Carroll v. Paul Law Office, PLLC, No. 8:2012cv02041 - Document 15 (D. Md. 2013)
Court Description: MEMORANDUM OPINION (c/m to Defendant 8/2/13 sat). Signed by Chief Judge Deborah K. Chasanow on 8/2/13. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : PHYLLIS CARROLL : v. : Civil Action No. DKC 12-2041 : PAUL LAW OFFICE, PLLC : MEMORANDUM OPINION Presently pending and ready for review in this consumer debt collection case is the motion for default judgment filed by Plaintiff Phyllis Carroll. briefed, and necessary. the court (ECF No. 14). now Local Rule 105.6. rules, no The issues have been hearing being deemed For the following reasons, the motion for default judgment will be granted. I. Background A. Factual Background In her verified complaint and attached documents, Plaintiff alleges she had an account with Metris/Direct Merchants with an overdue balance of $2,125.04. (ECF No. 1-3). On July 7, 2011, Defendant, a debt collections business with an office in Salt Lake City, Utah, offered to settle the account for $1,043.86. (ECF No. 1 ¶¶ 8-10). Plaintiff accepted this offer and, on July 12, 2011, paid the sum via check-by-phone. (Id. ¶ 12). The settlement check cleared on July 14, 2011. (Id. ¶ 13). On August Paul 31, 2011, a representative of the Law Office contacted Plaintiff, informing her that she had an outstanding balance on attorney the settled confirmed account. with collect on the account. (Id. Defendant that (Id. ¶ 15). ¶ it 4). was Plaintiff s attempting to Plaintiff argues that she entered into an enforceable agreement to settle the account, and that Defendant s debt collection efforts are in direct violation of the Fair Debt Collection Practices Act ( FDCPA ), 15 U.S.C. § 1692, et seq. B. Procedural Background On July 10, 2012, Plaintiff filed a complaint Defendant alleging a single violation of the FDCPA. 1). against (ECF No. Defendant was served with a summons and a copy of the Complaint on July 16, 2012, and Plaintiff filed Proof of Service on July 25, 2012. (ECF No. 3). On August 21, 2012, Plaintiff moved for an entry of default, which was entered by the clerk on September 10, 2012. (ECF Nos. 4 & 6). On January 11, 2013, Plaintiff filed a motion for default judgment. (ECF No. 14). Defendant has not opposed. II. Standard of Review Under Federal Rule of Civil Procedure 55(a), [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit party s default. or otherwise, the clerk must enter the Where a default has been previously entered 2 by the clerk and the complaint does not specify a certain amount of damages, the court may enter a default judgment upon the plaintiff s application and notice pursuant to Fed.R.Civ.P. 55(b)(2). to the defaulting party, A defendant s default does not automatically entitle the plaintiff to entry of a default judgment; rather, that decision is left to the discretion of the See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). court. The Fourth Circuit has a strong policy that cases be decided on their merits, Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002) (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993)), but default judgment may be appropriate where a party is unresponsive, see S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D.Md. 2005) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C.Cir. 1980)). Upon [entry of] default, the well-pled allegations in a complaint as to liability are taken as true, but the allegations as to Federal damages Rule are of not. Civil Lawbaugh, Procedure 359 54(c) F.Supp.2d limits the at 422. type judgment that may be entered based on a party s default: of A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Thus, where a complaint specifies the amount of damages sought, the plaintiff is limited to entry of a default judgment in that amount. [C]ourts have generally held that a default judgment cannot 3 award additional damages . . . because the defendant could not reasonably amount. have expected that his damages would exceed that In re Genesys Data Technologies, Inc., 204 F.3d 124, 132 (4th Cir. 2000). amount, the court Where a complaint does not specify an is required to determination of the sum to be awarded. F.Supp.2d 15, 17 (D.D.C. 2001) (citing make an independent Adkins v. Teseo, 180 S.E.C. v. Management Dynamics, Inc., 515 F.2d 801, 814 (2d Cir. 1975); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). While the court may hold a hearing to consider evidence as to damages, it is not required to do so; it may rely instead on detailed affidavits or documentary evidence to determine the appropriate sum. Adkins, 180 F.Supp.2d at 17 (citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)). III. Analysis A. Sufficiency of the Complaint In evaluating a request for a default judgment, the court must, accepting all factual allegations in the complaint true, determine if the complaint adequately states a claim. as See Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). The Fourth Circuit has established that the threshold requirement for application of the [FDCPA] is that prohibited practices are used in an attempt to collect a debt. Mabe v. G.C. Servs. Ltd. P ship, 32 F.3d 86, 87 88 (4th Cir. 1994). 