Woods et al v. Oxford Law, LLC et al

Filing 14

MEMORANDUM OPINION & ORDER granting in part and denying in part the plaintiffs' 12 MOTION for default judgment; granting said motion to the extent set forth more fully herein, and otherwise denying said motion; the plaintiffs are awarded against Oxford Law, LLC the sum of $10,121.00; and the plaintiffs' claims against John Does 1-10 are dismissed without prejudice; the plaintiffs' renewing request for attorney's fees and costs due by 3/16/2015; defendant may respond by 3/26/2015. Signed by Judge John T. Copenhaver, Jr. on 2/24/2015. (cc: counsel of record; defendant, certified mail, return receipt requested, at 311 Veterans Highway, Suite 100A, Levittown, Pennsylvania, 19056) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JESSICA WOODS
and JOSHUA EVANS,
Plaintiffs,
v.

Civil Action No. 2:13-6467

OXFORD LAW, LLC
and JOHN DOES 1-10,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is the plaintiffs’ motion for default
judgment, filed June 26, 2014.

This suit was initiated in this

court on March 28, 2013.

I. Factual and Procedural Background

At some point (the complaint does not say when), the
plaintiffs, Jessica Woods and Joshua Evans, “incurred a
financial obligation in the approximate amount of $532” to Care
Credit, which is not named as a defendant.

Compl. ¶ 8.

“The

[d]ebt arose from services . . . [that] were primarily for
family, personal or household purposes[.]”

Id. ¶ 9.

Thereafter, the debt was either “purchased, assigned or
transferred to Oxford [Law, LLC (“Oxford”)] for collection, or
Oxford was employed . . . to collect the [d]ebt.”

Id. ¶ 10.

In or around September of 2012, “Oxford started
contacting [the plaintiffs] in an attempt to collect the [d]ebt
by placing calls to [the plaintiffs’] residential telephone.”
Id. ¶ 12.

According to the complaint, Oxford employed a number

of abusive tactics and harassed the plaintiffs in doing so.
Specifically, the plaintiffs allege that Oxford “failed to
identify the name of its company and failed to state that” it
was calling to collect a debt; “misleadingly identified itself
as an attorney’s office”; “accused [Evans] of lying and falsely
stated [that Evans] was trying to avoid the [d]ebt”; “threatened
[Evans] that Oxford would visit the [p]laintiffs if they failed
to satisfy the [d]ebt”; and “failed to send . . . written
validation of the [d]ebt[.]”

Id. ¶¶ 13-16, 21.

The complaint also claims that Oxford “repeatedly”
disregarded Evans’ request to stop calling about the debt and to
correspond with the plaintiffs only in writing.

Id. ¶¶ 17-18.

Finally, even after Evans “informed Oxford that [the plaintiffs]
had retained legal representation and provided Oxford with their
attorney’s contact information,” 1 Oxford “proceeded to place an

1

Though the complaint does not say so, the motion for default
judgment and the affidavits attached thereto indicate that the
plaintiffs “retained the services of . . . counsel and notified
Oxford of the same around early March 2013.” See Plaintiffs’
Motion for Default Judgment (“Pls.’ Mot.”) ¶ 11; see also id.,
Ex. A (“Evans Aff.”) ¶ 10 (“In or around March 2013, we retained
the services of Lemberg Law, LLC, in an effort to stop Oxford’s
2

additional call to [the plaintiffs] on March 14, 2013.”
19, 20.

Id. ¶¶

The plaintiffs assert that Oxford’s actions caused them

to suffer “humiliation, anger, anxiety, emotional distress,
fear, frustration and embarrassment.”

Id. ¶ 23.

In their complaint, Evans and Woods charge Oxford and
John Does 1-10 2 with violating numerous provisions of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”), and the West Virginia Consumer Credit and Protection
Act, W. Va. Code § 46A-1-101, et seq., (“WVCCPA”).

The

complaint seeks actual and statutory damages under the FDCPA,
statutory damages under the WVCCPA, and the recovery of
attorney’s fees and costs.

Id. at Prayer(1)-(7).

harassment. I promptly informed Oxford we had retained counsel
and provided Oxford with our attorney’s contact information.
Oxford placed at least one additional call seeking to collect
the [d]ebt on March 14, 2013, after being informed of such.”).
2

The plaintiffs have not moved to amend the complaint to
identify the John Does, nor served the Doe defendants as
required by Federal Rule of Civil Procedure 4(m). Accordingly,
all claims against John Does 1-10 are dismissed without
prejudice. Fed. R. Civ. P. 4(m) (“If a defendant is not served
within 120 days after the complaint is filed, the court -- on
motion or on its own after notice to the plaintiff -- must
dismiss the action without prejudice against the defendant[.]”).
3

II. Oxford Law’s Default

Service of process on the defendant was achieved on
April 8, 2013, but Oxford failed to answer the complaint.

As a

result, on October 22, 2013, the court ordered the plaintiffs to
submit a motion for entry of default judgment by not later than
November 6, 2013.

The plaintiffs thereafter “attempted to

confer with [] Oxford in an attempt to resolve the matter.”
Plaintiffs’ Motion to Enforce the Settlement Agreement (“Motion
to Enforce”) ¶ 4 (ECF No. 8, filed February 26, 2014).

On

November 6, 2013, rather than filing a motion for entry of
default, the plaintiffs filed a notice of settlement, indicating
that the parties had reached an agreement, and advising that a
voluntary dismissal would be forthcoming within sixty days.
Unfortunately, the parties were ultimately unable, after months
of fruitless attempts, to complete a contemplated written
agreement.

In an order dated June 6, 2014, the court denied the

plaintiffs’ request to enforce the terms of a preliminary verbal
settlement allegedly reached by the parties, and directed them
to instead move for default judgment. 3
In response, on June 26, 2014, the plaintiffs filed
the pending motion for default judgment, reiterating the

3

The Clerk entered Oxford’s default on June 4, 2014.
4

substance of the complaint, and repeating their request for
damages under the FDCPA and WVCCPA.

