Stewart v. MNS & Associates, LLC et al, No. 2:2021cv02418 - Document 14 (E.D. Cal. 2022)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/31/2022 DIRECTING plaintiff to SHOW CAUSE within 14 days why defendant Michael Shaw should not be dismissed from this case for failure to prosecute. Filing a volunt ary dismissal as to defendant Shaw will discharge the order. It is FURTHER RECOMMENDED that 9 Motion for Default Judgment be Granted, that the court Enter Judgment in favor of plaintiff and against MNS & Associates, LLC, that the court Grant plaint iff's request for statutory damages in the amount of $2,000, and that the court Grant plaintiff's request for attorney's fees in the amount of $4,365.00 and costs in the amount of $540.75. Referred to Judge William B. Shubb. Objections due within 21 days after being served with these findings and recommendations. (Coll, A)
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Stewart v. MNS & Associates, LLC et al Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAYLOR STEWART, 12 13 14 15 16 No. 2:21-cv-02418 WBS AC Plaintiff, v. ORDER and MNS & ASSOCIATES, LLC, and MICHAEL SHAW, FINDINGS AND RECOMMENDATIONS Defendants. 17 18 This matter is before the court on plaintiff’s motion for default judgment against 19 defendant MNS & Associates. ECF No. 9. The motion was referred to the undersigned pursuant 20 to E.D. Cal. R. 302(c)(19). This motion was submitted without oral argument. ECF No. 12. For 21 the reasons set forth below, the undersigned recommends that plaintiff’s motion be GRANTED. 22 Plaintiff is further ORDERED TO SHOW CAUSE why defendant Michael Shaw should not be 23 dismissed from this case for failure to prosecute. 24 25 I. Relevant Background Plaintiff filed his complaint in in this court on December 28, 2021, alleging that 26 defendants violated the Fair Debt Collection Practices Act and the California Rosenthal Fair Debt 27 Collections Practices Act. ECF No. 1. Plaintiff’s complaint is predicated on defendants’ 28 allegedly unlawful debt collection practices. The complaint alleges that MNS & Associates LLC 1 Dockets.Justia.com 1 (“MNS”) and its owner, Michael Shaw, are debt collectors as defined by the FDCPA and MNS is 2 a corporation doing business collecting debts in Sacramento County, California while operating 3 from Cheektowaga, Erie County, New York. ECF No. 1 at 2. Plaintiff asserts that defendants are 4 attempting to collect a consumer debt (arising from personal, family, and house purposes) from 5 plaintiff, allegedly originating with Milestone Gold MasterCard. ECF No. 1 at 3. Plaintiff 6 alleges that MNS began placing calls to plaintiff’s cell phone on May 28, 2021. Id. On that date, 7 MNS left a voicemail stating that plaintiff’s failure to contact MNS may result in “further 8 determinations being made applicable to all state and federal guidelines.” Id. at 4. 9 On June 1, 2021, plaintiff spoke with one of MNS’s collectors, Isabella. During this call 10 plaintiff inquired about recently received voicemails, and Isabella stated that the “matter is 11 stemming from a breach of written express contract, which does violate statutory contract law” 12 and that payment arrangements must be made immediately. Id. Plaintiff asked for a payment 13 plan but was told that if he could not pay in full the case would be referred to another agency and 14 potentially to attorneys. Id. Shortly after the phone call, plaintiff received another voicemail 15 from MNS advising him that he needed to sign for and respond to a demand notice. ECF No. 1 at 16 5. Plaintiff alleges that at all relevant times, acting alone or in concert with others, defendant 17 Shaw has formulated, directed, controlled, had the authority to control, or participated in the acts 18 and practices of MNS, and its employees, including the acts and practices set forth in plaintiff’s 19 complaint. Id. at 6. 20 Both defendants were served in January of 2022. ECF Nos. 4 and 5. Neither defendant 21 filed an answer nor appeared in this case in any way. Plaintiff requested entry of default as to 22 defendant MNS only. ECF No. 7. The Clerk of Court entered default against defendant MNS on 23 February 28, 2022. ECF No. 8. On April 4, 2022, plaintiff moved for entry of default judgment 24 and an award of attorneys’ fees, referencing only defendant MNS. ECF No. 9. 25 26 II. Motion Defendant moves for default judgment against defendant MNS on all counts, seeking 27 damages as follows: (1) $2,000 in statutory damages; and (2) $4,365.00 in attorney’s fees and 28 $540.75 in costs. ECF No. 9 at 5-6. 