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)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
ELLIOTT MCKINNIS,
Plaintiff,
vs.
PROFESSIONAL ACCOUNT
SERVICES, INC.,
Defendant.

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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.)

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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

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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

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