Stinson et al v. LHR, Inc.
Filing
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-CLERK TO FOLLOW UP---DECISION AND ORDER GRANTING Plaintiff's 8 MOTION for Default Judgment. Plaintiffs are awarded $500.00 for Defendant's violations of the FDCPA, $2,950.00 in attorney's fees, and $440.00 in costs. The Clerk is directed to enter judgment accordingly and to close this case. Signed by Hon. John T. Curtin on 9/16/2015. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HARRY STINSON and
DONNA STINSON,
Plaintiff,
-vs-
14-CV-999-JTC
LHR, INC.,
Defendant.
INTRODUCTION
On November 28, 2014, plaintiffs Harry and Donna Stinson filed a complaint alleging
various violations of the Fair Debt Collection Practices Act (“FDCPA” or “Act”), 15 U.S.C.
§ 1692, et seq. Defendant LHR, Inc. failed to appear and defend this action, which
resulted in entry of default by the Clerk of the Court, pursuant to Rule 55(a) of the Federal
Rules of Civil Procedure, on July 30, 2015. Item 6. Presently before the court is plaintiffs’
motion for default judgment pursuant to Fed. R. Civ. P. 55(b)(2). Item 8. For the following
reasons, the plaintiffs’ motion is granted.
DISCUSSION
1.
Default Judgment Standard
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. Fed. R.
Civ. P. 55(a). Once default has been entered, the allegations of the complaint establishing
the defendant's liability are accepted as true, 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).
In considering whether to enter default judgment, the court must determine whether
the facts alleged in the complaint are sufficient to state a claim for relief as to each cause
of action for which the plaintiff seeks default judgment. Further, where the damages
sought are not for a sum certain, the court must determine the propriety and amount of the
default judgment. See Fed. R. Civ. P. 55(b)(2). Damages must be established by proof,
unless the damages are liquidated or “susceptible of mathematical computation.” Flaks
v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). All reasonable inferences from the evidence
presented are drawn in the moving party's favor. See Au Bon Pain Corp. v. Artect, Inc.,
653 F.2d 61, 65 (2d Cir. 1981).
2.
Liability
As set forth in the complaint, the facts are relatively straightforward. At all times
relative to the claims asserted, defendant LHR, Inc. was acting in the capacity of a
business entity or person engaged in the business of debt collection, within the meaning
of 15 U.S.C. § 1692a(6) (definition of “debt collector”). Plaintiffs allege that, in the 12
months prior to the filing of the complaint, the plaintiffs received “constant and continuous
calls” from the defendant.
A representative of the defendant informed plaintiff Harry
Stinson that, although the alleged debt was incurred by his wife, plaintiff Donna Stinson,
Harry Stinson was responsible for the debt as well. In subsequent calls, both plaintiffs
were threatened with wage garnishment and liens. Plaintiffs allege that the debt may date
back to 2008 and be beyond the statute of limitations. They further allege that they have
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received nothing in writing from defendant regarding the alleged debt. Item 1, ¶¶ 7-23.1
Accordingly, for the purposes of this motion, plaintiffs have sufficiently alleged facts to
establish defendant’s liability under the FDCPA.
3.
Damages
Section 1692k(a)(2)(A) authorizes the court to award up to $1,000 in statutory
damages per plaintiff for any violation of the FDCPA. The specific amount of statutory
damages, not to exceed $1,000, falls within the court's discretion. See Savino v. Computer
Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998). Factors to be considered by the court in
determining an appropriate statutory damages award include the frequency, persistence,
and nature of the debt collector's noncompliance with the Act; the debt collector's
resources; the number of individuals adversely affected; and the extent to which the debt
collector's non-compliance was intentional. See 15 U.S.C. § 1692k(b)(1). Awards of the
$1,000 statutory maximum are typically reserved for cases where the defendants' violations
are “particularly egregious or intimidating.” Cordero v. Collection Co., 2012 WL 1118210,
*2 (E.D.N.Y. Apr. 3, 2012).
By virtue of the entry of default, defendant is deemed to have admitted the wellpleaded allegations of the complaint (including, among other things, numerous telephone
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Specifically, plaintiff alleges that defendant’s debt collection activity violated sections 1692d
(engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in
connection with the collection of a debt); 1692d(5) (causing a telephone to ring or engaging any person in
conversation repeatedly or continuously); 1692e (using false, deceptive, or misleading representations or
means in connection with the collection of a debt); 1692e(4) (threatening garnishment or attechment when
such action is not lawful or intended); 1692e(5) (threatening any action that cannot legally be taken or is
not intended to be taken); 1692e(10) (prohibiting the use of false representations or deceptive means to
collect a debt or obtain information concerning a consumer); 1692e(12) (falsely representing that the debt
has been turned over to innocent purchasers for value); 1692f (using unfair or unconscionable means to
collect or attempt to collect a debt); and 1692g (requiring proper written notice within five days of the initial
communication).
