1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 JOSHUA M. FRAZIER, Case No. 18-cv-07729-TSH
7 Plaintiff, ORDER GRANTING MOTION FOR 8 v. DEFAULT JUDGMENT
9 AMERICAN CREDIT RESOLUTION, Re: Dkt. No. 45 INC., 10 Defendant. 11 12 I. INTRODUCTION 13 Plaintiff Joshua M. Frazier brings this complaint against Defendant American Credit 14 Resolution (“ACR”) alleging that it violated both the Fair Debt Collection Practices Act 15 (“FDCPA”) and the Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”) through its 16 debt collection activities. After the parties initially reached a settlement, ACR stopped 17 participating, its counsel withdrew, and the Clerk entered its default. Frazier now moves for 18 default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). ECF No 45. No 19 opposition has been filed. The Court finds this matter suitable for disposition without oral 20 argument and VACATES the November 7, 2019 hearing. Fed. R. Civ. P. 78(b); Civ. L.R. 7- 21 (1)(b). After carefully reviewing Frazier’s motion and controlling authorities, the undersigned 22 GRANTS the motion for the following reasons. 23 II. BACKGROUND 24 In November 2017, Frazier obtained a payday loan from Check n’ Go. Compl. ¶ 9, ECF 25 No. 1. Due to financial hardship, he fell behind on his scheduled payments. Id. ¶ 10. On 26 December 14, 2018, Frazier received a text message from ACR attempting to collect upon the 27 debt. Id. ¶ 11. He received a second identical text message from ACR on December 17, 2018. Id. 1 REMAINS DELINQUENT IN OUR OFFICE. PLEASE CALL 844-864-3236 TODAY. THIS IS 2 FROM ACR, A DEBT COLLECTION AGENCY.” Id. ¶ 13. ACR failed to disclose that any 3 information obtained would be used for the purpose of debt collection. Id. ¶ 14. Concerned, 4 Frazier contacted ACR on December 17, 2018 and learned that it was attempting to collect upon 5 the debt. Id. ¶¶ 15-16. ACR represented that Frazier agreed to a payment plan but never fully 6 executed the agreement. Id. ¶ 17. Frazier was confused by ACR’s representation because he had 7 not previously communicated with ACR and did not agree to a payment plan with ACR or Check 8 n’ Go. Id. ¶ 18. When he demanded ACR stop contacting him, ACR stated it could continue to 9 contact him regardless of his demands. Id. ¶¶ 19-20. 10 Frazier filed this case on December 26, 2018, alleging he “has suffered concrete harm due 11 to [ACR’s] conduct, including but not limited to, aggravation, invasion of privacy, and emotional 12 distress.” Id. ¶ 23.1 On April 8, 2019, Frazier filed a Notice of Settlement indication the parties 13 were “in the process of completing the final closing documents and filing the dismissal” and that 14 the process would take no more than 60 days. ECF No. 21. However, on June 25, 2019, ACR’s 15 counsel filed a motion to withdraw as counsel on the grounds that ACR breached its contractual 16 obligations and otherwise made it unreasonably difficult for counsel to carry out its representation 17 effectively. ECF No. 26. ACR did not oppose the motion. On August 5, 2019, the Court granted 18 the motion on the condition that counsel continue to serve all papers from the Court and Frazier on 19 ACR for forwarding purposes. ECF No. 35. 20 Frazier filed the present motion on September 30, 2019. He seeks statutory damages of 21 $1,000 under the FDCPA, statutory damages of $1,000 under the Rosenthal Act, and attorney’s 22 fees and costs $6,560.95. Mot. at 11. 23 III. LEGAL STANDARD 24 Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by a defendant, 25 to enter default judgment in a case. “The district court’s decision whether to enter default 26
27 1 In their March 21, 2019 Joint Case Management Conference Statement, the parties consented to 1 judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 2 At the default judgment stage, the factual allegations of the complaint, except those 3 concerning damages, “together with other competent evidence submitted” are deemed admitted by 4 the non-responding parties. Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 5 1000 (N.D. Cal. 2001); see also Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) 6 (“With respect to the determination of liability and the default judgment itself, the general rule is 7 that well-pled allegations in the complaint regarding liability are deemed true.”). “However, a 8 defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.” 9 DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (citation and quotation omitted)). 10 Therefore, “necessary facts not contained in the pleadings, and claims which are legally 11 insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 12 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord 13 DIRECTV, 503 F.3d at 854. Further, the scope of relief is limited by Federal Rule of Civil 14 Procedure 54(c), which states that a “default judgment must not differ in kind from, or exceed in 15 amount, what is demanded in the pleadings.” 16 In determining whether default judgment is appropriate, the Ninth Circuit has enumerated 17 the following factors for courts to consider:
18 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) 19 the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to 20 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 21 22 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 23 IV. DISCUSSION 24 A. Jurisdiction and Service of Process 25 In considering whether to enter default judgment, a district court must first determine 26 whether it has jurisdiction over the subject matter and the parties to the case. In re Tuli, 172 F.3d 27 707, 712 (9th Cir. 1999). “[T]he district court is not restricted to the face of the pleadings, but 1 the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) 2 (considering subject matter jurisdiction on a 12(b)(1) motion). 3 1. Subject Matter Jurisdiction 4 Federal courts are courts of limited jurisdiction and are presumptively without jurisdiction. 5 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court may 6 dismiss an action on its own motion if it finds that it lacks subject matter jurisdiction. Fiedler v. 7 Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); see also Fed. R. Civ. P. 12(h)(3) (“If the court 8 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 9 action.”). 10 Jurisdiction in this case arises pursuant to § 1692k(d) of the FDCPA, which states that such 11 actions may be brought and heard before “any appropriate United States district court without 12 regard to the amount of controversy.” Additionally, 28 U.S.C. § 1387 grants the Court 13 supplemental jurisdiction over Frazier’s Rosenthal Act claim. 14 2. Personal Jurisdiction 15 a. Basis for Personal Jurisdiction 16 To enter default judgment, the Court must have a basis for the exercise of personal 17 jurisdiction over the defendants in default. In re Tuli, 172 F.3d at 712. “Without a proper basis 18 for [personal] jurisdiction, or in the absence of proper service of process, the district court has no 19 power to render any judgment against the defendant’s person or property unless the defendant has 20 consented to jurisdiction or waived the lack of process.” S.E.C. v. Ross, 504 F.3d 1130, 1138-39 21 (9th Cir. 2007). Traditional bases for conferring a court with personal jurisdiction include a 22 defendant’s consent to jurisdiction, personal service of the defendant within the forum state, or a 23 defendant’s citizenship or domicile in the forum state. J. McIntyre Mach., Ltd. v. Nicastro, 564 24 U.S. 873, 880 (2011). Absent one of the traditional bases for jurisdiction, the Due Process Clause 25 requires that the defendant have “certain minimum contacts with the forum ‘such that the 26 maintenance of the suit does not offend traditional notions of fair play and substantial justice.’” 27 Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 1 burden of establishing that jurisdiction is proper. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 2 1392 (9th Cir. 1984). “[M]ere ‘bare bones’ assertions of minimum contacts with the forum or 3 legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff’s pleading 4 burden.” Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007). 5 According to Frazier’s complaint, ACR is a corporation organized under the laws of the 6 state of Georgia with its principal place of business at 270 Carpenter Drive, Suite 575, Sandy 7 Springs, Georgia 30328. Compl. ¶ 6. ACR regularly collects upon consumers located in the state 8 of California. Id. “Personal jurisdiction over a nonresident defendant is tested by a two-part 9 analysis. First, the exercise of jurisdiction must satisfy the requirements of the applicable long- 10 arm statute. Second, the exercise of jurisdiction must comport with federal due process.” Dow 11 Chem. Co. v. Calderon, 422 F.3d 827, 830 (9th Cir. 2005). Where there is no applicable federal 12 statute governing personal jurisdiction, courts apply the law of the state in which the court sits. 13 Fed. R. Civ. P. 4(k)(1)(A); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). 14 In California, a court “may exercise jurisdiction on any basis not inconsistent with the Constitution 15 of this state or of the United States.” Cal. Civ. Proc. Code § 410.10; Daimler AG v. Bauman, 571 16 U.S. 117, 125 (2014) (“California’s long-arm statute allows the exercise of personal jurisdiction to 17 the full extent permissible under the U.S. Constitution.”). As such, “the jurisdictional analyses 18 under state law and federal due process are the same.” Schwarzenegger v. Fred Martin Motor Co., 19 374 F.3d 797, 801 (9th Cir. 2004). 20 The Fourteenth Amendment Due Process Clause requires that an out-of-state defendant 21 have “minimum contacts” with the forum state such that the exercise of jurisdiction “does not 22 offend traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316 23 (quotation marks omitted). “In judging minimum contacts, a court properly focuses on ‘the 24 relationship among the defendant, the forum, and the litigation.’” Calder v. Jones, 465 U.S. 783, 25 788 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). 26 A court may exercise either general or specific jurisdiction over a nonresident defendant. 27 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). General 1 with the forum. Id. at 415. If general jurisdiction exists, the forum has jurisdiction over the 2 defendant regardless of where the events giving rise to the litigation occurred. Id. Here, there is 3 no indication ACR has “substantial” or “continuous and systematic” contacts with California to 4 establish general jurisdiction. 5 The Court may assert specific jurisdiction over a nonresident defendant if three 6 requirements are met:
7 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; 8 or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the 9 benefits and protections of its laws;
10 (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and 11 (3) the exercise of jurisdiction must comport with fair play and 12 substantial justice, i.e. it must be reasonable. 13 Schwarzenegger, 374 F.3d at 802 (citation omitted). The plaintiff bears the burden of 14 demonstrating the first two prongs. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 15 1076 (9th Cir. 2011). If the first two parts are satisfied, the burden shifts to the defendant to “to 16 set forth a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. 17 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 476-78 (1985)). While all three requirements 18 must be met, in considering the first two prongs, “[a] strong showing on one axis will permit a 19 lesser showing on the other.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 20 F.3d 1199, 1210 (9th Cir. 2006) (en banc). 21 Because ACR contacted Frazier in California by telephone to collect on an alleged debt, 22 ACR has performed acts or transactions within the forum. Freligh v. Roc Asset Sols., LLC, 2016 23 WL 3748723, at *3 (N.D. Cal. June 8, 2016), report and recommendation adopted, 2016 WL 24 3747616 (N.D. Cal. July 11, 2016) (citing Weakley v. Redline Recovery Servs., LLC, 723 F. Supp. 25 2d 1341, 1344 (S.D. Cal. 2010), clarified on denial of reconsideration, 2010 WL 3033801 (S.D. 26 Cal. Aug. 2, 2010). Further, Frazier’s claims arise out of the texts made by ACR and his 27 conversation with the company. Id. 1 present a compelling case that the presence of some other considerations would . . . make litigation 2 so gravely difficult and inconvenient that a party unfairly is at a severe disadvantage in 3 comparison to his opponent.” Burger King, 471 U.S. at 478 (internal quotation and citation 4 omitted); see also Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1132 5 (9th Cir. 2003). As ACR has not presented any evidence to suggest litigation will be gravely 6 difficult and inconvenient if litigated in California, the Court finds ACR’s communications with 7 Frazier in California constitute contacts sufficient to demonstrate that ACR is subject to personal 8 jurisdiction here. 9 b. Service of Process 10 Personal jurisdiction also requires notice that is “reasonably calculated, under all the 11 circumstances, to apprise interested parties of the pendency of the action and afford them an 12 opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 13 314 (1950). “A federal court does not have jurisdiction over a defendant unless the defendant has 14 been served properly under [Federal Rule of Civil Procedure 4].” Direct Mail Specialists, Inc. v. 15 Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Here, the proof of service 16 filed by Frazier demonstrates ACR was properly served with the complaint and summons on 17 December 31, 2018. ECF No. 9. In fact, ACR initially appeared in this case, see ECF No. 19, and 18 it was only after the parties were unable to finalize the settlement and ACR did not otherwise 19 defend against this action that the Clerk of Court entered ACR’s default. ECF. No. 41. 20 B. Eitel Factors 21 Applying the seven Eitel factors, the undersigned finds default judgment is warranted in 22 favor of Plaintiff. 23 1. The Possibility of Prejudice 24 The first factor the Court considers is the possibility of prejudice if a default judgment is 25 not entered. Eitel, 782 F.2d at 1471-72. Courts have held that prejudice exists where denying the 26 requested default judgment would leave the plaintiff without a proper remedy. See, e.g., IO Grp., 27 Inc. v. Jordon, 708 F. Supp. 2d 989, 997 (N.D. Cal. 2010). As ACR has stopped appearing in this 1 See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). Therefore, the 2 Court finds this factor weighs in favor of granting default judgment. 3 2. Substantive Claims and the Sufficiency of the Complaint 4 The second and third Eitel factors focus on the merits of the substantive claims and the 5 sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. “Together, these factors require that 6 plaintiff assert claims upon which it may recover.” IO Grp., 708 F. Supp. 2d at 989 (citing Philip 7 Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003)). 8 a. FDCPA 9 Frazier alleges ACR violated FDCPA section 1692e. Specifically, he alleges:
10 Defendant violated §§1692e and e(10) when it used deceptive means to collect and/or attempt to collect the subject debt. Defendant 11 purposefully attempted to deceive Plaintiff by stating that Plaintiff purportedly agreed to enter into a payment plan when no such 12 commitment was ever made. Defendant willfully attempted to confuse Plaintiff in order to coerce payment from him. Moreover, 13 Defendant also attempted to misguide Plaintiff when it told him that it could continue to contact him after Plaintiff demanded that 14 Defendant stop communicating with him.