III. Plaintiffs’ Claims

With respect to the FDCPA, the plaintiffs seek
judgment against Oxford for violating 15 U.S.C. § 1692c(a)(2) by
contacting them after learning that they were represented by
counsel; violating 15 U.S.C. § 1692d(2) by using abusive
language when speaking with “the consumer”; violating 15 U.S.C.
§ 1692d(5) by “caus[ing] a phone to ring repeatedly and
engag[ing] the [p]laintiffs in telephone conversations, with the
intent to annoy and harass”; violating 15 U.S.C. § 1692d(6) by
placing calls to the plaintiffs without disclosing its identity
as a debt collection agency; violating 15 U.S.C. § 1692e(3) by
misleading the plaintiffs “into believing the communication was
from a law firm or an attorney”; violating 15 U.S.C. § 1692e(11)
by “fail[ing] to inform the consumer that the communication was
an attempt to collect a debt”; violating 15 U.S.C. § 1692f “in
that [Oxford] used unfair and unconscionable means to collect a
debt”; and violating 15 U.S.C. § 1692g(a) by “fail[ing] to send
[the plaintiffs] an initial letter within five days of its
initial contact with [the plaintiffs.]”

5

Memorandum of Law in

Support of Plaintiffs’ Motion for Default Judgment (“Pls.’
Mem.”) at 4-8; see also Compl. ¶¶ 24-37. 4
With respect to the WVCCPA, the plaintiffs seek
judgment against Oxford for violating section 46A-2-123(a) by
falsely representing that they were a law firm or attorney;
violating section 46A-2-124(a) by “express[ly] or implicitly
threaten[ing] use of violence or other criminal means to cause
harm to [the plaintiffs]”; violating section 46A-2-124(f) by
threatening to take action prohibited by the FDCPA that is of
the same nature as subsection -124(a); violating section 46A-2125(b) by placing calls to the plaintiffs without disclosing its
identity; violating section 46A-2-125(d) by repeatedly calling
the plaintiffs at “unusual times or at times known to be
inconvenient”; violating section 46A-2-127(h) by “falsely
represent[ing] the status or true nature of” Oxford’s business
(that is, debt collection); and violating section 46A-2-128 by
“us[ing] unfair or unconscionable means to collect the [d]ebt.”
Pls.’ Mem. at 8-11; see also Compl. ¶¶ 38-53.
They request “at least $1,000.00 in statutory damages
under the FDCPA; $19,302.24 in statutory damages for at least
four violations of the WVCCPA; $50,000.00 to compensate [them]
4

The complaint also included the allegation that Oxford violated
§ 1692e(10), but no reference to that subsection is found within
the motion for default judgment.
6

for their actual damages; and a reasonable award of their
attorney’s fees and litigation costs.”

Pls.’ Mot. ¶ 37.

Affidavits from Evans and Woods are attached to the
motion.

Evans attests that Oxford identified itself as an

attorney’s office but did otherwise inform the plaintiffs of
“the true name of their company”; threatened to “come ‘visit’”
the plaintiffs if the debt was not paid; accused Evans of lying
about his inability to pay the debt; continued to call the
plaintiffs after Evans requested that Oxford not do so; called
the plaintiffs on March 14, 2013 after being informed that the
plaintiffs were represented by counsel; and failed to send the
plaintiffs any written validation of the debt.
11.

Evans Aff. ¶¶ 6-

He states that he “suffered damages, anger, fear,

embarrassment, anxiety, emotional distress, and frustration as a
result of Oxford’s” actions.

Id. ¶ 12.

Woods’ affidavit

contains substantially identical information.

See generally

Pls.’ Mot., Ex. B (“Woods Aff.”).

IV. Legal Standard

Default judgments are governed by Rule 55 of the
Federal Rules of Civil Procedure.

Rule 55(a) states that if a

party has “failed to plead or otherwise defend, and that failure

7

is shown by affidavit or otherwise, the clerk must enter the
party’s default.”

Once default has been entered by the clerk,

the plaintiff may move the court to enter a default judgment
against the defendant pursuant to Rule 55(b)(2).
“The defendant, by his default, admits the plaintiff’s
well-pleaded allegations of fact[.]”

Ryan v. Homecomings Fin.

Network, 253 F.3d 778, 780 (4th Cir. 2001) (quoting Nishimatsu
Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975)).

But “a default judgment may be lawfully

entered only ‘according to what is properly to be decreed upon
the statements of the bill, assumed to be true,’ and not ‘as of
course according to the prayer of the bill.’”

Nishimatsu, 515

F.2d at 1206 (quoting Thomson v. Wooster, 114 U.S. 104, 113
(1885) (internal quotations and citations omitted)), quoted in
Ryan, 253 F.3d at 780.

In other words, “[t]he defendant is not

held . . . to admit conclusions of law,” Ryan, 253 F.3d at 780
(quoting Nishimatsu), and the “court must, therefore, determine
whether the well-pleaded allegations in [the] complaint support
the relief sought in” the motion for default judgment, id., see
also City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114,
137 n.23 (2d Cir. 2011) (“Most of our sister circuits appear to
have held expressly that a district court may not enter a
default judgment unless the plaintiff’s complaint states a valid

8

facial claim for relief.” (citing cases from the First, Fourth,
Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits)).
For purposes of that analysis, well-pleaded
allegations are those that offer something more than “‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action[.]’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)); Wooten v. McDonald Transit Assocs., Inc., 775 F.3d 689,
695-96 (5th Cir. 2015) (applying Iqbal and Twombly to determine
whether a default judgment was “supported by well-pleaded
allegations”); DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854
(9th Cir. 2007) (holding that allegations in the complaint that
merely “parrot the language” of a statute “are not well-pleaded
facts” but “simply [] legal conclusions” that are not “admitted
through default”).
Assuming that the well-pleaded facts demonstrate that
the plaintiff is entitled to relief, the court must next make an
independent determination concerning the damages to be awarded.
See S.E.C. v. Lawbaugh, 359 F. Supp. 2d 418, 422 (D. Md. 2005);
see also Ryan, 253 F.3d at 780-81.

Courts will not simply

accept the plaintiff’s statement of damages, but instead must
ensure that damages are appropriate.

Adams v. Barker, No. 10-

423, 2013 WL 310561, at *3 (S.D. W. Va. Jan. 25, 2013)
9

(Copenhaver, J.) (citing Transatl. Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)).

Rule

55(b) authorizes the court to “conduct hearings or make
referrals” in order to, inter alia, “determine the amount of
damages[,]” Fed. R. Civ. P. 55(b), and the court may also rely
on affidavits and other documentary evidence to determine the
appropriate damages amount, Monge v. Portofino Ristorante, 751
F. Supp. 2d 789, 795-96 (D. Md. 2010).

