Anderson v. Blueshore Recovery Sys., LLC
| Decision Date | 25 February 2016 |
| Docket Number | Case No. 3:15-cv-338-J-34JRK |
| Parties | AL'TONYA ANDERSON, Plaintiff, v. BLUESHORE RECOVERY SYSTEMS, LLC, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Plaintiff's Motion for Default Judgment Against Defendant Blueshore Recovery Systems, LLC (Doc. No. 8; "Motion"), filed November 3, 2015. Attached to the Motion is a Declaration of one of Plaintiff's attorneys, Alex D. Weisberg. See Declaration of Alex D. Weisberg in Support of Plaintiff's Motion for Default Judgment Against Defendant Blueshore Recovery Systems, LLC (Doc. No. 8-1; "WeisbergDeclaration").3 In the Motion, Plaintiff seeks entry of default judgment against Defendant because Defendant has failed to timely respond to the Complaint and Demand for Jury Trial (Doc. No. 1; "Complaint") or otherwise appear in this case. See Motion at 1. The Motion was referred to the undersigned upon filing.
On November 4, 2015, the Court entered an Order (Doc. No. 9) taking the Motion under advisement and directing Defendant to file with the Court and serve on Plaintiff a response to the Motion no later than November 23, 2015. The undersigned then entered an Order (Doc. No. 10) on January 29, 2016, directing Plaintiff to file a supplement with more detailed support for the requests for attorneys' fees and court costs. On February 8, 2016, Plaintiff filed Supplemental Declaration of Alex D. Weisberg in Support of Plaintiff's Motion for Default Judgment ), attached to which is a law firm document listing the time spent on each task in this case, the date of the task, and the attorney or paralegal who completed the task (Doc. No. 11-1; "Time Sheet").4
Defendant has filed nothing to date. Accordingly, the Motion is deemed unopposed. For the reasons discussed below, the undersigned recommends that the Motion be granted in part and denied in part.
Plaintiff initiated this action by filing a Complaint on March 19, 2015, claimingviolations of the Fair Debt Collections Practices Act ("FDCPA") and the Telephone Consumer Protection Act ("TCPA"). The Complaint includes the following allegations. Plaintiff allegedly owes to "a creditor other than Defendant" a debt that "arises from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes." Compl. at 2 ¶¶ 8-9. Defendant is a debt collector who communicates through instrumentalities of interstate commerce for that purpose. See id. at 2-3 ¶¶ 10, 15. On November 10, 2014, November 19, 2014, and December 9, 2014, "[i]n connection with the collection of the [d]ebt," Defendant called Plaintiff's cellular phone and each time left "a voicemail message with an artificial or prerecorded voice." Id. at 2 ¶¶ 11-12. The November 10 message did not disclose that Defendant "was attempting to collect a debt and that any information obtained would be used for that purpose," and the messages on November 19 and December 9 did not "disclose that the communications were from a debt collector." Id. at 3 ¶¶ 15, 17.
The Complaint contains four counts. The first three counts are FDCPA claims, and the fourth is a TCPA claim. Count I states that "Defendant violated 15 U.S.C. § 1692(d) by placing telephone calls without meaningfully disclosing the caller's identity." Id. at 4 ¶ 27. Count II states that "Defendant violated 15 U.S.C. § 1692e(11) by failing to disclose in its initial communication with Plaintiff that the communication was an attempt to collect a debt and any information obtained would be used for that purpose." Id. at 5 ¶ 29. Count III states that "Defendant violated 15 U.S.C. § 1692g(a) by failing to provide Plaintiff with the notices required by 15 U.S.C. § 1692g et seq., either in the initial communication with Plaintiff, or in writing within 5 days thereof." Id. at 5 ¶ 31. Count IV states that "Defendant violated 47U.S.C. § 227(b)(1)(A)(iii) by willfully and knowingly placing telephone calls to Plaintiff's cellular telephone number using an automatic telephone dialing system and/or an artificial or pre-recorded voice." Id. at 6 ¶ 33. As relief for her claims, Plaintiff seeks statutory damages, as well as attorneys' fees and costs. Id. at 4-6; Motion at 2.
Plaintiff filed a Return of Service (Doc. No. 5) on June 1, 2015, reflecting that Defendant was served with process. Due to Defendant's failure to timely respond to the Complaint or otherwise appear, Plaintiff moved for entry of default on August 4, 2015, see Plaintiff's Motion for Entry of Clerk's Default Against Defendant Blueshore Recovery Systems, LLC (Doc. No. 6), and the Clerk of Court entered a default against Defendant on August 5, 2015, see Entry of Default (Doc. No. 7). As noted, Defendant has not appeared in this matter.
