15
ORDER: Plaintiff Mark Hering's Motion for Entry of Final Default Judgment (Doc. # 12 ) is GRANTED. The Clerk is directed to enter judgment in favor of Plaintiff and against Defendant in the amount of $22,390.00 and thereafter to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 10/2/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK HERING,
Plaintiff,
v.
Case No. 8:17-cv-1439-T-33MAP
HALSTED FINANCIAL SERVICES,
LLC,
Defendant.
_______________________________/
Order
This matter comes before the Court in consideration of
Plaintiff Mark Hering’s Motion for Final Default Judgment
(Doc.
#
12),
filed
on
August
3,
2017,
and
Notice
of
Clarification (Doc. # 14), filed on September 27, 2017. The
Court grants the Motion as set forth herein.
I.
Background
On June 12, 2017, Mark Hering filed this action against
Defendant
Halsted
violations
of
U.S.C. §§ 227
the
et
Financial
Telephone
seq.
Services,
Consumer
(TCPA), the
LLC,
Protection
alleging
Act,
47
Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), and the
Florida Consumer Collection Practices Act, Fla. Stat. §§
559.55 et seq. (FCCPA). (Doc. # 1).
1
According to the Complaint, between September 2016 and
November 2016, Defendant Halsted Financial Services used an
automatic telephone dialing system (ATDS) to place twenty
calls to Hering’s cell phone. (Doc. # 1 at ¶ 17; Doc. # 12-1
at ¶ 5). The Complaint alleges that Halsted Financial Services
called Hering to collect an outstanding consumer debt Hering
allegedly owed. (Doc. # 1 at ¶¶ 9, 14). Hering asserts Halsted
Financial Services “did not have [his] express consent to
make any of the telephone calls” and further claims that he
expressly revoked consent for Halsted Financial Services to
call his cell phone during one call. (Id. at ¶¶ 19, 22). But,
Halsted
Financial
Services
“repeatedly
and
continuously”
called Hering and informed him that it would continue to call.
(Id. at ¶ 63).
Hering initiated this action and subsequently effected
service on Halsted Financial Services on June 22, 2017. (Doc.
# 6). Halsted Financial Services failed to timely appear and
respond. As a result, Hering applied for Clerk’s entry of
default on July 17, 2017. (Doc. # 8). On July 18, 2017, the
Clerk entered default against Halsted Financial Services.
(Doc.
#
9).
Hering’s
Motion
for
Final
followed on August 3, 2017. (Doc. # 12).
2
Default
Judgment
Because there were discrepancies between Hering’s Motion
and the call chart attached to the Motion, the Court directed
Hering to “specifically identify each call for which Hering
is seeking damages and during which call Hering revoked
consent to be called.” (Doc. # 13). On September 27, 2017,
Hering filed his Notice of Clarification in support of the
Motion. (Doc. # 14). In the Notice, Hering clarifies he “is
seeking damages for each of the calls that [Halsted Financial
Services] placed to his cellular telephone” because Hering
never gave Halsted Financial Services prior express consent
to call him. (Id. at 1). Hering identifies a total of fourteen
calls
Halsted
Financial
Services
placed
to
him
between
September 13, 2016, and November 16, 2016. (Id. at 1-2).
During an October 8, 2016, phone call, Hering “demanded
[Halsted Financial Services] stop calling his cellular phone
and revoked any prior express consent [Halsted Financial
Services] believed it had to call” him. (Id. at 2). Yet, in
response, the representative for Halsted Financial Services
“said that it would continue to call [Hering’s] cellular
telephone
to
collect
the
alleged
consumer
debt.”
(Id.).
Because Hering reiterated that Halsted Financial Services
lacked consent to call him on October 8, 2016, Hering contends
3
the nine calls placed thereafter were knowing violations of
the TCPA that merit trebles damages. (Id. at 3).
II.
Legal Standard
Federal Rule of Civil Procedure 55(a) provides: “When a
party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s default.”