2 1 2 3 III. Analysis A. Legal Standard Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party 4 against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend 5 against the action. See Fed. R. Civ. P. 55(a). However, “[a] defendant’s default does not 6 automatically entitle the plaintiff to a court-ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 7 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th 8 Cir. 1986)); see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the 9 decision to grant or deny an application for default judgment lies within the district court’s sound 10 discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this 11 determination, the court may consider the following factors: 12 13 14 (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 15 16 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 17 disfavored. Id. at 1472. 18 As a general rule, once default is entered, well-pleaded factual allegations in the operative 19 complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. 20 v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. 21 Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); see also Fair Housing of Marin v. 22 Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although well-pleaded allegations in the complaint 23 are admitted by a defendant’s failure to respond, “necessary facts not contained in the pleadings, 24 and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. 25 of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 26 (9th Cir. 1978)); accord DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (“[A] 27 defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law”) 28 (citation and quotation marks omitted); Abney v. Alameida, 334 F.Supp.2d 1221, 1235 (S.D. Cal. 3 1 2004) (“[A] default judgment may not be entered on a legally insufficient claim.”). A party’s 2 default conclusively establishes that party’s liability, although it does not establish the amount of 3 damages. Geddes, 559 F.2d at 560; cf. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th 4 Cir. 1990) (stating in the context of a default entered pursuant to Federal Rule of Civil Procedure 5 37 that the default conclusively established the liability of the defaulting party). 6 7 8 9 B. The Eitel Factors 1. Factor One: Possibility of Prejudice to Plaintiff As a preliminary matter, it is worth noting that plaintiff’s brief does not directly address the Eitel factors. Nonetheless, the court has considered the entire record in its evaluation here. 10 The first Eitel factor considers whether the plaintiff would suffer prejudice if default judgment is 11 not entered, and such potential prejudice to the plaintiff weighs in favor of granting a default 12 judgment. See PepsiCo, Inc., 238 F.Supp.2d at 1177. In this case, plaintiff would suffer 13 prejudice if the court did not enter a default judgment because he would be without recourse for 14 recovery. Accordingly, the first Eitel factor favors the entry of default judgment. 15 2. Factors Two and Three: Merits of Claims and Sufficiency of Complaint 16 The merits of plaintiff’s substantive claims and the sufficiency of the complaint are 17 considered here together because of the relatedness of the two inquiries. The court must consider 18 whether the allegations in the complaint are sufficient to state a claim that supports the relief 19 sought. See Danning, 572 F.2d at 1388; PepsiCo, Inc., 238 F.Supp.2d at 1175. Here, the merits 20 of the claims and sufficiency of the complaint favor entry of default judgment. 21 a. The Fair Debt Collection Practices Act 22 “The FDCPA was enacted as a broad remedial statute designed to ‘eliminate abusive debt 23 collection practices by debt collectors, to ensure that those debt collectors who refrain from using 24 abusive debt collection practices are not competitively disadvantaged, and to promote consistent 25 State action to protect consumers against debt collection abuses.’” Gonzales v. Arrow Fin. 26 Servs., Inc., 660 F.3d 1055, 1060 (9th Cir. 2011) (quoting 15 U.S.C. § 1692(e)). Under §§ 1692d 27 and 1692d(5) of the FDCPA, it is a violation for a debt collector to engage in conduct the natural 28 consequence of which is to harass, oppress, and abuse the consumer. Further, it is a violation of 4 1 the FDCPA for a debt collector to communicate with a consumer to collect a debt “if the debt 2 collector knows the consumer is represented by an attorney with respect to such debt and has 3 knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails 4 to respond within a reasonable period of time to a communication from the debt collector or 5 unless the attorney consents to direct communication with the consumer.” 