DELLECESE v. ASSIGNED CREDIT SOLUTIONS, INC. et al

Filing 8

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 3/10/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RUXTON DELLECESE,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

v.
ASSIGNED CREDIT SOLUTIONS,
INC.
Defendant.

Civil Action
No. 15-6678 (JBS/KMW)

MEMORANDUM OPINION

SIMANDLE, Chief Judge:
In this action, Plaintiff Ruxton Dellecese (hereinafter,
“Plaintiff”) alleges that Defendant Assigned Credit Solutions
(hereinafter, “Defendant”) violated the Fair Debt Collection
Practices Act, 15 U.S.C. ¶¶ 1692-1692p (hereinafter, the
“FDCPA”), in its efforts to collect an outstanding debt against
Plaintiff. (See generally Compl. at ¶¶ 11-15.)

Following

Defendant’s failure to answer or otherwise respond to the
allegations of the Complaint, Plaintiff moves for default
judgment under Federal Rule of Civil Procedure 55(b)(2). [See
Docket Item 6.]
For the reasons that follow, Plaintiff’s motion for entry
of default judgment will be granted, and the Court will enter a
default judgment in favor of Plaintiff and against Defendant in
the amount of $1,000.

The Court finds as follows:

1. Factual and Procedural Background. In her Complaint,
Plaintiff alleges that she entered into a payment arrangement
with Defendant to pay a debt and thereafter made regular
payments to Defendants towards the debt. (Compl. § 11.)
However, within a year, Defendant began calling Plaintiff to
demand larger payments, but Plaintiff advised that she could not
do so. (Id. § 13.)

Plaintiff alleges that Defendant exceeded

the bounds of the FDPCA in its efforts to “collect an alleged
consumer debt,” by (1) calling Plaintiff “at least twice per
week to harass Plaintiff into larger payments” despite Plaintiff
“advising [Defendant] that he was unable to make larger payments
and that he would continue making payments as previously
agreed,” and (2) “threaten[ing] to take a legal action against
Plaintiff if he did not make larger payments,” but “[t]o date,
no such action has been filed against Plaintiff.” (Id. ¶¶ 1215.)

As a result of these allegations, Plaintiff seeks $1,000

in statutory damages under the FDCPA, 28 U.S.C. § 1692k(a)(1),
reasonable attorneys’ fees, and punitive damages. (Id. Prayer
for Relief.)
2. On September 14, 2015, Plaintiff served the Complaint
upon Defendant via a process server at its principal place of
business in Marlton, NJ. [Docket Item 3.]

Following Defendant’s

failure to answer or otherwise respond to the Complaint, the
Clerk entered default, and Plaintiff’s motion for default
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judgment followed. [Docket Item 4.]

In her motion, Plaintiff

takes the position that the unchallenged facts of the Complaint
demonstrate her entitlement to entry of judgment against
Defendant in the amount of statutory damages, plus reasonable
attorneys’ fees and costs, because her allegations reflect that
Defendant’s collections-related conduct violated numerous
sections of the FDCPA.
2. Standard of Review. Federal Rule of Civil Procedure
55(b)(2) authorizes courts to enter a default judgment against a
properly served defendant who fails to a file a timely
responsive pleading. See Fed. R. Civ. P. 55(b)(2); see also
Chanel v. Gordashevsky, 558 F. Supp. 2d 532, 535 (D.N.J. 2008)
(citing Anchorage Assocs. v. Virgin Is. Bd. of Tax Rev., 922
F.2d 168, 177 n.9 (3d Cir. 1990)).

To obtain a default judgment

pursuant to Fed. R. Civ. P. 55(b)(2), a litigant must first
obtain an entry of default from the Clerk of Court pursuant to
Fed. R. Civ. P. 55(a).

Once this procedural hurdle has been

met, it is within the discretion of the district court whether
to grant a motion for a default judgment. Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000), see also Hritz v.
Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984)(explaining that
the entry of default by the Clerk does not automatically entitle
the non-defaulting party to default judgment; rather, the entry

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of default judgment is left primarily to the discretion of the
district court).
3. A party seeking default judgment is not entitled to
relief as a matter of right; the Court may enter default
judgment “only if the plaintiff’s factual allegations establish
the right to the requested relief.” Ramada Worldwide Inc. v.
Courtney Hotels USA, LLC, No. 11-896, 2012 WL 924385, at *3
(D.N.J. Mar. 19, 2012) (internal quotations and citation
omitted).

Thus, before granting default judgment, a court must

determine: (1) whether the plaintiff produced sufficient proof
of valid service and evidence of jurisdiction, (2) whether the
unchallenged facts present a sufficient cause of action, and (3)
whether the circumstances otherwise render the entry of default
judgment “proper.” Teamsters Health & Welfare Fund of Phila. v.
Dubin Paper Co., No. 11–7137, 2012 WL 3018062, at *2 (D.N.J.
July 24, 2012) (internal citations omitted).

