Kitchens v. Lent

          FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT BE GRANTED (DOC. 12) OBJECTIONS DUE: 21 DAYS

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Before the Court is an unopposed motion for default judgment, filed on October 10, 2017, by Plaintiff Jennifer Kitchens (“Plaintiff”) against Defendant Daniel Lent D.B.A. Capital Reclamations (“Defendant”). (Doc. 12.) The Court has reviewed Plaintiff's submissions and determined, pursuant to Local Rule 230(g), that the matter was suitable for decision without oral argument. The Court accordingly vacated the motion hearing. (Doc. 14.)

         For the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion for default judgment be GRANTED.

         II. FACTUAL BACKGROUND

         This action presents claims that Defendant, allegedly a debt collector, violated the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and California's Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), California Civil Code § 1788 et seq. (Doc. 1 (“Complaint”), ¶ 10.) According to the Complaint, which Plaintiff filed on May 15, 2017, Plaintiff incurred a debt, the debt was transferred to Defendant for collection, and thereafter Defendant initiated a state-court collection action against Plaintiff. (Compl. ¶¶ 20, 23-25.) The Complaint alleges, among other things, that Defendant improperly served the complaint at an address not belonging to Plaintiff, improperly venued the action in a county where Plaintiff did not reside, and nevertheless obtained a default judgment against her and then attempted to garnish her wages. (Compl. ¶¶ 30-32, 36, 38, 49-51.) The Complaint seeks an award of statutory damages, actual damages, costs of suit, and attorney's fees. (Compl. 12:19-13:4.)

         Although Defendant was served with the Complaint on May 22, 2017, to date, Defendant has failed to respond. (Doc. 6.) On August 16, 2017, Plaintiff requested that the Clerk of the Court enter default against Defendant, which the Clerk entered that same day. (Docs. 8, 9.) Plaintiff now moves the Court for a default judgment against Defendant. (Doc. 12.)

         III. DISCUSSION

         A. Legal Standard

         The Federal Rules of Civil Procedure permit a court-ordered default judgment following the entry of default by the Clerk of the Court. See Fed. R. Civ. P. 55(b)(2). “The district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980). That is, a defendant's default by itself does not entitle a plaintiff to such a judgment. See id. (citations omitted).

         In determining whether to enter default judgment, the Court should consider the following so-called Eitel factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of the 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).

         For the reasons set forth below, the Court finds that the Eitel factors weigh in favor of entering default judgment against Defendant.

         B. Analysis of the Eitel Factors

         1. Factor One: Plaintiff Will Be Prejudiced if Default Judgment is Not Granted.

         The first Eitel factor favors entry of default judgment where “the plaintiff would suffer prejudice if default judgment is not entered.” Lyon v. Bergstrom Law, Ltd., No. 1:16-cv-00401-DAD-SKO, 2017 WL 2350447, at *3 (E.D. Cal. May 31, 2017) (quoting Joe Hand Promotions, Inc. v. Dhillon, No. 2:15-cv-1108-MCE-KJN, 2015 WL 7572076, at *2 (E.D. Cal. Nov. 25, 2015). Five months into this action, Defendant has failed to respond to the Complaint. The litigation has thereby stalled, potentially prejudicing Plaintiff by leaving her with no recourse to recover on her claims. That, by itself, is sufficient for a finding that this factor weighs in favor of entering default judgment. See, e.g., Philip Morris, USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003).

         2. Factors Two and Three: Plaintiff's Claims that Defendant Violated the FDCPA and Rosenthal Act Are Meritorious and the Complaint is Sufficient.

         Under the second and third Eitel factors, the Court considers the general sufficiency of the complaint as well as the merits of its substantive claims. HICA Educ. Loan Corp. v. Warne, No. 11-cv-04287-LHK, 2012 WL 1156402, at *2 (N.D. Cal. Apr. 6, 2012). See generally U.S. ex rel. Hajoca Corp. v. Aeroplate Corp., No. 1:12-cv-1287-AWI-BAM, 2013 WL 3729692, at *3 (E.D. Cal. July 12, 2013) (addressing the second and third Eitel factors “together because of the relatedness of the two inquiries”). These factors “together . . . require that a plaintiff state a claim on which the plaintiff may recover.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002); see also Danning v.Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978); Discovery Commc'ns, Inc. v. Animal Planet, Inc., 172 F.Supp.2d 1282, 1288 (C.D. Cal. 2001).

         The Complaint alleges two causes of action: one under the FDCPA and one under the Rosenthal Act, with multiple violations of the law alleged within each cause of action. (Compl. ¶¶ 62-67.) To state a claim under the FDCPA, a plaintiff must show (1) the plaintiff is a “consumer, ” (2) the defendant is a “debt collector, ” and (3) the defendant committed some act or omission in violation of the FDCPA. See 15 U.S.C. § 1692a(3)-(6); see also Allmendinger v. Oxford Law, LLC, No. 2:14-cv-1990-KJM-EFB, 2016 WL 146230, at *2 (E.D. Cal. Jan. 13, 2016). FDCPA violations also constitute violations of the Rosenthal Act. See Cal. Civ. Code § 1788.17 (incorporating the majority of the FDCPA); see also Esget v. TCM Fin. Servs. LLC, No. 1:11-cv-00062-AWI-BAM2014, WL 258837, at *5 (E.D. Cal. Jan 23, 2014). These laws aim to protect consumers from unfair and deceptive debt collection practices. See 15 U.S.C. § 1692; see also Lyon, 2017 WL 2350447, at *4 (quoting Gonzales v. Arrow Fin. Servs., Inc., 660 F.3d 1055, 1060 (9th Cir. 2011)).

         At this stage-on a motion for entry of default judgment following entry of default by the Clerk of the Court-the Court must accept as true the well-pleaded facts in the complaint. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1992). Necessary facts which are not contained in the complaint, or are legally insufficient, however, will not be established by the Clerk's entry of default. Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).

         As to the first and second elements required under the FDCPA, the Complaint sufficiently pleads Plaintiff's status as a consumer, Defendant's status as a debt collector, and the status of the debt at issue. (Compl. ¶¶ 13-17); see also 15 U.S.C. §§ 1692a(3) (defining the term “consumer”), 1692a(6) (defining the term “debt collector”), 1692a(5) (defining the term “debt”). The Court will now turn to the third ...