Donahue v. NFS, INC., CIV-90-1185S

• Decision Date: 30 December 1991
• Docket Number: No. CIV-90-1185S,CIV-91-51S.,CIV-90-1185S
• Parties: Darlene M. DONAHUE, Plaintiff, v. NFS, INC. d/b/a National Financial Services, Defendant. Darlene M. DONAHUE, Plaintiff, v. N. Frank LANOCHA, Esquire, Defendant.
• Court: U.S. District Court — Western District of New York

781 F. Supp. 188

Darlene M. DONAHUE, Plaintiff, v. NFS, INC. d/b/a National Financial Services, Defendant.

Darlene M. DONAHUE, Plaintiff, v. N. Frank LANOCHA, Esquire, Defendant.

Nos. CIV-90-1185S, CIV-91-51S.

United States District Court, W.D. New York.

December 30, 1991.

Ruth R. Wiseman, UAW-GM Legal Services Plan, Lockport, N.Y., for plaintiff.

No appearance for defendants.

DECISION/ORDER

SKRETNY, District Judge.

INTRODUCTION

Now before this Court are the motions of the plaintiff Darlene Donahue ("plaintiff") for a default judgment, pursuant to Fed. R.Civ.P. 55(b) in each of the above-captioned cases. The defendants in each case, NFS Inc. d/b/a/National Financial Services ("NFS") (CIV-90-1185S) and N. Frank Lanocha, Esq. ("Lanocha") (CIV-91-51S) (collectively the "defendants") having failed to file an Answer or otherwise move for dismissal of the Complaint, failed to appear in these actions and, similarly, do not respond to the plaintiff's motions.

Because both lawsuits involve the same plaintiff, similar claims and, more importantly, conduct by both defendants which plaintiff alleges caused her physical and emotional damages, this Court, sua sponte, will address both cases in this single Decision/Order.

In each case, the plaintiff alleges that the defendants violated various provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. According to the Complaints, the alleged violations stem from three debt collection notices ("the Notices") mailed by the defendants — one by NFS and two by Lanocha — to the plaintiff which demand payment of a single debt of $18.94 allegedly owed by the plaintiff to American Family Publisher. (CIV-90-1185S, Plaintiff's Affidavit, exh. A).

In her Complaints and via her motions, the plaintiff seeks actual and additional damages and attorneys' fees and costs, all pursuant to the FDCPA. This Court has jurisdiction of these lawsuits pursuant to 15 U.S.C. § 1692k(d).

In support of her motion in CIV-90-1185S, the plaintiff has filed her affidavit, a legal memorandum, and the affidavits of plaintiff's counsel Ruth Wiseman, Esq. In support of her motion in CIV-91-51S, the plaintiff has filed an affidavit of plaintiff's counsel, also Ruth Wiseman, Esq. Additionally, on October 17, 1991, this Court held a hearing with respect to the issue of plaintiff's actual damages stemming from her receipt of the Notices.

Conclusion: For the reasons set forth below, this Court grants the plaintiff's motions for default judgment in CIV-90-1185S and CIV-91-51S and awards actual and additional damages, attorneys' fees and costs in each case, as provided below.

DISCUSSION

I. Procedural History

A. CIV-90-1185S

On November 16, 1990, the plaintiff filed her Complaint. On January 2, 1991, the plaintiff served the Summons and Complaint on NFS. (CIV-90-1185S, Wiseman Affidavit, March 15, 1991, exh. A).

On March 18, 1991, the plaintiff, having received no response from NFS, filed a motion for an entry of default with the Clerk of the Court. On March 20, 1991, the Clerk of the Court filed an Entry of Default in the case. Subsequently, on June 26, 1991, the plaintiff filed the present motion seeking a Default Judgment for actual and additional damages, attorneys' fees and costs.

Although the plaintiff submitted an affidavit with respect to her claim to actual damages, finding the affidavit inconclusive on the plaintiff's entitlement to actual damages, this Court further held a hearing on October 17, 1991, at which the plaintiff, and no other witnesses, testified.

B. CIV-91-51S

On January 28, 1991, the plaintiff filed her Complaint. On March 13, 1991, the plaintiff served the Summons and Complaint on Lanocha. (CIV-91-51S, Wiseman Affidavit, April 9, 1991, exh. A).

On April 10, 1991, the plaintiff, having received no response from Lanocha, filed a motion for an entry of default with the Clerk of the Court. On April 16, 1991, the clerk of the Court filed an Entry of Default in the case. Subsequently, on August 16, 1991, the plaintiff filed the present motion seeking a Default Judgment for actual and additional damages, attorneys' fees and costs.

The Hon. Richard J. Arcara originally presided over CIV-91-51S. Due to the similarities between CIV-91-51S and CIV-90-1185S, on December 10, 1991, Judge Arcara transferred CIV-91-51S to this Court.

