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WRIGHT v. KALINA

United States District Court, S.D. California


December 12, 2005.

KENISHA WRIGHT, Plaintiff,
v.
NORMAN G. KALINA, esq. d/b/a ACCREDITED COLLECTION AGENCY, Defendant.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

ORDER ENTERING DEFAULT JUDGMENT

On February 23, 2005, Plaintiff Kenisha Wright filed a complaint against Defendant Norman G. Kalina seeking actual and statutory damages for violations of the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692. Plaintiff alleged that Defendant harassed her in an attempt to collect on a $645 debt, repeatedly calling her at home despite her instructions to contact her by mail. According to Plaintiff, Defendant told her she had five days to pay the entire balance of the debt or a lien would be placed against her. Additionally, Plaintiff claims that Defendant called her on several occasions and either quickly hung up the phone or did not reply after Plaintiff answered. Plaintiff further alleged that Defendant was hostile and used profanity on the telephone, and, on one occasion, stated he was calling from a law office and threatened suit if Plaintiff did not cooperate. As a result, Plaintiff alleged that she has suffered "personal humiliation, embarrassment, mental anguish, and emotional distress." See Compl. at 2-4.

On June 7, 2005, the Clerk of the Court entered default against Defendant for failure to plead or otherwise defend. On July 8, 2005, Plaintiff filed her prove-up materials, seeking a total of $5,398.50 in damages. Plaintiff requested $2,000 in actual damages, $1,000 in statutory damages, $2073.50 in attorneys' fees, and $325 in court costs. Prove-up Materials Br. at 6. However, on October 6, 2005, pursuant to Civ.LR 55.1, the Court issued an order to show cause why the case should not be dismissed for Plaintiff's failure to move for default judgment within 30 days of the entry of a default.

  This order to show cause was improvidently issued. The Court construes Plaintiff's prove-up materials as an application for default judgment.

  Having considered Plaintiff's request for damages, fees, and costs, the Court finds the request for $2073.50 in attorneys' fees and $325 in court costs reasonable. Plaintiff is also requesting the statutory maximum of $1000 in damages. In determining the amount of liability, 15 U.S.C. 1692k(b)(1) provides that the court should consider "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional." Here, Plaintiff in her affidavit alleges that Defendant contacted her six times over a five day period in February 2005. See Wright Aff. at 5-6. Plaintiff further alleges that on one occasion, Defendant used profanity. Several other times Plaintiff claims that Defendant simply hung up after she answered. Id. Given the relatively short duration (5 days) of Defendant's allegedly inappropriate debt pursuit, the Court declines to impose the maximum penalty and instead finds that an award of $500 in statutory damages is appropriate. The Court also determines that because of this short time frame, Plaintiff should be awarded $1000, and not the requested $2000, in actual damages for her distress. Accordingly, pursuant to Fed.R.Civ.P. 55(b)(2), judgment shall be entered for the Plaintiff and against the Defendant in the sum of $3,898.50.

  IT IS SO ORDERED.

20051212

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