Bailey v. Hearshe Kemp

Filing 18

MEMORANDUM DECISION and ORDER granting 14 Motion for Default Judgment. Signed by Judge Robert J. Shelby on 03/27/2013. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

PATRICIA BAILEY,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.

HEARSHE KEMP LLC,

Case No. 2:12-cv-802

Defendant.

Plaintiff Patricia Bailey filed her Complaint against Defendant Hearshe Kemp LLC on
August 16, 2012. Because the Defendant failed to file a timely answer or a responsive pleading,
the Clerk of the Court entered default against Hearshe Kemp on November 21, 2012.
Ms. Bailey now moves the court to enter default judgment and to award the following
damages: a) $1,000 for statutory damages under the Fair Debt Collection Practices Act
(FDCPA); b) $9,000 or more for the illegal invasion of Ms. Bailey’s privacy by intrusion upon
seclusion; c) $2,893.50 for attorneys’ fees; and d) $392 for costs. In an Order dated February 14,
2013 (Dkt. No. 15), the court invited Ms. Bailey either to submit briefing explaining why she
was entitled to a jury trial on the issue of damages or to submit additional information detailing
her actual damages that resulted from Hearshe Kemp’s behavior. Ms. Bailey chose to submit a
declaration in support of her requested damages. (Dkt. No. 17.)
When the court enters default judgment, the facts alleged in the complaint are taken as
true. See Two Old Hippies, LLC v. Catch the Bus, LLC, 277 F.R.D. 448, 459 (D.N.M. 2011)

(“After entering default judgment, the court takes all of the well-pleaded facts in a complaint as
true.”). As a result, the court finds that Hearshe Kemp willfully and persistently harassed Ms.
Bailey in violation of the FCDPA. For this reason, the court awards Ms. Bailey $1,000 for
statutory damages, which is the maximum amount allowable under the statute. See 15 U.S.C. §
1692k.
The FDCPA also permits a plaintiff to recover actual damages. See id. The court,
however, does not find sufficient grounds to award actual damages here. Although Hearshe
Kemp willfully harassed Ms. Bailey in violation of federal law, the court cannot award damages
based on speculative and unclear reasons. See Archer v. Eiland, 64 Fed. App’x 676, 682 (10th
Cir. 2003) (“Alleged damages are not recoverable if they are too conjectural or too speculative to
form a basis for measurement.”). In her declaration, Ms. Bailey did not provide adequate
information for the court to find any actual damages. Although Ms. Bailey claimed that she
missed job opportunities as a result of Hearshe Kemp’s behavior, she did not provide any details
as to the nature of those jobs and the amount of potential income she lost. In sum, Ms. Bailey
has not presented enough evidence to show that she has suffered actual damages.
The court also finds that Hearshe Kemp unlawfully invaded Ms. Bailey’s privacy. But
given Ms. Bailey’s failure to provide adequate information for the court to award actual
damages, the court will award only nominal damages of $1.00 for this cause of action.
Finally, the court finds that it is appropriate to award attorneys’ fees and costs under the
FDCPA in this case. Ms. Bailey’s attorney provided the court with an affidavit detailing these
fees and costs, and the court finds that they are reasonable.
For the reasons stated above, the court enters default judgment against Hearshe Kemp
and GRANTS the following relief:

a.

$1,000 for statutory damages under the FCDPA;

b. $1.00 for nominal damages for the invasion of privacy claim;
c. $2,983.50 for reasonable attorneys’ fees; and
d.

$392 for reasonable costs.

In total, the court awards Ms. Bailey $4,376.50. The court directs the Clerk of the Court to enter
judgment in this amount and to close the case.
SO ORDERED this 27th day of March, 2013.

BY THE COURT:

______________________________
ROBERT J. SHELBY
United States District Judge