LaMarr v. Montgomery Lynch and Associates, Inc.

Filing 11

OPINION AND ORDER: The Court GRANTS, IN PART, and WITHHOLDS its ruling regarding the Plaintiff's Motion for Default Judgment 10 . The Court GRANTS statutory damages in the amount of $1,000.00 and costs in the amount of $475.00. Th e COURT WITHHOLDS its ruling regarding the Plaintiff's attorneys' fees until it receives further briefing. The Court ORDERS that the parties submit additional briefing regarding attorneys' fees by 2/25/2019. Signed by Chief Judge Theresa L Springmann on 1/21/2019. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MAUREEN LAMARR,
Plaintiff,
v.

CAUSE NO.: 1:18-CV-185-TLS

MONTGOMERY LYNCH AND
ASSOCIATES, INC.,
Defendant.

OPINION AND ORDER
This matter is before the Court on the Plaintiff’s, Maureen LaMarr, Motion for Default
Judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) [ECF No. 10]. The Plaintiff seeks
statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A) and costs and reasonable attorneys’
fees pursuant to 15 U.S.C. § 1692k(a)(3). For the reasons stated below, the Court GRANTS, IN
PART, the Plaintiff’s Motion for Default Judgment and costs. The Court WITHHOLDS its
ruling regarding the Plaintiff’s requests for attorneys’ fees until the parties submit further
briefing.

BACKGROUND
The Plaintiff filed its Complaint against the Defendant, Montgomery Lynch and
Associates, Inc., on June 17, 2018 [ECF No. 1]. The Plaintiff alleges that the Defendant violated
the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq., (FDCPA), and the Indiana
Deceptive Consumer Sales Act, I.C. 24-5-0.5 et seq., (IDCSA) for the Defendant’s unlawful
collection practices. (Pl.’s Compl. ¶ 1.) Counsel for the Plaintiff entered notices of appearance

[ECF Nos. 2, 3]. On June 18, 2018, the Plaintiff issued a summons to the Defendant [ECF No.
4], which was returned executed on September 4, 2018 [ECF No. 7]. The Defendant was given
until September 18, 2018 to respond to the Plaintiff’s Complaint and failed to do so. On October
24, 2018, the Plaintiff filed a Motion for Clerk’s Entry of Default [ECF No. 8] pursuant to Rule
55(a) and requested that the Clerk enter the default of the Defendant for its failure to plead or
otherwise defend itself against the Plaintiff’s Complaint. The Clerk entered the default judgment
on October 25, 2018 [ECF No. 9].

LEGAL STANDARD
The entry of default and default judgment are governed by Federal Rule of Civil
Procedure 55. Once the default of a party has been established for failure to plead or otherwise
defend, Federal Rule of Civil Procedure 55 authorizes a party to seek and a court to enter a
default judgment. In the Seventh Circuit, “well-pleaded allegations of the complaint relating to
liability are taken as true[.]” Merrill Lynch Mortg. Corp. v. Narayan, 908 F.2d 246 (7th Cir.
1990) (quoting United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989)). If a plaintiff’s
allegations are well-pled, a default judgment, as a general rule, “‘establishe[s], as a matter of law,
that defendants [are] liable to plaintiff as to each cause of action alleged in the complaint.’”
Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.
1983) (alterations in original) (quoting Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc., 687
F.2d 182, 186 (7th Cir. 1982)); see also O’ Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394,
1404 (7th Cir. 1993).
The party moving for a default judgment must then establish entitlement to the relief
sought. In re Catt, 368 F.3d 789, 793 (7th Cir. 2004). While the well-pleaded allegations of the
complaint with respect to liability are taken as true, the amount of damages must still be proved.
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Gard v. B & T Fin. Servs., LLC, No. 2:12–CV–005 JD, 2013 WL 228816, at *2 (N.D. Ind. Jan.
22, 2013) (citing Wehrs v. Wells, 688 F.3d 886, 892 (7th Cir. 2012)). Courts must ascertain with
reasonable certainty the proper amount to award as damages to the prevailing party, based upon
either an evidentiary hearing or from definite figures contained in documentary evidence or in
detailed affidavits. In re Catt, 368 F.3d at 793; Dundee Cement Co., 722 F.2d at 1323. Rule
55(b)(2) authorizes a court to “conduct hearing or make referrals . . . when, to enter or effectuate
judgment, it needs to: (A) conduct an accounting; (B) determine the amount of actual damages;
(C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed. R.
Civ. P. 55(b)(2)(A)–(D).