V. Discussion

A. Statutory Violations for which Damages are Sought
1. FDCPA Claims
“To prevail on a FDCPA claim, a plaintiff must
sufficiently allege that (1) he was the object of collection
activity arising from a consumer debt as defined by the FDCPA,
(2) the defendant is a debt collector as defined by the FDCPA,
and (3) the defendant engaged in an act or omission prohibited
by the FDCPA.”

Johnson v. BAC Home Loans Servicing, LP, 867 F.

Supp. 2d 766, 776 (E.D.N.C. 2011); see also Boosahda v.
Providence Dane LLC, 462 F. App’x 331, 333 n.3 (4th Cir. 2012)
(same).

10

A consumer debt is defined as an obligation or alleged
obligation “to pay money arising out of a transaction in which
the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family,
or household purposes[.]”

15 U.S.C. § 1692a(5).

In this case,

the complaint states that the plaintiffs “incurred a financial
obligation . . . ar[ising] from services . . . [that] were
primarily for personal, family or household purposes,” Compl. ¶¶
8-9, and that Oxford “attempted to collect” on that debt on
several occasions, id. ¶¶ 11-13.

As a result, the well-pleaded

facts in the complaint establish that the plaintiffs were the
object of collection activity arising from a consumer debt as
defined by the FDCPA.
Regarding the second element, the FDCPA defines a debt
collector as:
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal
purpose of which is the collection of any debts, or
who
regularly
collects
or
attempts
to
collect,
directly or indirectly, debts owed or due or asserted
to be owed or due another.
15 U.S.C. § 1692a(6).

Here, it appears that Oxford is a debt

collector within that definition inasmuch as the complaint
establishes that Oxford is a Pennsylvania company operating as a
collection agency; that Oxford used the telephone to engage in

11

debt collection; and that Oxford was assigned or employed to
collect the debt on behalf of a creditor.

Compl. ¶¶ 5, 11-12.

As for the third element, the plaintiffs assert that
Oxford engaged in several activities prohibited by the FDCPA.
Each is discussed in turn.
15 U.S.C. § 1692c(a)(2)
Section 1692c(a)(2) prohibits a debt collector from
communicating with a consumer about a debt without prior consent
“if the debt collector knows the consumer is represented by an
attorney with respect to such debt[.]”

15 U.S.C. § 1692c(a)(2).

Here, Evans “informed Oxford that [the plaintiffs] had retained
legal representation and provided Oxford with their attorney’s
contact information,” but Oxford “proceeded to place an
additional call to [the plaintiffs] on March 14, 2013.”
¶¶ 19, 20.

Compl.

Accordingly, the defendant violated § 1692c(a)(2).
15 U.S.C. § 1692d
Section 1692d of the FDCPA prohibits debt collectors

from engaging in “any conduct the natural consequence of which
is to harass, oppress, or abuse any person in connection with
the collection of a debt.”

15 U.S.C. § 1692d.

The plaintiffs

charge Oxford with engaging in three of a non-exhaustive list of
activities that fall within that prohibition.
12

§ 1692d(2)
First, the plaintiffs assert that Oxford used “obscene
or profane language or language the natural consequence of which
is to abuse the hearer” in violation of § 1692d(2) by accusing
Evans of lying about his ability to repay the debt.

That

language is neither profane nor obscene, so the question is
whether it constitutes “language the natural consequence of
which is to abuse the hearer.”

See Horkey v. J.V.D.B. &

Assocs., Inc., 333 F.3d 769, 774 (7th Cir. 2003) (holding that
the consequence of the words, rather than the intent of the
speaker, is the determinative inquiry).

In answering that

question courts apply an objective, “consumer protective
standard” that asks whether the challenged language would
naturally abuse “a consumer whose circumstances makes him
relatively more susceptible to harassment, oppression or abuse.”
Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir.
1985); Dorsey v. Morgan, 760 F. Supp. 509, 515 (D. Md. 1991)
(“[C]laims under § 1692d should be viewed from the perspective
of a consumer whose circumstances makes him relatively more
susceptible to harassment, oppression, or abuse.” (quoting
Jeter)); Johnson, 867 F. Supp. 2d at 779 (same).
The “more susceptible consumer” standard is a
corollary of the “least sophisticated consumer” standard that
13

courts regularly apply to claims of misrepresentation and
deception under § 1692e.

See Jeter, 760 F.2d at 1179 (“[W]e

believe that the consumer protective purposes of the FDCPA
require us to adopt an analogous standard for violations of §
1692d.”); see also United States v. Nat’l Fin. Servs., Inc., 98
F.3d 131, 136-38 (4th Cir. 1996) (“As the Second Circuit has
explained, evaluating debt collection practices with an eye to
the ‘least sophisticated consumer’ comports with basic consumerprotection principles[.]”).
To be sure, § 1692d does not shield consumers from the
“inconvenience and embarrassment that are natural consequences
of debt collection,” nor prohibit “debt collectors from making
non-abusive statements designed to encourage voluntary
payment[.]”

Beattie v. DM. Collections, Inc., 754 F. Supp. 383,

394 (D. Del. 1991); see also Pollard v. Law Office of Mandy L.
Spaulding, 967 F. Supp. 2d 470, 475 (D. Mass. 2013) (same).
Rather, the Act seeks to protect consumers from truly abusive
language “akin to profanity or obscenity,” such as “namecalling, racial or ethnic slurs, and other derogatory remarks,”
Jeter, 760 F.2d at 1178, that form no part of a civil attempt to
recoup funds but instead consist of ad hominem attacks on the
consumer.

See 123 Cong. Rec. 10241 (1977) (“In essence, what

this means is that every individual, whether or not he owes a

14

debt, has the right to be treated in a reasonable and civil
manner.”); 123 Cong. Rec. 10243 (“Passage of the [FDCPA] is
important if consumers throughout this country are to be
protected from the mental anguish, and intimidation that are the
consequences of abusive debt collection practices.”); 123 Cong.
Rec. 10246 (“We are trying to protect against the glaring
examples of unsavory debt collection practices.”).
Whether accusing a consumer of lying fits into the
former category or the latter is a close question over which
courts have divided.

