United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.) 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.)
carefully considering the written briefing, the court's
record, and the applicable law, the court RECOMMENDS that
plaintiff's motion be GRANTED IN PART.
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.) 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.)
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.)
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.)
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
(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
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
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