McKinnis v. Professional Account Services Inc

Filing 8

OPINION AND ORDER: Court GRANTS 7 Motion for Default Judgment. Clerk DIRECTED to enter judgment in favor of Plaintiff in the amount of $5,923.25. The clerk is DIRECTED to close this case. Signed by Judge Rudy Lozano on 4/16/2018. (tc)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION ELLIOTT MCKINNIS, Plaintiff, vs. PROFESSIONAL ACCOUNT SERVICES, INC., Defendant. ) ) ) ) ) ) ) ) ) ) 4:18-CV-4 OPINION AND ORDER This matter is before the Court on the Motion for Default Judgment filed by the plaintiff, Elliott McKinnis, on April 8, 2018. (DE #7.) For the reasons set forth below, the motion is GRANTED. BACKGROUND The plaintiff, Elliott McKinnis (“Plaintiff”) filed suit against the defendant, Professional Accounting Services, Inc. (“Defendant”) on January 12, 2018, for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). (DE #1.) Plaintiff’s complaint seeks declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, actual damages, statutory damages, attorneys’ fees, and costs. (Id.) Defendant was served with a copy of the complaint and summons on January 19, 2018. #4.) (DE #3 & DE Defendant has not appeared before this Court, nor has Defendant responded to the complaint. Defendant on March 23, 2018. The Clerk entered default against (DE #6.) Plaintiff now requests that the Court enter an order for default judgment against Defendant. Along with the instant motion, Plaintiff and his attorney have filed affidavits regarding the amount of damages. (DE #7-1 & DE #7-2.) Specifically, Plaintiff indicates that he expended $0.49 in postage to send a letter to Defendant in an attempt to dispute the alleged debt, that he hired Duran L. Keller, Esq. of Keller Law (“Attorney Keller”) to represent him at a rate of $350.00 per hour, and that he is not seeking any additional sum in actual damages. (DE #7-1.) Attorney Keller’s affidavit indicates that the total amount requested by Plaintiff is $5,923.25, which includes the aforementioned postage costs, $4,515.00 in attorney fees pursuant to 15 U.S.C. § 1692k(a)(3),1 $1,000.00 in statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A),2 and $407.76 in costs and fees. (DE #7-2.) DISCUSSION Federal Rule of Civil Procedure 55 governs the entry of default and default judgments. When a defendant fails to answer a complaint or otherwise defend himself, the clerk can make an entry of default. 1 Attorney Keller submitted an itemization for 12.9 total hours. (DE #7-2.) 2 In addition to the complaint, Attorney Defendant in an attempt Defendant ignored those the allegations of Defendant’s conduct described in Keller’s affidavit states that he communicated with to resolve the matter without Court intervention, but settlement attempts. (DE #7-2.) -2- Fed. R. Civ. P. 55(a); see also Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980) (“Once a defendant fails to file a responsive answer, he is in default, and an entry of default may be made by either the clerk or the judge.”). Entry of default must precede an entry of default judgment. See, e.g., Hirsch v. Innovation Int’l, No. 91 CIV. 4130, 1992 WL 316143, at *1 (S.D.N.Y. Oct. 19, 1992). As the Clerk has entered default against Defendant, this Court may enter a default judgment. In a motion for default judgment, the well-pleaded allegations of a complaint relating to the amount of damages suffered must be proved. Yang v. Hardin, 37 F.3d 282, 286 (7th Cir. 1994) (citing United States v. DiMucci, 879 F.2d 1488, 1497 (7th Cir. 1988)). Before the entry of default judgment, Federal Rule of Civil Procedure 55(b)(2) provides that the district court “may conduct such hearings or order such references as it deems necessary and proper” to determine the amount of damages. Fed. R. Civ. P. 55(b)(2). Such proceedings are required unless “the amount claimed is liquidated or capable of ascertainment from definite figures documentary evidence or in detailed affidavits.” contained in Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). Here, after due consideration of the record including the complaint and the affidavits submitted in conjunction with the instant motion, the Court finds that the amount claimed is ascertainable from -3- the documentary evidence, and no hearing is necessary. CONCLUSION Thus, for the reasons set forth above, the Court GRANTS the motion for default judgment (DE #7) and DIRECTS the clerk to enter judgment in favor of Plaintiff in the amount of $5,923.25. The clerk is DIRECTED to close this case. DATED: April 16, 2018 /s/RUDY LOZANO, Judge United States District Court -4-

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