Compare Chiverton v. Fed. Fin. Grp., Inc.,

399 F. Supp. 2d 96, 101 (D. Conn. 2005) (“The defendant violated
§ 1692d(2) by calling [the plaintiff] a ‘liar.’”), and United
States v. Central Adjustment Bureau, Inc., 667 F. Supp. 370,
375-76 (N.D. Tex. 1986) (concluding that the defendant violated
the FDCPA by using, among other considerably more profane and
obscene phrases, “terms like ‘liar, deadbeat, crook,’” and “goddamn liar”), with Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d
803, 809 (N.D. Ill. 2010) (holding that debt collector who
called the consumer a liar did not violate § 1692(d)(2)), and
Mammen v. Bronson & Migliacco, LLP, 715 F. Supp. 2d 1210, 1218
(M.D. Fla. 2009) (holding that the statement “You’re lying,”
directed towards a consumer who denied having previously lived
in California was not “akin to profanity or obscenity” and did

15

not constitute “personal name-calling”).

Nevertheless, without

deciding whether every use of the word “liar” or “lying” is
abusive, and while recognizing that the accusation may in a
given circumstance be a truthful one relating to a material
matter, the court is satisfied that the particular accusation
made in this case would naturally tend to abuse the hearer.
Accusing a consumer of lying about his ability to
repay suggests that the consumer is willfully refusing to honor
his obligation.

It implies, in other words, that the consumer

is acting dishonorably -- that he is one of the “miniscule”
number of “deadbeats” who borrow money that they never intend to
repay.

See S. Rep. No. 93-382, at 2 (1977), reprinted in 1977

U.S.C.C.A.N. at 1696 (“One of the most frequent fallacies
concerning debt collection legislation is the contention that
the primary beneficiaries are ‘deadbeats.’

In fact, however,

there is universal agreement among scholars, law enforcement
officials, and even debt collectors that the number of persons
who willfully refuse to pay debts is miniscule.”).

That is

precisely the sort of demeaning insult that, in the debt
collection context, is likely to abuse the consumer,
particularly one whose circumstances make him “relatively more
susceptible to harassment, oppression, or abuse.”

Accordingly,

Oxford violated § 1692d(2) by accusing Evans of lying about his

16

ability to repay the debt.

See Federal Trade Commission, Staff

Commentary on the Fair Debt Collection Practices Act, 53 Fed.
Reg. 50097, 50105 (1988) (“Abusive language includes religious
slurs, profanity, obscenity, calling the consumer a liar or a
deadbeat, and the use of racial or sexual epithets.” (emphasis
added)). 5
§ 1692d(5)
Second, the plaintiffs contend that Oxford violated
§ 1692d(5) by placing “numerous calls” to the plaintiffs, and
continuing to do so after receiving instruction to correspond
with the plaintiffs only in writing.

Pls.’ Mem. at 5-6.

Subsection 1692d(5) prohibits a debt collector from
“[c]ausing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to
annoy, abuse, or harass any person at the called number.”
U.S.C. § 1692d(5).

15

There is no bright-line test for determining

whether debt-collection calls constitute actionable harassment.
Rather, courts weigh and consider a number of factors, including
the frequency, pattern, and nature of the calls to determine
5

The staff commentary is, “a guideline intended to clarify . . .
interpretations of the statute,” but by its own terms, “does not
have the force or effect of statutory provisions,” and “is not
binding on the Commission or the public.” 53 Fed. Reg. at
50101. It is therefore not accorded conclusive weight, but may
be considered if it does not conflict with the plain language of
the statute. See Heintz v. Jenkins, 514 U.S. 291, 298 (1995).
17

whether they violate § 1692d(5).

See Bassett, 715 F. Supp. 2d

at 809-10 (“[A]ctionable harassment or annoyance turns on the
volume and pattern of calls made[.]” (internal citations and
quotation marks omitted)); Akalwadi v. Risk Mgmt. Alternatives,
Inc., 336 F. Supp. 2d 492, 505-06 (D. Md. 2004) (same); Joseph
v. J.J. Mac Intyre Cos., LLC, 238 F. Supp. 2d 1158, 1168 (N.D.
Cal. 2002) (same); see also Bridge v. Ocwen F. Bank, FSB, 681
F.3d 355, 363 (6th Cir. 2012) (considering it relevant, at
motion to dismiss stage, that debt collector ignored repeated
requests to cease communications with consumer); Fox v. Citicorp
Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir. 1994)
(“Threatening and intimidating calls to a consumer at an
inconvenient time or place could rationally support a jury
finding of harassing conduct.”).
In some instances, the sheer volume of debt collection
calls may be sufficient to establish a violation.

Compare,

e.g., Hoover v. Monarch Recovery Mgmt., Inc., 888 F. Supp. 2d
589, 597-99 (E.D. Pa. 2012) (holding that ten calls per week for
eleven week period was sufficient volume of calls to state a
claim under § 1692d(5)), with, e.g., Breeders v. Gulf Coast
Collection Bureau, 796 F. Supp. 2d 1335, 1338 (M.D. Fla. 2011)
(holding that calls placed between 8:00 a.m. and 11:00 a.m. no
more than once every two days did not violate FDCPA).

18

But the

requisite “intent to annoy, abuse, or harass” on the part of the
debt collector may also be inferred from a combination of the
call frequency and other conduct, such as repeatedly calling a
consumer who has asked not to be contacted, Gilroy v. Ameriquest
Mortg. Co., 632 F. Supp. 2d 132, 136 (D.N.H. 2009), or
repeatedly contacting a consumer known to be represented by
counsel, cf. Fox, 15 F.3d at 1516 n.10 (holding that conduct
that would violate § 1692c would be “relevant to a harassment
claim” under § 1692d).
The plaintiffs have alleged that Oxford’s
representatives continued calling even after Evans asked them
not to do so and called again -- on one occasion -- after he
informed them that he was represented by counsel.

Oxford’s

representatives also allegedly misrepresented themselves as
attorneys, threatened to “visit” Evans if he did not repay his
debt, and accused Evans of lying about his ability to repay the
debt.

On the other hand, the complaint does not disclose even a

rough estimate of the total number or frequency of the calls
Oxford placed to the plaintiffs, nor does it explain the times
of day at which the calls were received.

Thus, while the nature

and content of some of the calls might implicate other
subsections of the FDCPA -- including other subsections of
§ 1692d, as discussed above -- the court cannot, in the absence

19

of any indication of the frequency or pattern of those calls,
conclude that Oxford violated § 1692d(5).
§ 1692d(6)
Third, the plaintiffs claim that Oxford’s
representatives violated § 1692d(6) by failing to disclose that
“they were calling from a debt collection agency,” and “simply
stat[ing] they were calling from an ‘attorney’s office[.]’”
Pls.’ Mem. at 6.
Except in one narrow instance not relevant here,
§ 1692d(6) prohibits debt collectors from placing telephone
calls “without meaningful disclosure of the caller’s identity.”
15 U.S.C. § 1692d(6).

