1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Karen Lopez, Case No.: 2:20-cv-01007-RFB-VCF 5 Plaintiff, Order granting Plaintiff’s motion 6 v. for default judgment [ECF No. 26] 7 Central Billing Manager, LLC, 8 9 Defendant. 10 Before the Court is Plaintiff’s motion for default judgment against Central 11 Billing Manager, LLC. ECF No. 26. For the reasons stated below, the motion is 12 granted. 13 I. INTRODUCTION 14 Plaintiff filed her Motion for Default Judgment against Defendant Central 15 Billing Manager, LLC on August 16, 2021. ECF No. 26. Defendant did not respond 16 to this motion or the operative complaint and has not appeared in this action. Under 17 Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities 18 in response to any motion shall constitute a consent to the granting of the motion.” 19 Although there is a strong policy underlying the Federal Rules of Civil Procedure 20 that favors deciding cases on their merits, the Court finds that Plaintiff would be 21 prejudiced in her ability to seek relief absent a default judgment against Defendant. 22 II. LEGAL STANDARD 23 Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by 24 a defendant, to enter default judgment in a case. “The district court's decision 25 whether to enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 26 F.2d 1089, 1092 (9th Cir. 1980). 27 1 At the default judgment stage, the factual allegations of the complaint, except 2 those concerning damages, “together with other competent evidence submitted” are 3 deemed admitted by the non-responding parties. Shanghai Automation Instrument 4 Co. v. Kuei, 194 F. Supp. 2d 995, 1000 (N.D. Cal. 2001); see also Fair Hous. of 5 Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the 6 determination of liability and the default judgment itself, the general rule is that well- 7 pled allegations in the complaint regarding liability are deemed true.”). The scope 8 of relief is limited by Federal Rule of Civil Procedure 54(c), which states that a 9 “default judgment must not differ in kind from, or exceed in amount, what is 10 demanded in the pleadings.” 11 In determining whether default judgment is appropriate, the Ninth Circuit has 12 enumerated the following factors for courts to consider: 13 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency 14 of the complaint, (4) the sum of money at stake in the 15 action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, 16 and (7) the strong policy underlying the Federal Rules of 17 Civil Procedure favoring decisions on the merits. 18 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 19 III. Eitel factors 20 Applying the seven Eitel factors, the Court finds default judgment is 21 warranted in favor of Plaintiff. 22 1. The possibility of prejudice 23 The first factor the Court considers is the possibility of prejudice if a default 24 judgment is not entered. Eitel, 782 F.2d at 1471-72. Courts have held that prejudice 25 exists where denying the requested default judgment would leave the plaintiff 26 without a proper remedy. See, e.g., IO Grp., Inc. v. Jordon, 708 F. Supp. 2d 989, 997 27 (N.D. Cal. 2010). Since Defendant has not appeared in this case and has not defended 1 itself, Plaintiff will likely have no recourse if default judgment is denied. Therefore, 2 the 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 5 and the sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. “Together, these 6 factors require that plaintiff assert claims upon which it may recover.” IO Grp., 708 7 F. Supp. 2d at 989 (citing Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 8 F.R.D. 494, 500 (C.D. Cal. 2003)). 9 Plaintiff’s claims are brought under the FDCPA. “In enacting the FDCPA, 10 Congress sought to counter the abusive, deceptive and unfair debt collection 11 practices sometimes used by debt collectors against consumers.” Turner v. Cook, 12 362 F.3d 1219, 1226-27 (9th Cir. 2004). As such, the statute is liberally construed 13 to protect the “least sophisticated debtor.” Clark v. Capital Credit & Collection 14 Servs., Inc., 460 F.3d 1162, 1171 (9th Cir. 2006); see also Clomon v. Jackson, 988 15 F.2d 1314, 1318-19 (2d Cir. 1993). This objective standard “ensure[s] that the 16 FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, 17 the unthinking and the credulous.” Clomon, 988 F.2d at 1318-19. 18 Defendant qualifies as a “debt collector.” ECF No. 17, Am. Compl., ¶¶ 13-14, 19 18. Section 1692g requires a debt collector, within five days of the initial 20 communication, to send the consumer written notice containing: 21 (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; 22 (3) a statement that unless the consumer, within thirty days 23 after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid 24 by the debt collector; 25 26 27 1 (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the 2 debt, or any portion thereof, is disputed, the debt collector 3 will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or 4 judgment will be mailed to the consumer by the debt 5 collector; and (5) a statement that, upon the consumer’s written request 6 within the thirty-day period, the debt collector will provide 7 the consumer with the name and address of the original 8 creditor, if different from the current creditor.
