Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lyon v. Bergstrom Law, Ltd.

United States District Court, E.D. California

May 31, 2017

NICOLE LYON, Plaintiff,
v.
BERGSTROM LAW, LTD., Defendant.

          FINDINGS AND RECOMMENDATIONS THAT THE COURT GRANT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc. 38)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Plaintiff's Motion for Default Judgment. (Doc. 38.) To date, Defendant has not filed an opposition to this motion. The undersigned has reviewed Plaintiff's Motion for Default Judgment, as well as its supporting documentation, and determined pursuant to Local Rule 230(g) that this matter is suitable for decision without oral argument.

         For the reasons set forth herein, the undersigned RECOMMENDS that the presiding district court judge GRANT Plaintiff's Motion for Default Judgment. (Id.)

         I. BACKGROUND

         This action involves allegations that Defendant, a debt collector, violated the federal Fair Debt Collection Practices Act (the “FDCPA”) and California's Rosenthal Fair Debt Collection Practices Act (the “Rosenthal Act”) when it left a voicemail for Plaintiff in approximately February 2016.

         “Plaintiff is a natural person who resides in the City of Clovis, State of California.” (Doc. 1 ¶ 14.) According to the Complaint, Plaintiff “alleged[ly] . . . incurred certain financial obligations related to student loans” sometime “before February . . . 2015” (the “Debt”). (Id. ¶ 21.) This Debt was “primarily for personal, family or household purposes.” (Id. ¶ 22.)

         Defendant “is a law firm based in Nevada.” (Doc. 5 at 3.) The Complaint asserts that Defendant “uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” (Doc. 1 ¶ 17.) Plaintiff alleges that the Debt “was assigned, placed, or otherwise transferred . . . to Defendant for collection” at some time “before February . . . 2016.” (Id. ¶ 25.)

         In the Complaint, Plaintiff asserts that, “[o]n or about February . . . 2016, Defendant contacted Plaintiff by telephone in an attempt to collect Plaintiff's alleged [D]ebt and left Plaintiff a voicemail” (the “February 2016 Communication”). (Id. ¶ 26.) The Complaint also includes an allegation that “Defendant failed to disclose in [the February 2016 Communication] that the communication was from a debt collector.” (Id. ¶ 27.) The Complaint further alleges that “[a]ny violations by Defendant were knowing, willful, and intentional.” (Id. ¶ 5.) The Complaint does not provide any additional allegations regarding the February 2016 Communication, such as the content of the voicemail. (See Doc. 1.)

         Plaintiff filed the Complaint in this Court on March 24, 2016. (Id.) The Complaint includes two claims alleging violations of the FDCPA (Count I) and the Rosenthal Act (Count II). (See Id. ¶¶ 29-34.) The Complaint also includes the following prayers for relief: (1) “statutory damages of $1, 000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A), ” (2) “costs of litigation and reasonable attorney's fees . . . pursuant to 15 U.S.C. § 1692k(a)(3), ” (3) “statutory damages of $1, 000.00 pursuant to [California Civil] Code § 1788.30(b), ” and (4) “costs of litigation and reasonable attorney's fees . . . pursuant to [California Civil] Code § 1788.30(c).” (Id. at 6.) On May 6, 2016, Plaintiff effectuated service of the Complaint on Defendant. (See Doc. 4.)

         On May 31, 2016, Defendant filed a Motion to Dismiss Complaint, in which it argued that dismissal was appropriate under Federal Rule of Civil Procedure 12(b)(6). (Doc. 5.) The presiding district court judge denied this motion in an opinion entered on August 5, 2016. (Doc. 18.) Defendant then filed an Answer to the Complaint on August 19, 2016. (Doc. 19.)

         On October 14, 2016, Plaintiff filed a Motion Regarding Discovery, in which she requested that the Court compel Defendant's responses to certain discovery requests. (Doc. 25.) In an order entered on November 2, 2016, the undersigned granted this motion to compel, ordered Defendant “to serve written responses to” certain discovery requests “by November 9, 2016, ” and ordered Defendant “to pay Plaintiff's attorney . . . reasonable attorney's fees in the amount of” $1, 475.00 “within thirty . . . days.” (Doc. 27 at 5.)

         On November 21, 2016, Plaintiff notified the Court that Defendant failed to comply with the undersigned's order to serve written responses to certain discovery requests by November 9, 2016. (Doc. 28.) On December 12, 2016, Plaintiff notified the Court that Defendant also failed to comply with the undersigned's order to pay reasonable attorneys' fees to Plaintiff's counsel. (Doc. 29.)

         Subsequently, on December 28, 2016, Plaintiff filed a Motion to Strike Defendant's Answer Pursuant to Fed. R. Pro. 37(b)(2)(A)(iii) (the “Motion to Strike”), in which Plaintiff requested that the Court strike Defendant's Answer due to Defendant's failure to comply with the undersigned's November 2, 2016 order. (Doc. 30.) In findings and recommendations entered on January 17, 2017, the undersigned recommended that the presiding district court judge grant Plaintiff's Motion to Strike. (Doc. 31.) In an order entered on March 30, 2017, the presiding district court judge adopted the F&R, ordered that Defendant's Answer “is stricken, ” and directed the Clerk “to enter default against [D]efendant.” (Doc. 35 at 2-3.) The Clerk entered default against Defendant on the same date. (Doc. 36.)

         On April 25, 2017, Plaintiff filed the Motion for Default Judgment. (Doc. 38.) On the same date, Plaintiff effectuated service of this motion on Defendant. (See Doc. 38, Ex. 3.) Nonetheless, to date, Defendant has not filed any responsive brief to Plaintiff's Motion for Default Judgment. As such, Plaintiff's Motion for Default Judgment is ready for disposition.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 55(b) permits a court-ordered default judgment following the entry of default by the clerk of the court under Rule 55(a). See Fed. R. Civ. P. 55(b)(2). “[D]efault does not entitle the non-defaulting party to a default judgment as a matter of right . . . .” Dreith v. Nu Image, Inc., 648 F.3d 779, 785 (9th Cir. 2011). Rather, “[t]he district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (citations omitted).

         In Eitel v. McCool, the Ninth Circuit identified seven “[f]actors which may be considered by courts in exercising discretion as to the entry of a default judgment, ” including (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.” 782 F.2d 1470, 1471-72 (9th Cir. 1986). The “general rule” is “that default judgments are ordinarily disfavored.” Id. at 1472. Nonetheless, in applying the Eitel “discretionary standard, default judgments are more often granted than denied.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)).

         “The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” 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)); see also Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (“In reviewing a default judgment, [the] court must take the well-pleaded factual allegations of [the complaint] as true.” (citing Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 1986))). “However, a defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (citation omitted). Further, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Id. (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)).

         III. ANALYSIS OF THE EITEL FACTORS

         The undersigned shall address each of the Eitel factors, in turn. For the reasons provided below, the undersigned finds that these factors weigh in favor of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.