HAYNER v. LAW OFFICES OF MITCHELL N. KAY, P.C.

Filing 13

MEMORANDUM: re 6 MOTION for Default Judgment against LAW OFFICES OF MITCHELL N. KAY, P.C. Signed by Judge William L. Standish on 10/27/2011. (md)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD E. HAYNER,

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Plaintiff,
vs.
LAW OFFICES OF MITCHELL
N. KAY, P.C.,
Defendant.

Civil Action No. 11 459

MEMORANDUM
I

Before the Court is the motion of Plaintiff, Richard E.
Hayner, for default judgment against Defendant, Law Offices of
Mitchell N. Kay, P.C.

For the reasons set forth below, the

motion will be granted and judgment in the amount of $2,550 will
be entered in favor of Plaintiff and against Defendant.
II
Plaintiff filed this civil action against Defendant on
April 5, 2011.

In summary, Plaintiff's complaint alleges the

following relevant facts:
1. In early April 2010, Plaintiff
April 6, 2010 on the letterhead of
Mitchell N. Kay, P.C." The letter
owed Palisades Collection, LLC, as
Wireless, the sum of $490.56.

received a letter dated
the "Law Offices of
stated that Plaintiff
assignee of AT&T

2. The only account that Plaintiff ever opened with AT&T
Wireless related to a cell phone purchased exclusively for
personal use.

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3.
the
the
55%

The letter offered Plaintiff the opportunity to repay
alleged debt in 10 monthly installments or to settle
alleged debt for a single, lump sum payment equal to
of the alleged debt.

4. Despite the fact that the letter was written on the
letterhead of a law firm, the letter stated in small print
that "[a]t this point in time, no attorney with this firm
has personally reviewed the particular circumstances of
your account."
5. After reading the letter, Plaintiff believed that a
lawyer or law firm was attempting to collect the alleged
debt from him; that Defendant was entitled to institute
legal action against him for the alleged debt; and that
Defendant would, in fact, institute legal action against
him if he did not payoff the alleged debt as proposed in
the letter.
Plaintiff seeks damages and attorneys' fees from Defendant
for its alleged violation of Section 1692e of the Fair Debt
Collection Practices Act (\\FDCPA"), 15 U.S.C.

§

1692e, which

prohibits a debt collector from using any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.

In accordance with an Order of Court

dated July 26, 2011, Plaintiff requested entry of default
against Defendant pursuant to Fed.R.Civ.p. 55(a) for failure to
plead or otherwise defend.

The default was entered by the Clerk

of Court on August 9, 2011.
A consequence of the entry of default is that the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true.

Rhino Associates,

L.P. v. Berg Mfg. and Sales Corp., 531 F.Supp.2d 652, 657

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(M.D.Pa.2007).

Nevertheless, it remains for the district court

to consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law.
849, 852

(8~

Marshall v. Baggett, 616 F.3d

Cir.2010) .

Assuming the truth of the factual allegations of
Plaintiff's complaint regarding his FDCPA claim and after a
careful review of Defendant's April 6, 2010 letter which was
attached to the complaint as Exhibit A, the Court concludes that
Plaintiff has stated a legitimate claim against Defendant under
the FDCPA.

See Lesher v. Law Offices of Mitchell N. Kay, P.C.,

650 F.3d 993 (3d Cir.2011) (Collection letters presented on law
firm's letterhead violated FDCPA's general prohibition against
"false, deceptive, or misleading" communications because they
falsely implied that an attorney, acting as an attorney, was
involved in collecting debtor's debt; the least sophisticated
debtor, upon receiving those letters, could reasonably believe
that an attorney had reviewed his file and determined that he
was a candidate for legal action; and disclaimers included in
letters, which were printed on the backs, did not make clear to
the least sophisticated debtor that the law firm was acting
solely as a debt collector and not in any legal capacity in
sending the letters).

Thus, the only remaining issue is the

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amount of damages and attorneys' fees to be awarded to
Plaintiff.
During a hearing on damages on September 13, 2011,
Plaintiff testified that he retained the law firm of Bernard S.
Rubb & Associates to bring this action based on the belief that
he was being sued in connection with the alleged debt to AT&T
Wireless,l and that he paid a fee of $500 to retain counsel's
services.

Plaintiff also offered the testimony of Rudy Fabian,

Esquire, an associate of the law firm of Bernard S. Rubb &
Associates, in support of an award of attorney's fees under
Section 1692k(a) (3) of the FDCPA.

According to Attorney

Fabian's time records, which were admitted as Exhibit 5 during
the hearing, he provided 10.5 hours of services in connection
with this case which consisted of 2 hours to review the
pleadings in the Lesher case, 6 hours to draft the complaint, 1
hour to meet with Attorney Rubb to prepare for the hearing on
damages, and an estimate of 1.5 hours to attend the hearing.
Attorney Fabian testified that his time records are accurate and
that his hourly fee is $200.

After consideration, the Court

finds Attorney Fabian's fee, which totals $2,100, to be
reasonable.

Therefore, this fee will be awarded to Plaintiff.

At the conclusion of the hearing, Attorney Rubb represented
to the Court that he has considerable experience in litigating
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Plaintiff testified that he did not owe the stated amount to AT&T wireless.

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claims under the FDCPA; that he provided 42 hours of services in
connection with this case; that his hourly fee for this case was
$425; and that costs in the amount of $350 were incurred to file
the case.

The Court advised Attorney Rubb to file an affidavit

and documentation supporting his fees for the services provided
to Plaintiff promptly which he agreed to do.

To date, Attorney

Rubb has failed to file an affidavit and supporting
documentation as directed by the Court, despite two messages
left by the Court's law clerks on his answering machine.

Under

the circumstances, the Court declines to award Plaintiff any
attorney's fees for Attorney Rubb's services which the Court
finds to be excessive in any event;2 however, the filing fee of
$350 of which the Court takes judicial notice will be awarded to
Plaintiff.

In addition, although Plaintiff did not establish

any actual damages as a result of receiving Defendant's letter,
the Court will exercise its discretion under Section 1692k(2) (A)

2 AS noted previously, Attorney Fabian prepared the complaint in this case.
Therefore, Attorney Rubb's services appear to be limited to (1) preparation
of a request for entry of default consisting of 1 sentence, (2) preparation
of a motion for default judgment the body of which consists of 3 pages, (3)
attendance at a brief conference with the Court to discuss the manner in
which the issue of damages would be resolved based on the entry of default
against Defendant; (4) preparation of an 8-page trial brief; (S) preparation
of proposed findings of fact consisting of 7 pages; and (5) attendance at the
brief hearing on damages.
It is difficult to perceive how the foregoing
activities required 42 hours of Attorney Rubb's services, which total $17,850
in fees based on his hourly rate, in light of his extensive experience in
FDCPA litigation.

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of the FDCPA and award damages to Plaintiff in the amount of
$100.

William L. Standish
United States District Judge
Date: October 27, 2011

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