Rule 55, Federal Rules of Civil Procedure ("Rule(s)"), provides the requirements for entry of a default judgment. See Fed. R. Civ. P. 55(b)(2). A default judgment may be entered "against a defendant who never appears or answers a complaint, for in such circumstances, the case never has been placed at issue." Solaroll Shade & Shutter Corp. v. Bio-Energy Sys., 803 F.2d 1130, 1134 (11th Cir. 1986). All well-pleaded allegations of fact are deemed admitted upon entry of default; however, before entering a default judgment, a court must confirm that it has jurisdiction over the claims and that the complaint adequately states a claim for which relief may be granted. See Nishimatsu Const. Co. v. Houston Nat.Bank, 515 F.2d 1200, 1206 (5th Cir. 1975);5 see also GMAC Commercial Mortg. Corp. v. Maitland Hotel Assocs., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002) () (citations omitted).
This case is properly within the subject matter jurisdiction of this Court. See 28 U.S.C. § 1331 (federal question); 15 U.S.C. § 1692k(d) (); Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 753 (2012) (). The Court must now ensure that Plaintiff has properly stated valid causes of action.
One of "the purpose[s] of [the FDCPA is] to eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692. "[T]o prevail on an FDCPA claim, a plaintiff must prove that: 1) the plaintiff has been the object of collection activity arising from consumer debt, 2) the defendant is a debt collector as defined by the FDCPA, and 3) the defendant has engaged in an act or omission prohibited by the FDCPA." Salazar v. MFP, Inc., 847 F. Supp.2d 1329, 1331 (M.D. Fla. 2012) (internal quotation and citation omitted); see also Erickson v. Gen. Elec. Co., 854 F. Supp. 2d 1178, 1182 (M.D. Fla. 2012). The FDCPA defines a "debt" as "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, whether or not such obligation has been reduced to judgment." § 1692a(5). A consumer is defined as "any natural person obligated or allegedly obligated to pay any debt." § 1692a(3). A plaintiff need only show "a single violation of the statute . . . to establish civil liability." Graveling v. BankUnited, N.A., 970 F. Supp. 2d 1243, 1255 (N.D. Ala. 2013) (citation omitted).
Plaintiff's well-pleaded allegations in the Complaint establish that Plaintiff is a consumer who allegedly owes a debt, that Defendant is a debt collector, and that Defendant has contacted Plaintiff in attempts to collect the debt. See Compl. at 2 ¶¶ 8-11. As to whether Defendant acted in a manner prohibited by the FDCPA, Plaintiff asserts three separate claims, each addressed in turn below.
Count I claims that "Defendant violated 15 U.S.C. § 1692d(6) by placing telephone calls without meaningfully disclosing the caller's identity," id. at 4 ¶ 27, which is expressly listed in the cited statute subsection as a type of prohibited conduct.6 "Courts have defined "'meaningful disclosure' [in § 1692d(6)] to include disclosure of the caller's name, the debt collection company's name, and the nature of the debt collector's business." Dokumaci v. MAF Collection Servs., No. 8:09-cv-2488-T-24 TG, 2011 WL 833988, at *3 (M.D. Fla. Mar.4, 2011) (unpublished) (quoting Sclafani v. BC Servs., Inc., 2010 WL 4116471, at *2 (S.D. Fla. Oct.18, 2010)). Allegations in the Complaint state that in its phone communications with Plaintiff, Defendant did not "disclose [its] corporate identity," id. at 2 ¶ 13, or "disclose that the communications were from a debt collector," id. at 3 ¶ 17. These allegations establish that Defendant violated § 1692d(6).
Count II claims that "Defendant violated 15 U.S.C. § 1692e(11) by failing to disclose in its initial communication with Plaintiff that the communication was an attempt to collect a debt and any information obtained would be used for that purpose," Compl. at 5 ¶ 29, which is expressly listed in the cited statute subsection as a type of prohibited conduct.7 Elsewhere in the Complaint, Plaintiff alleges that Defendant failed to disclose this information in the voicemail message to Plaintiff on November 10, 2014. See id. at 3 ¶ 15. The Complaint, therefore, sufficiently establishes a violation of § 1692e(11).
Count III states that "Defendant violated 15 U.S.C. § 1692g(a) by failing to provide Plaintiff with...
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