A court must

accept as true every “well-pled” factual allegation of the
complaint, but no presumption of truth applies to the
plaintiff’s legal conclusions or factual assertions concerning
damages. Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.
1990); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and

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Procedure (2d ed. 1983), § 2688, at 444.1

The Court addresses

each element in turn.
4. Subject Matter Jurisdiction. The Court has federal
question jurisdiction over the subject matter of this FDCPA suit
pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d).
5. Evidence of Personal Jurisdiction and Proof of Service.
The Court finds that this precondition has been met as well, as
Defendant was served its principal place of business in Marlton,
New Jersey. [Docket Item 3.]

The Court has general personal

jurisdiction over Defendant given that its home is in New
Jersey. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 924 (2011)(explaining that “the paradigm forum for the
exercise of general jurisdiction is

. . . one in which the

corporation is fairly regarded as at home”).
6. Legitimate Cause of Action. Next, the Court must
consider whether the undisputed facts of Plaintiff’s Complaint
allege legitimate claims for violations of the FDCPA.

On this

issue too, the Court finds the inquiry relatively

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Because the entry of default prevents a plaintiff's claims from
being decided on the merits, the Third Circuit has noted that it
“does not favor entry of defaults or default judgments.” United
States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d
Cir. 1984). Thus, while “the entry of default judgment is left
primarily to the discretion of the district court,” this
“discretion is not without limits,” and cases should be
“disposed of on the merits whenever practicable.” Hritz, 732
F.2d at 1181 (citations omitted).
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straightforward, because any one of Plaintiff’s claims, standing
alone, states a valid cause of action under the FDCPA. (Compl.
¶¶ 11-16.)

“To prevail on an FDCPA claim, a plaintiff must

prove that (1) she is a consumer, (2) the defendant is a debt
collector, (3) the defendant’s challenged practice involves an
attempt to collect a ‘debt’ as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting to
collect the debt.” Douglass v. Convergent Outsourcing, 765 F.3d
299, 303 (3d Cir. 2014).

Plaintiff alleges that she is a

consumer and Defendant is a debt collector under the FDCPA.
(Compl. ¶¶ 3-4.)

She further asserts that she owes a debt to

Defendant arising out of transactions for personal, family or
household purposes. (Id. ¶ 8.)

Accepting her allegations as

true, Plaintiff has made out the first three prongs on an FDCPA
claim.
7. Plaintiff also claims that Defendant violated six
specific provisions of the FDCPA – 15 U.S.C. §§ 1692d, 1692d(5),
1692e, 1692e(5), 1692e(10), and 1692f.

Accepting the factual

allegations in her Complaint as true and drawing all reasonable
inferences in her favor, Plaintiff has properly pled violations
of these provisions.

Indeed, the repeated harassing telephone

calls and the threat to take legal action against her
potentially amount to independent violations of the strictliability scheme embodied under the FDCPA. See 15 U.S.C. §
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1692(d)(prohibiting a debt collector from engaging “in any
conduct the natural consequence of which his to harass, oppress,
or abuse any person in connection with the collection of a
debt”); § 1692d(5) (explaining that a debt collector may not
repeatedly or continuously cause a telephone to ring); § 1692e
(prohibiting a debt collector from using any false, deceptive,
or misleading representations or means in connection with the
collection of a debt); § 1692e(5) & (10)(explaining that a debt
collector may not threaten to take any action that cannot
legally be taken or that is not intended to be taken or make
other false representations or implications), and § 1692f
(explaining that a debt collection may not use, overall “fair or
unconscionable means); see also Allen ex rel. Martin v. Lasalle
Bank, N.A., 629 F.3d 364, 368 & n.7 (citations omitted)(3d Cir.
2011)(explaining the “generally accepted” notion that the FDCPA
constitutes a “strict liability statute to the extent it imposes
liability without proof of an intentional violation”).

In view

of these circumstances, the Court concludes that Plaintiff has
alleged at least one legitimate claim under the FDCPA.
8. Appropriateness of Default Judgment. Turning to the
final inquiry, whether the entry of default judgment would be
proper, the Court must consider “’(1) whether the party subject
to default has a meritorious defense, (2) the prejudice suffered
by the party seeking default, and (3) the culpability of the
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party subject to default.’” Chanel, Inc. v. Matos, 133 F. Supp.
3d 678, 686 (D.N.J. 2015)(quoting Doug Brady, Inc. v. N.J. Bldg.
Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008)).
Defendant has, in this instance, failed to proffer any defense,
meritorious or otherwise, to Plaintiff’s claims, and the
Complaint itself reflects no fatal deficiency. See Surdi v.
Prudential Ins. Co. of Am., No. 08-225, 2008 WL 4280081, at *2
(D.N.J. Sept. 8, 2008)(“The facts as alleged in the Complaint
provide no indication of a meritorious defense.”); Wong v.
American Credit and Collections, LLC, No. 11-4428, 2012 WL
5986474, at *4 (D.N.J. Nov. 28, 2012)(“[I]t is not likely that
defendant could assert a complete defense because the FDCPA is a
strict liability statute.”).