4 The FDCPA prohibits the use of false, deceptive, or misleading representation or means in connection with the collection of any debt. 15 U.S.C. § 1692e. The false representation of the character, amount, or legal status of any debt is specifically prohibited by the statute. 15 U.S.C. § 1692e(2)(A). The FDCPA is a strict liability statute, meaning that a consumer need only prove one violation in order to establish liability. See 15 U.S.C. § 1692k(a); Spencer v. Hendersen Webb, Inc., 81 F.Supp.2d 582, 590 91 (D.Md. 1999). Taken as true, Plaintiff s allegations adequately state a claim for relief under the FDCPA. Plaintiff alleges that she settled her debt by paying Defendant an agreed upon amount via check-by-phone on July 12, 2011. August 31, 2011, Defendant She also alleges that on contacted her collect on the already-settled account. an already-settled debt falsely in attempt to Attempting to collect represents amount, and legal status of the debt. an the character, 15 U.S.C. § 1692e(2)(A); see also Yarney v. Ocwen Loan Servicing, LLC, No. 12 CV 0014, 2013 WL 880077, at *5 (W.D.Va. Mar. 8, 2013) (collecting cases and holding that [o]ne type of misrepresentation prohibited by § 1692e(2)(A) is the false representation that a debt exists ). This single violation of the FDCPA is sufficient to trigger liability and entitle Plaintiff to relief. 5 B. Statutory Damages 15 U.S.C. § 1692k(a) provides that actual damages, statutory damages, costs, and reasonable attorneys fees are available to plaintiffs who have established a violation of the statute. Plaintiff does not seek actual damages, but seeks $1,000 in statutory damages. The damages FDCPA in an grants courts discretion amount not exceed 1692k(a)(2)(A). to to award $1,000. 15 statutory U.S.C. § In awarding statutory damages, the court must consider the frequency and persistence of [the debt collector s] noncompliance, the nature of such noncompliance, and the extent to which such noncompliance was intentional. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010) (citing § 1692k(b)) (internal quotation marks omitted). The maximum statutory damages award is only assessed in cases where there [have] been repetitive, egregious FDCPA violations and even in such cases, the statutory awards are often less than $1,000. No. 10-3441, 2011 WL Thomas v. Smith, Dean & Assocs., Inc., 2730787, at *3 (D.Md. July 12, 2011) (quoting Ford v. Consigned Debts & Collections, Inc., No. 093102, $500 2010 WL 5392643 at *5 (D.N.J. Dec. 21, 2010)) (awarding in statutory damages where the defendant threatened imprisonment, contacted the plaintiff s employer, and called the plaintiff twice). In Spencer v. Henderson-Webb, Inc. a court in 6 this district awarded a plaintiff $1,000 in statutory damages because the occasions. underlying defendant Spencer, behavior violated 81 was the F.Supp.2d much more at FDCPA on 594. severe six separate Even than where the the behavior alleged by Plaintiff, other courts awards of statutory damages did not approach the $1,000 maximum. See, e.g., Marchman v. Credit Solutions Corp., No. 10 226, 2011 WL 1560647, at *11 (M.D.Fla. April 5, 2011) (awarding $100 in statutory damages for violation of the FDCPA where the defendant called the plaintiff twice and threatened to contact the plaintiff s employer); Pearce v. Ethical Asset Mgmt., No. 07 718S, 2010 WL 932597, at *6 (W.D.N.Y Jan. 22, 2010) (awarding $250 in statutory damages for violation of the FDCPA where the defendant left multiple voicemails threatening to sue, inform the plaintiff s officer, and have the plaintiff thrown in jail). parole By contrast, the Fourth Circuit upheld an award of only $50 in statutory damages when the Defendant was found to have engaged in one FDCPA violation that was, at most a technical misstep. Carroll v. Wolpoff & Abramson, 53 F.3d 626, 627 (4th Cir. 1995). In the present case, Plaintiff alleges only one violation of the FDCPA in which she was contacted by Defendant, who told her that there remained an outstanding balance on her settled account. intentional Plaintiff or that does not allege Defendant 7 acted that in the a violation was threatening or aggressive manner. Given the minimal extent of the violation and lack of