15 U.S.C.A. § 1692c. 6 To state a claim under the FDCPA, a plaintiff must allege facts that establish the 7 following: (1) the plaintiff has been the object of collection activity arising from a consumer debt; 8 (2) the defendant attempting to collect the debt qualifies as a ‘debt collector’ under the FDCPA; 9 and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement 10 imposed by the FDCPA.” Pratap v. Wells Fargo Bank, N.A., 63 F.Supp.3d 1101, 1113 (N.D. 11 Cal. 2014). The FDCPA comprehensively regulates the conduct of debt collectors, imposing 12 affirmative obligations and broadly prohibiting abusive practices.” Id. at 1060–61. “The FDCPA 13 does not ordinarily require proof of intentional violation, and is a strict liability statute.” Id. 14 (citing McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir. 2011)). 15 Plaintiff’s complaint is sufficient to state a claim under the FDCPA. Plaintiff alleges that 16 defendant called him multiple times, attempting to collect a debt, and made false threats of legal 17 action and wage garnishment that it had no intent of following through on. ECF No. 9 at 5. 18 Plaintiff’s allegations, which the court accepts as true for purposes of plaintiff’s motion for 19 default judgment, see, e.g., Cripps, 980 F.2d at 1267, are sufficient to establish that defendant, 20 acting as a “debt collector,” engaged in conduct the natural consequence of which was to harass 21 and mislead plaintiffs, in violation of the FDCPA at §§ 1692d and 1692e. Assuming the truth of 22 plaintiff’s allegations, defendant also violated § 1692g, which requires a debt collector to send the 23 consumer, within five days after the initial communication, a written notice containing certain 24 disclosures. These allegations support a successful FDCPA claim, and the merits of this claim 25 thus favor entry of default judgment. 26 27 28 b. Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”) The Rosenthal Act is the “state version of the FDCPA.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012). Section 1788.17 of the Rosenthal Act provides that, 5 1 “[n]otwithstanding any other provision of this title, every debt collector collecting or attempting 2 to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, 3 of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code.” 4 Cal. Civ. Code § 1788.17. In sum, Section 1788.17 “mimics or incorporates by reference the 5 FDCPA’s requirements ... and makes available the FDCPA’s remedies for violations.” Riggs, 6 681 F.3d at 1100 (citing Cal. Civ. Code § 1788.17). Thus, whether an act violates the Rosenthal 7 Act turns on whether it violates the FDCPA. Id., see also, Barria v. Wells Fargo Bank, N.A., No. 8 2:15-cv-01413-KJM-AC, 2016 WL 474319, at *4 (E.D. Cal. Feb. 8, 2016) (“[C]onduct by a debt 9 collector that violates the FDCPA violates the Rosenthal Act as well.” (citations omitted)). The 10 undersigned has found that plaintiff’s allegations support a meritorious claim that defendant 11 violated the FDCPA. Accordingly, the merits of plaintiff’s Rosenthal Act claim likewise favor 12 entry of default judgment. 13 14 3. Factor Four: The Sum of Money at Stake in the Action Under the fourth Eitel factor, the court considers the amount of money at stake in relation 15 to the seriousness of defendant’s conduct. This analysis requires the court to assess whether the 16 recovery sought is proportional to the harm caused by the defendant’s conduct. Landstar Ranger, 17 Inc. v. Parth Enters., Inc., 725 F.Supp.2d 916, 921 (C.D. Cal. 2010). Default judgment is 18 disfavored if the sum of money at stake is too large or unreasonable in relation to the defendant’s 19 conduct. Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1012 (C.D. Cal. 2014). Courts consider 20 plaintiff’s declarations, calculations, and other documentation of damages in determining if the 21 amount at stake is reasonable. HICA Educ. Loan Corp. v. Warne, No. 11-CV-04287-LHK, 2012 22 WL 1156402, at *3 (N.D. Cal. Apr. 6, 2012). 