15 Defendant further violated §§ 1692e, e(10), and e(11) through its failure to disclose that any information obtained in communications 16 between Plaintiff and Defendant would be used for debt collection. By failing to divulge this statutorily mandated disclosure, Defendant 17 deceptively and misleadingly attempted to obscure Plaintiff’s rights under the FDCPA. Consequently, Defendant’s objective was to 18 obfuscate Plaintiff’s rights in order to unlawfully extract payment from Plaintiff and to prevent Plaintiff from prosecuting an FDCPA 19 claim against Defendant.
20 ***
21 Defendant violated §1692f when it unfairly and unconscionably attempted to collect on a debt by misguiding Plaintiff and obscuring 22 his rights under the FDCPA. By failing to provide its statutorily mandate disclosures, Defendant unlawfully endeavored shield itself 23 from any potential retaliation. 24 Compl. ¶¶ 31-32, 34. 25 “In enacting the FDCPA, Congress sought to counter the abusive, deceptive and unfair 26 debt collection practices sometimes used by debt collectors against consumers.” Turner v. Cook, 27 362 F.3d 1219, 1226-27 (9th Cir. 2004). As such, the statute is liberally construed to protect the 1 1171 (9th Cir. 2006); see also Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). This 2 objective standard “ensure[s] that the FDCPA protects all consumers, the gullible as well as the 3 shrewd . . . the ignorant, the unthinking and the credulous.” Clomon, 988 F.2d at 1318-19. For 4 the FDCPA to apply, two threshold criteria must be met. Olmos v. Bank of Am., N.A., 2016 WL 5 3092194, at *3 (S.D. Cal. June 1, 2016) (citing Gburek v. Litton Loan Servicing, LP, 614 F.3d 6 380, 384 (7th Cir. 2010)). First, the communication must be from a “debt collector” and, second, 7 “the communication by the debt collector that forms the basis of the suit must have been made ‘in 8 connection with the collection of any debt.’” Id. (quoting 15 U.S.C. 1692c(a)-(b), 1692e and 9 1692g). 10 ACR qualifies as a “debt collector.” Compl. ¶¶ 6, 26-27. Section 1692e prohibits a debt 11 collector from using any “false, deceptive, or misleading representation or means in connection 12 with the collection of any debt.” Section 1692e sets forth a non-exclusive list of conduct that 13 constitutes a violation, including “[t]he use of any false representation or deceptive means to 14 collect or attempt to collect any debt or to obtain information concerning a consumer,” and “[t]he 15 failure to disclose in the initial . . . oral communication[] that the debt collector is attempting to 16 collect a debt and that any information obtained will be used for that purpose, and the failure to 17 disclose in subsequent communications that the communication is from a debt collector. . . .” 15 18 U.S.C. § 1692e(10)-(11). 19 Based on Frazier’s allegations, it is clear the two text messages were made “in connection 20 with the collection of any debt” as ACR informed him that it is a debt collection agency and his 21 account was delinquent. Olmos, 2016 WL 3092194, at *3 (text messages are communications 22 under the FDCPA); 15 U.S.C. § 1692a(2) (defining “communications” as “the conveying of 23 information regarding a debt directly or indirectly to any person through any medium.”). Beyond 24 the text messages, Frazier alleges that when he communicated with ACR, it purposefully 25 attempted to deceive him by stating that he agreed to enter into a payment plan when no such 26 commitment was ever made, and that it attempted to misguide him when it told him that it could 27 continue to contact him after Frazier demanded that ACR stop communicating with him. Further, 1 collection. Based on these allegations, the Court finds ACR violated 15 U.S.C. § 1692e. 2 As to Frazier’s claim under 15 U.S.C., § 1692f, his only allegation is that ACR “violated 3 §1692f when it unfairly and unconscionably attempted to collect on a debt by misguiding Plaintiff 4 and obscuring his rights under the FDCPA. By failing to provide its statutorily mandate 5 disclosures, Defendant unlawfully endeavored shield itself from any potential retaliation.” Compl. 