Georgopulous v. PPM Capital, Inc.
| Decision Date | 21 October 2019 |
| Docket Number | Civil Action No. 19-cv-00347-DDD-STV |
| Parties | PAUL M. GEORGOPULOUS, Plaintiff, v. PPM CAPITAL, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff Paul M. Georgopulos' Motion for Default Judgment Against PPM Capital, Inc. on a Sum Certain (the "Motion") [#36], which has been referred to this Court [#37]. The Court has considered the Motion and the related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, this Court respectfully RECOMMENDS that Plaintiff's Motion be GRANTED IN PART and DENIED IN PART.
In 2016, Plaintiff obtained an Ace Cash loan for $200 (the "subject debt"). [#1 at ¶ 6] Plaintiff was unable to keep up with the payments on the subject debt, causing Plaintiff to default. [Id.] In December 2018, Defendant acquired the right to collect on the subjectdebt while it was in default, and began placing calls to Plaintiff's cell phone, his fiancé's cell phone, and his fiancé's daughter's cell phone. [Id. at ¶¶ 7-8] Plaintiff's fiancé answered a call from Defendant, during which Defendant stated that it was looking for Plaintiff, and that Plaintiff owed the subject debt. [Id. at ¶ 10] A representative for Defendant also left voicemail messages on Plaintiff's cell phone and Plaintiff's fiancé's daughter's cell phone, stating that Defendant would be sending a uniformed officer to Plaintiff's home or place of work, in order to serve him with paperwork for a lawsuit filed against him in connection with the subject debt. [Id. at ¶¶ 11-12] Defendant then began placing harassing and high-volume calls to Plaintiff's cell phone. [Id. at ¶ 13]
After the harassing calls began, Plaintiff contacted Defendant. [Id. at ¶ 14] In that call, Defendant's representative demanded that Plaintiff satisfy the subject debt, or he would face criminal charges for defrauding a financial institution. [Id.] Defendant also instructed Plaintiff to purchase a pre-paid card and deposit $100 onto the card every other week, to satisfy the subject debt through a payment plan. [Id.] Plaintiff followed those instructions and made two payments of $105 to Defendant. [Id. at ¶ 15] On the days prior to each payment, Defendant repeatedly called and sent text messages to Plaintiff's cell phone, conveying that Plaintiff was in breach of the payment contract. [Id. at ¶ 16]
On January 30, 2019, Plaintiff called Defendant to ask if he could make reduced payments on the subject debt. [Id. at ¶ 17] Defendant refused to change the payment agreement, falsely communicating that it was a binding contract. [Id.] Plaintiff demanded that Defendant stop calling him, but Defendant persisted its harassing phone calls and text messages to Plaintiff's cell phone. [Id. at ¶¶ 17-18] On February 2, 2019, beginning at 7:20 a.m., Defendant called Plaintiff nine times in five minutes. [Id. at ¶ 19] Plaintiffagain called Defendant, demanding that it stop harassing him, but Defendant continued the phone harassment, and a representative of Defendant called Plaintiff a "piece of shit." [Id. at ¶¶ 20-21] Plaintiff never provided his cell phone number to Defendant and never expressly consented to Defendant's phone calls. [Id. at ¶ 24] Plaintiff believes that Defendant places calls to his cell phone using an automated telephone dialing system, based on an unnatural pause when Plaintiff answered calls from Defendant, during which time Defendant's automated telephone dialing system would attempt to connect Plaintiff to a live agent. [Id. at ¶¶ 25-28] Plaintiff ultimately filed a harassment report with his local police department due to the volume of calls and text messages from Defendant. [Id. at ¶ 23]
Plaintiff brought this action seeking damages for Defendant's alleged harassing phone calls and unlawful attempts to collect on the subject debt. [See generally #1] Plaintiff asserts violations of the Fair Debt Collection Practices Act ("FDCPA"), the Telephone Consumer Protection Act ("TCPA"), and the Colorado Fair Debt Collection Practices Act ("CFDCPA"). [Id. at 7-15] Plaintiff seeks $38,500 in statutory damages and $3,997.75 in attorneys' fees and costs. [#36 at 2-3]