23 Plaintiff in this case seeks $2,000 each in total statutory damages under 15 U.S.C. § 24 1692k(a)(2)(A) and California Civil Code § 1788.30(b), as well as an award of reasonable 25 attorneys’ fees and costs of litigation. ECF No. 23-1 at 4-5. The court finds the statutory 26 damages reasonable. Plaintiff’s claim for attorney’s fees and costs are supported by an acceptable 27 billing statement and therefore awardable. The court finds that the request for fees in the amount 28 of $4,365.00 for 10.9 hours of attorney work and expenses in the amount of $540.75 is reasonable 6 1 and proportionate to the claims in this case. The fourth Eitel factor is satisfied in this case. 2 4. Factor Five: Possibility of Dispute Concerning Material Facts 3 The facts of this case are relatively straightforward, and plaintiff has provided the court 4 with well-pleaded allegations supporting its claims and affidavits in support of its allegations. 5 Here, the court may assume the truth of well-pleaded facts in the complaint (except as to 6 damages) following the clerk’s entry of default and, thus, there is no likelihood that any genuine 7 issue of material fact exists. See, e.g., Elektra Entm't Group Inc. v. Crawford, 226 F.R.D. 388, 8 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded complaint are taken as true after 9 the court clerk enters default judgment, there is no likelihood that any genuine issue of material 10 fact exists.”); accord Philip Morris USA, Inc., 219 F.R.D. at 500; PepsiCo, Inc., 238 F.Supp.2d at 11 1177. 12 5. Factor Six: Whether Default Was Due to Excusable Neglect 13 Upon review of the record before the court, there is no indication that the default was the 14 result of excusable neglect. See PepsiCo, Inc., 238 F.Supp.2d at 1177. Despite ample notice of 15 this lawsuit, defendant failed to appear or defend itself in this action. Thus, the record supports a 16 conclusion that the defendant has chosen not to defend this action, and not that the default 17 resulted from any excusable neglect. Accordingly, this Eitel factor favors the entry of a default 18 judgment. 19 6. Factor Seven: Policy Favoring Decisions on the Merits 20 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 21 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing 22 alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. 23 PepsiCo, Inc., 238 F.Supp.2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 24 F.Supp.2d 1039, 1061 (N.D. Cal. Mar. 5, 2010). Accordingly, although the court is cognizant of 25 the policy favoring decisions on the merits – and consistent with existing policy would prefer that 26 this case be resolved on the merits – that policy does not, by itself, preclude the entry of default 27 judgment. 28 //// 7 1 7. Conclusion: Propriety of Default Judgment and Remaining Defendant 2 Upon consideration of all the Eitel factors, the court concludes that plaintiff is entitled to 3 the entry of default judgment against defendant MNS. The court notes that no entry of default or 4 motion for default judgment has been entered as to defendant Michael Shaw. Plaintiff’s failure to 5 seek entry of default or move for default judgment against Shaw indicates that plaintiff no longer 6 wishes to prosecute this case against him. Thus, an order to show cause why defendant Shaw 7 should not be dismissed for failure to prosecute will issue concurrently with the recommendation 8 that default judgment be entered against MNS. 9 IV. Conclusion 10 Based on the foregoing, plaintiff is ORDERED to show cause within 14 days why 11 defendant Michael Shaw should not be dismissed from this case for failure to prosecute. Filing a 12 voluntary dismissal as to defendant Shaw will discharge the order. 13 Further, it is RECOMMENDED THAT: 14 1. Plaintiff’s motion for default judgment, (ECF No. 9) be granted; 15 2. The court enter judgment in favor of plaintiff and against MNS & Associates, LLC; 16 3. The court GRANT plaintiff’s request statutory damages in the amount of $2,000; and 17 4. The court grant plaintiff’s request for attorney’s fees in the amount of $4,365.00 and 18 costs in the amount of $540.75. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 23 document should be captioned “Objections to Magistrate Judge’s Findings and 24 Recommendations.” Any response to the objections shall be filed with the court and served on all 25 parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 26 //// 27 //// 28 //// 8 1 objections within the specified time may waive the right to appeal the District Court’s order. 2 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 3 (9th Cir. 1991). 4 DATED: May 31, 2022 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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