Jenkins v. Davis Davis Attorneys

Filing 9

DEFAULT JUDGMENT in favor of plaintiff against Davis Davis Attorneys. Signed by District Judge Richard Voorhees on 1/10/2012. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:10CV143-V
MATT JENKINS,
Plaintiff,

)
)
)
v.
)
)
DAVIS & DAVIS ATTORNEYS,
)
Defendants.
)
___________________________________ )

ORDER OF
DEFAULT JUDGMENT

THIS MATTER is before the Court on Plaintiff Matt Jenkins’ Motion for Judgment by
Default, filed April 15, 2011. (Document #6) The time for filing responsive pleadings has
passed and this matter is now ripe for disposition.
Plaintiff alleges diversity of citizenship as the primary basis for subject matter
jurisdiction, 28 U.S.C. § 1332(a). (Compl. ¶¶1, 3, 6, 7) Plaintiff Jenkins also asserts the presence
of a federal question, 28 U.S.C. § 1331. (Compl. ¶8) (15 U.S.C. § 1692k(d)).
I.
On September 24, 2010, Plaintiff Matt Jenkins (“Jenkins”) filed a Complaint against
Davis & Davis Attorneys (“D&D”) alleging: (1) violation of the Telephone Consumer Protection
Act (hereinafter “TCPA”) as found in 47 U.S.C. §227, et.seq. (FIRST CAUSE OF ACTION); (2)
violation of the Fair Debt Collection Practices Act (hereinafter “FDCPA”) as found in 15 U.S.C.
§1692, et. seq. (EIGHTH); and (3) multiple violations of the North Carolina Debt Collection
Statutes as found in §58-70-110(1) through (3) and §58-70-130(b) (SECOND thru SEVENTH,

TENTH).1 (Document #1) Plaintiff seeks monetary damages for each alleged statutory violation
as well as permanent injunctive relief.
Plaintiff effected service upon Defendant on November 23, 2010. (Document #3)
According to the docket, Defendant D&D’s responsive pleading was due on or before December
14, 2010.
Jenkins moved for entry of default and on December 16, 2010, the Clerk of Court entered
default against D&D. (Document #5) With the exception of the filing of the instant Motion for
Judgment by Default, no action has been taken since entry of default.
II.
A review of the Complaint confirms that Plaintiff asserts detailed facts which are
sufficient to state cognizable claims against Defendant D&D. Upon entry of default, the facts
alleged within the Complaint, except those relating to damages, are taken as true. See 49 C.J.S.
Judgments § 273 (2011) (“The effect of a default in answering is to deem admitted all the wellpleaded facts in the complaint ....”); Pentech Fin. Servs. v. Old Dominion Saw Works, Inc., 2009
U.S. Dist. LEXIS 55786 (W.D.Va. June 30, 2009). Accordingly, because D&D has failed to
respond or otherwise defend against Jenkins’ claims, the following facts are established:
•

Plaintiff Jenkins is a “person” as defined in 14 U.S.C. § 153(32) and a
“consumer” for purposes of 15 U.S.C. §1692a(3) and N.C.GEN. STAT. § 58-7090(2) (Compl. ¶2);

•

Defendant D&D is a “person” as defined in 14 U.S.C. § 153(32), a “debt

1

Plaintiff Jenkins appears to have abandoned certain aspects of his North Carolina Debt
Collection claim as well as his NINTH CAUSE OF ACTION of Intrusion of Seclusion.

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collector” as defined in 15 U.S.C. §1692a(6), and a “collection agency” as defined
in N.C.GEN. STAT. § 58-70-90(1) (Compl. ¶4);
•

Between August 1, 2009 and November 30, 2009, the Defendant D&D placed
telephone calls to the Plaintiff Jenkins’ cellular telephone, [phone], using
an automatic telephone dialing system or an artificial or prerecorded voice
(Compl. ¶9) (Pl.’s Mem. In Supp. DJ Exh. A / Jenkins’ Aff. ¶¶3, 5) (hereinafter
“Jenkins’ Aff.”);

•

Defendant did not obtain express consent from the Plaintiff prior to placing the
calls (Compl. ¶10) (Jenkins’ Aff. ¶4);

•

Defendant did not place the telephone calls for an emergency purpose (Compl.
¶11);

•

Defendant placed the aforementioned telephone calls knowingly and / or willfully
with an autodialer or an artificial or prerecorded voice (Compl. ¶12);

•

Defendant continued to place such telephone calls – as many as sixteen – after a
request to stop was made by Plaintiff to a non-attorney customer service
representative on or about October 12, 2009 (Compl. ¶13) (Jenkins’ Aff. ¶5);

