Frazier v. Absolute Collection Serv. Inc. a North Carolina Corp..

Decision Date03 February 2011
Docket NumberCivil Action File No. 1:10–CV–2110–TWT.
Citation767 F.Supp.2d 1354
PartiesDeborah FRAZIER, Plaintiff,v.ABSOLUTE COLLECTION SERVICE, INC. a North Carolina corporation, Defendant.
CourtU.S. District Court — Northern District of Georgia

OPINION TEXT STARTS HERE

James Marvin Feagle, Kris Kelly Skaar, Skaar & Feagle, LLP, Decatur, GA, Justin Tharpe Holcombe, Skaar & Feagle, LLP, Marietta, GA, for Plaintiff.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is an action under the Fair Debt Collection Act. It is before Court on the Report and Recommendation [Doc. 10] of the Magistrate Judge recommending that the Plaintiff's Motion for Default Judgment [Doc. 7] be granted. I approve and adopt the Report and Recommendation as the judgment of the Court. The Plaintiff's Motion for Default Judgment [Doc. 7] is GRANTED in the amount of $1,000.00 in statutory damages, $1,430.00 in attorney fees and $385.00 in costs.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), N.D. Ga. R. 72.1(B), (D), and Standing Order 08–01 (N.D. Ga. June 12, 2008). Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties or, if a party is not represented, upon that party directly.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

Currently before the Court is Plaintiff's Motion for Entry of Default Judgment, [Doc. 7]. For the reasons set forth herein, the undersigned RECOMMENDS that Plaintiff's motion for default judgment be GRANTED.

I. Introduction

On July 7, 2010, Plaintiff filed a one-count civil action against Absolute Collection Service, Inc., (“Absolute” or Defendant), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). [Doc. 1]. Plaintiff served Defendant on August 2, 2010, which meant that Defendant had until August 23, 2010, to file an answer. [Doc. 3]. When Defendant failed to file its answer, Plaintiff, with the Court's prompting, sought and was granted an entry of default from the Clerk pursuant to Fed. R. Civ. P. 55(a). [ See Docs. 5–6, 9; Dkt. Entry dated 12/1/2010]. Plaintiff now seeks a default judgment against Defendant. [Doc. 7].1

After reviewing the materials submitted with the motion for default judgment, the undersigned concludes that Plaintiff is entitled to $1,000 in statutory damages, $1,430 in attorneys' fees, and $385 in costs because of Defendant's violations of the FDCPA. The undersigned explains these conclusions in detail below.

II. Findings of FactA. Facts Relating to the FDCPA Claims and Damages 2

1. Defendant uses the mail and telephones in its business, the principal purpose of which is debt collection. (Complaint ¶¶ 10–12 in Doc. 1).

2. To perform its business, Defendant regularly collects or attempts to collect debts owed to others. ( Id. ¶ 13).

3. Plaintiff incurred a debt following an emergency room visit to the Gwinnett Hospital. (Frazier Decl. ¶ 7 in Doc. 7–3).

4. This visit was for Plaintiff's own personal or household purposes. (Frazier Decl. ¶ 8).

5. Beginning around June 2010, Absolute attempted to collect this Gwinnett Hospital debt from by leaving a “handful” of identical recorded messages on Plaintiff's home phone. (Complaint ¶ 16; Frazier Dec. ¶¶ 6, 10).

6. Absolute did not identify itself in these messages, did not state that the calls were from a debt collector, and did not state that the communications were an attempt to collect a debt. (Complaint ¶¶ 17–19).

7. Plaintiff recorded one message from Absolute, which she received in late May or early June of 2010. This message stated:

Hello, this is an important courtesy call for Deborah Frazier. Please return this call to a customer service representative. Our phone number is 800 752 4172. Our hours of operation are Monday through Thursday 8:30 am to 9:00 pm, Friday from 8:30 am to 5:00 pm, and Saturday from 8:00 am to 1:00 pm. All times are for the eastern time zone. Thank you.

(Frazier Decl. ¶ 14).

B. Facts Relating to Costs and Attorneys' Fees 3

1. James M. Feagle, who has been practicing law for 19 years, seeks attorney's fees in this case. ( See Feagle Aff. ¶ 7 in Doc. 7–4).

