Carlisle v. Nat'l Commercial Servs., Inc.
| Decision Date | 22 February 2017 |
| Docket Number | CIVIL ACTION NO. 1:14-CV-515-TWT-LTW |
| Parties | ROLAND CARLISLE, Plaintiff, v. NATIONAL COMMERCIAL SERVICES, INC., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
This action is presently before the Court on Plaintiff Roland Carlisle's Motion for Default Judgment Against Defendant National Commercial Services, Inc. (Doc. 83), Defendant's Motion to Strike Plaintiff's Memorandum of Law in Support of Motion for Default Judgment (Doc. 86), and Plaintiff's Motion to Permit Filing of Brief in Excess of Twenty-Five Pages and to Permit Supplementary Filing of Declarations (Doc. 88). For the reasons set forth below, Defendant's Motion to Strike is DENIED (Doc. 86) and Plaintiff's Motion to Permit Filing of Brief in Excess of Twenty-Five Pages and to Permit Supplementary Filing of Declarations is GRANTED (Doc. 88). This Court RECOMMENDS that Plaintiff's Motion for Default Judgment should be GRANTED IN PART. (Doc. 83).
In Defendant National Commercial Services, Inc.'s ("Defendant" or "NCS") Motion to Strike Plaintiff's Memorandum of Law in Support of Motion for Default Judgment (Doc. 86), NCS contends that Plaintiff's Memorandum should be stricken because it exceeds the page limitation set forth in the local rules. In response, Plaintiff filed his Motion to Permit Filing of Brief in Excess of Twenty-Five Pages and to Permit Supplementary Filing of Declarations and Response to Defendant's Motion to Strike. (Doc. 88). Plaintiff contends therein that the Court should grant him leave to file his brief in excess of twenty-five pages because the excess pages are needed to address his various claims as well as the lengthy history leading to NCS's violations of multiple statutes and his injuries. Local Rule 7.1D requires that absent prior permission of the Court, briefs filed in support of a motion are limited in length to twenty-five pages. LR 7.1D, NDGa. It is in this Court's discretion to permit a party to exceed the page limitation. Id. The Court finds that it is appropriate to exercise discretion here because while Plaintiff's brief is lengthy, it is lengthy because Plaintiff included more in-depth facts and more nuanced law. In this case, Plaintiff's over-inclusiveness will not cause any additional strain on Court resources. Additionally, it does not appear to have caused any strain on NCS, as NCS was able to confine its response brief to fifteen pages. Accordingly, NCS's Motion to Strike Plaintiff's Brief is DENIED. (Doc. Doc. 86). Plaintiff's Motion to Permit Filing of Brief in Excess of Twenty-Five Pages is
GRANTED. (Doc. 88).
NCS further contends that the Declarations Plaintiff offers in support of his Motion should also be stricken because the Declarations, which contain electronic signatures, do not comply with the local rules' requirement that the filing party shall scan the original document and then electronically file it. In response, however, Plaintiff has electronically filed scans of the signed Declarations. (Doc. 88, at 11-45). Thus, NCS's Motion to Strike the Declarations is DENIED (Doc. 86, at 3) and Plaintiff's Motion to Permit Supplementary Filing of Declarations is GRANTED (Doc. 88).
On February 21, 2014, Plaintiff filed his Complaint in this Court, and subsequently amended his Complaint on May 16, 2014. (Docket Entries 1, 6). In Plaintiff's Amended Complaint, Plaintiff contends that NCS violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), the Fair Credit Reporting Act 15 U.S.C. § 1681 et seq. ("FCRA"), and the Georgia Fair Business Practices Act, O.C.G.A. §§ 10-1-390 et seq. ("GFBPA"). Plaintiff avers that NCS is a California corporation whose principle business is the collection of debts from consumers and as such, NCS regularly furnishes information to one or more consumer reporting agencies including Defendants Experian Information Solutions, Inc. ("Experian"), Trans Union, LLC ("Trans Union"), and Equifax Information Services, LLC. ("Equifax"). (Am.Compl. ¶ 5).
The origin of the conflict between Plaintiff and Defendants is a dispute Plaintiff had with Thrifty Car Rental ("Thrifty"). Plaintiff states that on July 15, 2012, he rented a car from Thrifty and paid a deposit of $350.00. (Am. Compl. ¶ 9). Law enforcement officers stopped Plaintiff while he was driving the vehicle, and impounded it. (Am. Compl. ¶ 10). On July 20, 2012, Thrifty provided Plaintiff with a rental summary indicating that the $350.00 rental deposit had been applied and a zero balance remained. (Am. Compl. ¶¶ 11-12). Thrifty subsequently billed Plaintiff for $1,017.41 on August 8, 2012, $882.50 on August 10, 2012, and $1,782.61 on August 15, 2012. (Am. Compl. ¶¶ 9-14).
