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Alvarado v. Featured Mediation, LLC

United States District Court, M.D. Florida, Tampa Division

May 1, 2017

BENJAMIN ALVARADO, Plaintiff,
v.
FEATURED MEDIATION, LLC, Defendant.

          ORDER

          JAMES S. MOODY, JR. UNITED STATES DISTRICT JUDGE.

         THIS CAUSE comes before the Court upon Plaintiff's Motion for Default Judgment (Doc. 13). The Court will grant the default judgment as described herein.

         BACKGROUND

         On November 23, 2016, Plaintiff Benjamin Alvarado filed his Complaint (Doc. 1) against Defendant Featured Mediation, LLC, initiating this action. Defendant collects debts for other parties. Plaintiff alleged that Defendant attempted to collect an unlawful debt from him using unlawful means, thereby violating the Telephone Consumer Protection Act (“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”), and the Florida Consumer Collection Practices Act (“FCCPA”).

         Defendant was served with the Complaint on December 21, 2016, but did not respond. Accordingly, on March 22, 2017, Plaintiff sought an entry of default against Defendant. The Court entered the default on March 23, 2017. Plaintiff now seeks a default judgment awarding him statutory damages, reasonable attorney's fees, and costs.

         DISCUSSION

         A defendant who defaults is deemed to have admitted all well-pleaded allegations of fact in a complaint. See Nishimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). As a result, a court may enter a default judgment against a party who has failed to respond to a complaint, assuming the complaint provides a sufficient basis for the judgment entered. Fed.R.Civ.P. 55; Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239, 1245 (11th Cir. 2015) (internal citation omitted). Likewise, a court may award damages pursuant to a default judgment if those damages are adequately supported by the record. See Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (internal citations omitted). The court may award damages without a hearing if the amount claimed is a liquidated sum or one capable of mathematical calculation. Id. at 1543 (internal citation omitted).

         I. TCPA

         The TCPA makes it unlawful to place non-emergency telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice without first obtaining the recipient's express consent. 47 U.S.C. § 227(b)(1)(A)(iii). It is the caller's burden to prove that it had prior express consent to place the calls. FCC Declaratory Ruling, FCC 07-232, ¶ 10 (Dec. 28, 2007). The TCPA provides for statutory damages of $500 per violation of the statute. 47 U.S.C. § 227(b)(3)(B).

         Plaintiff's well-pleaded allegations-which Defendant has admitted due to its default-demonstrate that Defendant placed three, non-emergency calls to Plaintiff in an effort to collect on his debt. (Doc. 1 ¶¶ 28, 52.) Defendant made these calls using an automatic telephone dialing system and left voicemails using a prerecorded voice. (Id. ¶¶ 27-28.) Given that Defendant defaulted, it has not proven that it had Plaintiff's prior express consent to place these calls. Therefore, Defendant is liable for three violations of the TCPA and $1, 500 in statutory damages.

         Plaintiff argues that the Court should exercise its discretion to increase Plaintiff's TCPA damages from $500 per violation to $1, 500 per violation. A court may award treble damages when a defendant willfully or knowingly violated the TCPA. 47 U.S.C. § 227(b)(3)(C). Plaintiff's Complaint does not include factual allegations sufficient for the Court to find that Defendant willfully or knowingly violated the TCPA. Accordingly, the Court will not award more than $500 per TCPA violation.

         II. FDCPA

         The FDCPA prohibits abusive, deceptive, and unfair practices by debt collectors. See 15 U.S.C. § 1692. The FDCPA has a one-year statute of limitations. 15 U.S.C. § 1692k(d). The claim accrues on the date the violation occurred. Id.

         Plaintiff argues that Defendant violated several provisions of the FDCPA when it left him three voicemails in February 2015 and emailed him a letter on April 1, 2015. (Doc. 1 ¶¶ 28, 44; Doc 1-2.) Although these alleged FDCPA violations occurred in spring of 2015, Plaintiff did not file suit until November 2016. Because it is “apparent from the face of the [C]omplaint” that Plaintiff's FDCPA claim is time-barred, the Court ...


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