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Alston v. Summit Receivables

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

June 27, 2018

ERNESTINE ALSTON, Plaintiff,
v.
SUMMIT RECEIVABLES, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK, UNITES STATES MAGISTRATE JUDGE

         This cause comes before the Court for consideration without oral argument on the following motions:

         MOTION: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc. 19)

         FILED: February 19, 2018

         THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.

         MOTION: MOTION FOR COSTS OF THE ACTION AND ATTORNEY'S FEES (Doc. 20)

         FILED: February 19, 2018

         THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.

         I. Background

         This 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.

         Plaintiff 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 Complaint).

         Plaintiff 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.

         Plaintiff now moves for entry of default judgment on Counts I and II of the Complaint. Doc. 19 (the Motion).[1] 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.[2] Plaintiff filed a separate motion quantifying her attorney fees and costs. Doc. 20 (the Motion for Fees).

         II. Standard of Review

         The 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. 1975).[3]

         A 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, the-defendant-unlawfully-harmed-me accusation.” 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 judgment.

         If the 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”).

         III. Analysis

         A. Subject Matter Jurisdiction

         Plaintiff 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).

         B. Personal Jurisdiction

         Plaintiff 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.

         The 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 omitted).

         Plaintiff 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 over Defendant.

         C. Default

         Plaintiff 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.

         D. FDCPA

         Plaintiff 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).

         With 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 claim.

         With 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.

         Finally, 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”).

         1. 15 U.S.C. § 1692d and § 1692d(5)

         Plaintiff 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.

         The 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 ...

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