Wojtasik v. National Credit Adjusters, LLC

Filing 10

MEMORANDUM AND ORDER granting 9 Motion for Default Judgment. Signed by District Judge Carlos Murguia on 12/4/14. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JESSICA WOJTASIK,
Plaintiff,
v.
NATIONAL CREDIT ADJUSTERS, LLC,
Defendant.

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Case No. 14-2150-CM

MEMORANDUM AND ORDER
Plaintiff Jessica Wojtasik filed this action against defendant National Credit Adjusters, LLC,
alleging that defendant violated the Fair Debt Collection Practices Act (“FDCPA”) by repeatedly
calling plaintiff’s place of employment about collection of a debt. See 15 U.S.C. § 1692 et seq.
Defendant failed to answer the complaint, and the Clerk of the Court entered default against defendant.
The case is now before the court on Plaintiff’s Motion for Default Judgment (Doc. 9).
I.

Factual Background

The following facts are taken from plaintiff’s complaint and presumed true. One of
defendant’s agents (who will simply be referred to as “defendant”) began calling plaintiff’s place of
employment in or about April 2013. Plaintiff’s manager informed defendant that company policy
prohibited plaintiff from receiving personal calls at work. Despite that admonition, defendant called
again and spoke to one of plaintiff’s co-workers. But this was only the beginning. Defendant later
spoke to plaintiff’s office bookkeeper and another co-worker multiple times—each time referencing
plaintiff’s debt. Eventually, defendant spoke with plaintiff herself. During that call, plaintiff told
defendant that she could not receive personal calls at work and gave defendant her personal cell phone
number. Plaintiff’s manager overheard and told plaintiff to end the call immediately.

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As a result of defendant’s communications, plaintiff was demoted. She also suffered
humiliation, emotional distress, anxiety, and other negative mental symptoms because of defendant’s
practices.
Plaintiff initiated this suit on April 1, 2014—within the FDCPA’s one-year time limit. See 15
U.S.C. § 1692k(d). Plaintiff served the summons on defendant on June 23, 2014. (Doc. 3.) Defendant
was required to answer plaintiff’s complaint by July 14, 2014. That did not happen. On October 3,
2014, plaintiff asked the Clerk of the Court to enter default. (Doc. 5.) The Clerk did so the same day.
(Doc. 6.) Plaintiff then asked the court for default judgment on October 21, 2014. (Doc. 9.)
Defendant’s deadline to respond to that motion passed without response.
Plaintiff requests monetary damages in the amount of $9,425, consisting of (1) $5,000 in actual
damages under 15 U.S.C. § 1692k(a)(1); (2) the full $1,000 statutory award under 15 U.S.C. §
1692k(a)(2)(A); (3) $425 in court filing costs; and (4) reasonable attorney’s fees totaling $3,000.
II.

Legal Standards
A.

Default Judgment

When a party fails to respond or otherwise appear, the court (or, in some cases, the Clerk of the
Court) may enter default judgment. See Fed. R. Civ. P. 55. It is a two-step process. See id. First,
when a defendant fails to plead or defend, and the failure has been shown by affidavit or other
methods, the clerk must enter the default of the party. Id. at 55(a). After default is entered, the
defendant is deemed to have admitted the plaintiff’s well-pleaded allegations of fact. Olcott v. Del.
Flood Co., 327 F.3d 1115, 1125 (10th Cir. 2003).
Second, after the clerk enters default, the party may apply for default judgment. See Fed. R.
Civ. P. 55(b). Courts generally favor disposition of a case on its merits over default judgment. See
Am. Contractors Indem. Co. v. Atamian, No. 08-2586-JWL/GLR, 2010 WL 3862034, at *4 (D. Kan.

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Aug. 6, 2010) (citations omitted). Default judgments are harsh sanctions meant to protect the diligent
party from undue delay because of the defendant’s unresponsiveness. See id. (citation omitted). But
the court has broad discretion in deciding whether to enter a default judgment. See Olivas v. Bentwood
Place Apartments, LLC, No. 09-4035-JAR, 2010 WL 2952393, at *4 (D. Kan. July 26, 2010). Even
after default, the court must determine whether the uncontested facts contain a legitimate basis for
entry of a judgment. See id.
B.

FDCPA

The FDCPA’s purpose is “to eliminate abusive debt collection practices by debt collectors, to
insure that those debt collectors who refrain from using abusing debt collection practices are not
competitively disadvantaged, and to promote consistent [s]tate action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692(e).
In addition to actual damages, the FDCPA allows successful plaintiffs to recover “such
additional damages as the court may allow, but not exceeding $1,000.” 15 U.S.C. § 1692k(a)(2)(A).
The FDCPA also allows a successful plaintiff to recover “the costs of the action, together with a
reasonable attorney’s fee as determined by the court.” Id. § 1692k(a)(3). The court considers several
factors in determining the amount of statutory damages to award to a successful plaintiff under
FDCPA. These factors include “the frequency and persistence of noncompliance by the debtor
collector, the nature of such noncompliance, and the extent to which such noncompliance was
intentional.” Id. § 1692k(b)(1).
III.

Analysis

Plaintiff complied with the two-step process required to obtain a default judgment. See Fed. R.
Civ. P. 55(a)–(b). After defendant failed to respond or otherwise appear, plaintiff received an entry of
default against defendant. Plaintiff now asks the court to enter default judgment against defendant.

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The court has adequate information and documentation to determine without a hearing that
default judgment is warranted in the amount of $9425. Marcus Food Co. v. DiPanfilo, 671 F.3d 1159,
1172 (10th Cir. 2011) (“Rule 55 . . . does not require that the district court receive evidence on the
claimed damages amount before entering a default judgment; rather, the Rule simply allows the district
court to conduct a hearing if it believes that additional investigation or evidence is necessary.”)
(citations omitted). Defendant repeatedly contacted plaintiff’s place of employment after being told
that plaintiff was not allowed to receive calls there. This violated 15 U.S.C. § 1692c(a)(3). And
defendant told third parties that plaintiff had defaulted on debt, violating 15 U.S.C. § 1692c(b).
Defendant also violated 15 U.S.C. § 1692e(5) by threatening to take action that it could not or would
not take, and 15 U.S.C. § 1692e(10) by using false, deceptive, or misleading representations.
Defendant was both persistent and intentional. Defendant’s actions caused plaintiff anxiety and
stress, and also resulted in a demotion at work. She now makes less money than before defendant
started calling her place of employment. Plaintiff has shown that she is entitled to compensatory and
statutory damages, as well as reasonable attorney’s fees and costs. The attorney’s fees requested by
plaintiff are reasonable, as set forth in her attorney’s affidavit.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Default Judgment (Doc. 9) is
granted. The Clerk of the Court shall enter judgment in the amount of $9,425 against defendant, which
includes $3,000 in attorney fees and $425 in court costs.
The case is closed.
Dated this 4th day of December, 2014, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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