“Meaningful disclosure” requires the debt

collector to disclose his or her name as well as the name of the
debt collection company’s name, and to explain the nature of the
debt collector’s business.

Baker v. Allstate Fin. Servs., Inc.,

554 F. Supp. 2d 945, 949 (D. Minn. 2008) (collecting cases); see
also Chatman v. GC Servs., LP, --- F. Supp. 3d ----, No. 14-526,
2014 WL 5783095, at *4 (D.S.C. Nov. 6, 2014) (“Meaningful
disclosure requires that the debt collector state his or her
name, capacity, and provide enough information to the consumer
as to the purpose of the call.” (quoting Doshay v. Global Credit
Collection Corp., 796 F. Supp. 2d 1301, 1304 (D. Colo. 2011))).

20

Here, the well-pleaded facts in the complaint state
that Oxford’s representatives “failed to state the name of
[their] company and failed to state that the reason for [their]
calls was debt collection.”

Compl. ¶ 13.

The plaintiffs also

claim that “Oxford misleadingly identified itself as an
attorney’s office.”

Compl. ¶ 14.

Oxford’s representatives gave

the plaintiffs some indication that they were calling to collect
a debt when they accused Evans of lying about his ability to
repay the debt and threatened to “visit” the plaintiffs if they
failed to satisfy the debt.

Compl. ¶¶ 15-16.

But, in light of

the defendant’s default, the court is at a minimum constrained
to accept as true that Oxford failed to identify itself as a
debt collector “[d]uring the initial telephone conversation,”
Compl. ¶ 13, and also “failed to state the name of its company”
during all of the calls at issue.
§ 1692d(6).

Accordingly, Oxford violated

See Torres v. ProCollect, Inc., 865 F. Supp. 2d

1103, 1105-07 (D. Colo. 2012); Hosseinzadeh v. M.R.S. Assocs.,
Inc., 387 F. Supp. 2d 1104, 1112 (C.D. Cal. 2005) (“The [c]ourt
concludes that defendant violated § 1692d(6) when its employees
failed to disclose defendant’s identity and the nature of
defendant’s business in the messages left on plaintiff’s
answering machine.”).

21

15 U.S.C. § 1692e
“Section 1692e broadly prohibits debt collectors from
making ‘false, deceptive, or misleading’ statements in the
course of their collection activities, and it includes sixteen
illustrative examples of prohibited conduct.”

Russell v.

Absolute Collection Servs., Inc., 763 F.3d 385, 394 (4th Cir.
2014).

“Whether a communication is false, misleading, or

deceptive in violation of § 1692e is determined from the vantage
of the ‘least sophisticated consumer.’

The least-sophisticated-

consumer test is an objective standard that evaluates § 1692e
claims based upon how the least sophisticated consumer would
interpret the allegedly offensive language.”

Id. at 394-95

(internal citation omitted).
The plaintiffs allege that Oxford violated § 1692e(3),
which prohibits debt collectors from falsely representing or
implying that “any individual is an attorney or that any
communication is from an attorney,” and also violated
§ 1692e(11), which requires a debt collector to disclose in its
initial communication with the consumer that “the debt collector
is attempting to collect a debt and that any information
obtained will be used for that purpose.”
(citing 15 U.S.C. § 1692e(3), (11)).

22

Pls.’ Mem. at 6-7

As discussed above, the complaint establishes that the
defendant’s representative failed, “[d]uring the initial
telephone conversation” with the plaintiffs “to state that the
reason for its calls was debt collection.”
Accordingly, Oxford violated § 1692e(11).

Compl. ¶ 13.
Chatman v. GC Servs.,

LP, --- F. Supp. 3d ----, No. 14-526, 2014 WL 5783095, at *4, *7
(D.S.C. Nov. 6, 2014) (“Neither message disclosed that . . . the
call was for the purpose of collecting a debt.

Thus . . . it

appears at first blush that both messages violated the plain
language of . . . [§] 1692e(11).”).
The plaintiffs’ remaining theory of liability appears
to be that Oxford violated § 1692e(3) by “misleadingly
identif[ying] itself as an attorney’s office,” Compl. ¶ 13,
when, in fact, “Oxford’s collectors were not licensed attorneys
in the State of West Virginia and had no legal authority to
convey as much to [p]laintiffs,” Pls.’ Mem. at 7.

That latter

allegation is not found in the complaint and therefore not
established as true by the defendant’s default, and labeling
Oxford’s conduct as “misleading” asserts nothing more than a
legal conclusion which is likewise not established by default. 6

6

In an attempt to bolster their claim, the plaintiffs have
submitted, as an exhibit to their motion for default judgment, a
screen shot of the defendant’s website which states, among other
things, that:
23

As a result, the court cannot conclude on the basis of the wellpleaded facts that Oxford violated § 1692e(3).
15 U.S.C. § 1692f
“Section 1692f prohibits debt collectors from using
‘unfair or unconscionable means to collect or attempt to collect
any debt.’”

Mavilla v. Absolute Collection Serv., Inc., 539 F.

App’x 202, 207 (4th Cir. 2013) (quoting 15 U.S.C. § 1692f).
“The section provides a list of acts exemplifying unconscionable
debt collection activities,” id., but the plaintiffs have not
accused Oxford of engaging in any of those.

Rather, the

plaintiffs argue that “by continually harassing [them] with
telephone calls, accusations, and threats, Oxford used unfair
and unconscionable means to collect a debt” that generally
violated § 1692f.

Oxford Law is prepared to defend our clients by
instituting legal proceedings and resolve disputes in
a courtroom when needed or required as a last resort.
Our attorneys are experienced throughout
[Pennsylvania, New Jersey, Iowa, and Minnesota.]
Pls.’ Mot., Ex. D. Those facts are likewise not found within
the complaint, and therefore not established by Oxford’s
default. Even if they were, however, the FDCPA only prohibits a
debt collector from falsely representing or implying that he is
an attorney, 15 U.S.C. § 1692e(3), and courts have concluded
that the FDCPA “does not limit the definition of attorney based
on the state of licensure and state of practice.” See, e.g.,
Nichols v. Frederick J. Hanna & Assocs., PC, 760 F. Supp. 2d
275, 278-79 (N.D.N.Y. 2011) (internal quotation marks and
citation omitted).
24

As discussed above, that type of conduct is punishable
under § 1692d, and so the court will not apply § 1692f to punish
it twice.