•

Defendant, through a non-attorney customer service representative, indicated to
Plaintiff that the calls would continue until the matter was resolved (Compl. ¶14);

•

After the October 2009 request was made, Defendant continued to place such
telephone calls for the purpose of annoying or harassing Plaintiff (Compl. ¶15);

•

Defendant represented to Plaintiff that it was attempting to collect on an account
sent to them from Merrick Bank (Compl. ¶16)
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•

Upon information and belief, Defendant was actually seeking to collect on behalf
of Cardworks, Inc. (Compl. ¶17);

•

Following Plaintiff’s request for written information concerning the alleged debt,
Defendant sent Plaintiff a letter dated October 12, 2009 purporting to set forth the
details of a payment plan agreed to by both parties (Compl. ¶19) (Pl.’s Mem. In
Supp. DJ Exh. C / Jenkins’ Aff. ¶¶8, 9);

•

Plaintiff never made any acknowledgement that the debt Defendant was
attempting to collect on was a valid debt (Compl. ¶20);

•

The October 12, 2009 letter from Defendant failed to identify any original or
current creditor but instead included the caption, CARDWORKS, INC. V. MATT
JENKINS, as in the form of a legal complaint (Compl. ¶21);

•

Upon information and belief, Cardworks, Inc. is a third party debt collector rather
than a creditor (Compl. ¶22);

•

Defendant failed to disclose in its telephone messages that the communications
were from a debt collector (Compl. ¶23);

•

Upon information and belief, neither Defendant nor its non-attorney customer
service representative is licensed to practice law in the State of North Carolina
(Compl. ¶24);

•

Upon information and belief, Defendant was / is not licensed with the North
Carolina Department of Insurance as a collection agency in North Carolina
(Compl. ¶25);

•

Plaintiff sustained economic injury in the form of exhaustion of minutes from a
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“bucket of minutes” cell phone plan and incurred costs (Compl. ¶20);
The Telephone Consumer Protection Act (TCPA) provides that:
It shall be unlawful for any person within the United States ... -(A) to make any call (other than a call made for emergency purposes or made with
the prior express consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice-(iii) to any telephone number assigned to a ... cellular telephone service ...for
which the called party is charged for the call ....
47 U.S.C. § 227(b)(1)(A)(iii)(2010).
Under the Fair Debt Collection Practices Act,
A debt collector2 may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
***
Without limiting the general application of the foregoing, the following
conduct is a violation of this section:
The failure to disclose in the initial written communication
with the consumer and, in addition, if the initial communication
with the consumer is oral, in that initial oral communication, that
the debt collector is attempting to collect a debt and that any
information obtained will be used for that purpose, and the failure
to disclose in subsequent communications that the communication
is from a debt collector ....
15 U.S.C. § 1692e(11) (1996).
Plaintiff Jenkins’ well-pleaded facts establish liability under both the TCPA and FDCPA.
Accordingly, Plaintiff’s Motion for Judgment by Default is GRANTED as to the alleged federal
statutory violations. Because of the duplicative nature of the statutory claims, the Court declines
to reach the state law claims.
2

The FDCPA traditionally applies to debt collectors, and defines “debt collector” as “any person
. . . who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due
another.” 15 U.S.C. §1692a(6). Here, Plaintiff alleges that Davis & Davis Attorneys operates a
collection agency and call center separate and apart from its law practice, supervised and staffed by nonattorney collection agents. (See e.g., Mem. In Supp. DJ at 2 and http://www.attorneysnetwork.com/davisdavis-profile.htm.)

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III.
NOW, THEREFORE, the Court concludes that judgment by default should be hereby
entered against the Defendant, Davis & Davis Attorneys, in accordance with the prayer of said
Complaint for the sums certain claimed by Plaintiff Jenkins within the record in this cause,
specifically, Exhibits A, B, and C to Plaintiff’s Motion; and
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that
Plaintiff’s Motion for Judgment by Default is GRANTED.
(1) Pursuant to Plaintiff’s First Cause of Action, Plaintiff is awarded statutory damages in
the amount of $24,000 ($1,500 for each of the 16 calls knowingly and willfully placed to
Plaintiff’s cellular phone after October 12, 2009 in violation of the TCPA);
(2) Pursuant to Plaintiff’s Second Cause of Action, Plaintiff is awarded statutory damages
in the amount of $1,000 for Plaintiff’s violations of the FDCPA; and
(3) Pursuant to 15 U.S.C. § 1692k(a), Plaintiff is entitled to an award of reasonable
attorney’s fees. However, because Plaintiff is pro se, no attorney’s fees will be ordered.

Signed: January 10, 2012

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