Plaintiff served Defendant through its registered agent. [##6, 12] Defendant waived service of the summons on April 3, 2019. [#12] Attorney Veronica Vecchio entered her appearance on behalf of Defendant on April 8, 2019. [#16] Two weeks later, Attorney Vecchio sought to withdraw as counsel for Defendant. [#17] This Court held a hearing on that motion, granted Attorney Vecchio's motion to withdraw, and advised Defendant that it could not appear pro se in this matter and would need to retain new counsel. [#22, audio recording at 10:33:08-10:33:47] The Court allowed Defendant untilMay 13, 2019 to retain new counsel, and advised that failure to do so could lead to a recommendation of default judgment for failure to defend. [Id.] When no new counsel entered an appearance on behalf of Defendant, the Court issued an order to show cause, ordering Defendant to show cause in writing on or before May 28, 2019, why this Court should not recommend that default and default judgment be entered against Defendant based on its lack of counsel. [#24] Defendant failed to respond to the Order to Show Cause, no new counsel has entered an appearance on behalf of Defendant, and the deadline for Defendant to respond to the Complaint has expired. [See #12] On June 5, 2019, this Court recommended that default be entered against Defendant. [#32] United States District Judge Daniel D. Domenico accepted that Recommendation [#33], and the Clerk of Court entered default as to Defendant on July 9, 2019 [#34]. Plaintiff moved for default judgment on July 30, 2019. [#36]
Before entering default judgment, the Court must consider whether it has subject matter and personal jurisdiction over Defendant. See Dennis Garberg & Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 772 (10th Cir. 1997); Williams v. Life Sav. and Loan, 802 F.2d 1200, 1202-03 (10th Cir. 1986). But see Marcus Food Co. v. DiPanfilo 671 F.3d 1159, 1170 (10th Cir. 2011) ().
The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 because Plaintiff asserts violations of several federal statutes. [See generally #1]The Court exercises supplemental jurisdiction over Plaintiff's CFDCPA claim pursuant to 28 U.S.C. § 1367.
As to personal jurisdiction, courts in this District consider Colorado's long-arm statute, Colo. Rev. Stat. § 13-1-124, to be a codification of the "minimum contacts" test, which requires a defendant to have minimum contacts with the forum state such that bringing the defendant into court in Colorado would not offend "traditional notions of fair play and substantial justice," in accordance with the Due Process Clause.2 Brooks v. Tarsadia Hotels, No. 17-cv-03172-PAB-KMT, 2018 WL 2301839, at *2 (D. Colo. May 21, 2018) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Court has personal jurisdiction over Defendant because, according to the Complaint, Defendant "maintains significant business contacts in the District of Colorado," and a "substantial portion of the events . . . giving rise to the claims occurred within the District of Colorado." [#1 at ¶ 3] See generally Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (); see also Colo. Rev. Stat. § 13-1-124. Moreover, Plaintiff alleges that Defendant placed numerous calls to his cell phone number, which is associated with a Colorado area code, and Plaintiff is a Coloradoresident. [See #1 at ¶¶ 4, 8] See, e.g., Lowe v. CVS Pharmacy, Inc., 233 F. Supp. 3d 636, 645 (N.D. Ill. 2017) . Defendant also threatened to take legal action against Plaintiff in connection to the subject debt, and because Plaintiff resides in Colorado, any action taken against Plaintiff would have occurred in Colorado. Kuberski v. Cred X Debt Recovery, LLC, No. 11-cv-03247-RPM-KLM, 2012 WL 2943726, at *6 (D. Colo. July 2, 2012) (). Finally, the FDCPA provides that "[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court." 15 U.S.C. § 1692k(d). Plaintiff alleges that Defendant violated six provisions of the FDCPA, "[t]herefore, exercising personal jurisdiction over Defendant in the forum where Plaintiff resides and was allegedly injured furthers the policy interests of all states." Kuberski, 2012 WL 2943726, at *8.
Plaintiff seeks entry of default judgment against Defendant for $42,497.75, consisting of $38,500 in statutory damages and $3,997.75 in attorneys' fees and costs, plus post-judgment interest.3 [#36 at 3; see also #36-2 at 2; #36-3] Default may beentered against a party who has failed to plead or otherwise defend. Fed. R. Civ. P. 55(a). Even after entry of default, the Court must consider whether the...
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