Forrester-Prater v. Accelerated Receivables et al

Filing 11

DECISION AND ORDER DENYING Plaintiff's 10 Motion for a Default Judgment; DISMISSING the Complaint with prejudice; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 4/8/2013. -CLERK TO FOLLOW UP-(MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TESA FORRESTER-PRATER,
Plaintiff,
v.

DECISION AND ORDER
12-CV-831S

ACCELERATED RECEIVABLES and DOES 1
through 10, inclusive,
Defendants.

I. INTRODUCTION
On September 3, 2012, Plaintiff filed a complaint alleging various violations of the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. Defendants failed
to appear and defend this action, which resulted in the Clerk of the Court entering a default
as to Defendant Accelerated Receivables on March 11, 2013. Presently before this Court
is Plaintiff’s Motion for a Default Judgment against this Defendant pursuant to Rule
55(b)(2) of the Federal Rules of Civil Procedure. (Docket No. 22.)

For the following

reasons, Plaintiff’s motion is denied.
II. DISCUSSION
Before obtaining default judgment, a party must first secure a Clerk’s Entry of
Default by demonstrating, by affidavit or otherwise, that the opposing party is in default.
See Fed. R. Civ. P. 55(a). The fact that a defendant has defaulted, however, is not alone
sufficient to establish a plaintiff’s entitlement to a default judgment. Bixler v. Foster, 596
F.3d 751, 762 (10th Cir. 2010); see Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d
Cir. 2011). Instead, a court considers the “well-pleaded allegations” of the complaint as

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true, Priestley, 647 F.3d at 505, except for those relating to the amount of damages.
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992),
cert denied, 506 U.S. 1080 (1993); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d
Cir.1981). The court then determines whether those well-pleaded allegations are sufficient
to state a claim for relief as to each cause of action for which the plaintiff seeks default
judgment. Priestly, 647 F.3d at 505 (citing Rolex Watch, U.S.A. v. Pharel, 09 CV 4810,
2011 WL 1131401, *2 (E.D.N.Y. Mar. 11, 2011), report and recommendation adopted,
2011 WL 1130457 (Mar. 28, 2011)).
Here, Plaintiff alleges that Defendant, a debt collector within the meaning of the
FDCPA, “began contacting Plaintiff on August 4, 2011.” (Compl. ¶¶ 12, 18.) Plaintiff further
alleges that “during the first communication with Plaintiff, [Defendant] demanded payment
from Plaintiff without informing Plaintiff that she had the right to dispute the debt;” “did not
state that the call was from a debt collector;” and “did not state that the call was an attempt
to collect a debt and that any information obtained would be used for that purpose.” (Id. ¶¶
19-21.) Although Plaintiff makes the conclusory assertion that “[t]he natural consequences
of Defendant’s statements and actions were to produce an unpleasant and/or hostile
situation between Defendant and Plaintiff,” there are no specific factual allegations
supporting such a conclusion. The complaint is instead merely a formulaic recitation of the
elements of FDCPA provisions.
Further, Plaintiff’s complaint is untimely. “An action to enforce any liability [under the
FDCPA] may be brought in any appropriate United States district court without regard to
the amount in controversy, or in any other court of competent jurisdiction, within one year
from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). Plaintiff alleges that
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each of Defendant’s violations of the FDCPA occurred “during the first communication with
Plaintiff.” (Compl. ¶¶ 19-21 (emphasis added).) Thus, Plaintiff’s formulaic recitation that
the alleged violations occurred “[w]ithin one (1) year preceding the date of this Complaint”
is contradicted by the more specific assertion that “Defendant began contacting Plaintiff
on August 4, 2011.” (Id. ¶¶ 18-21.) The only well-pleaded allegation therefore establishes
that any violation occurred over one year prior to Plaintiff filing this action on September
3, 2012.
III. CONCLUSION
Because the facts supporting a statute of limitations defense are set forth in the
papers submitted by Plaintiff, sua sponte dismissal of the complaint is appropriate.
Walters v. Ind. & Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011);
Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir. 1980).
IV. ORDERS
IT HEREBY IS ORDERED, that Plaintiff’s Motion for a Default Judgment (Docket
No. 10) is DENIED;
FURTHER, that the Complaint is dismissed with prejudice; and
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: April 8, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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