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calls that threatened wage garnishment and lien proceedings, and other false statements
regarding plaintiff Harry Stinson’s responsibility for the debt of Donna Stinson).
While plaintiffs complained of multiple telephone messages, they have not specified
in their complaint the frequency of these calls or the duration of the time period in which
they occurred. Accordingly, the court finds that these violations of the FDCPA do not
amount to the level of “particularly egregious or intimidating” conduct warranting an award
of maximum statutory damages. The court therefore awards plaintiff a total of $500.00 in
statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A). See Hance v. Premier
Recovery Group, Inc., 2013 WL 85068, *2 (W.D.N.Y. Jan. 7, 2013) (awarding $500 in
statutory damages where defendant called plaintiff's home on a number of occasions,
totaling more than 20 times per month); Fajer v. Kaufman, Burns & Assocs., 2011 WL
334311, *3 (W.D.N.Y. Jan. 28, 2011) (awarding $500 where defendant made numerous
calls to home and workplace and made empty threats of litigation); see also Bonafede v.
Advanced Credit Solutions, LLC, 2012 WL 400789, *3 (W.D.N.Y. Feb. 7, 2012) (finding
demand of $1,000 “excessive” where plaintiff presented no evidence that communications
with collector were persistent).
4.
Attorneys’ Fees and Costs
The FDCPA also provides for the recovery of reasonable attorney's fees and costs
by successful litigants. See 15 U.S.C. § 1692k(a)(3) (permitting recovery of, “in the case
of any successful motion to enforce the foregoing liability, the costs of the action, together
with a reasonable attorney's fee as determined by the court”). In determining a reasonable
fee, district courts should set a reasonable hourly rate, bearing in mind case-specific
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variables, and then use the reasonable hourly rate to calculate a “presumptively
reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,
522 F.3d 182, 190 (2d Cir. 2008). There is a presumption in favor of the hourly rates
employed in the district in which the case is litigated. Simmons v. New York City Transit
Auth., 575 F.3d 170, 174–75 (2d Cir. 2009). Thus, the court must consider the prevailing
market rate in the Western District of New York for “similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886,
896 n. 11 (1984).
Here, plaintiffs’ counsel has submitted documentation showing that he worked a
total of 11.80 hours on the case, for which compensation is sought at a rate of $425 per
hour. Item 8-9. The court finds the number of attorney hours expended on the case to be
reasonable, but the requested hourly rate excessive, compared to the prevailing market
rates in this district for FDCPA cases. See, e.g., Ortez v. First Asset Recovery Group, LLC,
2014 WL 1338835, at *3 (W.D.N.Y. Apr. 2, 2014) (granting motion for default judgment and
awarding fees at hourly rates of $250 for experienced attorneys, $175 for newer attorneys,
and $75 for paralegal staff); Carbin v. Northern Resolution Group, LLC, 2013 WL 4779231,
at *3 (W.D.N.Y. Sept. 5, 2013) (same); Halecki v. Empire Portfolios, Inc., 952 F. Supp. 2d
519, 521-22 (W.D.N.Y. 2013) (awarding hourly rate of $250 for experienced attorney, $140
for new attorney); Hance, 2013 WL 85068, at *2 (awarding hourly rate of $225 for
experienced attorney, $200 for newer attorney, and $50 for paralegal staff).
Based upon its review of these and other FDCPA cases litigated in the Western
District of New York, the court finds that the prevailing local hourly rate of $250 for
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experienced attorneys provides a reasonable basis for calculation of the award of fees in
this case. Accordingly, the court awards attorney’s fees in the amount of $2950.00 (11.80
hrs. @ $250.00/hr). The court also grants plaintiff’s request for an award of $440.00 in
costs.
CONCLUSION
Based on the foregoing, plaintiffs’ motion for default judgment (Item 8) is
GRANTED. Plaintiffs are awarded $500.00 for defendant’s violations of the FDCPA,
$2950.00 in attorney’s fees, and $440.00 in costs.
The Clerk of the Court is directed to enter judgment accordingly, and to close this
case.
So Ordered.
_____\s\ John T. Curtin_____
JOHN T. CURTIN
United States District Judge
Dated: September 16, 2015
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