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Sarah v. Tristate Atm

September 7, 2012

SARAH ARCHBOLD AND DONALD W. MARVIN, PLAINTIFFS,
v.
TRISTATE ATM, INC. AND DOES 1-10, INCLUSIVE, DEFENDANTS.
SARAH ARCHBOLD AND DONALD W. MARVIN, PLAINTIFFS,
v.
CASH ON THE SPOT ATM SERVICES, LLC AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Bloom, United States Magistrate Judge:

REPORT AND RECOMMENDATION

Plaintiffs Sarah Archbold and Donald W. Marvin bring the above-captioned actions pursuant to the Electronic Fund Transfer Act, 15 U.S.C. § 1693, et seq. (the EFTA). In virtually identical complaints, plaintiffs allege that defendants Tristate ATM, Inc. and Cash on the Spot ATM Services, LLC charged them a fee for using automatic teller machines (ATMs) operated by defendants without posting a notice of the fee "in a prominent and conspicuous location on or at the [ATM]," as required by the EFTA. Both defendants failed to answer or otherwise defend these actions, and plaintiffs now move for a default judgment under Rule 55(b)(2) of the Federal Rules of Civil Procedure, seeking an award of $3,350.00 in each action. The Honorable Sterling Johnson, Jr. referred plaintiffs' motions to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that plaintiffs' motions for a default judgment against defendants should be granted. It is further recommended that a default judgment should be entered against Tristate ATM, Inc. in the amount of $825.00, and that a default judgment should be entered against Cash on the Spot ATM Services, LLC in the amount of $825.00.

BACKGROUND

On February 11, 2011, plaintiff Donald W. Marvin withdrew twenty dollars from an ATM operated by defendant Tristate ATM, Inc. ("Tristate") located at a Fairfield Inn and Suites in Avenel, New Jersey.*fn1 See No. 11-cv-5796, Compl. ¶¶ 20, 24 (ECF No. 1); id. Ex. 1. Although Tristate charged Marvin a "terminal fee" of $2.00 in connection with this withdrawal, the ATM did not have a notice posted on or at the machine informing customers that they may be charged a fee for their ATM transactions. Id. ¶¶ 26-27. Approximately five months later, on July 7, 2011, plaintiff Sarah Archbold used the same ATM to withdraw twenty dollars. Id. at ¶ 29; id. Ex. 5. At the time of this transaction, there was no notice posted on or at the ATM apprising customers of the potential fee for using the ATM. Id. ¶ 32. Nonetheless, Tristate charged Archbold a "terminal fee" of $2.00 for her ATM withdrawal. Id. ¶ 31.

On September 25, 2011, in two separate transactions conducted approximately one minute apart, both plaintiffs withdrew twenty dollars from an ATM operated by defendant Cash on the Spot ATM Services, LLC ("Cash on the Spot") located at 216 W. 50th Street, New York, New York. See No. 12-cv-847, Compl. ¶¶ 25, 30 (ECF No. 1); id. Exs. 1, 5. Plaintiffs were charged a $2.00 "terminal fee" for each withdrawal. Id. ¶¶ 27, 32. When these transactions took place, there was no notice posted on or at the ATM informing customers that a fee would be charged for use of the ATM. Id. ¶¶ 28, 33. Instead, a notice affixed to the ATM indicated that the owner of the ATM charges a "surcharge fee $___." Id.; see also id. Ex. 7.*fn2 Plaintiffs characterize this notification as "deceptive and inaccurate." Id. at ¶¶ 28, 33.

Notably, plaintiffs do not allege that they were unaware that these fees would be charged, and their pleadings are conspicuously silent on whether plaintiffs affirmatively agreed to pay these $2.00 fees when prompted by the ATMs' on-screen notifications. Instead, plaintiffs preemptively insist that they "need not prove that [they] sustained any actual financial loss, or that [they] relied upon the lack of mandatory disclosure as an inducement to enter into the transaction" in order to recover under the EFTA. Id. at ¶ 14; see also No. 12-cv-847 Compl. ¶ 15.

