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Dennis Hamilton v. Lombardo

July 6, 2011

DENNIS HAMILTON, PLAINTIFF,
v.
LOMBARDO, DAVIS & GOLDMAN, DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Dennis Hamilton filed a complaint in this case on December 23, 2010, accusing defendant Lombardo, Davis & Goldman of multiple violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692--1692p. Plaintiff served defendant with a summons and complaint, but defendant failed to answer or appear. On June 21, 2011, plaintiff filed a motion for default judgment seeking a total of $4,009.50 in statutory damages, costs, and attorney fees. Given the allegations that defendant is deemed to have admitted by default, and given the itemization of costs and fees that plaintiff has submitted, the Court grants the motion and awards damages, costs, and fees in the amount of $2,489.00 as described below.

II. BACKGROUND

This case concerns defendant's conduct in attempting to collect on a debt. Because defendant did not appear in the case, and because the complaint does not contain a lot of background information, most details concerning this debt are not available to the Court. For example, the Court cannot determine from the information available what kind of debt defendant attempted to collect and whether it communicated that information to plaintiff;*fn1 whether plaintiff acknowledges owing any kind of debt, and if so, whether he agrees with defendant's characterization of it; and whether the parties dispute the amount of the debt in question. Nonetheless, the complaint does allege that defendant called plaintiff almost daily in July and August 2010, calling up to four times a day. Defendant's calls included calls to plaintiff's place of employment, even though plaintiff asked not to be called at work. Additionally, defendant allegedly made threats of litigation, garnishment, and arrest against plaintiff, though none of those events have occurred through the present time.

Based on the conduct that he described in his complaint, plaintiff has alleged multiple violations of the FDCPA, including harassment; unauthorized calls to a place of employment; false and misleading representations; and threats to take actions that cannot legally be taken or that are not intended to be taken.

Defendant never answered the allegations in the complaint, let alone within the time required by Rule 12 of the Federal Rules of Civil Procedure ("FRCP"). Accordingly, plaintiff requested an entry of default on March 9, 2011. The Clerk of the Court filed an entry of default on March 14, 2011. On June 21, 2011, plaintiff filed his motion for default judgment. In the motion, plaintiff did not request an evidentiary hearing and did not seek actual damages. Plaintiff instead sought $1,000.00 in statutory damages and $3,009.50 in costs and attorney fees.

III. DISCUSSION

A. Liability

"Federal Rule of Civil Procedure 55 is the basic procedure to be followed when there is a default in the course of litigation. And it tracks the ancient common law axiom that a default is an admission of all well-pleaded allegations against the defaulting party." Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (citation omitted). Because defendant never answered or otherwise challenged the complaint, all allegations in the complaint are now deemed admitted. Nonetheless, "[w]hile a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citations omitted). The Court thus must assess what an appropriate award might be, keeping in mind that plaintiff has not requested an evidentiary hearing or actual damages.

Pursuant to FRCP 55(b)(2), the Court will exercise its discretion not to schedule an evidentiary hearing because of the straightforward nature of plaintiff's request for damages, costs, and fees.

B. Statutory Damages

Section 1692k(a)(2)(A) of the FDCPA provides for statutory damages of up to $1,000 per plaintiff. See also Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998) ("All that is required for an award of statutory damages is proof that the statute was violated, although a court must then exercise its discretion to determine how much to award, up to the $1,000.00 ceiling.") (citations omitted). Here, plaintiffs seek the maximum amount of statutory damages given the frequency and nature of defendant's harassing conduct. "In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors . . . the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional." 15 U.S.C. ยง 1692k(b)(1). In this case, defendant is deemed to have admitted to frequent communications that harassed plaintiff and to threatening him with litigation, garnishment, and arrest. Defendant's admissions ...


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