ill-intent, an award of statutory damages in the amount of $1,000 would be inappropriate. In light of awards in similar cases, an award of $50 is warranted. C. The Costs FDCPA allows costs of the action. a successful plaintiff to 15 U.S.C. § 1692k(a)(3). recover the Filing fees and service process fees are reasonable costs of litigation that may be recovered. See Lopez v. Lawns R Us, No. 07 CV-2979, 2008 WL 2227353, at *7 (D.Md. May 23, 2008) (finding a $350 filing fee and a $200 service of process fee to be well within the categories of normal and necessary costs of litigation would normally be charged to paying clients ). that Plaintiff has provided an itemized list of costs, consisting of a $350 filing fee and a $75 Process Server Invoice Payment. Supporting documentation filed with Plaintiff s motion indicates that these sums were paid. No. demonstrated adequately (ECF the 14-1). Because reasonableness Plaintiff of the has costs requested, she will be awarded $425 in costs. D) The Attorneys Fees FDCPA attorneys 1692k(a)(3). fees provides for for the successful recovery plaintiffs. of 15 reasonable U.S.C. § While an award of attorneys fees is mandatory in all but the most unusual circumstances, the district court has 8 discretion fees. to calculate an appropriate Carroll, 53 F.3d at 628. award of attorneys In making that assessment, courts typically use the principles of the traditional lodestar method as a guide. Poulin v. Gen. Dynamics Shared Res., No. 09 00058, 2010 WL 1813497, at *1 (W.D.Va. May 5, 2010) (quoting Almodova v. City & Cnty. of Honolulu, No. 07 00378, 2010 WL 1372298, at *7 (D.Haw. Mar. 31, 2010)). calculated by multiplying the The lodestar amount is number expended by a reasonable hourly rate. of hours reasonably Lippe v. TJML, LLC, No. DKC-12-0260, 2013 WL 597599, at * 1 (D.Md. Feb. 15, 2013). The FDCPA the does lodestar not amount mandate an if court the award of finds attorneys fees it unreasonable. to be in Carroll, 53 F.3d at 629. In evaluating the reasonableness of the lodestar amount, this court uses the twelve well-known factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974) and adopted by the Fourth Circuit in Barber v. Kimbrell s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). Thompson v. 2002 U.S. Dep t of Hous. & Urban Dev., No. 95-309, 31777631, at *6 (D.Md. Nov. 21, 2002). Those factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to properly perform the legal service; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the 9 WL circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. (citations and quotation marks omitted). To assist in the evaluation of these factors, Local Rule 109(b) requires that a request for attorneys fees be: supported by a memorandum setting forth the nature of the case, the claims as to which the party prevailed, the claims as to which the party did not prevail, a detailed description of the work performed broken down by hours or fractions thereof expended on each task, the attorneys customary fee for such like work, the customary fee for like work prevailing in the attorneys community, a listing of any expenditures for which reimbursement is sought, any additional factors which are required by the case law, and any additional factors that the attorney wishes to bring to the Court s attention. Additionally, Appendix B requires the fee application to be broken down by both task and litigation phase. Appendix B also sets forth a guide for determining the reasonableness of an attorney s hourly wage, depending on how long the attorney has been a member of the bar. The declaration of Plaintiff s attorney does not satisfy the requirements set forth in Local Rule 109 or Appendix B. Particularly, Plaintiff offers no specific attestation to the customary fee for like work prevailing in the community, or the duration of the attorney s bar membership. See Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (noting that the fee applicant 10 must produce satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks omitted). an Without award ) this (citations information, and the quotation court is marks unable adequately to assess the reasonableness of the attorneys fees sought. Accordingly, Plaintiff will be provided an opportunity to a file more detailed account of her attorneys fees, in accordance with the Local Rule 109 and Appendix B to the Local Rules. IV. Conclusion For the foregoing reasons, the motion for default judgment filed by Plaintiff Phyllis Carroll will be granted. Plaintiff may submit a supplemental fee petition, in proper form, within fourteen (14) days. A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 11
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