[SMS] Middlesworth v. Oak Tree Collections, Inc., No. 1:2009cv00601 - Document 19 (E.D. Cal. 2009)
Court Description: MEMORANDUM, OPINION and ORDER Re Application for Default Judgment 12 , signed by Judge Oliver W. Wanger on 11/03/2009. (Coffman, Lisa)
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[SMS] Middlesworth v. Oak Tree Collections, Inc. Doc. 19 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 CHARLES and ALBERTA MIDDLESWORTH. Plaintiffs, 6 MEMORANDUM DECISION AND ORDER RE APPLICATION FOR DEFAULT JUDGMENT. v. 7 8 1:09-CV-601 OWW BAK [SMS] OAKTREE COLLECTIONS, INC., 9 Defendant. 10 11 Plaintiffs Charles and Alberta Middlesworth filed a 12 first amended complaint (“FAC”) for unlawful debt 13 collection practices under the Fair Debt Collection 14 15 16 17 Practices Act (“FDCPA”), 15 U.S.C. § 1692, on May 7, 2009. Doc. 6. They allege that Defendant, Oaktree Collections, Inc., placed threatening, harassing, and 18 abusive collection calls to Plaintiffs demanding payment 19 for an alleged debt and threatening to repossess 20 Plaintiffs’ vehicle and report Plaintiffs to credit 21 bureaus, even though Defendant had no intention of doing 22 23 24 25 26 so, all in violation of FDCPA. See FAC ¶ 25(a)-(g). In addition, Plaintiffs allege that Defendant violated FDCPA by failing to disclose in subsequent communications that the communications were from a debt 27 collector and by engaging in unconscionable means to 28 collect or attempt to collect an alleged debt. 1 See FAC Dockets.Justia.com 1 ¶25(h)-(i). 2 3 4 5 6 7 The amended complaint was served on Mr. Terry Brayban, at Defendant’s business address, 20424 W. Valley Blvd., #B, Tehachapi, CA 93561 on May 20, 2009. Doc. 8. Default was entered on July 17, 2009. Doc. 13. Plaintiff now seeks entry of default judgment in the 8 amount of $5,350.58, representing statutory damages in 9 the amount of $1000.00 under 15 U.S.C. § 1692k(a)(2)(A), 10 $3114.90 in attorney’s fees, $485.68 in costs, and 11 $750.00 in anticipated collection costs. Doc. 14. 12 13 14 A. $1000.00 in Statutory Damages is Justified. The FAC alleges only one claim describing conduct 15 that allegedly resulted in nine separate violations of 16 the FDCPA. 17 section 1692(k)(a) provides: 18 19 20 21 22 23 See FAC ¶25. Title 16, United States Code, Except as otherwise provided by this section, any 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-(2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000.... 24 Defendant has not offered any evidence to counter 25 Plaintiffs’ allegations that Defendant used harassing 26 and abusive language to collect an alleged debt, which 27 28 makes out a prima facie violation of 15 U.S.C. 2 1 1692d(1)(“A debt collector may not engage in any conduct 2 the natural consequence of which is to harass, oppress, 3 4 5 6 7 8 9 10 11 12 13 or abuse any person in connection with the collection of a debt.”). In light of Defendants’ default and the allegations in the complaint, Plaintiffs prevail on their statutory damages claim and are entitled to a judgment in the amount of $1000.00. B. $3,114.90 in Attorney’s Fees is Reasonable. Section 1692k(a)(3) provides that in the case of any successful action to enforce liability under FDCPA, a prevailing plaintiff may recover “the costs of the 14 action, together with a reasonable attorney’s fee as 15 determined by the court.” 16 17 18 19 20 21 The declarations and attachments submitted in connection with the application for default judgment demonstrate that the attorney’s fees requested are reasonable. One attorney who bills at $394/hour spent just over two hours on the case, another who bills at 22 $290/hour, spent two and a half hours on the matter, 23 while a third attorney, who bills at $250/hour, spent 24 less than five hours on the case. 25 paralegal, who bills $125/hour, worked less than four 26 27 28 hours on the case. In addition, a The total time spent on the case by the firm was less than thirteen hours. 3 This is a 1 reasonable expenditure of time to, among other things, 2 draft, serve, and file a complaint, an amended 3 complaint, and move for entry of default judgment. 4 5 C. $485.68 in Costs is Reasonable. Plaintiffs request $485.68 in costs, representing 6 7 $350.00 in filing fees and $135.98 for service of 8 process. This is a reasonable request. 9 10 D. $750.00 in Anticipated Collection Costs. Plaintiffs also seek $750.00 in anticipated 11 12 collection costs. 13 award of anticipated collection costs. 14 language of § 1692k states that “the costs of the 15 16 17 18 19 20 21 22 23 24 Plaintiffs cite no authority for an The plain action” itself may be recovered, but does not provide for costs incurred in enforcing a resulting judgment. See Molinar v. Coleman, 2009 WL 435274, *3 (N.D. Tex. 2009). E. This request is DENIED. Entry of Default Judgment Is Appropriate. Granting a motion for default judgment is within the Court’s discretion pursuant to Rule 55(b)(2). McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). Eitel v. The 25 following factors apply: (1) the possibility of 26 prejudice to the plaintiff; (2) the merits of 27 plaintiff's substantive claim; (3) the sufficiency of 28 4 1 the complaint; (4) the sum of money at stake in the 2 action; (5) the possibility of a dispute concerning 3 4 5 6 7 material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure. Here, prejudice is not an issue. Plaintiffs’ 8 allegations, although straightforward, make out a prima 9 facie allegation of unfair debt collection under FDCPA. 10 Finally, the judgment sought less than $5000.00. 11 Defendant will not be substantially burdened by entry of 12 13 14 15 16 17 default judgment. The Eitel factors favor entry of default judgment, notwithstanding the preference for disposition of cases on the merits. Eitel, 782 F.2d at 1471-72. Plaintiffs’ motion for entry of default judgment is 18 GRANTED IN PART. 19 Plaintiff and against Defendant in the amount of 20 21 Judgment shall be entered in favor of $4,600.58, which includes $1000.00 in statutory damages, $3114.90 in attorney’s, fees and $485.68 in costs. 22 23 24 25 26 27 28 SO ORDERED DATED: November 3, 2009 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 5
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