ERSHOW v. LESLIE KANE & MORGAN, INC.
Filing
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OPINION. Signed by Judge William J. Martini on 11/26/19. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DIANA ERSHOW,
Civ. No.: 2:18-00421
Plaintiff,
OPINION
v.
LESLIE KANE & MORGAN, INC.,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
This matter comes before the Court on Plaintiff Diana Ershow’s Motion for Default
Judgment pursuant to Federal Rule of Civil Procedure 55(b). ECF No. 16. For the reasons
that follow, Plaintiff’s motion is GRANTED.
I.
BBACKGROUND
This case arises from Defendant Leslie Kane & Morgan, Inc.’s alleged efforts to
collect a debt from Plaintiff, in violation of the Fair Debt Collection Practices Act (the
“FDCPA”), using autodial technology in violation of the Telephone Consumer Protection
Act (the “TCPA”). See Compl. ¶¶ 29-44, ECF No. 1. Specifically, Plaintiff alleges that
on September 18, 2017, by way of telephone calls and messages, Defendant attempted to
collect a debt owed to Mid America Mastercard that had been discharged in bankruptcy on
February 3, 2017. Id. at ¶¶ 13-28; see Pl.’s Mot., Attach. 1.
On January 11, 2018, Plaintiff filed a complaint and summons. Plaintiff
unsuccessfully attempted to personally serve Defendant at the Illinois address on file with
the Illinois Secretary of State and indicated on Defendant’s website. ECF 8 at 1. On June
8, 2018, the Court issued a notice of call for dismissal pursuant to Federal Rule of Civil
Procedure 4(m) due to Plaintiff’s failure to effect service of the summons and complaint
within 90 days of the filing of the complaint. In response, Plaintiff’s counsel certified that
Defendant appeared to be evading service and requested that the Court ratify service of the
summons and complaint that has already occurred. See Att’y Certification in Resp. to Call
for Dismissal (“Att’y Cert.”) ¶¶ 3, 12, ECF No. 7. On July 12, 2018, this Court granted
Plaintiff’s request to ratify service by mail to Defendant’s post office box address, agreeing
that it appeared that Defendant attempted to evade service. See ECF Nos. 8, 9. Pursuant
to Federal Rule of Civil Procedure 55(a), on February 15, 2019, the Clerk of Court entered
a default against Defendant for failure to plead or otherwise defend. On October 2, 2019,
Plaintiff certified that she served a motion for default judgment upon Defendant via first
class mail and email. ECF No. 16, Ex. A. On the same day, Plaintiff filed a motion for
default judgment. To date, Defendant has failed to answer or otherwise respond to the
Complaint. Plaintiff seeks $1,000 in statutory damages for the violations of the FDCPA,
$500 statutory damages for the violation of TCPA, and reimbursement of her attorneys’
fees and costs in the amount of $11,646.22 for a total of $13,146.22. Pl.’s Mot. 2.
II.
DISCUSSION
“Before imposing the extreme sanction of default, district courts must make explicit
factual findings as to: (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 party
subject to default.” Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D.
171, 177 (D.N.J. 2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir.
1987)). Although the facts plead in the Complaint are accepted as true, Plaintiff must prove
damages. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990).
In this case, the Court finds that the facts set forth in the Complaint, the motion, and
the attached exhibits merit entry of a default judgment. The Complaint states a cause of
action for violation of the FDCPA and the TCPA by alleging that that on September 18,
2017, by way of telephone calls and messages, Defendant attempted to collect a debt owed
to Mid America Mastercard that had been discharged in bankruptcy on February 3, 2017.
Further, the Court finds that there is no basis for Defendants to claim a meritorious defense,
as Plaintiff provided evidence that Plaintiff filed Chapter 7 bankruptcy case number 1631355 (SLM) on November 7, 2016 as a result of a series of financial hardships, that the
$628 debt owed to Mid America Mastercard was discharged as a result of the bankruptcy
matter, and that Defendant attempted to collect that discharged debt. See Pl.’s Mot.,
Attach. 1, 2. Moreover, it is clear that Plaintiff has been prejudiced by Defendants’ failure
to answer because Plaintiff has incurred additional costs, has been unable to move forward
with the case, and has been delayed in receiving relief. See Malik v. Hannah, 661 F. Supp.
2d 485, 490-91 (D.N.J. 2009). Finally, where, as here, Defendants have failed to respond,
there is a presumption of culpability. See Teamsters Pension Fund of Phila. & Vicinity v.
Am. Helper, Inc., No. 11-624, 2011 U.S. Dist. LEXIS 115142, at *10 (D.N.J. Oct. 5, 2011).
The Court further finds that Plaintiff has submitted sufficient evidence to support
its request for damages pursuant to Federal Rule of Civil Procedure 55(b), and has
submitted a reasonable request for attorneys’ fees and costs in accordance with Local Civil
Rules 54.1 and 54.2.
III.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for default judgment is GRANTED.
An appropriate order follows.
Dated: November 26, 2019
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
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