Hill v. Cach, LLC
DECISION AND ORDER that the Clerk of Court is directed to enter default on the record of this case against CACH, Inc. Plaintiff is directed to submit to the Court proof of damages, as described above. Signed by Hon. Michael A. Telesca on 8/28/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION and ORDER
Represented by counsel, Corey Hill (“Hill” or “Plaintiff”)
instituted this action against CACH, LLC (“CACH” or “Defendant”)
alleging violations of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq. (“FDCPA”) and New York General Business
Law (“NYGBL”) § 349. This Court has jurisdiction under 15 U.S.C.
§ 1692k(d) and 28 U.S.C. § 1331. Supplemental jurisdiction exists
for Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
Factual Background and Procedural History
Plaintiff is a natural person residing in the County of
Monroe, State of New York. Plaintiff alleges that CACH is a limited
Delaware, authorized to do business in New York State, and engaged
elsewhere. Plaintiff alleges that CACH is a debt collector as
defined by FDCPA, 15 U.S.C. § 1692a(6), and she is an individual
consumer pursuant to the FDCPA, i.e., a natural person allegedly
obligated to pay any debt.
In March of 2016, CACH instituted a collection action against
Plaintiff in Supreme Court of the State of New York, Monroe County,
captioned CACH, LLC v. Corey Hill, Index No. 2016/2727 (“the
Collection Action”). Defendant’s complaint in the Collection Action
alleged that it purchased and was assigned a credit card account on
which Plaintiff originally had been liable for $5,875.90 to an
unnamed original creditor; this creditor’s rights were assigned to
Defendant. Plaintiff retained an attorney to defend her in the
Collection Action, and incurred liability for attorney’s fees in
the amount of $1,000.00, as well as court costs in the amount
of$140.00. Plaintiff filed a motion for summary judgment in the
Collection Action, based on Defendant’s lack of standing and
inability to prove that it was the owner of the alleged credit card
account on which the Collection Action was based. Plaintiff argued
that because Defendant, as a debt buyer, could not show that it
purchased and was assigned a credit card account in the amount of
$5,875.90 on which Plaintiff was purportedly liable, Defendant had
no basis on
which to attempt to collect any such debt from
Plaintiff through the Collection Action or otherwise. The Monroe
County Supreme Court granted summary judgment in Plaintiff’s favor
by an order entered in the Monroe County Clerk’s Office on January
Plaintiff then filed her Complaint in this action on February
16, 2017. The Clerk’s Office issued a summons the same day. The
Summons was returned executed on February 23, 2017. The Affidavit
of Service indicated that CACH was served with the Summons and
Complaint on February 17, 2017. CACH’s Answer accordingly was due
no later than March 10, 2017.1
To date CACH has not filed an Answer or otherwise appeared in
this action. For the reasons discussed herein, the Court directs
the Clerk of Court to enter a default against CACH.
The entry of defaults and default judgments is governed by
Federal Rule of Civil Procedure 55 (“Rule 55”). “The procedural
following a defendant’s failure to plead or defend as required by
the Rules begin with the entry of a default by the clerk upon a
plaintiff’s request” pursuant to Rule 55(a). Meehan v. Snow, 652
F.2d 274, 276 (2d Cir. 1981) (citing Fed. R. Civ. P. 55(a) (“When
a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend as provided by these rules
and that fact is made to appear by affidavit or otherwise, the
clerk shall enter the party’s default.”)). The Second Circuit has
Defendant’s time to answer the Complaint here was set by Fed. R. Civ. P.
12(a)(1)(A)(i) (stating that a defendant must serve an answer . . . within 21
days after being served with the summons and complaint).
endorsed a broad interpretation of Rule 55(a)’s phrase “otherwise
defend,” holding that an entry of default is proper whenever the
defendant fails to engage in litigation, regardless of the stage at
which such failure occurs. City of N.Y. v. Mickalis Pawn Shop, LLC,
645 F.3d 114, 129-31 (2d Cir. 2011). “Entry of a default is a
prerequisite to entry of a default judgment under Rule 55(b).”
Systems Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D. Pa. 1985)
(citing 6 J. Moore, W. Taggart, & J. Wicker, Moore’s Federal
Practice ¶ 55.02 (2d ed. 1983); 10 C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure: Civil 2d § 2682, at 406
(1983)), vacated on other grounds, 1986 WL 10551 (E.D. Pa. Sept.
As the Second Circuit has explained, “[a]lthough Rule 55(a)
contemplates that entry of default is a ministerial step to be
performed by the clerk of court,” City of N.Y. v. Mickalis Pawn
Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (citing Pinaud v. Cnty.
of Suffolk, 52 F.3d 1139, 1152 n. 11 (2d Cir. 1995)), “a district
judge also possesses the inherent power to enter a default,” id.
(citing Beller & Keller v. Tyler, 120 F.3d 21, 22 n. 1 (2d Cir.
No. 2:10-CV-0191-WCO, 2012 WL 12953465, at *6 (N.D. Ga. Jan. 12,
2012) (“‘The fact that Rule 55(a) gives the clerk authority to
enter a default is not a limitation on the power of the court to do
so.’”) (quoting Charles Alan Wright, Arthur R. Miller, and Mary Kay
Kane, 10A Federal Practice and Procedure § 2682, at 19 (3d ed.
