Alexander v. Knutson, LLC, et al.

Filing 22

ORDER granting 14 Motion for Default Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 11/21/2013. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-552(DSD/SER)
Stanley B. Alexander,
Plaintiff,
ORDER

v.
Mary Ervin, an individual, and
Knutson, LLC, a domestic limited
liability company doing business
as Judgment Recovery Assistance,
Defendants.

Patrick L. Hayes, Esq. and Marso & Michelson, PA, 3101
Irving Avenue South, Minneapolis, MN 55408, counsel for
plaintiff.
Mary Ervin appeared on her own behalf.

This matter is before the court upon the motion for default
judgment by plaintiff Stanley B. Alexander.

Based on a review of

the file, record and proceedings herein, and for the following
reasons, the court grants the motion.
On

March

defendant

Mary

8,

2013,

Ervin,

Alexander
doing

filed

business

this
as

action

Judgment

against
Recovery

Assistance1 (collectively, Ervin),2 alleging violations of the Fair
Debt Collection Practices Act (FDCPA), wrongful garnishment under

1

Ervin appeared at oral argument as the sole proprietor of
Judgment Recovery Assistance, an unincorporated entity.
2

Knutson, LLC (Knutson) is also named as a defendant in this
action. At oral argument, Alexander agreed to dismissal of Knutson
from this action. As a result, dismissal of the claims against
Knutson is warranted.

Minnesota Statutes § 571.90, conversion, a claim for unauthorized
practice of law under Minnesota Statutes § 481.02 and negligence.
Ervin failed to answer, and on June 24, 2013, the clerk entered
default.
Alexander

then

moved,

pursuant

to

Rule

55,

for

default

judgment against Ervin.

On November 15, 2013, the court held oral

argument on the motion.

Ervin appeared but conceded that she had

no legal basis for opposing entry of default judgment.

As a

result, the court grants the motion for default judgment.
Where, as here, “a default judgment is entered on a claim for
an indefinite or uncertain amount of damages, facts alleged in the
complaint are taken as true, except facts relating to the amount of
damages,

which

proceeding.”

must

be

proved

in

a

supplemental

hearing

or

Everyday Learning Corp. v. Larson, 242 F.3d 815, 818

(8th Cir. 2001) (citations omitted).

“[A] party entitled to

judgment by default is required to prove the amount of damages that
should be awarded ... by a preponderance of the evidence.”

Cedar

Rapids Elec. Apprenticeship Training & Educ. Trust v. Roth, No. 12cv-2038,

2012

WL

5269188,

at

*3

(N.D.

Iowa

Oct.

(citations and internal quotation marks omitted).

24,

2012)

A court may

establish damages upon default “by taking evidence when necessary
or by computation from facts of record, to fix the amount which the

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plaintiff is lawfully entitled to recover and to give judgment
accordingly.”

Pope v. United States, 323 U.S. 1, 12 (1944)

(citations omitted).
Here, Alexander filed affidavits and an exhibit in support of
his damage and fee requests.

See ECF Nos. 16, 17.

“Under the

FDCPA, a debt collector who violates the Act is liable for any
actual damages sustained by the plaintiff and additional damages as
the court may allow, but not exceeding $1,000.”

Jenkins v. E.

Asset Mgmt., LLC, No. 4:08-cv-1032, 2009 WL 2488029, at *3 (E.D.
Mo.

Aug.

omitted).

12,

2009)

(citations

and

internal

quotation

marks

Further, the FDCPA allows plaintiffs to recover “a

reasonable attorney’s fee as determined by the court.”

15 U.S.C.

§ 1692k(a)(3).
The court may award actual damages under the FDCPA for mental
anguish and emotional distress.

Jenkins, 2009 WL 2488029, at *3.

Here, Alexander seeks $25,000 in actual damages.

Alexander states

that he suffered $3,914.10 in unlawfully garnished wages and a $65
late fee for rent payments.

Alexander Aff. ¶¶ 3,5. Alexander also

seeks actual damages for stress, anxiety, embarrassment, loss of
sleep, back pain and stomachaches.

See id. ¶¶ 8-11.

Alexander

also states that he fell behind on payments for utilities and rent
as a result of Ervin’s actions.

Id. ¶¶ 6-7.

Other courts

considering factually similar circumstances award actual damages
far below Alexander’s request of $25,000. See, e.g., Jenkins, 2009

3

WL 2488029, at *3 (awarding $2,000 in actual damages for mental
anguish and humiliation from harassing phone calls); Sweetland v.
Stevens & James, Inc., 563 F. Supp. 2d 300, 303-04 (D. Me. 2008)
(awarding

$2,500

in

actual

damages

where

plaintiff

suffered

distress heightened by serious health problems after collector used
threatening tone and abusive language); Chiverton v. Fed. Fin.
Grp., Inc., 399 F. Supp. 2d 96, 102 (D. Conn. 2005) (awarding
$5,000 in actual damages where plaintiff suffered anxiety, stress,
frustration and fear of being passed over for a promotion as a
result of harassing phone calls).
The

court

notes

that

“it

would

be

improper

to

award

[Alexander] an amount greater than the evidence would justify. The
purpose of the actual damages portion of the statute is to fairly
compensate the plaintiff, not to punish or deter the defendant.”
Sweetland, 563 F. Supp. 2d at 304 (citation omitted).

As a result,

the court awards Alexander $3,914.10 in unlawfully garnished wages,
the $65 late fee and $3,000 for mental anguish and emotional and
physical distress, for a total of $6,979.10 in actual damages.
Additionally, in determining the amount of statutory damages,
the court considers “the frequency and persistence of noncompliance
by the debt collector, the nature of such noncompliance, and the
extent to which such noncompliance was intentional.” Jenkins, 2009
WL 2488029, at *3 (citation and internal quotation marks omitted).
Here, the strategies Ervin employed to collect the debt owed by

4

Alexander — including a misleading letter sent to Alexander and
numerous instances in which Ervin improperly signed and/or served
garnishment-related documents — amounted to repeated violations of
the FDCPA.

Ervin acted in violation of the FDCPA even after

receiving prior notice from a court that such attempts to collect
the debt from Alexander were unlawful.

Compl. ¶ 42.

As a result,

the court finds that statutory damages of $1,000 are appropriate
under the FDCPA.

Moreover, Minnesota Statutes § 571.90 provides

for $100 in statutory damages for violations.

As a result, the

court awards a total of $1,100 in statutory damages.
As to fees and costs, the court finds that the requested
amounts of $5,700 and $580, respectively, are reasonable.

As a

result, the court grants Alexander’s request for fees and costs.
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion for default judgment [ECF No. 14] is granted.

2.

Plaintiff is awarded statutory damages in the amount of

$1,100 and actual damages in the amount of $6,979.10.
3.

Plaintiff is entitled to costs in the amount of $580 and

attorney’s fees in the amount of $5,700.
4.

Defendant Knutson is dismissed from this action.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

November 21, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court

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