See Lembach v. Bierman, 528 F. App’x 297, 303-04 (4th

Cir. 2013) (“[T]he courts use § 1692f to punish conduct that
FDCPA does not specifically cover.

Because the [plaintiffs]

rely on conduct that is covered by § 1692e and do not allege any
separate or distinct conduct to support a § 1692f violation,
their claim fails for this reason as well.”).
15 U.S.C. § 1692g
“Section 1692g requires debt collectors to send
written ‘validation notices’ to debtors informing them of their
rights to require verification and dispute a debt.

Pursuant to

§ 1692g, the validation notice must include the amount of the
debt, the name of the creditor, and ‘a statement that unless the
consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the
debt will be assumed to be valid by the debt collector.’”.
Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 392
(4th Cir. 2014) (quoting 15 U.S.C. § 1692g(a)(1)-(3)).
The complaint alleges that Oxford “failed to send
[p]laintiffs an initial letter within five days of its initial
contact with” them.

Compl. ¶ 35.

§ 1692g.
25

Accordingly, Oxford violated

2. WVCCPA Claims

The plaintiffs also contend that much of the conduct
described above violated various provisions of the WVCCPA.
Section 46A-2-123
Section 46A-2-123 states that, “Unless a licensed
attorney in this State, no debt collector shall engage in
conduct deemed the practice of law,” including making the “false
representation, direct[ly] or by implication, that any person is
an attorney[.]”

W. Va. Code § 46A-2-123(a).

The plaintiffs

maintain that Oxford violated that prohibition by holding itself
out as an attorney’s office, even though its representatives
were not licensed as attorneys in the State.
9.

See Pls.’ Mem. at

As discussed above, however, the complaint does not state

(and the defendant’s default therefore does not establish) that
Oxford’s representatives were not licensed West Virginia
attorneys.

Accordingly, the plaintiffs have not established

that Oxford violated section 46A-2-123(a).
Section 46A-2-124
Second, the complaint alleges that Oxford violated
section 46A-2-124(a) by expressly or implicitly threatening to
use “violence or other criminal means to cause harm to

26

[p]laintiffs,” and violated section 46A-2-124(f) by “violating
provisions of the [FDCPA.]”

Compl. ¶¶ 44, 45.

The motion for

default judgment more specifically asserts that Oxford violated
those provisions by threatening to “visit” the plaintiffs.
Section 46A-2-124(a) prohibits “[t]he use, or express
or implicit threat of use, of violence or other criminal means,
to cause harm to . . . [a] person,” in connection with the
collection or attempted collection of a debt.
46A-2-124(a).

W. Va. Code §

As noted, Oxford’s representatives threatened to

“visit” the plaintiffs if their debt was not paid, Compl. ¶ 16,
and both Evans and Woods understood that statement as an
implicit “physical threat,” Evans Aff. ¶ 7; Woods Aff. ¶ 7.
Consequently, Oxford violated section 46A-2-124(a).
Section 46A-2-124(f) bars debt collectors from
threatening “to take any action prohibited by [the WVCCPA] or
other law regulating the debt collector’s conduct.”
§ 46A-2-124(f).

W. Va. Code

In addition to section 46A-2-124(a), § 1692d(1)

of the FDCPA -- “another law regulating [Oxford’s] conduct” -also prohibits the “use or threat of use of violence” in
connection with the collection of a debt.

15 U.S.C. § 1692d(1).

Accordingly, Oxford also violated section 46A-2-124(f).

Those

two section -124 violations are closely related and treated as a
combined violation.
27

Section 46A-2-125
Third, the plaintiffs assert that Oxford’s conduct
violated two provisions of section 46A-2-125.

The first,

section 46A-2-125(b), bars the “placement of telephone calls
without disclosure of the caller’s identity and with the intent
to,” among other things, “threaten any person at the called
number[.]”

As discussed above, the complaint establishes that,

“[d]uring the initial telephone conversation and all those
thereafter, Oxford failed to identify the name of its company.”
Compl. ¶ 13.

And the complaint also establishes that, during at

least one of those calls, Oxford’s representative threatened to
“visit” the plaintiffs if they did not pay their debt.
¶ 16.

Compl.

Consequently, the defendant is deemed to have violated

section 46A-2-125(b) on at least one occasion.
Next, the plaintiffs seek judgment that Oxford
violated section 46A-2-125(d), which prohibits debt collectors
from “[c]ausing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously, or at unusual
times or at times known to be inconvenient, with intent to
annoy, abuse, oppress or threaten any person at the called
number.”

The complaint provides no indication of the number of

calls Oxford placed to the plaintiffs or any sense of how
frequently those calls were made.
28

The only suggestion of the

timing of Oxford’s calls is the statement that “[d]efendants
caused a telephone to ring or engaged [p]laintiffs in telephone
conversation . . . at unusual times or at times known to be
inconvenient.”

Compl. ¶ 48.

But that conclusory allegation

simply recites the applicable statutory text, and is not
established by Oxford’s default.

See Hoa Huynh, 503 F.3d at 854

(“DirecTV’s allegations that parrot the [statutory language] . .
. are not well-pleaded facts; they are simply DirecTV’s legal
conclusions, which appellees are not held to have admitted
through default.”).
It does appear, at the very least, that Oxford called
the plaintiffs “repeatedly,” see Compl. ¶ 12-13, but, as with
the plaintiffs’ federal claims, the complaint simply provides
too little detail to determine whether the repeated calls were
intended to “annoy, abuse, oppress or threaten” the plaintiffs.
As a result, the court concludes that the plaintiffs have not
established a violation of section 46A-2-125(d).
Section 46A-2-127
Fourth, the plaintiffs contend that Oxford violated
section 46A-2-127(h), which prohibits debt collectors from
making or creating “[a]ny false representation or false
impression about the status or true nature of or the services
rendered by the debt collector or his business.”
29

Plaintiffs claim that Oxford violated that provision
by identifying “themselves solely as an ‘attorney’s office’ and
neglect[ing] to state that the very reason for the calls was for
debt collection.”

Pls.’ Mem. at 11.