2. Feagle billed 4.4 hours in this case. (Time Ticket Diary Report in Doc. 7–5; Feagle Aff. ¶ 27).

3. These 4.4 hours were spent as follows: (1) .6 hours meeting with client; (2) .6 hours finalizing the complaint; (3) .2 hours ensuring that service of process was made; (4) .3 hours discussing a settlement demand with Absolute's attorney; (5) .2 hours reviewing two court orders; (6) .6 hours rectifying a missed court deadline; (7) .5 hours meeting with client concerning her declaration for the default judgment motion; and (8) 1.4 hours drafting and finalizing the default judgment motion. (Time Ticket Diary Report in Doc. 7–5).

4. Feagle seeks an hourly rate of $325 per hour, which is his usual hourly rate and which he has been awarded in other recent federal cases. (Feagle Aff. ¶¶ 28–29).

5. Plaintiff incurred a filing fee cost of $350 and expended $35 to pay for the Wake County, N.C. sheriff's office to serve process on Defendant. (Feagle Aff. ¶ 32).

III. Conclusions of LawA. Default Judgment Standard

Although the Clerk entered default against Defendant, this does not mean that a default judgment is automatically warranted for Plaintiff. Nishimatsu Const. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) ([A] default does not in itself warrant the court in entering a default judgment.”); DIRECTV, Inc. v. Huynh, 318 F.Supp.2d 1122, 1127 (M.D.Ala.2004). This is so because [t]he defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law” when a plaintiff seeks a default judgment. Nishimatsu Const., 515 F.2d at 1206. Instead, [t]here must be a sufficient basis in the pleadings for the judgment entered.” Id. at 1206. Besides the pleadings, a court may also consider evidence presented in the form of an affidavit or declaration. See Antoine, 66 F.3d at 111 (“Use of affidavits in granting default judgments does not violate ... due process[.]); Super Stop No. 701, Inc., 2009 WL 5068532 at *2 n. 4. The undersigned therefore reviews Plaintiff's declaration testimony, the well-pleaded allegations in her complaint and the reasonable inferences from these allegations to determine whether Plaintiff has stated claims for relief. See DIRECTV, Inc., 318 F.Supp.2d at 1127; see also United States v. Kahn, 164 Fed.Appx. 855, 858 (11th Cir. Jan.17, 2006) ([A] default judgment may not stand on a complaint that fails to state a claim.”). In other words, [e]ven after default, ... it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” 10A Wright, Miller & Kane, Fed. Pract. & Proc. § 2688 (3d ed.). The undersigned first turns to whether Plaintiff has presented sufficient evidence and allegations to establish liability for her FDCPA claims before examining damages, attorney's fees, and costs.

B. FDCPA Liability

The FDCPA seeks to remedy abusive, deceptive, and unfair debt collection practices by debt collectors against consumers. See 15 U.S.C. § 1692(e); LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010). To prevail on an FDCPA claim, a plaintiff must establish that:

(1) [she] [has] been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a “debt collector” under the Act; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.

Buckley v. Bayrock Mortg. Corp., Civ. No. 1:09–cv–1387–TWT, 2010 WL 476673, *6 (N.D.Ga. Feb. 5, 2010) (Thrash, J., adopting Vineyard, M.J.) (quoting Beadle v. Haughey, No. Civ. 04–272–SM, 2005 WL 300060, *3 (D.N.H. Feb. 9, 2005), and Russey v. Rankin, 911 F.Supp. 1449, 1453 (D.N.M.1995) (alteration in original)); see also McCorriston v. L.W.T., Inc., 536 F.Supp.2d 1268, 1273 (M.D.Fla.2008). Each element of the FDCPA claim is discussed separately.

1. Collection Activity Arising from a Consumer Debt

This element of an FDCPA claim has two requirements. First, there must be collection activity. Second, this activity must relate to a consumer debt. See Buckley, 2010 WL 476673 at *6. Each requirement is discussed below, starting with collection activity.

The “FDCPA does not expressly define ‘collection activity.’ LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193 n. 15 (11th Cir.2010). “While the statute contains no clear definition of what constitutes a ‘debt collection activity,’ courts, in attempting to effect the purpose of the FDCPA, are lenient with its application.” Sanz v. Fernandez, 633 F.Supp.2d 1356, 1359 (S.D.Fla.2009) (citing Heintz v. Jenkins, 514 U.S. 291, 293–96, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995) (quoting Black's Law...

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