On September 25, 2012, Plaintiff received a collection letter from JNR Adjustment, Inc. indicating that he owed $882.50 to DTAG Rental. (Am. Compl. ¶ 17). Plaintiff disputed the debt. (Am. Compl. ¶ 17). In November 2012, Thrifty referred Plaintiff's debt to NCS for collection. (Am. Compl. ¶ 19). On February 22, 2013, NCS left Plaintiff a voicemail, and Plaintiff telephoned NCS, spoke with an NCS representative, and disputed the debt. (Am. Compl. ¶¶ 19-20). In March 2013, Plaintiff again called NCS and again informed a NCS representative that he disputed the debt. (Am. Compl. ¶¶ 19-20). The NCS representative advised Plaintiff that there was no information in the file concerning the debt, but that NCS would obtain the information from Thrifty and return his call. (Am. Compl. ¶ 22). Plaintiff states that NCS nevertheless reported to Experian that he owed $1,892.00 and that the payment statuswas seriously past due; reported to Equifax that he owed $1,892.00 and that the status was unpaid; and reported to Trans Union that he owed $1,892.00, but that the payment status was "charged off to bad debt." (Am. Compl. ¶¶ 24-26). NCS did not report to any of the consumer reporting agencies that Plaintiff had disputed the debt. (Am. Compl. ¶¶ 24-26). When Plaintiff contacted Equifax to dispute the accuracy of NCS's information and requested that Equifax investigate, Equifax ultimately reported to Plaintiff that NCS had verified to Equifax that the balance owed was being reported correctly. (Am. Compl. ¶ 29). When Plaintiff challenged the accuracy of NCS's reporting with Experian, Experian acknowledged his dispute letter, but did not ever advise him as to the results of the investigation of the accuracy of NCS's report. (Am. Compl. ¶ 34). When Plaintiff notified Trans Union that he disputed the debt, Trans Union reported the substance of the dispute to NCS and requested that NCS investigate the matter. (Am. Compl. ¶ 35). Trans Union ultimately advised Plaintiff that the investigation results were complete and the results were "VERIFIED, NO CHANGE." (Am. Compl. ¶ 37). Trans Union also enclosed a copy of the NCS tradeline listing the balance owed Thrifty as $2,071 and that the debt was not disputed. (Am. Compl. ¶ 38).
Plaintiff contends that NCS violated (1) Section 1692g(a) of the FDCPA when NCS failed to provide proper written notice within five days of the initial communication; (2) Section 1692e(2)(A) when NCS falsely represented the amount and legal character of the debt; and (3) Section 1692e(8) when NCS failed to report to Trans Union, Equifax, and Experian that Plaintiff disputed the debt. (Am. Compl. ¶ 45).Plaintiff also contends that NCS violated the FCRA when NCS failed to properly investigate his dispute of the debt, failed to accurately respond to verification requests by Equifax and Trans Union, failed to accurately report results of an accurate investigation to other reporting agencies, and failed to correct its own internal records to prevent the re-reporting of incorrect information to consumer reporting agencies. (Am. Compl. ¶ 78). Finally, Plaintiff contends that NCS's violations of the FDCPA and the FCRA were also violations of the GFBPA. (Am. Compl. ¶ 83).
The entry of a default judgment is appropriate when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend and that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P. 55(b); Dawkins v. Glover, 308 F. App'x 394, 395 (11th Cir. 2009). A party's failure to appear and the Clerk's subsequent entry of default does not in itself warrant the court's entry of a default judgment. Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975); GMAC Commercial Mortg. Corp. v. Maitland Hotel Assocs., Ltd., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002). Before entering a default judgment for damages, the district court must ensure that the well-pleaded allegations in the complaint, which are taken as true due to the default, actually state a substantive cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought. Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11thCir. 2005) ( that the defendant, even though in default, is still entitled to contest the sufficiency of the complaint and its allegations to support the judgment being sought). A defaulted defendant is deemed to admit "the plaintiff's well-pleaded allegations of fact," but should not admit facts that are not well-pleaded or conclusions of law. Nishimatsu Constr. Co., 515 F.2d at 1206; see also Johnson v. Rammage, No. 5:06-CV-057 (CAR), 2007 WL 2276847, at *1 (M.D. Ga. Aug. 7, 2007) ()....
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