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Lowery v. Account Outsourcing Group, LLC

United States District Court, E.D. California

July 27, 2017





         Presently pending before the court is plaintiff Loretta Lowery's motion for entry of default judgment against defendant Account Outsourcing Group, LLC (“Account Outsourcing”), a Delaware limited liability company. (ECF No. 12.)[1] On June 13, 2017, after defendant failed to oppose plaintiff's motion in accordance with Local Rule 230, the court vacated the hearing on the motion and gave defendant one final opportunity to oppose the motion by June 29, 2017. (ECF No. 13.) After defendants again failed to oppose plaintiff's motion, plaintiff's motion was taken under submission on the court's own motion pursuant to Local Rule 230(g). (Id.)

         After carefully considering the written briefing, the court's record, and the applicable law, the court RECOMMENDS that plaintiff's motion be GRANTED IN PART.


         Plaintiff Loretta Lowery alleges that defendant unlawfully and abusively attempted to collect on a debt allegedly owed by plaintiff on September 14, 2016. (ECF No. 1 at 5:10-12.) On that date, an unidentified agent of Account Outsourcing called plaintiff at her home at approximately 6:26 a.m., and attempted to collect on plaintiff's alleged debt. (Id.)[2] Plaintiff informed the agent that the timing of the call was unacceptable and asked to speak with the agent's supervisor. Plaintiff was then transferred to Charlisa Cole, another agent of Account Outsourcing. (Id. at 5:12-15.) Plaintiff requested Ms. Cole to identify the company seeking to collect the alleged debt, but Ms. Cole refused to disclose the name of the company without plaintiff first verifying confidential and personal information. (Id. at 5:14-17.)

         After completing the 6:26 a.m. phone call, plaintiff received another call at 6:33 a.m. from an unidentified agent of Account Outsourcing attempting to collect on plaintiff's alleged debt. (ECF No. 1 at 6:10-12.) Plaintiff then received a third call from the same number at 6:55 a.m., wherein an unidentified agent again attempted to collect on the alleged debt. (Id. at 6:20-22.)

         Based on the above, plaintiff commenced this action against defendant on December 23, 2016, alleging: (1) violations of the Fair Debt Collection Practices Act under 15 U.S.C. §§ 1692 et seq. (“FDCPA”) and (2) violations of the Rosenthal Fair Debt Collection Practices Act under California Civil Code §§ 1788 et seq. (“RFDCPA”). (ECF No. 1.) Plaintiff's complaint seeks actual and statutory damages, attorneys' fees, and costs. (Id.) After defendant was properly served with process and failed to appear in the action, the Clerk of Court entered defendant's default upon plaintiff's request. (ECF Nos. 6-8.) The instant motion for default judgment followed. (ECF No. 12.)


         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)). 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 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 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).

         As a general rule, once default is entered, well-pled 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)); accord Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). In addition, although well-pled 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 not established 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. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (stating that a defendant does not admit facts that are not well-pled or ...

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