United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court upon Plaintiff Charles
Shockley's motion for default judgment against Defendant
United Adjustment Corporation (“UAC”). [DE 15].
Plaintiff has demonstrated that Defendant is liable for
violations of the Fair Debt Collection Practices Act
(“FDCPA”) and the Fair Credit Reporting Act
(“FCRA”), but Plaintiff has not adequately
established the appropriate amount of statutory damages. As a
result, Plaintiff's motion for default judgment is
GRANTED IN PART and DENIED IN
January 10, 2018, Shockley filed the Complaint in this matter
against Defendants Portfolio Recovery Associates, LLC and UAC
alleging violations of the FDCPA and the FCRA. [DE 1]. On
February 8, 2018, Shockley moved to dismiss Defendant
Portfolio Recovery Associates but wished to continue this
action against UAC. [DE 7]. Plaintiff's Motion to Dismiss
Portfolio Recovery Associates was granted on February 13,
2018. [DE 8].
Shockley moved for entry of default against UAC. [DE 11]. The
Clerk entered default because the record indicated that a
Summons and Copy of the Complaint was served upon UAC and UAC
had failed to plead or otherwise defend the action. [DE 13].
Shockley moves for default judgment pursuant to Fed.R.Civ.P.
55(b)(1) or, in the alternative, pursuant to Fed.R.Civ.P.
55(b)(2). [DE 15]. Shockley is only pursuing statutory
damages, costs of the action, and attorneys' fees.
Standard for Default Judgment
motion for default under Rule 55, “the well pleaded
factual allegations in the Complaint, except those relating
to damages, are taken as true.” Ford Motor Co. v.
Cross, 441 F.Supp.2d 837, 847 (E.D. Mich. 2006) (citing
Thomson v. Wooster, 114 U.S. 104 (1885); Antoine
v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir.
1995)). If the allegations in the Complaint are sufficient to
support a finding that the Defendant violated the provisions
of the FDCPA or FCRA, judgment should be entered for the
default judgment may be entered either by the Clerk or by the
Court. The Clerk may enter default judgment “[i]f the
plaintiff's claim is for a sum certain or a sum that can
be made certain by computation.” Fed.R.Civ.P. 55(b)(1).
Alternatively, “[i]n all other cases, the party must
apply to the court for a default judgment.”
Shockley's motion for default judgment is made pursuant
to Fed.R.Civ.P. 55(b)(2). The maximum amount of statutory
damages that may be recovered under the FDCPA and the FCRA is
$1, 000 but the actual amount of statutory damages to which
the plaintiff is entitled is within the discretion of the
court. 15 U.S.C. § 1692(a)(2)(A); 15 U.S.C. §
1681(a)(1)(A). Thus, where statutory language sets out a
minimum and maximum amount for an award of statutory damages,
the motion for default must be directed to the court.
See, e.g., Charvat v. NMP, LLC, No.
2:09-CV-209, 2012 WL 2577489, at *2 (S.D. Ohio July 3, 2012).
the Court may conduct an evidentiary hearing on damages or to
establish the truth of any allegation by evidence.
Fed.R.Civ.P. 55(b)(2). Damages that are unliquidated or not
susceptible to mathematical computation must be proven by the
Plaintiff. Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “A
party who has been found liable by default judgment
‘still has the opportunity to respond to the issue of
damages.'” New London Tobacco Market, Inc. v.
Kentucky Fuel Corp., No. 12-CV-91-GFVT, 2017 WL 1227926,
at *2 (E.D. Ky. Mar. 31, 2017) (citing Antoine, 66
F.3d at 110). “Ordinarily, the District Court must hold
an evidentiary proceeding in which the defendant has the
opportunity to contest the amount of damages.”
Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11
(6th Cir. 1995) (quoting Greyhound, 973 F.2d at 158).
Default Judgment Under the FDCPA
FDCPA prohibits a wide range of specific conduct, but it also
prohibits any harassing, unfair, or deceptive debt collection
practices. S. Rep. No. 95-382, at 4, 1977 U.S.C.C.A.N. 1695,
1698; see generally 15 U.S.C. §§
1692d-1692f. As a result, the Act is “extraordinarily
broad.” Barany-Snyder v. Weiner, 539 F.3d 327,
333 (6th Cir. 2008) (quoting Frey v. Gangwish, 970
F.2d 1516, 1521 (6th Cir. 1992)). “To determine whether
conduct fits within the broad scope of the FDCPA, the conduct
is viewed through the eyes of the ‘least sophisticated
consumer.'” Currier v. First Resolution Inv.
Corp., 762 F.3d 529, 533 (6th Cir. 2014) (quoting
Barany-Snyder, 539 F.3d at 333).
U.S.C. § 1692e(8) prohibits “[c]ommunicating or
threatening to communicate to any person credit information
which is known or which should be known to be false,
including the failure to communicate that a disputed debt is
disputed.” To establish a violation under §
1) The plaintiff must be a “consumer” as defined
by the FDCPA;
2) The “debt” must arise out of transactions that
are “primarily for personal, family, or ...