ANALYSIS
The Plaintiff asserts that the Defendant violated the FDCPA in its attempts to collect a
debt from Plaintiff after being informed that the Plaintiff had retained counsel with regard to that
debt, in violation of 15 U.S.C. § 1692c(a)(2), and using profane and abusive language toward the
Plaintiff, in violation of 15 U.S.C. § 1692d. (Pl.’s Mot for Default J. ¶ 2.) The Plaintiff seeks the
full statutory allotment of $1,000.00 as permitted pursuant to the FDCPA, attorneys’ fees of
$5,280.00, and $475.00 in costs. (Id. ¶¶ 8–9.)
A. Statutory Damages
The FDCPA provides that “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 … such
additional damages as the court may allow, but not exceeding $1,000.” 15 U.S.C. §
1692k(a)(2)(A). In assessing whether part or all of the $1,000 in statutory damages shall be
awarded, the Court should consider the frequency and persistence of non-compliance by the debt
collector, the nature of such non-compliance, and the extent to which the non-compliance was
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intentional. 15 U.S.C. § 1692k(b)(1); see also Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir.
1995).
In this case, the Defendant’s actions clearly violated the FDCPA. The Defendant spoke
abusively toward the Plaintiff in violation of 15 U.S.C. § 1692c(a)(2) and contacted the Plaintiff
even after the Plaintiff made the Defendant aware she had retained counsel regarding that debt in
violation of 15 U.S.C. § 1692d. (Pl.’s Compl. ¶¶ 11–14.) The nature of the Defendant’s
noncompliance, including cursing at the Plaintiff and calling the Plaintiff a second time after
being informed she had retained counsel indicate that the non-compliance was intentional.
Accordingly, the Court GRANTS the Plaintiff $1,000.00, the full amount of “additional
damages” provided pursuant to the FDCPA.

B. Attorneys’ Fees
Pursuant to 15 U.S.C. § 1692k(a)(3), a prevailing plaintiff is entitled to the costs of her
FDCPA action, as well as reasonable attorneys’ fees. See Schlacher v. Law Offices of Phillip J.
Rotche & Assocs., P.C., 574 F.3d 852, 856 (7th Cir. 2009) (“Plaintiffs who prevail under the Fair
Debt Collection Practices Act are entitled to an award of costs and reasonable attorney’s fees.”);
see also Zagorski v. Midwest Billing Services, Inc., 128 F.3d 1164, 1166 (7th Cir. 1997). This
award is mandatory. Id. The general rule for calculating attorneys’ fee awards under fee shifting
statutes is applicable to attorney’s fees awards under the FDCPA. Gastineau v. Wright, 592 F.3d
747, 748–49 (7th Cir. 2010). The starting point for calculating awards of attorney’s fees is the
lodestar method, which requires calculation of a reasonable hourly rate multiplied by the number
of hours reasonably expended on the litigation. Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th
Cir. 2012).

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Generally, a reasonable hourly rate for an attorney is based on what the attorney charges
and receives in the market from paying clients for the same type of work. Pickett v. Sheridan
Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011). “The market rate is the rate that lawyers of
similar ability and experience in the community normally charge their paying clients for [the]
type of work in question.” Owens v. Howe, 365 F. Supp.2d 942, 947 (N.D. Ind. 2005) (internal
citations and quotations omitted). A plaintiff bears the burden of producing satisfactory evidence
that the hourly rate is reasonable and in line with those prevailing in the community. Calkins v.
Grossinger City Autocorp, Inc., No. 01 C 9343, 2003 WL 297516, at *1 (N.D. Ill. Feb. 12,
2013); see also Spegon v. Catholic Bishops of Chi., 175 F.3d 544, 550 (7th Cir. 1999) (noting
that the party seeking an award of attorneys’ fees bears the burden of proving the reasonableness
of the hours worked and the hourly rates claimed). The Court must evaluate the Plaintiff’s
requests for attorneys’ fees carefully. The Seventh Circuit has stated that district court orders
should “evidence increased reflection before awarding attorney’s fees that are large multiples of
the damages recovered or multiples of the damages claimed.” Moriarty v. Svec II, 233 F.3d 955,
968 (7th Cir. 2001).
Plaintiff’s counsel requests $475.00 in costs and $5,280.00 in attorneys’ fees. In support
of its requests for costs and attorneys’ fees, the Plaintiff attached a declaration from attorney
Geoff B. McCarrell [ECF No. 10-3]. Attorney McCarrell described the costs incurred and stated
that attorney Melanie Pennycuff expended 5.2 hours of work at a rate of $350.00/per hour and he
expended 5.9 hours of work at rate of $400.00/per hour (Id. ¶¶ 5–7.) Attorney McCarrell also
stated that he estimated that his firm would expend an additional 5.0 hours of work at a rate of no
less than $125.00/per hour on post-judgment efforts. (Id. ¶ 8.)

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Plaintiff’s counsel adequately explained the costs incurred. Plaintiff’s counsel, however,
failed to produce satisfactory evidence that the attorneys’ fees charged were reasonable and in
line with those of similar experience in the Northern District of Indiana. Moreover, Plaintiff’s
counsel did not state the attorneys’ years of experience in numerical terms, instead the Plaintiff
stated that the hourly rates for the attorneys were a reasonable rate for his/her “level of
experience in this type of litigation.” (Id. ¶¶ 6–7.) Finally, the Court cannot accurately determine
whether a minimum of $125.00/per hour is a reasonable rate for “post-judgment efforts” that are
yet to be completed for attorneys yet to be identified. Therefore, the Court WITHHOLDS its
ruling on attorneys’ fees until further briefing from Plaintiffs.

CONCLUSION
Based on the foregoing, the Court GRANTS, IN PART, and WITHHOLDS its ruling
regarding the Plaintiff’s Motion for Default Judgment [ECF No. 10]. The Court GRANTS
statutory damages in the amount of $1,000.00 and costs in the amount of $475.00. The COURT
WITHHOLDS its ruling regarding the Plaintiff’s attorneys’ fees until it receives further briefing.
The Court ORDERS that the parties submit additional briefing regarding attorneys’ fees by
February 25, 2019.
SO ORDERED on January 21, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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