6 ¶ 34. Frazier does not address § 1692f in his motion, other than to argue generally that ACR 7 “violated §§ 1692e, e(10), e(11), and f through its failure to provide the requisite disclosures under 8 § 1692e(11).” Mot. at 8. As Section 1692f prohibits a debt collector from using “unfair or 9 unconscionable means to collect or attempt to collect any debt,” and Frazier does not address how 10 ACR violated this provision specifically, the Court cannot find ACR violated 15 U.S.C. § 1692f. 11 b. Rosenthal Act 12 Frazier alleges ACR violated the Rosenthal Act based on the same allegations as his 13 FDCPA claim. Compl. ¶¶ 35-41. The Rosenthal Act is California’s version of the FDCPA, as it 14 “mimics or incorporates by reference the FDCPA’s requirements . . . and makes available the 15 FDCPA’s remedies for violations.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 16 2012). Accordingly, whether an act “violates the Rosenthal Act turns on whether it violates the 17 FDCPA.” Id. Thus, for the same reasons set forth above, the Court finds Frazier has established a 18 violation of the Rosenthal Act. See Freligh, 2016 WL 3748723, at *5 (if a defendant violates the 19 FDCPA, the same reasoning applies to a violation of the Rosenthal Act). 20 3. The Sum of Money at Stake in the Action 21 Under the fourth Eitel factor, “the Court must consider the amount of money at stake in 22 relation to the seriousness of Defendant’s conduct.” Dr. JKL Ltd., v. HPC IT Educ. Ctr., 749 F. 23 Supp. 2d 1038, 1050 (N.D. Cal. 2010) (citation and quotation marks omitted). When the amount 24 at stake is substantial or unreasonable in light of the allegations in the complaint, default judgment 25 is disfavored. See Eitel, 782 F.2d at 1472 (affirming the denial of default judgment where the 26 plaintiff sought $3 million in damages and the parties disputed material facts in the pleadings). 27 “However, when the sum of money at stake is tailored to the specific misconduct of the defendant, 1 2014). Here, Frazier seeks $1,000 in statutory fees under the FDCPA, $1,000 under the Rosenthal 2 Act, and $6,560.95 in attorney’s fees and costs. Because this is neither substantial nor 3 unreasonable and the damages are tied to ACR’s misconduct, the fourth factor weighs in favor of 4 default judgment. 5 4. The Possibility of Dispute Concerning Material Facts 6 The fifth Eitel factor examines the likelihood of dispute between the parties regarding the 7 material facts surrounding the case. Eitel, 782 F.2d at 1471-72. However, upon entry of default, 8 the defendant is “deemed to have admitted all well-pleaded factual allegations” in the complaint. 9 DirecTV, 503 F.3d at 851 (citing Fed. R. Civ. P. 55(a)). Further, ACR was given ample 10 opportunity to respond but has made no effort to challenge the complaint; therefore, nothing in the 11 record before the Court suggests a factual dispute. Accordingly, this factor also weighs in favor of 12 granting default judgment. 13 5. Whether Default was Due to Excusable Neglect 14 The sixth Eitel factor examines whether the defendant’s failure to respond to the complaint 15 was the result of excusable neglect. Eitel, 782 F.2d at 1471-72. Here, Frazier provided adequate 16 notice of this action, see ECF Nos. 9, 19, yet ACR failed to respond to the present motion. See 17 S.E.C. v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (“A signed return of 18 service constitutes prima facie evidence of valid service which can be overcome only by strong 19 and convincing evidence.”) (citations and quotation marks omitted). Further, there is nothing in 20 the record suggesting this failure is based on excusable neglect. See Shanghai Automation, 194 F. 21 Supp. 2d at 1005 (default after proper service was not excusable neglect). Thus, this factor 22 supports default judgment. 23 6. Policy Favoring Deciding a Case on its Merits 24 The last Eitel factor examines whether the policy of deciding a case based on the merits 25 precludes entry of default judgment. Eitel, 782 F.2d at 1472. In Eitel, the Ninth Circuit 26 admonished that “[c]ases should be decided on their merits whenever reasonably possible.” Id. 27 “The existence of Federal Rule of Civil Procedure 55(b), however, shows that this policy is not 1 4380965, at *11 (N.D. Cal. July 16, 2015) (citing Kloepping v. Fireman’s Fund, 1996 WL 75314, 2 at *3 (N.D. Cal. Feb. 13, 1996)). And a defendant’s failure to appear makes a decision on the 3 merits impracticable, if not impossible. Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 4 1039, 1061 (N.D. Cal. 2010) (citation and quotation marks omitted). 