RAYMOND B. GUTHRIE, Plaintiff,
JD ENTERPRISE & FINANCIAL SERVICES, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT [DOC. 37]
M. JAMES LORENZ, District Judge.
Pending before the Court is Plaintiff Raymond B. Guthrie's motion for default judgment against Defendant Joseph Dassa. This action was brought for violations of the Fair Debt Collection Practices Act ("FDCPA") and the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"). JD Enterprise & Financial Services and Joe Willis have since been dismissed from this action. To date, Defendant has not opposed this motion.
The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 39.) For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion for default judgment. (Doc. 37.)
Plaintiff allegedly incurred "certain financial obligations" sometime before September 23, 2010, which were "primarily for personal, family or household purposes[.]" (Compl. §§ 21-22.) Sometime thereafter, but before September 23, 2010, Plaintiff allegedly fell behind in the payments owed on the debt. ( Id. § 24.) Plaintiff apparently disputes the validity of the aforementioned debt. ( See id. ) This alleged debt was "assigned, placed, or otherwise transferred, to Defendants for collection." ( Id. § 25.)
On or about September 23, 2010, Defendant telephoned Plaintiff and demanded payment for the debt. (Compl. § 26; Guthrie Decl. § 2.) During this communication, Defendant told Plaintiff that he was a process server obligated to serve Plaintiff with legal documents unless Plaintiff called Joe Willis and resolved the problem. (Compl. § 28; Guthrie Decl. § 3.) Subsequently, Plaintiff called Mr. Willis and was falsely informed that he was an attorney; Plaintiff alleges that Mr. Willis is a debt collector. (Compl. § 37.) Mr. Willis "explained to Plaintiff that he now owned the alleged debt which was originally a little under $200' but now had risen to over $900 due to his fees." ( Id. § 41.)
Plaintiff verbally disputed the debt, but Mr. Willis told Plaintiff that if he did not pay the debt that he would be served with legal papers. (Compl. § 45.) At one point during the conversation, Mr. Willis indicated that he had a process server on another call and that he instructed the process server to serve Plaintiff with legal papers. ( Id. §§ 48-50.) Mr. Willis added that failure to pay immediately would result in additional costs and legal fees, which he stated could amount to thousands of dollars. ( Id. § 51.) He also threatened that he would "come after Plaintiff's wages, car, and job.'" ( Id. § 54.)
Plaintiff inquired about the details of the alleged debt, including how it had increased several hundred dollars from the original amount Mr. Willis claimed Plaintiff owed, but Mr. Willis was not responsive. (Compl. § 58.) When Plaintiff refused to pay, Mr. Willis ended the conversation stating "it's your mistake" and that he would see Plaintiff in court. ( Id. § 63.) A few minutes later, Plaintiff called Mr. Willis back and asked for an address where he could write a letter requesting information and validation of the alleged debt, but Mr. Willis refused to give an address, accused him of "buying time, " and ended the conversation again by stating, "I'll see you in court." ( Id. §§ 66-67.) Plaintiff is under the impression and belief that Defendant and Mr. Willis are the same person. (Guthrie Decl. § 12.)
Within 30 days following the phone conversation, Plaintiff's counsel found the business address for Mr. Willis and JD Enterprise & Financial Services, and mailed a letter requesting validation of the alleged debt. (Smith Decl. § 7.) Neither Plaintiff nor Plaintiff's counsel received a written response to the request for validation. (Guthrie Decl. § 13; Smith Decl. § 8.) And to this day, Plaintiff has not been served with any legal paperwork for the alleged debt. (Guthrie Decl. § 14.)
On April 28, 2011, Plaintiff commenced this action for violations of the FDCPA and Rosenthal Act. On September 10, 2012, the Clerk of the Court issued an entry of default as to Joseph Dassa. (Doc. 24.) Following an issuance of a notice of hearing for failure to move for default judgment (Doc. 30) and an order reprimanding Plaintiff's counsel for repeated failures to comply with the rules governing electronic filing (Doc. 33), Plaintiff filed a motion for default judgment against Mr. Dassa. To date, there has been no opposition to the motion.
II. LEGAL STANDARD
Rule 55(b)(2) of the Federal Rules of Civil Procedure governs applications to the court for default judgment. See Fed.R.Civ.P. 55(b)(2). Default judgment is available as long as the plaintiff establishes: (1) defendant has been served with the summons and complaint and default was entered for their failure to appear; (2) defendant is neither a minor nor an incompetent person; (3) defendant is not in military service or not otherwise subject to the Soldiers and Sailors Relief Act of 1940; and (4) if defendant has appeared in the action, that defendant was provided with notice of the application for default judgment at least three days prior to the hearing. See, e.g., 50 U.S.C. § 521; Fed.R.Civ.P. 55; Twentieth Century Fox Film Corp. v. Streeter, 438 F.Supp.2d 1065, 1070 (D. Ariz. 2006).
Upon entry of default, the factual allegations in plaintiff's complaint, except those relating to damages, are deemed admitted. E.g., Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). Where the amount of damages claimed is a liquidated sum or capable of mathematical calculation, the court may enter a default judgment without a hearing. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981). When it is necessary for the plaintiff to prove unliquidated or punitive damages, the court may require plaintiff to file declarations or affidavits providing evidence for damages in lieu of a full evidentiary hearing. Transportes Aereos De Angola v. Jet Traders Inv. Corp., 624 F.Supp. 264, 266 (D. Del. 1985).
Entry of default judgment is within the trial court's discretion. See Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 660 (S.D. Cal. 1997) (Brewster, J.) (citing Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956)). 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) ...