United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK, UNITES STATES MAGISTRATE JUDGE
cause comes before the Court for consideration without oral
argument on the following motions:
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc.
February 19, 2018
it is RECOMMENDED that the motion be
GRANTED in part and DENIED in
MOTION FOR COSTS OF THE ACTION AND ATTORNEY'S FEES (Doc.
February 19, 2018
it is RECOMMENDED that the motion be
GRANTED in part and DENIED in
case stems from Defendant's attempt to collect a consumer
debt that Plaintiff incurred from a personal loan she
obtained from a third-party lender, Mobiloans. Doc. 7 at
¶¶ 21-22. Plaintiff alleged that Defendant operated
a debt collection agency in Nevada and, sometime during 2017,
Defendant began calling Plaintiff in an effort to collect the
alleged debt. Id. at ¶¶ 7-8, 13, 23.
However, Defendant never sent Plaintiff an “initial
collection letter” regarding the alleged debt.
Id. at ¶ 34. Plaintiff spoke with several of
Defendant's agents, who, on one occasion,
“insinuated legal action would be taken against
Plaintiff.” Id. at ¶¶ 25-26.
Defendant's agents also left voicemail on Plaintiff's
phone “insinuat[ing] legal action would be taken
against Plaintiff.” Id. at ¶¶ 27-28.
Defendant has not taken any legal action against Plaintiff.
Id. at ¶¶ 29-30. Plaintiff repeatedly
requested that Defendant stop calling her, but Defendant
continued to call Plaintiff in an effort to collect the
alleged debt. Id. at ¶¶ 31-33. Eventually,
Plaintiff paid Defendant $50.00 towards the alleged debt, but
Defendant informed her that the payment would not be applied
toward the debt. Id. at ¶ 35.
filed the operative complaint against Defendant asserting the
following claims: Count I - violation of the of the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. §§
1692d, 1692d(5), 1692e(5), 1692e(10), 1692f(1), and 1692g(a);
Count II - violation of the Florida Consumer Collection
Practices Act (FCCPA), Florida Statutes § 559.72(7); and
Count III - violation of the Telephone Consumer Protection
Act, 47 U.S.C. § 227(b)(1)(A)(iii). Doc. 7 at 6-9 (the
filed a return of service, in which the process server
averred that he served Defendant by serving Defendant's
registered agent on October 12, 2017. Doc. 9. Defendant did
not timely respond to the Complaint. Thus, Plaintiff moved
for default against Defendant, Doc. 10, and, on November 8,
2017, the Clerk entered default against Defendant. Doc. 11.
now moves for entry of default judgment on Counts I and II of
the Complaint. Doc. 19 (the Motion). Plaintiff argues that the allegations
in the Complaint demonstrate that she is entitled to default
judgment against Defendant on Counts I and II of the
Complaint. Id. at ¶¶ 5-8. Plaintiff
requests the following relief: 1) $50.00 in actual damages
pursuant to 15 U.S.C. § 1692k and Florida Statutes
§ 559.77; 2) $1, 000.00 in statutory damages pursuant to
15 U.S.C. § 1692k(a)(2)(A); 3) $1, 000.00 in statutory
damages pursuant to Florida Statutes § 559.77; and 4) an
award of her reasonable attorney fees and costs pursuant to
15 U.S.C. § 1692k(a)(3) and Florida Statutes §
559.77. Id. at ¶¶ 9-12. Plaintiff filed a separate
motion quantifying her attorney fees and costs. Doc. 20 (the
Motion for Fees).
Standard of Review
Federal Rules of Civil Procedure establish a two-step process
for obtaining default judgment. First, when a party against
whom a judgment for affirmative relief is sought fails to
plead or otherwise defend as provided by the Federal Rules of
Civil Procedure, and that fact is made to appear by affidavit
or otherwise, the Clerk enters default. Fed.R.Civ.P. 55(a).
