The opinion of the court was delivered by: John F. Keenan, United States District Judge:
Before the Court is Plaintiff Ruth Woods' ("Woods" or "Plaintiff") motion for entry of a default judgment and an award of statutory and actual damages, punitive damages, and attorneys' fees and costs. For the reasons that follow, the motion for default judgment is granted in part in the amount of $8,197.00.
In a complaint dated August 16, 2011, Woods alleges that Defendant Sieger, Ross & Aguire, LLC ("Sieger Ross" or "Defendant"), a New York domestic limited liability company with its principal place of business in Buffalo, New York, is a "debt collector" as defined by 15 U.S.C. § 1629a(6). (Compl. ¶¶ 12, 14). In or around mid-2007, Woods applied online for a $500 payday loan from a company called Eagle Finance. (Id. ¶ 22). The payday loan is alleged to be a consumer debt as defined by 15 U.S.C. § 1692a(5). (Id. ¶¶ 24-25). She believed that a repayment amount representing the $500 principal plus interest would be withdrawn from her Wachovia bank account approximately two weeks later. (Id. ¶¶ 23, 28). However, one week prior to the repayment date, Woods closed her Wachovia account allegedly because of unrelated unauthorized charges in the account; Woods claims that she notified Eagle Finance of the change of account. (Id. ¶ 28). The complaint does not allege whether the payday loan was ever in fact repaid.
On September 25, 27, and 28, 2010, a representative of Sieger, Ross called and spoke to Woods' aunt, claiming that Sieger, Ross was a law firm looking for Woods in connection with an unpaid debt. (Id. ¶¶ 29-31). Woods returned the call on the morning of September 29, 2010. (Id. ¶ 33). Woods spoke with a Sieger, Ross employee who allegedly told Woods that she would "be sued" and would be "facing jail time" for her unpaid debt; he pressured her to borrow money or pay the debt using a credit card. (Id.). The Sieger, Ross representative called Woods three additional times on September 29, 2010 -- at 11:22 a.m., 1:52 p.m., and 1:57 p.m.. (Id. ¶¶ 34-35). Woods did not answer the first call. (Id.). The second and third calls lasted a combined total of three minutes and fifty-seven seconds, during which time the representative told Woods that "a bad check was issued out of [her] checking account," falsely stated that "New York State has tax warrants on [her] right now," threatened to contact the District Attorney, and claimed they would turn her over to tax authorities if the consumer debt was not resolved. (Id.). Woods requested that Sieger, Ross provide documentation regarding the alleged debt, which was initially refused, but later that day, the Sieger, Ross representative emailed Woods a letter stating that "[p]er your conversation with our office on 9/29/10, it is our understanding that your delinquent claim has not been paid and the total amount due is $1109.00. This payment will be due in 1 installment of the following: (1) $1109.00 due by 9/29/10. . . . Therefore, by paying $1109.00, this debt can be completely resolved and will cancel any possible current or future legal action." (Id., Ex. A). There is no indication in the complaint that Woods acquiesced to the payment demand, or that anything happened to her after she refused to remit payment. The week after the purported payment deadline expired, Sieger, Ross representatives called Woods two times and left messages. (Id. ¶ 40).
As a result of these contacts, Woods claims to have suffered sleep deprivation, stomach pains, anxiety, panic, nervousness, headaches, fear, worry, embarrassment, humiliation, intimidation, indignation, lost concentration, loss of tranquility, and crying from worrying. (Id. ¶ 42). She also claims that she chose not to seek new housing or take a licensing exam, a prerequisite for employment with New York Life Insurance Company, because she feared the results of credit checks that accompanied the exam. (Id. ¶¶ 43-44). She brings claims for: (1) violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; (2) violation of New York law prohibiting deceptive practices, N.Y. Gen. Bus. Law § 349; (3) intentional infliction of emotional distress; and (4) common law fraud.
Service of the complaint was completed on August 26, 2011 by serving
two copies of the complaint and the statutory fee on the Secretary of
State of New York in Albany. See N.Y. Ltd. Liab. Co. Law § 303(a).
(Feb. 27, 2012 Langel Decl., Ex. 2). The Court scheduled an initial
case conference for November 4, 2011. By letter dated September 13,
2011, Sieger, Ross requested a 60-day adjournment to retain counsel;
accordingly, the Court extended Sieger, Ross' time to answer or
otherwise respond to the complaint and adjourned the initial
conference until December 1, 2011. (Id., Ex. 3). Only Plaintiff's
counsel appeared at the conference, and he informed the Court that the
parties had reached a settlement. The Court entered an order of
discontinuance giving the parties 60 days to consummate their
settlement. However, by letter dated January 17, 2012,
Plaintiff's counsel notified the Court that the settlement had not
come to fruition and requested that the Court reopen the case. In an
order dated January 18, 2012, the Court restored this case to its
active docket and scheduled a pre-trial conference for February 16,
2012. (Id., Ex. 5). Defendants failed to appear at the conference, at
which time the Court gave Plaintiff's counsel leave to bring an order
to show cause for a default judgment. The order to show cause, filed
March 5, 2012, notified Defendant that failure to appear on the March
20, 2012 return date would result in an order directing the Clerk of
Court to issue a certificate of default pursuant to Local Civil Rule
55.1; however, Sieger, Ross did not appear on March 20, 2012, and the
Court granted Woods leave to file a motion for default judgment.
Consequently, by motion dated March 29, 2012, Woods requests that the
Court enter a default judgment against Sieger, Ross*fn1
and determine the damages to which she is entitled.
"When 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 or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). In accordance with Rule 55(a) and Local Civil Rule 55.1, Plaintiff's counsel submitted a declaration dated February 27, 2012, affirming that: Defendant Sieger, Ross is a limited liability company and is not an infant, in the military, or an incompetent person (Langel Decl. ¶ 13); Defendant Sieger, Ross has failed to plead or otherwise defend the action (Id.); and the complaint to which Defendant failed to respond was properly served pursuant to New York Limited Liability Company Law § 303 (Id. ¶¶ 5, 13; Ex. 2). Consequently, the Clerk is directed to enter Defendant Sieger, Ross' default on the record.
Plaintiff now applies to the Court pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure for entry of a default judgment in her favor. In light of Defendant's default, the Court accepts the factual allegations in the complaint as true, except those relating to damages, and draws all reasonable inferences in Plaintiff's favor. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). However, the "district court has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action." Au Bon Pain Corp., 653 F.2d at 65. Furthermore, the district court does not automatically accept the allegations of the complaint relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)). Although an evidentiary hearing under Rule 55(b)(2) is not required, plaintiff must establish through affidavits or other evidence "a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997).
Plaintiff asserts violations of numerous provisions of the FDCPA, including §§ 1692c(b) (prohibiting communication with third parties regarding collection of a debt), 1692d, 1692d(1), 1692d(2) (prohibiting harassing and abusive conduct in connection with collection of a debt), and 1692e, 1692e(1), 1692e(3), 1692e(4), 1692e(5), 1692e(7), 1692e(8), 1692e(10) (prohibiting false, deceptive, or misleading representations in connection with collection of a debt). Based on ...