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Morisaki v. Davenport

August 21, 2010

GLORIA MORISAKI, PLAINTIFF,
v.
DAVENPORT, ALLEN & MALONE, INC., DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on December 18, 2009, for hearing on plaintiff's motion for default judgment (Doc. No. 9). Lara R. Shapiro, Esq. appeared telephonically for plaintiff. No appearance was made on behalf of defendant. Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that the motion for default judgment be granted.

PROCEDURAL BACKGROUND

Plaintiff initiated this action under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., and the California Rosenthal Fair Debt Collection Practices Act (Rosenthal Act), California Civil Code § 1788, et seq. In her complaint filed February 3, 2009, plaintiff seeks actual damages pursuant to 15 U.S.C. § 1692k(a)(1), statutory damages of $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A), costs of litigation and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3), actual damages pursuant to California Civil Code § 1788.30(a), statutory damages of $1,000.00 per violation for knowingly and willfully committing violations pursuant to California Civil Code § 1788.30(b), actual damages for emotional distress suffered as a result of defendant's intentional, reckless, and/or negligent invasions of privacy in an amount to be determined at trial; and punitive damages.

Despite being served with process, defendant failed to appear in this action. Pursuant to plaintiff's request, the Clerk of the Court entered defendant's default on June 8, 2009. (Doc. No. 8.) On September 25, 2009, plaintiff filed the instant motion, noticing it for hearing before the undersigned pursuant to Local Rule 302(c)(19). Plaintiff subsequently re-noticed the motion for hearing on December 18, 2009. Despite being served with plaintiff's request for entry of default and all papers filed in connection with plaintiff's motion for default judgment, defendant did not oppose entry of default and neither filed opposition nor appeared at the hearing on plaintiff's motion for default judgment.*fn1

LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Where damages are liquidated (i.e., capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits), judgment by default may be entered without a damages hearing. See Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).

Granting or denying default judgment is within the court's sound discretion, see Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986), and the court is free to consider a variety of factors in exercising that discretion, see Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The court may consider such factors as:

(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, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice, ¶ 55-05[2], at 55-24 to 55-26).

ANALYSIS

According to plaintiff's complaint, this action arises out of defendant's repeated violations of federal and state consumer laws and the repeated invasion of plaintiff's personal privacy by defendant and its agents during illegal efforts to collect a consumer debt.

Plaintiff alleges as follows. She is a "consumer" as that term is defined by the FDCPA, she incurred a financial obligation that meets the definition of a "debt" under the FDCPA, and the debt was acquired by defendant for collection purposes. Defendant attempted to collect the debt as follows: defendant contacted plaintiff's ex-husband, a third party, without plaintiff's consent, communicated information to him about plaintiff's debt, and stated an intent to sue plaintiff by the end of the week if the debt was not paid; defendant used abusive, harassing, and profane language when speaking to plaintiff on the telephone; on more than one occasion, defendant failed or refused to identify itself by providing the individual debt collector's name or the name of the debt collection company; defendant threatened plaintiff with a lawsuit on at least two separate occasions, without intending to take steps toward initiating any legal proceeding; defendant threatened to make false and negative reports to consumer reporting agencies and thereby to detrimentally affect plaintiff's credit score; and defendant attempted to deceive plaintiff's ex-husband into providing information about plaintiff by threatening legal proceedings if plaintiff's debt was not paid immediately. Plaintiff alleges that she suffered actual damages as a result of defendant's illegal collection communications in the form of humiliation, anger, anxiety, emotional distress, fear, frustration, embarrassment, and other negative emotions, and further alleges that she suffered from unjustified and abusive invasions of her personal privacy at home and at work.

Plaintiff's complaint alleges one cause of action under the FDCPA and one cause of action under the Rosenthal Act, with multiple violations alleged within each cause of action. The complaint prays for the following relief under the FDCPA: actual damages under 15 U.S.C. § 1692k(a)(1), statutory damages of $1,000.00 under 15 U.S.C. § 1692k(a)(2)(A), and costs of litigation and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3). The complaint also prays for the following relief under the Rosenthal Act: actual damages under California Civil Code § 1788.30(a) and statutory damages of $1,000.00 per violation for knowingly and willfully committing violations under California Civil Code § 1788.30(b). In addition, the ...


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