Second, after obtaining clerk's default, the plaintiff
must move for default judgment. Fed.R.Civ.P. 55(b). Before
entering default judgment, the court must ensure that it has
jurisdiction over the claims and parties, and that the
well-pled factual allegations of the complaint, which are
assumed to be true, adequately state a claim for which relief
may be granted. See Nishimatsu Constr. Co. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This standard does not
require detailed factual allegations, but does demand
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Thus, the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570). To
state a plausible claim for relief, a plaintiff must go
beyond merely pleading the “sheer possibility” of
unlawful activity by a defendant and offer “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). If a plaintiff fails to meet this pleading
standard, then the plaintiff will not be entitled to default
plaintiff is entitled to default judgment, then the court
must consider whether the plaintiff is entitled to the relief
requested in their motion for default judgment. If the
plaintiff seeks damages, the plaintiff bears the burden of
demonstrating entitlement to recover the amount of damages
sought in the motion for default judgment. Wallace v. The
Kiwi Grp., Inc., 247 F.R.D. 679, 681 (M.D. Fla. 2008).
Unlike well-pled allegations of fact, allegations relating to
the amount of damages are not admitted by virtue of default;
rather, the court must determine both the amount and
character of damages. Id. (citing Miller v.
Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346
(M.D. Fla. 1999)). Therefore, even in the default judgment
context, “[a] court has an obligation to assure that
there is a legitimate basis for any damage award it
enters[.]” Anheuser Busch, Inc. v. Philpot,
317 F.3d 1264, 1266 (11th Cir. 2003); see Adolph Coors
Co. v. Movement Against Racism and the Klan, 777 F.2d
1538, 1544 (11th Cir. 1985) (explaining that damages may be
awarded on default judgment only if the record adequately
reflects a basis for an award of damages). Ordinarily, unless
a plaintiff's claim against a defaulting defendant is for
a liquidated sum or one capable of mathematical calculation,
the law requires the district court to hold an evidentiary
hearing to fix the amount of damages. See Adolph
Coors, 777 F.2d at 1543-44. However, no hearing is
needed “when the district court already has a wealth of
evidence from the party requesting the hearing, such that any
additional evidence would be truly unnecessary to a fully
informed determination of damages.” See S.E.C. v.
Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005);
see also Wallace, 247 F.R.D. at 681 (“a
hearing is not necessary if sufficient evidence is submitted
to support the request for damages”).
Subject Matter Jurisdiction
asserts a federal claim and state law claim against
Defendant. Doc. 7 at 6-8. Thus, the Court has subject matter
jurisdiction over this case pursuant to 28 U.S.C. §
1331, and supplemental jurisdiction over Plaintiff's
state law claim pursuant to 28 U.S.C. § 1367(a).
alleged that the Court has personal jurisdiction over
Defendant, a limited liability company located in Nevada,
because Defendant “does or transacts business within
[Florida], and a material portion of the events at issue
occurred in [Florida].” Doc. 7 at ¶ 7.
Court engages in a two-part analysis to determine whether it
has personal jurisdiction over a nonresident defendant.
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d
623, 626 (11th Cir. 1996). First, the Court must determine
whether the Florida long-arm statute provides a basis for
personal jurisdiction. Id. If the state long-arm
statute provides a basis for personal jurisdiction, then the
Court must determine “whether sufficient minimum
contacts exist between the defendant[ ] and the forum state
so as to satisfy traditional notions of fair play and
substantial justice under the Due Process Clause of the
Fourteenth Amendment.” Id. (internal quotation
alleged that she is a resident of Florida and that Defendant
is a foreign limited liability company conducting business in
Florida. Doc. 7 at ¶¶ 7-8, 13-14. Plaintiff also
alleged that Defendant placed numerous improper calls to her
phones in an effort to collect a consumer debt in violation
of the FDCPA and FCCPA. Id. at ¶¶ 23, 25,
27, 31-33. These allegations are sufficient to establish that
the Court has specific jurisdiction over Defendant pursuant
to the conducting-business and tortious-act provisions of
Florida's long-arm statute. Fla. Stat. §
48.193(1)(a)(1)-(2). These allegations are also sufficient to
establish that Defendant has sufficient minimum contacts with
Florida. See Thomas v. Arm WNY, LLC, No.
3:14-cv-360-J-39MCR, 2014 WL 6871654, at *4 (M.D. Fla. Dec.
3, 2014) (finding that phone calls to Florida resident that
allegedly violated the FDCPA were enough to establish minimum
contacts with Florida) (citing Myrick v. Distribution
& Acquisition Network, No. 8:09-cv-1391-T-33TBM,
2010 WL 2179112, at *2 (M.D. Fla. Apr. 28, 2010), report
and recommendation adopted, 2010 WL 2179128 (M.D. Fla.
