Massey v. Everest Asset Management LLC et al, No. 2:2012cv01987 - Document 27 (D. Ariz. 2013)

Court Description: MEMORANDUM OF DECISION AND ORDER: ORDERED that the Court adopts the 26 Report and Recommendation of the Magistrate Judge. ORDERED granting Plaintiff's 25 Amended Motion for Default Judgment. ORDERED that Plaintiff be awarded costs and a ttorney fees in the amount of $5,329.10 against Defendants jointly and severally; statutory damages in the amount of $1,000.00 against Defendants jointly and severally. IT IS FURTHER ORDERED terminating this action. Signed by Senior Judge Stephen M McNamee on 7/18/2013. (LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 Marissa Massey, ) ) Plaintiff, ) ) v. ) ) Everest Asset Management, LLC et al., ) ) Defendants. ) ) ) No. CV-12-1987-PHX-SMM (SPL) MEMORANDUM OF DECISION AND ORDER Pending before the Court is Magistrate Judge Steven P. Logan s Report and 16 Recommendation advising that this Court grant Plaintiff Marisa Massey s Amended Motion 17 for Default Judgment. (Doc. 26.) Defendants have filed no objections to the Report and 18 Recommendation, and the time to do so has expired. The Court will affirm Judge Logan s 19 Report and Recommendation. 20 21 STANDARD OF REVIEW When reviewing a Magistrate Judge s Report and Recommendation, this Court must 22 make a de novo determination of those portions of the report . . . to which objection is made, 23 and may accept, reject, or modify, in whole or in part, the findings or recommendations made 24 by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 25 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 26 (9th Cir. 1983)). Failure to object to a Magistrate Judge s recommendation relieves the Court 27 of conducting de novo review of the Magistrate Judge s factual findings; the Court then may 28 decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 1 2 208 (9th Cir. 1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir. 3 1974)). 4 By failing to object to a Report and Recommendation, a party waives its right to 5 challenge the Magistrate s factual findings, but not necessarily the Magistrate s legal 6 conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th 7 Cir. 1998) (failure to object to Magistrate s legal conclusion is a factor to be weighed in 8 considering the propriety of finding waiver of an issue on appeal ); Martinez v. Ylst, 951 9 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 10 1980)). DISCUSSION1 11 12 After conducting a thorough legal and factual analysis, the Magistrate Judge 13 concluded that granting default judgment for Plaintiff is appropriate. (Doc. 26 at 2.) 14 Because the Defendants have not made an appearance in this case, the Court took each of the 15 factual allegations in the Plaintiff s complaint, except those relating to damages, as true. (Id.) 16 The Magistrate Judge then examined the Eitel factors set forth in Plaintiff s motion and 17 properly reasoned that default judgment is appropriate. (Id.) The Magistrate Judge also 18 concluded that because Defendants were personally served, their failure to appear in this case 19 is not due to excusable neglect. (Id.) 20 Additionally, the Magistrate Judge recommended that Plaintiff be awarded $1,000.00 21 for statutory damages, $624.10 for costs and $ 4705.00 for reasonable attorney fees. (Id. at 22 3.) The Magistrate Judge found that the costs and attorney fees are well documented and 23 reasonable. (Id.) Furthermore, the Fair Debt Collection Practices Act ( FDCPA ) permits 24 a statutory award of up to $1,000.00 against each liable debt collector, and representatives 25 acting on behalf of Defendants made numerous calls to Plaintiff that resulted in a violation 26 of the FDCPA. (Id.) Thus, the Magistrate Judge properly concluded that the Plaintiff is 27 1 28 The factual and procedural history of this case is set forth in the Magistrate Judge s Report and Recommendation. (Doc. 26.) -2- 1 2 3 entitled to statutory damages of $1,000.00. Therefore, the Court hereby incorporates and adopts the Magistrate Judge s Report and Recommendation. (Doc. 26.) 4 5 6 7 8 9 10 11 CONCLUSION IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of the Magistrate Judge. (Doc. 26.) IT IS FURTHER ORDERED granting Plaintiff s Amended Motion for Default Judgment. (Doc. 25.) IT IS FURTHER ORDERED that Plaintiff be awarded costs and attorney fees in the amount of $5,329.10 against Defendants jointly and severally. IT IS FURTHER ORDERED that Plaintiff be awarded statutory damages in the 12 amount of $1,000.00 against Defendants jointly and severally. 13 IT IS FURTHER ORDERED terminating this action. 14 DATED this 18th day of July, 2013. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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