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Michael E. Engler v. Atlantic Resource Management

February 10, 2012

MICHAEL E. ENGLER, PLAINTIFF,
v.
ATLANTIC RESOURCE MANAGEMENT, LLC, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

On November 30, 2010, Plaintiff Michael E. Engler filed a complaint alleging various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. Defendant failed to appear and defend this action, which resulted in the Clerk of the Court entering default on May 12, 2011. Presently before this Court is Plaintiff's motion for Default Judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. For the following reasons, Plaintiff's motion is granted.

II. BACKGROUND

Plaintiff Michael E. Engler is a resident of Erie County, New York. (Comp., Docket No. 10-2, ¶ 4.) Defendant Atlantic Resource Management, LLC ("Atlantic") is engaged in the business of debt collection and was employed by Bank of America to collect a debt Engler allegedly incurred and defaulted on. (Comp. ¶ 10.) On November 2, 2010, Atlantic called Engler's place of work and spoke to his supervisor. (Comp. ¶ 11.) Atlantic inquired into what company policy was regarding execution of a warrant and asked Engler's supervisor to call Atlantic concerning "Case Number 37291NY0969." (Id.) Atlantic also stated that Engler would have only three hours following the start of his next shift to contact Atlantic and stop process. (Id.)

The following day as Engler was preparing to begin his shift his supervisor informed him of the details of the call. (Id.)

III. DISCUSSION

A. Default Judgment Standard

Before obtaining default judgment, a party must first secure a Clerk's Entry of Default by demonstrating, by affidavit or otherwise, that the opposing party is in default. See Fed. R. Civ. P. 55(a). Once default has been entered, the allegations of the complaint that establish the defendant's liability are accepted as true, except for those relating to the amount of damages.Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).

In considering whether to enter default judgment, the court must determine whether the facts alleged in the complaint are sufficient to state a claim for relief as to each cause of action for which the plaintiff seeks default judgment. Further, where the damages sought are not for a sum certain, the court must determine the propriety and amount of the default judgment. See Fed. R. Civ. P. 55(b)(2). Damages must be established by proof, unless the damages are liquidated or "susceptible of mathematical computation." Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). All reasonable inferences from the evidence presented are drawn in the moving party's favor. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

B. Liability

1. Statutory Damages

Plaintiff claims violations of numerous provisions of the FDCPA, including sections 1692b(1) and 1692c(b), 1692d and 1692d(2), as well as 1692e, 1692e(2)(A), (4), (5), (7), (10), and 1692f.

Section 1692b of Title 15 requires that any debt collector communicating with any person other than the person owing the debt shall "(1) identify himself, state that he is confirming or correcting location information concerning the ...


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