June 1, 2010). Further, the undersigned finds that
Florida's interest in resolving this dispute,
Plaintiff's interest in litigating this dispute in
Florida, and the Court's interest in resolving this case
in the state where the improper calls were received establish
that exercising jurisdiction over Defendant would not violate
notions of fair play and substantial justice. See
id. at *5 (finding that exercising
jurisdiction over nonresident debt collector who made calls
to Florida resident that violated the FDCPA would not violate
notions of fair play and substantial justice). Therefore, the
undersigned finds that the Court has personal jurisdiction
served Defendant's registered agent on October 12, 2017.
Doc. 9 at 2. This was proper service on a corporation under
Florida law. Fla. Stat. § 48.081(3)(a). Thus, Defendant
had 21 days from the date of service to respond to the
Complaint. Fed.R.Civ.P. 12(a)(1)(A)(i). Defendant did not
timely respond to the Complaint and, as a result, is in
default. Therefore, the undersigned finds that the Clerk
properly entered default against Defendant.
argues that the allegations in the Complaint establish that
Defendant violated several provisions of the FDCPA. Doc. 19
at ¶¶ 5-6. The FDCPA was enacted to
“eliminate abusive debt collection practices by debt
collectors[.]” 15 U.S.C. § 1692(e). A plaintiff
asserting a FDCPA claim must prove that: 1) he has been the
object of collection activity arising from a consumer debt;
2) the defendant is a debt collector as defined by the
statute; and 3) the defendant has engaged in an act or
omission prohibited by the FDCPA. Helman v. Bank of
America, 685 Fed.Appx. 723, 726 (11th Cir. 2017).
respect to the first element of a FDCPA claim, Plaintiff
alleged that the debt Defendant has attempted to collect
stems from a personal loan Plaintiff obtained from a
third-party lender, Mobiloans. Doc. 7 at ¶¶ 21-23.
These allegations sufficiently establish that Plaintiff is a
“consumer” as defined under the FDCPA, 15 U.S.C.
§ 1692a(3) (stating that a “consumer” is
“natural person obligated or allegedly obligated to pay
any debt”), and that Defendant's collection
activity relates to a consumer “debt” as defined
under the FDCPA, id. at § 1692a(5) (stating
that a “debt” is “any obligation or alleged
obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or
services which are the subject of the transaction are
primarily for personal, family, or household
purposes[.]”). Thus, accepting the foregoing
allegations as true, the undersigned finds that Plaintiff has
sufficiently established the first element of her FDCPA
respect to the second element of a FDCPA claim, Plaintiff
alleged that the principal purpose of Defendant's
business is to collect debts allegedly owed to third parties,
and that Defendant regularly attempts to collect debts owed
to third parties by contacting and communicating with debtors
through the mail and by telephone. Doc. 7 at ¶¶
17-19. These allegations sufficiently establish that
Defendant is a “debt collector” as defined under
the FDCPA. 15 U.S.C. § 1692a(6) (stating that a
“debt collector” is “any person who uses
any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.”). Thus, accepting
the foregoing allegations as true, the undersigned finds that
Plaintiff has sufficiently established the second element of
her FDCPA claim.
with respect to the third element of a FDCPA claim, Plaintiff
argues that Defendant violated §§ 1692d, 1692d(5),
1692e(5), 1692e(10), 1692f(1), and 1692g(a) of the FDCPA.
Doc. 19 at ¶ 6. The violation of any one of the
foregoing provisions is sufficient to satisfy the third
element of a FDCPA claim and, thus, sufficient to establish
Defendant's liability. Rivera v. Amalgamated Debt
Collection Servs., Inc., 462 F.Supp.2d 1223, 1227 (S.D.
Fla. 2006) (noting that “a single violation of the
[FDCPA] is sufficient to establish civil liability”).
15 U.S.C. § 1692d and § 1692d(5)
argues that Defendant violated § 1692d and §
1692d(5) of the FDCPA “when [it] continued to place
collection calls to Plaintiff after Plaintiff requested
Defendant [to] stop calling her[.]” Doc. 19 at
¶¶ 6a, 6b.
relevant portions of § 1692d state:
A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt. Without
limiting the general application of the foregoing, the
following conduct is a violation of this section:
. . .
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent
to annoy, abuse, or ...