A district court may enter a default
judgment against a properly served defendant who fails to
defend or otherwise appear pursuant to Federal Rule of Civil
Procedure 55(b)(2).
DirectTV, Inc. v. Griffin, 290 F. Supp.
2d 1340, 1343 (M.D. Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment. See
Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007)(citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)).
Rather, a court must
ensure that there is a sufficient basis in the pleadings for
the judgment to be entered. Id.
A default judgment has the
effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal. Id.
4
III. Analysis
A. TCPA
1. Liability under the TCPA
The relevant portion of the TCPA provides:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United
States . . . .
(A) to make any call (other than a call made for
emergency purposes or made with the prior express
consent of the called party) using any automatic
telephone dialing system or an artificial or
prerecorded voice . . .
iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized
mobile radio service, or other radio common carrier
service, or any service for which the called party
is charged for the call, unless such call is made
solely to collect a debt owed to or guaranteed by
the United States . . .
47 U.S.C. § 227(b)(1)(A)(iii).
In his Complaint and Motion, Hering claims that between
September 2016 and November 2016, Halsted Financial Services
used an ATDS to place twenty calls to his cell phone. (Doc.
# 1 at ¶ 17; Doc. # 12-1 at ¶ 5). But, in his Notice of
Clarification, Hering identifies only fourteen calls placed
to his cell phone for which he is seeking damages. (Doc. # 14
at 1-2). Hering asserts that Halsted Financial Services never
5
had prior express consent to call his cell phone, rendering
all fourteen calls violations of the TCPA. (Id. at 1-3; Doc.
# 1 at ¶ 19). Because Hering demanded the calls stop during
the October 8, 2016, call, but was told by a Halsted Financial
Services representative that the calls would continue, Hering
argues the nine calls after October 8, 2016, were knowing
violations of the TCPA. (Doc. # 14 at 3).
Hering claims he knew Halsted Financial Services used an
ATDS because he heard a pause during the call before a live
representative came on the phone line. (Doc. # 1 at ¶ 26;
Doc. # 12-1 at ¶ 10). Hering further claims the calls from
Halsted Financial Services were not for emergency purposes
and Halsted Financial Services willfully and knowingly placed
the calls to Hering’s cell phone. (Doc. # 1 at ¶¶ 24-25).
Based upon the Clerk’s entry of default, the well-pled
factual allegations contained in the Complaint, the Motion
and its attachments, and the Notice of Clarification, the
Court determines that the Motion should be granted.
2. Damages under the TCPA
Regarding
damages
available
for
a
violation
of
the
statute, the TCPA provides in relevant part:
A person or entity may, if otherwise permitted by
the laws or rules of court of a State, bring in an
appropriate court of that State . . .
6
(B) an action to recover for actual monetary loss
from such a violation, or to receive $500 in damages
for each such violation, whichever is greater . .
. If the Court finds that the defendant willfully
or knowingly violated this subsection, the court
may in its discretion, increase the amount of the
award to an amount equal to not more than 3 times
the amount available under subparagraph (B) of this
paragraph.
47 U.S.C. § 227(b)(3).
Hering requests an award of statutory damages in the
amount of $16,000 for violations of the TCPA. (Doc. # 14 at
4).
Specifically,
Hering
requests
$500.00
damages for Defendant’s first five calls.
in
statutory
For the subsequent
nine calls made after Hering again revoked his consent to be
contacted, he seeks an award of $1,500.00 because those calls
were knowing or willful violations of the TCPA. This totals
$13,500.00 in treble damages for those nine calls. The Court
finds this calculation appropriate.
See Tacorante v. Tate &
Kirlin Assocs., No. 6:13-cv-331-Orl-37DAB, 2013 WL 5970720,
at *8 (M.D. Fla. Nov. 8, 2013)(finding $11,000, representing
“$500 for the first call and $1,500 each for seven additional
willful telephone calls,” to be an appropriate award in light
of the defendant’s willful or knowing failure to comply with
the TCPA).