As noted, the complaint

alleges that the defendant failed to identify itself as a debt
collector during the initial call with the plaintiffs, which
establishes at least one violation of section 46A-2-127(h).
Section 46A-2-128
Fifth, and “[f]inally, by continually harassing [them]
with telephone calls, accusations, and threats,” the plaintiffs
contend that Oxford “used unfair and unconscionable means to
collect a debt in violation of [s]ection 46A-2-128.”
at 11.

Pls.’ Mem.

That section contains a non-exhaustive list of

prohibited conduct, one of which appears applicable.
Specifically, section 46A-2-128(e) prohibits debt collectors
from communicating with a consumer “whenever it appears that the
consumer is represented by an attorney and the attorney’s name
and address are known, or could be easily ascertained[.]”
Here, the well-pleaded allegations in the complaint
establish that Evans “informed Oxford that [p]laintiffs had
retained legal representation and provided Oxford with their
attorney’s contact information,” Compl. ¶ 19, but Oxford
nevertheless “proceeded to place an additional call to
30

[p]laintiffs on March 14, 2013,” Compl. ¶ 20.

Accordingly,

Oxford violated section 46A-2-128(e) on one occasion.

B. Damages
1. FDCPA
With respect to damages, the FDCPA provides, in
pertinent part, as follows:
[A]ny debt collector who fails to comply with any
provision of this subchapter with respect to any
person is liable to such person in an amount equal to
the sum of-(1) any actual damage sustained by such person as
a result of such failure;
(2)(A)
in
the
case
of
any
action
by
an
individual, such additional damages as the court may
allow, but not exceeding $1,000[.]
15 U.S.C. § 1692k(a).

“In determining the amount of liability,”

§ 1692k(b) further provides that, “the court shall consider,
among other relevant factors[,] . . . the frequency and
persistence of noncompliance by the debt collector, the nature
of such noncompliance, and the extent to which such
noncompliance was intentional[.]”

Id. § 1692k(b)(1).

Finally,

actual damages are not a prerequisite to the recovery of
statutory damages.

See Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 307 (2d Cir. 2003) (“The FDCPA provides for
liability . . . and permits the recovery of statutory damages up

31

to $1,000 in the absence of actual damages.”); Keele v. Wexler,
149 F.3d 589, 593-94 (7th Cir. 1998) (same); Baker v. G.C.
Servs. Corp., 677 F.2d 775, 780 (9th Cir. 1982) (“There is no
indication in the statute that award of statutory damages must
be based on proof of actual damages.”); see also Shoup v.
McCurdy & Candler, LLC, 465 F. App’x 882, 885 (11th Cir. 2012)
(per curiam) (stating that the FDCPA “provides a claim for
statutory damages based on any violation of the statute.”).
Here, the complaint alleges that the plaintiffs
suffered “humiliation, anger, anxiety, emotional distress, fear,
frustration and embarrassment.”

Compl. ¶¶ 22-23; see also Evans

Aff. ¶ 12 (stating that Evans “suffered damages, anger, fear,
embarrassment, anxiety, emotional distress, and frustration as a
result of Oxford’s” actions); Woods Aff. ¶ 12 (same).

They seek

statutory damages and actual damages.
Nothing in the record supports an award of actual
damages in this case.

The factual pleadings in the complaint

concerning liability are accepted as true upon default, but
allegations with respect to damages are not.

S.E.C. v.

Lawbaugh, 359 F. Supp. 2d 418, 422 (D. Md. 2005) (citing Dundee
Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d
1319, 1323 (7th Cir. 1983)).

Although the plaintiffs claim that

they suffered a variety of dignitary harms as a result of
32

Oxford’s debt collection calls, their affidavits (which
constitute the entire corpus of evidence outside the pleadings
in this matter) do not substantiate or quantify any of these
purported injuries, or contain any information beyond the
conclusory allegations found in the complaint.
The plaintiffs maintain that “[d]amages for emotional
distress may be recovered under the FDCPA without proving the
elements of a state tort,” and cite to a number of cases in
support of that proposition.

Pls.’ Mem. at 12.

They fail to

note that other courts have, in fact, reached the opposite
conclusion.

See Costa v. Nat’l Action Fin. Servs., 634 F. Supp.

2d 1069, 1077-78 (E.D. Cal. 2007) (collecting cases highlighting
the split in authority).

But even assuming for the sake of

argument that the plaintiffs are correct and a lower standard of
proof applies, something more than “transitory symptoms of
emotional distress and unsupported self-serving testimony” is
still required to prove actual emotional distress damages.

Id.;

see also Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 503
(4th Cir. 2007) (noting, in a case involving damages for
violations of the Fair Credit Reporting Act, that a plaintiff
must “reasonably and sufficiently explain the circumstances of
[the] injury and not resort to mere conclusory statements.”
(internal quotation marks and citation omitted)); Wantz v.

33

Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004)
(“Where, as here, the plaintiff’s own testimony is his only
evidence of emotional damages, he must explain the circumstances
of his injury in reasonable detail and not rely on conclusory
statements, unless the facts underlying the case are so
inherently degrading that it would be reasonable to infer that a
person would suffer emotional distress from the defendant’s
action.” (internal quotation marks and citation omitted)),
abrogated on other grounds by Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47 (2007).
On the other hand, an award of statutory damages is
appropriate in this case.

As noted, the FDCPA permits the

recovery of statutory damages even in the absence of actual
damages.

See, e.g., Miller, 321 F.3d at 307.

Having concluded

that Oxford violated several provisions of the FDCPA, the court
is satisfied that the plaintiffs are entitled to $1,000 in
statutory damages pursuant to § 1692k(a)(2)(A).

See Frazier v.

Absolute Collection Serv., Inc., 767 F. Supp. 2d 1354, 1365-66
(N.D. Ga. 2011) (adopting report and recommendation) (awarding
$1,000 in statutory damages for “a handful” of FDCPA
violations); Obenauf v. Frontier Fin. Grp., Inc., 785 F. Supp.
2d 1188, 1194-95 (D.N.M. 2011) (awarding $300 in statutory
damages for a single phone call in violation of FDCPA); Hutchens

34

v. West Asset Mgmt., Inc., No. 11-996, 2013 WL 1337178, at *6
(S.D. W. Va. March 29, 2013) (awarding $1,000 in statutory
damages for FDCPA violations); Jensen v. Omni Credit Servs. of
Fla., Inc., No. 12-405, 2013 WL 1183317, at *2 (D. Or. Feb. 25,
2013) (awarding $1,000 for some unspecified number of calls in
violation of FDCPA); cf. also DIRECTV, Inc. v. Huynh, 318 F.
Supp. 2d 1122, 1129-31 (M.D. Ala. 2004) (holding that a damages
hearing is not necessary to calculate statutory damages and
awarding statutory damages on the basis of affidavits and record
evidence).

