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McKibben v. Collection Professional Services

May 17, 2010

JAMES MCKIBBEN, PLAINTIFF,
v.
COLLECTION PROFESSIONAL SERVICES AKA NATIONWIDE CAPITAL RECOVERY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's application for default judgment.*fn1 This matter was submitted without oral argument. The undersigned has fully considered the pleadings, briefs, and record in this case and, for the reasons stated below, recommends that plaintiff's application for entry of default judgment be granted.

I. BACKGROUND*fn2

Plaintiff is an individual who resides in Marysville, California. (Pl.'s Compl. ¶ 8, Dkt. No. 1.) Plaintiff alleges that he is a consumer and that defendant is a debt collector with offices in Indian Wells, California that attempted to collect a debt allegedly owed by plaintiff. (Id. ¶¶ 9-11.) Defendant "constantly and continuously" placed calls to plaintiff demanding payment for the alleged debt. (Id. ¶¶ 12-14.) Defendant also placed calls with plaintiff's daughter and church, stating that plaintiff owed a debt. (Id. ¶¶15-16.) In addition, plaintiff received a call from defendant's agent, Jason Woods, in which Woods stated that he was calling from "a fraud division." (Id. ¶ 17.) Furthermore, plaintiff alleges that defendant failed to provide a debt validation letter. (Id. ¶18.)

On October 22, 2009, plaintiff filed a verified complaint with this court alleging that defendant had violated the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., and California's Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code §§ 1788 et seq. (Pl.'s Compl. ¶¶ 1-2, 19-32.) In his first claim for relief, plaintiff alleges that defendant violated the following provisions of the FDCPA in its attempts to collect the debt allegedly owed by plaintiff: 15 U.S.C. §§ 1692b(2), 1692b(3), 1692d, 1692d(5), 1692e, and 1692g. (See Pl.'s Compl. ¶¶ 19a-19g.) In connection with his FDCPA claim, plaintiff's complaint prays for declaratory relief, statutory damages under the FDCPA, actual damages, and costs and reasonable attorneys' fees under the FDCPA. (Id. ¶¶ 20-23.) Plaintiff's second claim for relief alleges that defendant violated the following provisions of the Rosenthal Act in its attempts to collect the alleged debt: California Civil Code §§ 1788.11(d), 1788.11(e), 1788.12(a), 1788.13(d), and 1788.17. (See Pl.'s Compl. ¶¶ 26a-26e.) As to his Rosenthal Act claim, plaintiff's complaint prays for declaratory relief, statutory damages under the Rosenthal Act, actual damages, and costs and reasonable attorneys' fees under the Rosenthal Act. (Id. ¶¶ 28-31.)

Plaintiff filed a proof of service that demonstrates that on December 3, 2009, plaintiff, through a process server, attempted personal service on defendant at the following address: 74-923 Highway 111, Suite 218, Indian Wells, California 92210. (Dkt. No. 8.) The proof of service states that, on December 3, 2009, plaintiff effectuated substituted service by leaving the summons and complaint with Jim Shaunty, a "person in charge," and that a copy of the summons and complaint was mailed to defendant on that same date.*fn3 (Id. at 1-2.)

On February 17, 2010, following receipt of plaintiff's request for entry of default, the Clerk of this Court entered a certificate of entry of default against defendant. (Dkt. Nos. 9, 10.) In entering default, the Clerk of Court stated that it appeared from the record and papers on file in the action that defendant had been duly served with process, yet failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (Dkt. No. 10 at 1.)

On April 26, 2010, plaintiff filed a memorandum of points and authorities in support of his application for default judgment, which he also served by mail on defendant.*fn4

(Dkt. No. 11.) Plaintiff filed a notice of his application for default judgment on April 28, 2010. (Dkt. No. 13.) Although plaintiff has not filed a document formally labeled as an application for default judgment, it appears that plaintiff intended his memorandum and the notice in support of the application for default judgment to constitute an application for default judgment, and the undersigned construes those documents accordingly.*fn5

Plaintiff's application for default judgment requests entry of a judgment on plaintiff's claims for violations of the FDCPA and the Rosenthal Act. He seeks a total award of $4,563.61, which consists of: (1) $2,000.00 in total statutory damages for violations of the FDCPA and the Rosenthal Act; (2) $1,702.00 in attorneys' fees; (3) $361.61 in filing fees and service fees; and (4) "$500.00 in anticipated collection costs pursuant to 15 U.S.C. § 1692(k)(a)." (Pl.'s Memo. of P. & A. in Supp. of Application for Default J. at 2, Dkt. No. 11.) No response to plaintiff's application for default judgment is on record in this action.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court may consider 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 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). Default judgments are ordinarily disfavored. Id. at 1472.

As a general rule, once default is entered, well-pleaded factual allegations in the operative complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); see also Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although well-pleaded allegations in the complaint are admitted by a defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally insufficient, are notestablished by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir. 2007) ("[A] defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law" (citation and quotation marks omitted).); Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. Cal. 2004) ("[A] default judgment may not be entered on a legally insufficient claim."). A party's default conclusively establishes that party's liability, although it does not establish the amount of damages. Geddes, 559 F.2d at 560; see also Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990); Doe v. Rafael Saravia, 348 F. Supp. 2d 1112, 1143 (E.D. Cal. 2004).

III. ANALYSIS

A. Appropriateness of the Entry of Default Judgment Under the Eitel Factors

1. Factor One: Possibility of Prejudice to Plaintiff

The first Eitel factor considers whether the plaintiff would suffer prejudice if default judgment is not entered, and such potential prejudice to the plaintiff militates in favor of entering default judgment. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Here, plaintiff would potentially face prejudice if the court did not enter default judgment because absent entry of default judgment, plaintiff would be without ...


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