7
This
amount
mathematical
is
capable
computation
or
of
accurate
ascertainment
and
from
ready
Hering’s
exhibits and Notice of Clarification. Specifically, Hering
provided
a
chart
documenting
the
call
activity
between
himself and Halsted Financial Services, out of which Hering
identifies fourteen unlawful incoming or missed calls in his
Notice of Clarification. (Doc. # 12-1 at 7; Doc. # 14 at 12). The Court accordingly finds in favor of Hering in the
amount of $16,000.00 for the TCPA claim.
B. FDCPA
1. Liability under the FDCPA
To state a claim under the FDCPA, the plaintiff must
prove
that:
collection
“(1)
the
activity
plaintiff
arising
from
has
been
consumer
the
object
debt,
(2)
of
the
defendant is a debt collector as defined by the FDCPA, and
(3) the defendant has engaged in an act or omission prohibited
by the FDCPA.” Fuller v. Becker & Poliakoff, P.A., 192 F.
Supp. 2d. 1361, 1366 (M.D. Fla. 2003)(quoting Kaplan v.
Assetcare, Inc., 88 F. Supp. 2d 1355, 1360-61 (S.D. Fla.
2000)). The Court addresses each factor in turn.
a. Collection Activity Arising from Consumer Debt
There are two requirements for the initial determination
that Hering was the object of collection activity arising
8
from a consumer debt.
Frazier v. Absolute Collection Serv.,
Inc., 767 F. Supp. 2d 1354, 1363 (N.D. Ga. 2001).
There must
be (1) collection activity (2) that relates to a consumer
debt. Id.
The
“FDCPA does not specifically define ‘collection
activity.’” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1193 n.15 (11th Cir. 2010). Nonetheless, “[w]hile the statute
contains no clear definition of what constitutes a ‘debt
collection activity,’ courts, in attempting to effect the
purpose of the FDCPA, are lenient with its application.” Sanz
v. Fernandez, 633 F. Supp. 2d 1356, 1359 (S.D. Fla. 2009)
(citing Heintz v. Jenkins, 514 U.S. 291, 293-96 (1995)).
The Complaint alleges that Halsted Financial Services
placed at least twenty calls to Hering’s cell phone to collect
an outstanding debt, (Doc. # 1 at ¶¶ 9, 14), and the Notice
of Clarification specifically identifies fourteen such calls
as the basis for Hering’s claims, (Doc. # 14 at 1-2). These
telephonic communications, therefore, constitute collection
activity.
The Court next turns to whether the collection activity
was aimed at collecting a consumer debt. Pursuant to 15 U.S.C.
§ 1692a(5), a debt is “any obligation or alleged obligation
of a consumer to pay money arising out of a transaction . .
9
. [that is] primarily for personal, family or household
purposes.” Thus, the FDCPA is limited to “consumer debt,”
Heinz, 514 U.S. at 293, and does not cover business debts,
Lingo v. City of Albany Dep’t of Cmty & Econ. Dev., 195 F.
App’x 891, 893 (11th Cir. 2006).
Hering’s Complaint asserts Halsted Financial Services
called Hering to collect an outstanding debt, (Doc. # 1 at ¶
9), and that this alleged debt was for “personal, family, or
household purposes.” (Doc. # 12-1 at ¶ 4). Upon consideration,
the
Court
finds
that
the
well-pled
allegations
in
the
Complaint demonstrate that the alleged debt constituted a
consumer debt. Accordingly, Hering has established the first
element of the FDCPA claim — there was collection activity
for a consumer debt.
b. Debt Collector
A
debt
collector
is
“any
person
who
uses
any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another.” 15 U.S.C. § 1692a(6).
According to the Complaint, Halsted Financial Services
is a “debt collector” (Doc. # 1 at ¶ 51), which made calls to
10
Hering to collect an outstanding debt. (Id. at ¶ 9).
Taking
the well-pled allegations in the Complaint as true, Hering
has established that Halsted Financial Services was a debt
collector, and thus, Hering has satisfied the second element
of the FDCPA claim.
c. Acts Prohibited under the FDCPA
In his Motion, Hering indicates that Halsted Financial
Services violated 15 U.S.C. § 1692d generally and 15 U.S.C.