5 Given that ACR has ceased to defend itself in this action and made no effort to respond to 6 recent communication attempts by Frazier, a decision on the merits is impracticable. “In situations 7 such as this, Rule 55(b) allows the court to grant default judgment.” Bd. of Trs. v. Diversified 8 Concrete Cutting, Inc., 2018 WL 3241040, at *5 (N.D. Cal. July 3, 2018), report and 9 recommendation adopted sub nom. Bd. of Trustees as Trs. of Laborers Health & Welfare Tr. Fund 10 for N. Cal. v. Diversified Concrete Cutting, Inc., 2018 WL 4775429 (N.D. Cal. July 27, 2018). As 11 such, a decision on the merits would not be possible. In situations such as this, Rule 55(b) allows 12 the court to grant default judgment. This final factor weighs in favor of granting the Motion. 13 7. Summary of the Eitel Factors 14 Based on the analysis above, the undersigned finds each of the Eitel factors weighs in 15 favor of granting default judgment. Accordingly, the Court GRANTS Frazier’s motion and enter 16 default judgment against ACR. 17 C. Relief Sought 18 Once liability is established, the plaintiff seeking default judgment must then establish that 19 the requested relief is appropriate. Bay Area Painters v. Alta Specialty, 2008 WL 114931, at *3 20 (N.D. Cal. Jan. 10, 2008) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 21 1. Damages 22 The moving party has the burden to “prove up” the amount of damages. United States v. 23 Sundberg, 2011 WL 3667458, at *6 (N.D. Cal. Aug. 22, 2011) (citation omitted). Where the 24 amount of damages “is liquid or capable of ascertainment from definite figures contained in 25 documentary evidence or detailed affidavits, the Court may enter default judgment without a 26 hearing on damages.” Id. (internal quotation marks and citation omitted); see also Pope v. United 27 States, 323 U.S. 1, 12 (1944) (“It is a familiar practice and an exercise of judicial power for a court 1 amount which the plaintiff is entitled to recover and to give judgment accordingly.”). Similarly, if 2 the plaintiff can meet its burden of proving an amount of damages “capable of mathematical 3 calculation” through evidence, testimony, or written affidavit, there is no need for an evidentiary 4 hearing on damages. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981); Bd. of Trs. of the 5 Boilermaker Vacation Trust v. Shelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 2005). 6 Frazier seeks $1,000 in statutory damages under the FDCPA and $1,000 in statutory 7 damages under the Rosenthal Act. Statutory damages are available without proof of actual 8 damages. Baker v. G.C. Servs. Corp., 677 F.2d 775, 781 (9th Cir. 1982). Under the FDCPA, a 9 plaintiff may claim up to $1,000 in statutory damages. 15 U.S.C. § 1692k(a)(2). Under the 10 Rosenthal Act, a court may award statutory damages that are no “less than one hundred dollars 11 ($100) nor greater than one thousand dollars ($1,000).” Cal. Civ. Code § 1788.30. The Ninth 12 Circuit has determined that “[t]he Rosenthal Act’s remedies are cumulative, and [are] available 13 even when the FDCPA affords relief.” Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1069 14 (9th Cir. 2011). 15 ACR’s violations of the FDCPA and Rosenthal Act warrant an award of statutory 16 damages, although not in the amounts Frazier seeks. As an initial matter, although Frazier seeks 17 the maximum amount allowed under both statutes, he does not include any authority establishing 18 his entitlement to the maximum penalty. In determining the amount of statutory liability, courts 19 “shall consider . . . the frequency and persistence of noncompliance by the debt collector, the 20 nature of such noncompliance, and the extent to which such noncompliance was intentional.” 15 21 U.S.C. § 1692k(b)(1). While Frazier’s factual allegations suffice to establish ACR’s liability for 22 default judgment purposes, he has not made a compelling showing of his entitlement to an award 23 approaching the maximum statutory damages allowed. The alleged misconduct in this case was 24 not egregious in its alleged “frequency and persistence,” as Frazier alleges he received only two 25 texts before he contacted ACR and he communicated with ACR only one time after the texts. 26 Compare Evans v. Creditor’s Specialty Serv., Inc., 2016 WL 730277, at *1, 3 (N.D. Cal. Feb. 24, 27 2016) (finding five voicemail messages, including threats of wage garnishment and legal action, 1 WL 2190172, at *11 (E.D. Cal. May 20, 2013) (finding allegation of “calls” made on one day did 2 not warrant maximum statutory penalty) with Mulvihill v. St. Amant & Assocs., 2014 WL 3 1665229, at *2 (E.D. Cal. Apr. 24, 2014) (finding nearly 20 calls, even after plaintiff instructed 4 defendant to stop calling him, warranted maximum statutory penalty); Esget v. TCM Fin. Servs. 