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Muse v. Thompson & Associates

March 4, 2010

LINDAMARIE MUSE, PLAINTIFF,
v.
THOMPSON & ASSOCIATES, PC, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This case was referred to the undersigned pursuant to Eastern District of California Local Rule 302(c)(19) and 28 U.S.C. § 636(b)(1) for hearing on plaintiff's motion for entry of default judgment against defendant Thompson & Associates, PC. On March 3, 2010, a hearing on the motion was held. Attorney Darren Shaw appeared on behalf of plaintiff; no appearance was made on behalf of defendant. For the reasons that follow, and as stated on the record at the hearing, the court recommends that plaintiff's application for entry of default judgment be granted.

I. BACKGROUND

On September 3, 2009, plaintiff filed a complaint against defendant Thompson & Associates for violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA") and the Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788 et seq. ("RFDCPA"), and for common law invasion of privacy by intrusion and invasion of privacy by publication of private facts. Dckt. No. 1. This court has jurisdiction over plaintiff's claims pursuant to 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1367. See 15 U.S.C. § 1692k(d) ("An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.").

Plaintiff alleges she is a consumer and defendant is a debt collector as those terms are defined in the FDCPA and RFDCPA, and that defendant sought to collect a consumer debt from plaintiff. Dckt. No. 1, Compl. ¶¶ 3-5. Plaintiff alleges that at various and multiple times before filing the complaint, defendant contacted plaintiff in an attempt to collect an alleged outstanding debt, and in doing so, engaged in conduct that violated the FDCPA and RFDCPA in multiple ways. Id. ¶ 5. Plaintiff contends that as a result of these violations and defendant's intrusion into private matters of plaintiff's life and disclosure of private facts, which would be highly offensive to a reasonable person, plaintiff suffered emotional distress, humiliation, embarrassment, and mental anguish. Id. ¶¶ 6-8. Plaintiff's complaint seeks declaratory relief, damages, and attorney fees and costs. Id., Prayers for Relief.

Plaintiff's complaint and summons were personally served on defendant on September 21, 2009. Dckt. No. 7. Because defendant failed to answer or otherwise respond to the complaint, on November 18, 2009, plaintiff requested entry of default against defendant. Dckt. No. 9. The Clerk of this Court entered defendant's default on November 30, 2009. Dckt. No. 11.

Plaintiff now seeks default judgment against defendant pursuant to Federal Rule of Civil Procedure 55(b). Her motion for default judgment, which was served on defendant, Dckt. No. 13 at 3, seeks default judgment against defendant in the amount of five thousand six hundred eighty-three dollars ($5,683.00), representing statutory damages in the amount of two thousand dollars ($2,000.00), 15 U.S.C. § 1692(k)(a)(2)(A), Cal. Civ. Code § 1788.32, two thousand five hundred forty-eight dollars ($2,548.00) in attorney fees to date, seven hundred fifty dollars ($750.00) in anticipated collection fees and costs, and three hundred eighty-five dollars ($385.00) in costs to date. Dckt. No. 12 at 2.

II. DISCUSSION

It is within the sound discretion of the district court to grant or deny an application for default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following factors:

(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 the 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.

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). "In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)).

As a general rule, once default is entered, the factual allegations of the complaint are taken as true, except for those allegations relating to damages. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). However, although well-pleaded allegations in the complaint are admitted by defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).

The FDCPA prohibits debt collectors from engaging "in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Included among the conduct prohibited by § 1692d is "[t]he use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader." Id. § 1692d(2). The FDCPA also prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." Id. § 1692e. Included among the conduct prohibited by § 1692e is:

(5) The threat to take any action that cannot legally be taken or that is not ...


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