Moreover, because Plaintiff has no

other means of seeking damages for the statutory harms caused by
Defendant, Plaintiff would be prejudiced and unable to pursue
this action in the absence of a default judgment. See Coach,
Inc. v. Ocean Point Gifts, No. 09-4215, 2010 WL 2521444, at *5
(D.N.J. June 14, 2010)(finding that defendant’s failure to
answer complaint prevented the plaintiff “from prosecuting their
case, engaging in discovery, and seeking relief in the normal
fashion”); Gowan v. Cont’l Airlines, Inc., No. 10-1858, 2012 WL
2838924, at *2 (D.N.J. July 9, 2012)(noting that the inability
to “vindicate rights” absent a default judgment constitutes
prejudice); Wong, 2012 WL 5986474 at *3 (explaining that a
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“properly-served defendant who fails to appear should expect
that a judgment may be entered against it”).

Lastly, because

Defendant failed to participate in this litigation despite
effective service, the Court can find no cause for Defendant’s
default other than culpable conduct. See Lee v. A to Z Trading
LLC, No. 12-4624, 2014 WL 7339195, at *3 (D.N.J. Dec. 23, 2014)
(finding the defendant’s failure to respond despite awareness of
the litigation “due to culpable conduct”).

Given that these

factors weigh in Plaintiffs’ favor, the Court will accordingly
grant default judgment. See Buskirk v. Premium Recovery Grp.,
Inc., No. 15-3025, 2016 WL 796889, at *2 (D.N.J. Feb. 29, 2016)
(finding the entry of default judgment in an FDCPA action
appropriate); Joe Hand Promotions, Inc. v. Waldron, No. 11-849,
2013 WL 1007398, at *4 (D.N.J. Mar. 13 2013) (finding that
factors weigh in favor of default judgment where there was no
indication of a cognizable defense to plaintiffs’ claims,
plaintiff had no alternative means of seeking damages, and
defendants failed entirely to respond); and turns to the issue
of damages.
9. Statutory Damages. The FDCPA provides, in relevant part,
that the Court may award statutory damages in an amount “not
exceeding $1,000.” 15 U.S.C. § 1692k(a)(2)(A).

The decision of

whether to award “’the full amount’” of statutory damages,
however, rests within the discretion of the Court. Buskirk, 2016
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WL 796889, at *3 (quoting Manopla v. Bryant, Hodge & Assocs.,
LLC, No. 13-338, 2014 WL 793555, at *6 (D.N.J. Feb. 26, 2014)).
In light of the multiple violations at issue here, and the
prospect of a greater award in the event this action would have
proceeded on the merits, the Court finds a statutory award in
the amount of $1,000 reasonable. See Buskirk, 2016 WL 796889, at
*3 (granting the same statutory award); Meth v. ARM WNY, LLC,
No. 14-1613, 2015 WL 1021287, at *2 (D.N.J. Mar. 9, 2015).
10. Reasonable Attorneys’ Fees and Costs of Suit. As in the
statutory damage context, the FDCPA permits an award of “costs
of the action” and “reasonable attorneys’ fees . . . in the case
of any successful action to enforce” the FDCPA. 15 U.S.C. §
1692k(a)(3).

In awarding fees under this rubric, the “court

should determine what constitutes a reasonable fee in accordance
with the substantial Supreme Court precedent pertaining to the
calculation of reasonable attorney’s fees.” Granziano v.
Harrison, 950 F.2d 107, 114 (3d Cir. 1991).

Counsel for

Plaintiff did not submit a request for attorney’s fees and costs
with the motion for default judgment, but now that the Court is
granting Plaintiff’s motion, counsel shall do so within fourteen
(14) days of the entry of this Order.

Counsel shall observe the

requirement for the Affidavit of Fees and Costs set forth in L.
Civ. R. 54.2.

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11. Conclusion. For all of these reasons, Plaintiff’s
motion for default judgment will be granted, and the Court will
enter a Default Judgment against Defendant and in favor of
Plaintiff in the amount of $1,000 plus attorney’s fees and costs
in an amount to be determined.
12. An accompanying Default Judgment will be entered.

March 10, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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