5 LLC, 2014 WL 258837, at *5, 7 (E.D. Cal. Jan. 23, 2014) (awarding maximum statutory damages 6 where defendant “repeatedly” contacted plaintiff’s place of work in an attempt to collect an 7 alleged debt, including contacting plaintiff’s supervisor and disclosing the alleged debt, and made 8 false threats, including a threat to file a lawsuit and garnish plaintiff’s wages). Further, there is no 9 indication ACR’s communications included threats or intimidation. See Neves v. Benchmark 10 Recovery, Inc., 2015 WL 6957525, at *4 (N.D. Cal. Nov. 11, 2015) (finding a collection letter that 11 contained no threats or intimidation did not constitute significant or severe non-compliance under 12 the FDCPA). 13 In sum, the undersigned finds the frequency and persistence of ACR’s non-compliance, the 14 nature of its non-compliance, and the extent to which its non-compliance was intentional do not 15 weigh strongly in favor of Frazier’s request for the maximum in statutory damages. Courts in this 16 District have previously awarded $400 under each statute for a single voicemail that was deceptive 17 in nature. See Smith v. Simm Assocs., Inc., 2013 WL 1800019, at *2 (N.D. Cal. Apr. 29, 2013) 18 (but finding that “[t]he script of the call makes it clear that the caller attempted to hide the nature 19 of the call”). In Evans, the court awarded $700 under each statute based on five voicemail 20 messages that included threats of wage garnishment and legal action. 2016 WL 730277, at *1, 3. 21 Here, Frazier received two text messages in which ACR identified itself as a debt collection 22 agency contacting him about his delinquent account. These texts do not appear to be deceptive as 23 Frazier does not deny that his account was delinquent. However, he does allege ACR was 24 deceptive because it did not disclose that any information obtained would be used for debt 25 collection and, although he had not previously communicated with ACR regarding a payment 26 plan, ACR represented that he had agreed to a payment plan. As such, the Court finds an award of 27 $400 in damages under the FDCPA and $400 under the Rosenthal Act is appropriate. 1 2. Attorneys’ Fees 2 Both the FDCPA and the Rosenthal Act impose liability for attorney’s fees and costs on 3 defendants found liable under their respective provisions. See 15 U.S.C. § 1692k(a)(3); Cal. Civ. 4 Code § 1788.309(c). Reasonable attorneys’ fees are generally based on the traditional “lodestar” 5 calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Fischer v. SJB-P.D., 6 Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). A reasonable fee is determined by multiplying (1) “the 7 number of hours reasonably expended on the litigation” by (2) “a reasonable hourly rate.” 8 Hensley, 461 U.S. at 433. The lodestar amount may also be adjusted based on an evaluation of the 9 factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which 10 have not been subsumed in the lodestar calculation. See Fischer, 214 F.3d at 1119 (citation 11 omitted). 12 To determine the appropriate lodestar amount, the Court must first assess the 13 reasonableness of counsel’s claimed hourly billing rate. Credit Managers Ass’n of S. Cal. v. 14 Kennesaw Life & Accident Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994). In doing so, courts look to 15 the prevailing market rates in the relevant community for similar work by attorneys of comparable 16 skill, experience, and reputation. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 17 2008). Generally, the relevant community is the forum where the district court sits, which in this 18 case is the Northern District of California. Id. 19 In order to assess whether the number of hours billed is reasonable, Frazier’s counsel must 20 submit detailed records justifying the hours that have been expended. Chalmers v. City of Los 21 Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). The Court may reduce the hours through its 22 discretion “where documentation of the hours is inadequate; if the case was overstaffed and hours 23 are duplicated; if hours expended are deemed excessive or otherwise unnecessary.” Id. 24 Counsel seeks $5,731.252 in attorneys’ fees