Plaintiffs commenced their lawsuit against Tristate on November 25, 2011, seeking an award of actual damages in the amount of $4,000 and statutory damages of $1,000 per transaction, as well as reimbursement of their attorney's fees and the costs associated with bringing their lawsuit. See No. 11-cv-5796 (ECF No. 1.) When Tristate failed to answer or otherwise move in response to the Complaint, plaintiffs requested that the Court enter a default against Tristate on April 19, 2012.*fn3 (ECF No. 5.) The Clerk of Court subsequently noted Tristate's default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (ECF No. 6.) Plaintiffs filed the instant motion for default judgment under Rule 55(b)(2) of the Federal Rules of Civil Procedure on May 23, 2012. (ECF No. 7.) On June 4, 2012, the Honorable Sterling Johnson, Jr. referred plaintiffs' motion to me for a Report and Recommendation. (ECF No. 8.)

Meanwhile, plaintiffs filed their lawsuit against Cash on the Spot on February 17, 2012. See No. 12-cv-847 (ECF No. 1). At plaintiffs' request, (ECF No. 4), the Clerk of Court noted Cash on the Spot's failure to respond to the Complaint and entered default on April 17, 2012. (ECF No. 5). Plaintiffs recycled their motion for default judgment under Rule 55(b)(2) for use against Cash on the Spot, and filed the repurposed papers in this action on May 23, 2012. (ECF No. 6). After plaintiffs' lawsuit against Cash on the Spot was reassigned as related to plaintiffs' action against Tristate, the Honorable Sterling Johnson, Jr. referred plaintiffs' second motion for default judgment to me for a Report and Recommendation on August 16, 2012.

In addition to these lawsuits, plaintiffs filed two other nearly identical lawsuits in the Eastern District of New York, which they voluntarily dismissed. See No. 12-cv-845; No. 12-cv-961. Viewed collectively, the complaints filed in plaintiffs' four actions allege that plaintiffs were charged fees in ten separate transactions at four different ATMs, all of which failed to provide a fee notification "on or at the [ATM]" as required by the EFTA. See No. 11-cv-5796 (alleging two transactions at an ATM in Avenel, New Jersey); No. 12-cv-845 (alleging two transactions at an ATM in Queens Village, New York); No. 12-cv-847 (alleging two transactions at an ATM in Manhattan, New York); No. 12-cv-961 (alleging four transactions at an ATM in Queens Village, New York). In what is either a remarkable coincidence or a demonstration of plaintiffs' plan to seek out ATMs lacking the EFTA-required signage and deliberately manufacture claims by withdrawing funds from these machines, the majority of the transactions underlying these four lawsuits all took place on one of four dates in the fall of 2011. See id. All in all, the lawsuits that plaintiffs filed with this Court alleged that they incurred a grand total of $17.00 in unauthorized ATM transaction fees. For what plaintiffs' pleadings uniformly describe as "damages for inconvenience, legal fees, loss of the use of funds and pre-judgment interest," the four lawsuits plaintiffs filed in the Eastern District of New York sought a combined $24,000 in actual and statutory damages, in addition to attorneys' fees and costs. Id.

DISCUSSION

I. Defendants' Liability

Rule 55 of the Federal Rules of Civil Procedure establishes the two-step process for a plaintiff to obtain a default judgment. First, "[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 or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Second, after a default has been entered against a defendant, and the defendant fails to appear or move to set aside the default under Rule 55(c), a plaintiff may request that a default judgment be entered against the defendant. Fed. R. Civ. P. 55(b).

Rule 55(b)(1) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiff's request, with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing." Fed. R. Civ. P. 55(b)(1). Rule 55(b)(2) requires that "[i]n all other cases, the party must apply to the court for a default judgment." Fed. R. Civ. P. 55(b)(2). Here, plaintiffs move for a default judgment under Rule 55(b)(2).

In light of the Second Circuit's "oft-stated preference for resolving disputes on the merits," default judgments are "generally disfavored." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). "Accordingly, just because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right." Bravado Intern. Group Merch. Servs., Inc. v. Ninna, Inc., 655 F.Supp.2d 177, 186 (E.D.N.Y. 2009) (citing Erwin DeMartino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993)). In determining whether to issue a default judgment under Rule 55(b)(2), the Court has the "responsibility to ensure that the factual allegations, accepted as true, provide a proper basis for liability and relief." Rolls-Royce plc v. Rolls-Royce USA, Inc., 688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). In other words, "[a]fter default . . . it remains for the ...


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