Recognizing that CIV-91-51S remains not only factually similar to CIV-90-1185S, but that plaintiff's claim to actual damages stems from the conduct of NFS and Lanocha, this Court inquired of plaintiff, through her counsel Wiseman, whether the hearing testimony already received in CIV-90-1185S could also be applied to CIV-91-51S. After consulting with counsel, plaintiff agreed to apply her hearing testimony to both lawsuits.

II. Plaintiff's Entitlement To "Additional" Damages

A. CIV-90-1185S

In CIV-90-1185S the plaintiff alleges five separate violations by NFS of four provisions of the FDCPA, all stemming from a single notice sent to the plaintiff.¹ (CIV-90-1185S, Motion For Default Judgment, exh B). Specifically, the plaintiff alleges that NFS violated: 1) 15 U.S.C. § 1692g (insufficient debt validation notification due to size and color of type and a misleading response date)²; 2) 15 U.S.C. § 1692e(11) (insufficient debt collection disclosure due to size of type); 3) 15 U.S.C. § 1692e(5) (threat to take legal action not actually intended to be taken); and 4) 15 U.S.C. § 1692e(3) (false implication that plaintiff would need to retain an attorney).

The plaintiff seeks additional damages of $5,000.00, or $1,000.00 per each alleged violation.

Section 1692k(a)(2)(A) ("§ 1692k") provides for the award of actual and "additional" damages as follows:

(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of — (1) any actual damage sustained by such person as a result of such failure; (2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000....

In seeking $5,000.00 damages predicated on five alleged FDCPA violations, the plaintiff argues that § 1692k authorizes up to $1,000.00 per FDCPA violation in a single suit, that is, according to plaintiff, a FDCPA plaintiff could recover more than $1,000.00 additional damages in a single lawsuit where there are multiple FDCPA violations.

Although some unreported cases support the plaintiff's interpretation of § 1692k, relying on the plain language of § 1692k, recently several federal courts, in reported decisions, have held that § 1692k only authorizes a maximum award of $1,000.00 additional damages per lawsuit, irrespective of the number of violations. See, Harper v. Better Business Services, Inc., 768 F.Supp. 817 (N.D.Ga.1991) (statutory language supports conclusion that statute authorizes a maximum $1,000 additional damage award per lawsuit); Beattie v. D.M. Collections, Inc., 764 F.Supp. 925 (D.Del. 1991) (statutory language read together with other provisions of § 1692k support conclusion that statute authorizes a maximum $1,000 additional damage award per lawsuit); Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Or.1981) (same). The Second Circuit has not addressed this issue.

Viewing the plain statutory language, this Court agrees with the latter view and holds that, in this case, the plaintiff may recover a maximum of $1,000.00 additional damages despite the fact that the plaintiff alleges that NFS has committed five FDCPA violations. In so holding, this Court expressly disagrees with other unpublished opinions, cited by the plaintiff in this case, concluding that § 1692k authorizes additional damages on a per violation basis. Those opinions do not reconcile their holdings with the plain language of the statute. See Beattie, supra, 764 F.Supp. at 927 (also disagreeing with Florence v. National Systems, Civ. 82-2020A (N.D.Ga.1983) and Kaschak v. Raritan Valley Collection Agency, Civ. 88-3763, 1989 WL 255498 (D.N.J.1989), cited by plaintiff in this case).

Section 1692k(b)(1) mandates that this Court consider specific factors, among others, when determining whether to award the plaintiff additional damages. These factors are:

the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional....

The plaintiff argues that NFS' violations "... are apparently intentional" because NFS "... knew of the requirement to include the debt validation notice ... and the debt disclosure ... and they were included, but in a meaningless manner." (CIV-90-1185S, Motion For Default Judgment, ¶ 24). Plaintiff also argues that the fact that NFS printed part of the notice with a "... minute type size and in a lighter type than the rest of the notice" indicates NFS' willful and intentional noncompliance. The plaintiff also cites the fact that NFS utilized larger and capitalized type to enhance threatening language. (CIV-90-1185S, Plaintiff's Legal Memorandum, p. 12).

First, as to the frequency and persistence of NFS' noncompliance, this Court emphasizes that the record indicates that NFS sent one collection notice to the plaintiff. Second, as to the issue of NFS' intentional noncompliance, although the plaintiff argues that NFS' violations were intentional, there is insufficient evidence before this Court which could lead this Court to conclude that NFS' violations were intentional or, moreover, designed to deceive the plaintiff. It is arguable, as the plaintiff contends, that the fact that NFS utilized different size and color type on the Notice indicates an intent not to comply with the FDCPA. However, this Court finds it equally plausible that there was no intentional noncompliance — even the smallest and lightest type is clearly legible according to several copies of the Notice...