United States District Court, N.D. California
ORDER ENTERING DEFAULT JUDGMENT AGAINST DEFENDANT Re:
ECF No. 14
TIGAR UNITED STATES DISTRICT JUDGE
the Court is Plaintiff’s Motion for Default Judgment,
ECF No. 14, which Defendant New Millennium Concepts Inc.
(“New Millennium”) has not opposed. The Court
will grant the motion.
considering a motion for default judgment, the Court takes
the factual allegations in the complaint as true, except for
those allegations made as to the amount of damages.
Geddes v. United Financial Group, 559 F.2d 557, 560
(9th Cir. 1977). Accordingly, the Court accepts the following
allegations as true for the purposes of deciding this motion.
September 9, 2015, Defendant New Millennium left a message on
Plaintiff’s wife’s voice mail claiming that
Plaintiff owed an unpaid debt on an AT&T Wireless
account. ECF No. 1 ¶ 7. Plaintiff did not receive a
verification of rights notice. Id. ¶ 8.
Plaintiff maintains that he does not have, nor did he ever
have, any outstanding debt with AT&T Wireless.
Id. ¶ 9. On a subsequent phone call, New
Millennium refused to verify the debt owed by Plaintiff,
despite Plaintiff’s request that New Millennium do so.
Id. ¶ 12-13. Plaintiff contacted AT&T
Wireless and confirmed that he had no outstanding debts and
no past due or delinquent accounts with AT&T Wireless.
Id. ¶ 14.
September 25, 2015, Defendant called Plaintiff demanding
payment of the alleged debt. Id. ¶ 15.
Plaintiff subsequently mailed and emailed a letter to
Defendant demanding verification of the debt and disputing
the reporting of the debt under the Fair Credit Reporting
Act. Id. ¶ 16. In response, Defendant emailed
Plaintiff, misrepresenting that it had already responded to
Plaintiff’s request for verification and indicating
that it would proceed with debt collection activities.
Id. ¶ 17. Despite Plaintiff’s request
that Defendant communicate with Plaintiff only via mail,
Defendant sent another email to Plaintiff on September 29,
2015, continuing collection efforts without providing
verification of the debt. Id. ¶ 21. Defendant
also made the false representation to Plaintiff that AT&T
Wireless was required by federal law to remove consumer
information from their system upon selling a customer’s
debt to a third party. Id. Defendant reported the
alleged debt to the TransUnion credit bureau, but has not
informed TransUnion that the alleged debt is disputed.
Id. ¶ 22.
commenced this action on October 13, 2015, asserting
violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et
seq. and of California’s Rosenthal Fair Debt
Collection Practices Act (“RFDCPA”), Cal. Civ.
Code §§ 1788, et seq. Id. ¶
1-10. After nine attempts to effect service with a registered
agent of Defendant, ECF No. 6 at 2, Defendant was served with
a Summons and Complaint via service on the California
Secretary of State. ECF No. 9. Defendant failed to answer the
Complaint in a timely manner and has not otherwise appeared.
This Court entered default against Defendant on January 15,
2016. ECF No. 13. Plaintiff filed a motion for default
judgment and a memorandum in support of the motion on
February 25, 2016, seeking to recover $10, 787.90 in
statutory and actual damages, attorney’s fees, and
costs. ECF Nos. 14, 15.
Court has federal question jurisdiction over
Plaintiff’s first cause of action pursuant to 28 U.S.C.
§ 1331 because Plaintiff’s first count arises
under a federal statute. This Court also has supplemental
jurisdiction over Plaintiff’s second cause of action
for violations of California’s Rosenthal Fair Debt
Collection Practices Act pursuant to 28 U.S.C. §
1367(a), which provides that “in any civil action of
which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action
within such original jurisdiction that they form part of the
same case or controversy.”
Rule of Civil Procedure 55(b)(2) grants district courts the
authority to enter a default judgment when “a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend . . . .” Whether to
enter a default judgment is a discretionary decision to be
made by the district court. Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). “Factors which may be
considered by courts in exercising discretion as to the entry
of a default judgment include: (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).