2. WVCCPA

Section 46A-5-101(1) of the WVCCPA states, in
pertinent part:
If a creditor has violated the provisions of this
chapter applying to . . . any prohibited debt
collection practice . . ., the consumer has a cause of
action to recover actual damages and in addition a
right in an action to recover from the person
violating this chapter a penalty in an amount
determined by the court not less than one hundred
dollars nor more than one thousand dollars.
The statutory damages may be adjusted to account for inflation,
W. Va. Code § 46A-5-106, and, as in cases under the FDCPA,
recovery of actual damages is not a prerequisite to the recovery
of statutory damages, Vanderbilt Mortg. & Fin., Inc. v. Cole,
740 S.E.2d 562, 567-71 (W. Va. 2013).

35

State law, like federal law, requires a plaintiff
seeking to recover emotional distress damages to “reasonably and
sufficiently explain the circumstances of his injury and not
resort to mere conclusory statements.”

Slack v. Kanawha Cnty.

Housing & Redevelopment Auth., 423 S.E.2d 547, 554-55 (W. Va.
1992) (internal quotation marks and citation omitted).
Consequently, to the extent they are sought, the court
concludes, for the reasons discussed above, that the plaintiffs
conclusory affidavits in support of their motion for default
judgment do not establish that they are entitled to actual
damages under the WVCCPA.
However, as with the federal claims, an award of
statutory damages is appropriate.

The court has already

concluded that Oxford violated four sections of the WVCCPA.
Adjusted for inflation, each violation warrants an award ranging
between $480 and $4,801.

Oxford’s violations of sections 46A-2-

125(b), -127(h), and -128(e) appear to be of a limited nature,
and merit a penalty of $1,440 each, adjusted for inflation.

On

the other hand, given that Oxford’s violations of section 46A-2124(a) and (f) involved an implicit threat of physical harm, the
court finds that a combined penalty of $4,801, adjusted for
inflation, is appropriate.

Those sums aggregate $9,121.

36

C. Attorney’s Fees and Costs

Last, the plaintiffs also seek to recover their
attorney’s fees and costs, Pls.’ Mem. at 14-15, as authorized by
both statutes, see 15 U.S.C. § 1692k(a)(3); W. Va. Code § 46A-5104.
As our court of appeals recently summarized in an
unpublished opinion:
[T]he district court[’s] . . . discretion in awarding
attorney’s fees [under the FDCPA] is guided by the
twelve factors first set forth in Johnson v. Ga.
Highway Express, Inc., and adopted by [the Fourth
Circuit] in Barber v. Kimbrell’s, Inc.
The Barber
factors include such considerations as the time and
labor
required,
the
difficulty
of
the
issues
litigated, customary fees in similar situations, and
the results obtained. These factors, however, usually
are subsumed within the initial calculation of hours
reasonably expended at a reasonable hourly rate[,
i.e., the lodestar].
When . . . the applicant for a
fee has carried his burden of showing that the claimed
rate and number of hours [expended] are reasonable,
the [lodestar] is presumed to be the reasonable fee
contemplated by the statute. The FDCPA, however, does
not mandate a fee award in the lodestar amount, and
the district court maintains the discretion to depart
from it in appropriate circumstances.
Randle v. H&P Capital, Inc., 513 F. App’x 282, 283-84 (4th Cir.
2013) (per curiam) (internal quotation marks and citations
omitted) (fourth, fifth, and sixth alterations in the original).

When calculating reasonable fees, establishing the
hourly rate is generally the critical inquiry.
37

Westmoreland

Coal Co. v. Cox, 602 F.3d 276, 289 (4th Cir. 2010) (quoting
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (internal
citations and quotations omitted)).

The fee applicant bears the

burden of establishing the reasonableness of the requested rate.
Id.
In addition to the attorney’s own affidavits, the fee
applicant must produce satisfactory specific evidence
of the prevailing market rates in the relevant
community for the type of work for which he seeks an
award. Although the determination of a “market rate”
in the legal profession is inherently problematic, as
wide variations in skill and reputation render the
usual laws of supply and demand largely inapplicable,
the Court has nonetheless emphasized that market rate
should guide the fee inquiry.
Id. (quoting Plyler, 902 F.2d at 277 (internal citations and
quotations omitted)).

In determining the market rate, the court

should consider evidence of what attorneys earn for performing
similar services in similar circumstances, “which, of course,
may include evidence of what the plaintiff’s attorney actually
charged his client.”

Id. (quoting Depaoli v. Vacation Sales

Assocs., L.L.C., 489 F.3d 615, 622 (4th Cir. 2007)).

Examples

of the specific evidence that courts have found “sufficient to
verify the prevailing market rates are affidavits of other local
lawyers who are familiar both with the skills of the fee
applicants and more generally with the type of work in the
relevant community.” Id. (quoting Robinson v. Equifax Info.
Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009)).

38

In this case, while both the complaint and the motion
for default judgment request “reasonable attorney’s fees,”
Compl. at Prayer for Relief; Pls.’ Mem. at 15, the plaintiffs
have not presented to the court for its review an overall
figure, an hourly rate, an estimate of the hours expended, or
evidence supporting any of the other factors noted above.
Accordingly, the request for attorney’s fees and costs is denied
without prejudice to the plaintiffs renewing their request,
accompanied by the documentation discussed above, on or before
March 16, 2015, with a copy thereof to be served on the
defendant who may respond on or before March 26, 2015.

VI. Conclusion

For the reasons discussed above, it is ORDERED as
follows:
1.

That the plaintiffs’ motion for default judgment be,

and it hereby is, granted to the extent set forth above, and
otherwise denied;
2.

That the plaintiffs be, and they hereby are, awarded

against Oxford Law, LLC the sum of $10,121; and
3.

That the plaintiffs’ claims against John Does 1-10 be,

and they hereby are, dismissed without prejudice.
39

The Clerk is directed to forward copies of this order
to all counsel of record and to the defendant, by certified
mail, return receipt requested, at 311 Veterans Highway, Suite
100A, Levittown, Pennsylvania, 19056.

DATED: February 24, 2015

John T. Copenhaver, Jr.
United States District Judge

40