United States District Court, D. New Hampshire
F. Skinner, III, Esq.
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
Adams brought suit against Oakridge Direct Solutions
Corporation (“Oakridge”) alleging claims arising
out of communications that Oakridge made to her in an attempt
to collect a debt. On August 22, 2017, the Clerk of the Court
entered default against Oakridge. See doc. no. 9. Before the
court for Report and Recommendation is Adams's motion for
default judgment (doc. no. 11) pursuant to Federal Rule of
Civil Procedure 55(b)(2). For the reasons that follow, the
court recommends that Adams's motion be granted as to
liability and damages, but holds its recommendation with
respect to fees and costs in abeyance.
default is entered and when the amount at issue is not a sum
certain, “the party must apply to the court for a
default judgment.” Fed.R.Civ.P. 55(b)(2); see also
KPS & Assocs., Inc. v Designs by FMC, Inc., 318
F.3d 1, 19 (1st Cir. 2003). Before entering a default
judgment, the court “may examine a plaintiff's
complaint, taking all well-pleaded factual allegations as
true, to determine whether it alleges a cause of
action.” Ramos-Falcón v Autoridad de
Energía Electríca, 301 F.3d 1, 2 (1st Cir.
2002) (quoting Guirindongo Pacheco v. Rolon Morales,
953 F.2d 15, 16 (1st Cir. 1992)). The defaulted party is
“taken to have conceded the truth of the factual
allegations in the complaint . . . .”
Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir.
2002) (internal quotation marks omitted) (quoting Franco
v. Selective Ins. Co., 184 F.3d 4, 9 n. 3 (1st Cir.
1999)). The defaulted party does not, however, “admit
the legal sufficiency of those claims.” 10 James Wm.
Moore, Moore's Federal Practice § 55.32[b] (3d
ed. 2013). Therefore, before entering default judgment, the
court must determine whether the admitted facts state
actionable claims. See Hop Hing Produces Inc. v. X &
L Supermarket, Inc., No. 12-cv-1401-ARR-MDG, 2013 WL
1232919, at *2 (E.D.N.Y. Mar. 4, 2013); E. Armata, Inc. v. 27
Farmers Market, Inc., No. 08-cv-5212-KSH, 2009 WL 2386074, at
*2 (D.N.J. July 31, 2009).
virtue of its default, Oakridge concedes the following facts.
Athena Adams resides in Hillsborough County, New Hampshire.
Oakridge is a New York corporation in the debt-collection
business. Oakridge left two voicemails on Adams's home
answering machine. In the first voicemail, Oakridge stated
that an attempt at service had been made to Adams, requested
that Adams immediately call back, and indicated that if she
did not do so a “refusal of allegations” would
automatically be entered and “forcible recovery”
would begin. In the second voicemail, Oakridge claimed to be
a “person locator” with a “case number,
” and threatened to execute service at Adams's
place of employment if she did not call back or accept
service at her residence. Oakridge made no attempt at
forcible recovery or service following these phone calls, and
did not provide Adams with the information identified in 15
U.S.C. § 1692g either in its initial communication with
Adams or within five days of those communications.
Counts I through V, Adams seeks statutory damages under the
Fair Debt Collect Practices Act (“FDCPA”), 15
U.S.C. § 1962, et seq. “In order to prevail on an
FDCPA claim, a plaintiff must prove that: 1) the plaintiff
has been the object of collection activity arising from
consumer debt, 2) the defendant is a debt collector as
defined by the FDCPA, and 3) the defendant has engaged in an
act or omission prohibited by the FDCPA.” Halsey v.
Litton Loan Servicing, No. 12-cv-511-PB, 2013 WL
3754919, at *3 (D.N.H. July 13, 2013) (internal quotation
marks and citations omitted). By virtue of its default,
Oakridge concedes that it is a debt collector for FDCPA
purposes. The allegations in the complaint - and particularly
Oakridge's representation that it would begin
“forcible recovery” - support a plausible
inference that Oakridge was attempting to collect a consumer
debt from Adams. Thus, the sole inquiry before the court is
whether Adams has adequately alleged that Oakridge engaged in
an act or omission prohibited by the FDCPA.
alleges violations of 15 U.S.C. §§ 1692g, 1692e,
1692f, 1692d, and 1692c. As relevant here, § 1692g
requires that a debt collector provide a consumer with
certain information regarding a debt either in its initial
communication with the consumer or within five days of that
communication. Id. § 1692g. In her complaint,
Adams alleges that she received two voicemails from Oakridge,
but that Oakridge failed to provide her with the information
required under § 1692g either in its initial
communication or within five days of the communication.
Assuming the truth of these allegations, Adams has stated a
cause of action under § 1692g(a). She is therefore
entitled to default judgment on Count I.
the case of defaulting defendants, allegations of damages are
not deemed admitted in the context of a default judgment, and
it is the plaintiff's burden to establish any entitlement
to recovery.” Joe Hand Promotions, Inc. v. Rajan,
No. 10-40029-TSH, 2011 WL 3295424, at *3 n.2 (D. Mass.
July 28, 2011) (internal quotation marks and citations
omitted). “The FDCPA provides that successful
plaintiffs are entitled to actual damages [and] statutory
damages of up to $1, 000 . . . .” French v. Corp.
Receivables, Inc., 489 F.3d 402, 403 (1st Cir. 2007)
(quoting 15 U.S.C. § 1692k (a) (3)). Here, Adams seeks
only statutory damages.
damages under the FDCPA are limited to $1, 000 per lawsuit,
not $1, 000 per violation.” Nelson v. Equifax Info.
Servs., LLC, 522 F.Supp.2d 1222, 1238 (C.D. Cal. 2007);
see also Wright v. Fin. Serv. of Norwalk, Inc., 22
F.3d 647, 650-51 (6th Cir. 1994) (en banc); Williams v.
Pressler and Pressler, LLP, No. 11-7296 (KSH), 2013 WL
5435068, at *10 (D.N.J. Sept. 27, 2013); Stilz v. Global
Cash Network, Inc., No. 10 CV 1998, 2010 WL 3975588, at
*4 (N.D.Ill. Oct. 7, 2010). “Whether statutory damages
should be granted, and, if so, whether the full amount of $1,
000 should be allowed is committed to the discretion of the
court.” Manopla v. Brant, Hodge and Assoc., LLC,
No. 13-338 (JAP), 2014 WL 793555, at *6 (D.N.J. Feb. 26,
2014) (citations omitted). “In exercising that
discretion, courts look to the nature of the
violation.” Id. “If the violation is
especially egregious, or if plaintiffs show that it was
repeated and persistent, courts are more likely to award the
full amount.” Id. (citations omitted). When
assessing statutory damages in an FDCPA action, the court
should consider “the frequency and persistence of
noncompliance by the debt collector, the nature of such
noncompliance, and the extent to which such noncompliance was
intentional.” § 1692k(b)(1).
of the facts alleged in the complaint, the court considers
$1, 000 in statutory damages to be an appropriate award. As
previously discussed, Adams's claim is based on two
voicemail messages left by Oakridge. Assuming the truth of
the allegations in the complaint, Oakridge violated the FDCPA
in at least three separate ways by failing to provide the
required notice under § 1692g(a)(3), § 1692g(a)(4),
and § 1692g(a)(5). See Kaylore-Trent v. John C.
Bonewicz, P.C.,910 F.Supp.2d 1112, 1115-16 (C.D. Ill.
2012) (noting how even a single debt collector message can
violate the FDCPA in multiple ways). Because Oakridge left
multiple voicemails attempting to collect a debt and failed