United States District Court, S.D. California
December 12, 2005.
KENISHA WRIGHT, Plaintiff,
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. § 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
This order to show cause was improvidently issued. The Court
construes Plaintiff's prove-up materials as an application for
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.
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