§
1692d(5)
collector
specifically.
may
not
Section
engage
in
1692(d)
any
states:
conduct
the
A
debt
natural
consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt. 15 U.S.C.
§ 1692(d). Section 1692(d) lists examples of conduct that
violated this section, including: “(5) Causing a telephone to
ring
or
engaging
any
person
in
telephone
conversation
repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number.” 15 U.S.C. § 1692d(5).
The Complaint alleges that Halsted Financial Services
“generally violated 15 U.S.C. § 1692d by repeatedly calling
Mr. Hering’s cell phone and informing him that they would
continue to do so after he had asked them to stop, the natural
consequence of which is to harass, oppress, or abuse Mr.
Hering.”
(Doc.
#
1
at
¶
52);
11
see
also
(Doc.
#
14
at
3)(“[Halstead
Financial
Services’]
continued
phone
calls
after [] Hering demanded that the calls stop, in addition to
[Halsted Financial Services’] statement that the calls would
continue despite [] Hering’s demand, violated the FDCPA and
the FCCPA.”). Furthermore, the Complaint alleges that Halsted
Financial Services “specifically violated 15 U.S.C. 1692d(5)
by causing Mr. Hering’s telephone to ring repeatedly and
continuously with the intent to annoy, abuse, and harass Mr.
Hering.” (Doc. # 1 at ¶ 52).
Accordingly, as the well-pled allegations demonstrate
the elements necessary to prove a FDCPA claim, Hering has
established he is entitled to a default judgment against
Halsted Financial Services on his FDCPA claim.
2. Damages under the FDCPA
Regarding damages, 15 U.S.C. § 1692k provides:
(a)
Amount of damages
Except as otherwise provided by this section, any debt
collector who fails to comply with any provision of this
subchapter with respect to any person is liable to such
person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a
result of such failure;
(2) (A) in the case of any action by an individual, such
additional damages as the court may allow, but not
exceeding $1,000.00 . . .
12
(3) in the case of any successful action to enforce the
foregoing liability, the costs of the action, together
with a reasonable attorney’s fee as determined by the
court . . . .
(b) Factors considered by court
In determining the amount of liability in any action
under subsection (a) of the section, the court shall
consider, among other relevant factors—
(1) In any individual action under subsection
(a)(2)(A) of this section, the frequency and
persistence of noncompliance by the debt
collector, the nature of such noncompliance, and
the extent to which such noncompliance was
intentional . . . .
15 U.S.C. § 1692k.
Hering
requests
an
award
of
statutory
damages
as
provided by 15 U.S.C. § 1692k(a)(2)(A) for violation of the
FDCPA. Hering’s Complaint demonstrates that Halsted Financial
Services persisted in contacting Hering after he requested
that the calls stop. Therefore, Hering is entitled to the
maximum statutory damages of $1,000 for Halsted Financial
Services’ violations of the FDCPA.
C. FCCPA
1. Liability under the FCCPA
To state a claim under the FCCPA, the plaintiff must
prove that the defendant:
(7) Willfully communicate[d] with the debtor or any
member of her of his family with such frequency as can
reasonably be expected to harass the debtor or her or
13
his family, or willfully engaged[d] in other conduct
which can reasonably be expected to abuse or harass the
debtor or any member of her or his family.
Fla. Stat. § 559.72(7).
The
Complaint
“call[ed]
Mr.
continuously
alleges
Hering’s
and
Halsted
cellular
inform[ed]
Mr.
Financial
phone
Hering
Services
repeatedly
that
[it]
and
would
continue to call him repeatedly despite his request to cease
calling.” (Doc. # 1 at ¶ 63). And the Notice of Clarification
identifies nine calls that were placed to Hering after Hering
demanded the calls stop. (Doc. # 14 at 3). Therefore, the
Court finds that the well-pled allegations, taken as true,
establish a violation of section 559.72(7) of the FCCPA.