for 13.85 hours of attorney time and 4.3 hours 25 of paralegal time. Mot., Ex. A, ECF No. 45-1. Counsel seeks to recover fees at the following 26 billing rates: 27 1 Nathan Volheim (attorney) 13.35 hours at $375/hour $5,006.25 2 Nicholas Wajda (attorney) .5 hours at $375/hour $187.50 3 Kiran Wadia (paralegal) 2.8 hours at $125/hour $350 4 Michelle Barry (paralegal) 1 hour at $125/hour $125 5 Biann Ismail (paralegal) .5 hours at $125/hour $62.50 6 Total: $5,731.25 7 Id. In support, counsel provided two declarations from Nathan Volheim, an attorney at Sulaiman 8 Law Group, Ltd. and Frazier’s counsel of record. ECF Nos. 45-2, 47. Mr. Volheim attests that he 9 has handled “well over 1,000 cases throughout the country, through which I have established a 10 prominent reputation in the field of consumer law, particularly cases involving the Fair Debt 11 Collection Practices Act.” ECF No. 47 ¶ 5. Mr. Volheim also provided information about 12 Nicholas Wajda and the paralegals that worked on this matter. Id. ¶¶ 9-10. Frazier’s counsel also 13 submitted an itemization detailing the hourly rates and amount of time worked. ECF No. 45-1. 14 Based on this information and the Court’s awards of similar hourly rates for attorneys in FDCPA 15 cases, the undersigned finds these rates are reasonable. See, e.g., Neves, 2015 WL 6957525, at *5 16 (finding rates of $500 and $400 per hour reasonable “in light of [counsel’s] many years of 17 experience in this legal area”); Martell v. Baker, 2015 WL 3920056, *2 (N.D. Cal. June 25, 2015) 18 (finding $400 hourly rate reasonable for attorney who specializes in consumer credit litigation and 19 has approximately seven years of experience); Evans, 2016 WL 730277, at *4 (finding $320 20 hourly fee reasonable for attorney with nearly eight years of experience); Young v. Law Offices of 21 Herbert Davis, 2014 WL 3418209, at *6 (N.D. Cal. July 11, 2014) (finding rate of $350 per hour 22 reasonable). The Court also finds the $125 hourly rate for paralegal time to be reasonable based 23 on rates previously deemed reasonable in the area. See, e.g., Freligh, 2016 WL 3748723, at *9 24 (finding $145 hourly rate reasonable for paralegals); Forkum v. Co-Operative Adjustment Bureau, 25 Inc., 2014 WL 3827955, at *1 (N.D. Cal. Aug. 4, 2014) (same); Hetland v. Simm Assocs., Inc., 26 2013 WL 4510594, at *2 (N.D. Cal. Aug. 22, 2013) (same). 27 The Court also finds the number of hours billed to be reasonable, with counsel working 1 to prepare the request for default and default judgment motion. Judges in this District have found 2 similar and/or higher hours reasonable in comparable FDCPA cases. See, e.g., Freligh, 2016 WL 3 3748723, at *9 (finding 17.2 hours reasonable where counsel spent the majority of time drafting 4 || the complaint, request for default, and motion for default judgment): Neves, 2015 WL 6957525, at 5 *5 (finding 13.8 hours reasonable where counsel spent 3.5 hours drafting the complaint and 5.4 6 || hours drafting the motion for default judgment); Crider v. Pac. Acquisitions & Assocs., LLC, 2015 7 WL 6689391, at *6 (N.D. Cal. Nov. 3, 2015) (finding 25 hours reasonable); Page v. Performance 8 Debt Resolution, 2013 WL 621197, at *7 (N.D. Cal. Jan. 30, 2013), report and recommendation 9 adopted, 2013 WL 621139 (N.D. Cal. Feb. 19, 2013) (finding 14.80 hours reasonable); Basinger- 10 Lopez v. Tracy Paul & Assocs., 2009 WL 1948832, at *5 (N.D. Cal. July 6, 2009) (finding 15.3 11 hours reasonable). 12 Accordingly, the Court finds the hours reported to be reasonable and GRANTS counsel’s 5 13 request for $5,731.25 in attorney’s fees. 14 3. Costs 15 Frazier also seeks costs in the amount of $839.70: $400 in filing fees, $310 in pro hac vice a 16 fees, $105 in service costs, and $24.70 in mailing costs. Both the FDCPA and the Rosenthal Act 3 17 permit a court to award costs. 15 U.S.C. § 1692k(a)(3); Cal. Civ. Code § 1788.20(c). The 18 || undersigned finds these costs reasonable and therefore GRANTS costs in the amount of $839.70. 19 Vv. CONCLUSION 20 Based on the above analysis, the Court GRANTS Plaintiff Joshua M. Frazier’s motion for 21 default judgment and enter judgment against Defendant American Credit Resolution, Inc. The 22 || Court awards Frazier $800 in statutory damages, $5,731.25 in attorneys’ fees, and $839.70 in 23 costs. 24 IT IS SO ORDERED. 25 26 Dated: October 21, 2019 27 ALY \_- lLj-~— THOMAS S. HIXSON 28 United States Magistrate Judge