Smith v. Law Offices of Mitchell N. Kay
| Decision Date | 12 February 1991 |
| Docket Number | Civ. A. No. 90-316-JLL. |
| Citation | 124 BR 182 |
| Parties | Joseph D. and Deborah SMITH, Plaintiffs, v. LAW OFFICES OF MITCHELL N. KAY, Defendant. |
| Court | U.S. District Court — District of Delaware |
O. Randolph Bragg of UAW-GM Legal Services Plan, Newark, Del., for plaintiffs.
Elwyn Evans, Jr. and Jeffrey M. Boyer of Evans and Evans, Wilmington, Del., for defendant.
On June 22, 1990 the plaintiffs, Joseph and Deborah Smith, brought this action against the defendant Law Offices of Mitchell N. Kay for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. In their complaint, the plaintiffs requested a jury trial. (D.I. 1.) The defendants received long-arm service (D.I. 5) but failed to appear, answer, move, or otherwise defend this suit. (D.I. 7.) Therefore, on September 28, 1990 the Deputy Clerk of the Court entered a default against the defendant pursuant to Federal Rule of Civil Procedure 55(a). (D.I. 7.) On October 11, 1990 the Court ordered that a default judgment be entered against the defendant pursuant to Federal Rule of Civil Procedure 55(b)(2), and a jury trial be held on the issue of damages on October 22, 1990. A copy of the order was sent to the defendant. (D.I. 9.)
A jury trial was held on October 22, 1990 at which the defendants failed to appear and the plaintiffs presented evidence relevant to the issue of damages. After hearing the plaintiffs' evidence and receiving the Court's instructions, the jury awarded the plaintiffs $15,000 actual damages pursuant to 15 U.S.C. § 1692k(a)(1) and the maximum $1,000 statutory damages allowed under § 1692k(a)(2)(A). (D.I. 11.) The Court further ordered that pursuant to § 1692k(a)(3) the defendant pay $120 in costs and $1,365.00 in reasonable attorney's fees. (D.I. 12.) On November 1, 1990 the defendant timely moved for a new trial on the issue of damages pursuant to Federal Rules of Civil Procedure 59(a) & (b). (D.I. 14.) A briefing schedule was set by the Court pursuant to Local Rule 3.1 C(2) and complied with by the parties. The Court will therefore address the merits of the defendant's motion for a new trial.
Essentially, the defendant argues that a new trial is warranted because: (1) the Court's jury instructions misstated the law and therefore prejudiced the defendant, and (2) the jury award is excessive and shocks the judicial conscience. The Court will address these points in turn.
As noted above, the defendant failed to defend this suit and did not appear at trial. Generally, a defendant that fails to object to a jury instruction before the jury retires, cannot later assign as error the giving of that jury instruction. Federal Rule of Civil Procedure 51 states:
No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict. . . .
The defendant in this action did not object to the jury instructions until after an unfavorable verdict was rendered by the jury. The defendant, therefore, appears to fall within the prohibition of Rule 51.1 But Rule 51 is not an absolute bar. "Notwithstanding a party's failure to raise its objection before the district court, an erroneous jury instruction may require reversal if the error is plain or fundamental." Walters v. Mintec/International, 758 F.2d 73, 76 (3d Cir.1985).2
The defendant contends that the Court misstated the law in its jury instructions. If this contention is accurate, the Court will, most likely, have made a "plain or fundamental" error. Specifically, the defendant contends that under the FDCPA no "actual damages" for mental suffering can be awarded unless a plaintiff establishes each element of a state's tort of intentional infliction of emotional distress.3 In the present case, Delaware tort law would be the applicable law.4 Therefore, since Delaware law requires a plaintiff who seeks to recover for the intentional infliction of emotional distress to prove "extreme and outrageous conduct" by the defendant, and present physical injury, the defendant contends that the plaintiffs in this case were required to prove these same elements. The Court did not instruct the jury that these elements had to be proved. The Court instructed the jury as follows:
(Trial transcript, D.I. 18 at 24.) Since the only evidence of actual damages provided by the plaintiffs pertained to mental suffering, the Court will assume that if the defendant's statement of the law is correct, the Court's jury instructions were fundamentally flawed and caused a miscarriage of justice.5 The Court must therefore resolve this question of law raised by the defendant. For the following reasons, the Court concludes that the defendant's statement of the law is inapplicable in the District of Delaware and that the Court's jury instructions were proper.
There is very little case law in the Third Circuit addressing the issue of whether a plaintiff seeking actual damages for emotional distress under § 1692k(a)(1) must prove the elements of the state law tort of intentional infliction of emotional distress. The Third Circuit has not specifically addressed the issue. Nonetheless, the persuasive authority that is available, suggests that the plaintiffs in the present case do not need to prove the elements of the intentional infliction of emotional distress.
In In re Littles (Littles I), 75 B.R. 240 (Bankr.E.D.Pa.1987), later proceeding, In re Littles (Littles II), 90 B.R. 669 (Bankr.E. D.Pa.1988), modified, Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa.1988), aff'd, 868 F.2d 566 (3d Cir.1989), the bankruptcy court had to consider whether it had jurisdiction to make proposed findings of fact and conclusions of law in an action by the bankrupt estate against a debt collector for violations of the FDCPA. The central issue in this jurisdictional question was whether the estate's claims for emotional distress under § 1692k(a)(1) of the FDCPA were "personal injury torts" that had to be tried in the district court pursuant to 28 U.S.C. § 157(b)(5). The bankruptcy court in Littles I concluded that it could make proposed findings of fact and conclusions of law because "the analysis of whether damages for emotional distress have been proven under the FDCPA need not rise to the level required to prove the tortious infliction of emotional distress." Id. at 242. On appeal to the district court, the bankruptcy court was affirmed on this point and its reasoning adopted verbatim. Crossley v. Lieberman, 90 B.R. 682, 692 (E.D.Pa.1988). The Third Circuit at least tacitly affirmed the position of the bankruptcy and district courts when it took jurisdiction of the appeal pursuant to 28 U.S.C. § 157(c)(1) and affirmed the district court. Crossley v. Lieberman, 868 F.2d 566, 567 (3d Cir.1989). The Third Circuit did not squarely address the issue with which this Court is now interested.
In In re Littles (Littles II), 90 B.R. 669, 680 (Bankr.E.D.Pa.1988), the court made findings of fact and conclusions of law in accordance with its opinion in Littles I. In Littles II the bankruptcy court had to address whether either of two estates were entitled to damages from a debt collector for emotional suffering caused by the debt collector's alleged violations of the FDCPA. The court concluded that an award of damages for emotional distress was appropriate. In responding to the debt collector's arguments to the contrary, the bankruptcy court noted:
Id. at 680. The district court did not adopt the bankruptcy court's proposed findings of facts and conclusions of law in their entirety. Crossley, 90 B.R. at 698. The district court awarded the debtor more actual damages for emotional distress than the bankruptcy court had recommended. Id. In doing so, the district court did not explain the legal basis for its award but noted that the debtor had exhibited several physical manifestations of her emotional distress. Id. The court of appeals' opinion is similarly unhelpful because the debt collector did not raise the actual damages issue on appeal. Crossley, 868 F.2d at 572. The Third Circuit only noted:
The debt collector does not specifically address the district court\'s award of $1,000 in actual damages under section 1692k(a)(1). In the circumstances of this case an attack on the award of actual damages to the debtor in the amount of $1,000 would in any event be fruitless.
Id. The bankruptcy court's opinions in Littles I & II clearly state that a plaintiff does not have to prove the state tort law elements of intentional infliction of emotional distress in order to collect...
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