2. Damages under the FCCPA
Section 559.77(2) states in pertinent part:
Any person who fails to comply with any provision of
[Fla. Stat. § 559.72] is liable for actual damages as
the court may allow, but not exceeding $1,000, together
with court costs and reasonable attorney’s fees incurred
by the plaintiff.
In determining the defendant’s
liability for any additional statutory damages, the
court shall consider the nature of the defendant’s
noncompliance with [Fla. Stat. § 559.72], the frequency
and persistence of the noncompliance, and the extent to
which the noncompliance was intentional . . .
Fla. Stat. § 559.77(2).
Hering
requests
an
award
of
$1,000.00
in
statutory
damages under section 559.77(2) and the Court agrees Hering
14
is entitled to that amount for Halsted Financial Services’
violation of the FCCPA.
D. Attorney’s Fees
Hering further requests an award of costs and attorney’s
fees pursuant to 15 U.S.C. § 1692k and Fla. Stat. § 559.77(2).
(Doc. # 12 at 12-13). Hering’s counsel contends that she has
incurred $3,930.00 in reasonable attorney’s fees to date.
(Doc. # 12-2 at ¶ 9). Specifically, Hering seeks attorney’s
fees for: attorney Kaelyn Steinkraus for 4.4 hours at the
rate of $250.00 per hour; managing partner Michael Ziegler
for 2.7 hours at the rate of $350.00 per hour; a paralegal
for 1.4 hours at a rate of $125.00 per hour; and law clerks
for 11.4 hours at a rate of $150.00 per hour. (Id. at ¶¶ 48).
Furthermore, Hering’s counsel requests an award of costs
in the amount of $460.00, for filing and service fees. (Id.
at ¶ 11). Thus the total requested award for attorney’s fees
and costs is $4,390.00.
Courts
are
afforded
broad
discretion
in
addressing
attorney’s fees issues. See Villano v. City of Boynton Beach,
254
F.3d
1302,
1305
(11th
Cir.
2001)(“Ultimately,
the
computation of a fee award is necessarily an exercise of
judgment because there is no precise rule or formula for
making these determinations.” (internal citation omitted)).
15
The
fee
applicant
bears
the
burden
of
establishing
entitlement to the hours requested as well as to the hourly
rate. Webb v. Bd. of Educ. of Dyer Cty., 471 U.S. 234, 242
(1985). Thus, the fee applicant must produce satisfactory
evidence that the requested rate is within the prevailing
market rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Further, the fee applicant must support the number of hours
worked. Id. If an attorney fails to carry his or her burden,
the Court “is itself an expert on the question [of attorney’s
fees] and may consider its own knowledge and experience
concerning reasonable and proper fees.” Norman v. Hous. Auth.
of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). Hering’s
counsel appropriately provided a declaration of attorney’s
fees and costs for this Court’s review and attests that the
fees are reasonable based on her experience. (Doc. # 12-2 at
¶¶ 4-12; Exhibit A). The Court agrees and awards $4,390 in
attorney’s fees and costs.
IV.
Conclusion
The Court determines Hering is entitled to $16,000 in
statutory damages under the TCPA, $1,000 in statutory damages
under the FDCPA, $1,000 in statutory damages under the FCCPA,
and $4,390 in reasonable attorney’s fees and costs under Fla.
Stat. § 559.77 and 15 U.S.C. § 1692k. Therefore, the total
16
award is $22,390. The Court declines to retain jurisdiction
to increase the statutory damages award in the event Hering
should submit any further call records, as Hering requests.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff
Mark
Hering’s
Motion
for
Entry
of
Final
Default Judgment (Doc. # 12) is GRANTED.
(2)
The Clerk is directed to enter judgment in favor of
Plaintiff
and
against
Defendant
in
the
amount
of
$22,390.00 and thereafter to CLOSE THIS CASE.
DONE and ORDERED in Chamber in Tampa, Florida, this 2nd
day of October, 2017.
17
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