1998)); Singh v. Jackson, No. 86 CIV. 2668(MJL), 1986 WL 12514, at
*1–2 (S.D.N.Y. Oct. 31, 1986) (“This Court’s inherent power to
manage its caseload, however, provides the authority to sua sponte
enter a default judgment against a litigant who has failed to
prosecute his case with reasonable diligence and who has not
complied with the Court’s rules of procedure.”) (citing Flaksa v.
Little River Marine Construction Co., Inc., 389 F.2d 885, 887 (5th
Cir.), cert. den. 392 U.S. 928 (1968)). Whether a district judge
“should perform the ministerial function of entering default that
is assigned to the clerk by the text of Rule 55(a) is vested within
the judge’s sound discretion.” Liberty Mut. Ins. Co. v. Fleet
Force, Inc., No. CV-09-S-773-NW, 2013 WL 3357167, at *2 (N.D. Ala.
July 1, 2013) (citing Commodity Futures Trading Comm’n v. Harrison,
No. 8:13–CV–00327–GRA, 2013 WL 812054, at * 1 (D.S.C. Mar. 5, 2013)
(holding that “it is within a district court’s ‘sound discretion’
in deciding whether to direct that entry of default be made as to
a party”) (further citations omitted)).
The Court finds that it is a proper exercise of discretion to
direct the Clerk of Court to enter a default against CACH. Since
being served with process in February of 2017, CACH has taken no
action whatever with respect to this lawsuit. CACH has not filed an
answer, and thus has failed to “plead” in response to the Complaint
within the meaning of Rule 55(a). See Fed. R. Civ. P. 7(a) (listing
the types of pleadings, including an answer, that are allowed).
Rule 55(a), because it has not filed an “attack[ ] on the service,
or a motion[ ] to dismiss, or for better particulars, [or] the
like, which may prevent default without presently pleading to the
merits.” Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949).
In sum, because CACH has been properly served but has failed
to answer or otherwise defend this case, entry of default is
warranted, notwithstanding Plaintiff’s failure to move for such
relief. See, e.g., Singapore Tong Teik PTE Ltd. v. Coppola, No.
04-CV-3440 FB RLM, 2007 WL 2375796, at *4 (E.D.N.Y. Aug. 17, 2007);
Trustees of Local 813 I.B.T. Ins. Trust v. Chinatown Carting Corp.,
No. 1:06-CV-05967-NGG, 2008 WL 5111108, at *3 (E.D.N.Y. Dec. 4,
2008) (entering default under Rule 55(a) against a defendant who
failed to answer or appear even though the plaintiff moved only for
summary judgment); Singh v. Jackson, No. 86 CIV. 2668(MJL), 1986 WL
12514, at *2 (S.D.N.Y. Oct. 31, 1986); Systems Indus., Inc. v. Han,
105 F.R.D. at 74 & n.1 (entering default under Rule 55(a) even
though the “plaintiff has not filed any application with the Clerk
for entry of a default” but had instead filed only a motion seeking
default judgment under Rule 55(b)).
The Court further finds that entry of a default judgment is
allegations of the complaint, except those relating to the amount
of damages, will be taken as true. Singh, 1986 WL 12514, at *2
(citing C. Wright & A. Miller, Federal Practice & Procedure: Civil
allegations in Plaintiff’s complaint, if taken as true, state
claims for violations of the FDCPA and GBL § 349. The Court
therefore will order that judgment be entered in Plaintiff’s favor
on all liability issues under all counts of the Complaint.
Where the defendant “does not contest the amount prayed for in
the complaint and the claim is for a sum certain or a sum that can
be made certain by computation, the judgment generally will be
entered for that amount without any further hearing.” C. Wright &
A. Miller, 10A Fed. Prac. & Proc. Civ. § 2688 (4th ed. 2017). Here,
Complaint itself does not request a sum certain or a sum that can
be made certain by computation.2 Further proceedings to ascertain
directed to file proof of damages, e.g., detailed and properly
sworn affidavits with supporting documentation, setting forth the
items of damages and corresponding amounts requested so that the
The ad damnum clause in Plaintiff’s Complaint requests judgment against
CACH for the following: “[a]ctual and statutory damages in amounts to be
determined by the Jury and/or Court in Plaintiff’s FDCPA claims pursuant to 15
U.S.C. § 1692k”; “[a]ctual, statutory, treble and punitive damages in amounts to
be determined by the Jury and/or Court in Plaintiff’s State deceptive practices
claim pursuant to New York State General Business Law § 349”; “[c]osts and
reasonable attorney fees on the FDCPA claims pursuant to 15 U.S.C. § 1692k”;
“[c]osts and reasonable attorney fees on the State deceptive practices claim
pursuant to New York State General Business Law § 349”; and “[s]uch other and
further relief as may be just and proper.” (Complaint (“Compl.”) (Dkt #1) at 7).
Court may ascertain “with reasonable certainty,” Credit Lyonnais
Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999),
the damages to be awarded.
For the foregoing reasons, the Clerk of Court is directed to
enter default on the record of this case against CACH, Inc.
Plaintiff is directed to submit to the Court proof of damages, as
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
August 28, 2017
Rochester, New York.
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