9 15 U.S.C. § 1692g(a). Defendant failed to send Plaintiff the required written notices. 10 ECF No. 17, Am. Comp., ¶ 19. The second and third factors therefore weigh in favor 11 of default judgment. 12 3. The sum of money at stake in the action 13 Under the fourth Eitel factor, “the Court must consider the amount of money 14 at stake in relation to the seriousness of Defendant’s conduct.” Dr. JKL Ltd., v. HPC 15 IT Educ. Ctr., 749 F. Supp. 2d 1038, 1050 (N.D. Cal. 2010) (citation and quotation 16 marks omitted). When the amount at stake is substantial or unreasonable in light of 17 the allegations in the complaint, default judgment is disfavored. See Eitel, 782 F.2d 18 at 1472 (affirming the denial of default judgment where the plaintiff sought $3 19 million in damages and the parties disputed material facts in the pleadings). 20 “However, when the sum of money at stake is tailored to the specific misconduct of 21 the defendant, default judgment may be appropriate.” Yelp Inc. v. Catron, 70 F. 22 Supp. 3d 1082, 1100 (N.D. Cal. 2014). Here, Plaintiff seeks $1,000 in statutory fees 23 under the FDCPA.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Karen Lopez, Case No.: 2:20-cv-01007-RFB-VCF 5 Plaintiff, Order granting Plaintiff’s motion 6 v. for default judgment [ECF No. 26] 7 Central Billing Manager, LLC, 8 9 Defendant. 10 Before the Court is Plaintiff’s motion for default judgment against Central 11 Billing Manager, LLC. ECF No. 26. For the reasons stated below, the motion is 12 granted. 13 I. INTRODUCTION 14 Plaintiff filed her Motion for Default Judgment against Defendant Central 15 Billing Manager, LLC on August 16, 2021. ECF No. 26. Defendant did not respond 16 to this motion or the operative complaint and has not appeared in this action. Under 17 Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities 18 in response to any motion shall constitute a consent to the granting of the motion.” 19 Although there is a strong policy underlying the Federal Rules of Civil Procedure 20 that favors deciding cases on their merits, the Court finds that Plaintiff would be 21 prejudiced in her ability to seek relief absent a default judgment against Defendant. 22 II. LEGAL STANDARD 23 Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by 24 a defendant, to enter default judgment in a case. “The district court's decision 25 whether to enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 26 F.2d 1089, 1092 (9th Cir. 1980). 27 1 At the default judgment stage, the factual allegations of the complaint, except 2 those concerning damages, “together with other competent evidence submitted” are 3 deemed admitted by the non-responding parties. Shanghai Automation Instrument 4 Co. v. Kuei, 194 F. Supp. 2d 995, 1000 (N.D. Cal. 2001); see also Fair Hous. of 5 Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the 6 determination of liability and the default judgment itself, the general rule is that well- 7 pled allegations in the complaint regarding liability are deemed true.”). The scope 8 of relief is limited by Federal Rule of Civil Procedure 54(c), which states that a 9 “default judgment must not differ in kind from, or exceed in amount, what is 10 demanded in the pleadings.” 11 In determining whether default judgment is appropriate, the Ninth Circuit has 12 enumerated the following factors for courts to consider: 13 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency 14 of the complaint, (4) the sum of money at stake in the 15 action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, 16 and (7) the strong policy underlying the Federal Rules of 17 Civil Procedure favoring decisions on the merits. 18 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 19 III. Eitel factors 20 Applying the seven Eitel factors, the Court finds default judgment is 21 warranted in favor of Plaintiff. 22 1. The possibility of prejudice 23 The first factor the Court considers is the possibility of prejudice if a default 24 judgment is not entered. Eitel, 782 F.2d at 1471-72. Courts have held that prejudice 25 exists where denying the requested default judgment would leave the plaintiff 26 without a proper remedy. See, e.g., IO Grp., Inc. v. Jordon, 708 F. Supp. 2d 989, 997 27 (N.D. Cal. 2010). Since Defendant has not appeared in this case and has not defended 1 itself, Plaintiff will likely have no recourse if default judgment is denied. Therefore, 2 the 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 5 and the sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. “Together, these 6 factors require that plaintiff assert claims upon which it may recover.” IO Grp., 708 7 F. Supp. 2d at 989 (citing Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 8 F.R.D. 494, 500 (C.D. Cal. 2003)). 9 Plaintiff’s claims are brought under the FDCPA. “In enacting the FDCPA, 10 Congress sought to counter the abusive, deceptive and unfair debt collection 11 practices sometimes used by debt collectors against consumers.” Turner v. Cook, 12 362 F.3d 1219, 1226-27 (9th Cir. 2004). As such, the statute is liberally construed 13 to protect the “least sophisticated debtor.” Clark v. Capital Credit & Collection 14 Servs., Inc., 460 F.3d 1162, 1171 (9th Cir. 2006); see also Clomon v. Jackson, 988 15 F.2d 1314, 1318-19 (2d Cir. 1993). This objective standard “ensure[s] that the 16 FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, 17 the unthinking and the credulous.” Clomon, 988 F.2d at 1318-19. 18 Defendant qualifies as a “debt collector.” ECF No. 17, Am. Compl., ¶¶ 13-14, 19 18. Section 1692g requires a debt collector, within five days of the initial 20 communication, to send the consumer written notice containing: 21 (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; 22 (3) a statement that unless the consumer, within thirty days 23 after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid 24 by the debt collector; 25 26 27 1 (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the 2 debt, or any portion thereof, is disputed, the debt collector 3 will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or 4 judgment will be mailed to the consumer by the debt 5 collector; and (5) a statement that, upon the consumer’s written request 6 within the thirty-day period, the debt collector will provide 7 the consumer with the name and address of the original 8 creditor, if different from the current creditor.
9 15 U.S.C. § 1692g(a). Defendant failed to send Plaintiff the required written notices. 10 ECF No. 17, Am. Comp., ¶ 19. The second and third factors therefore weigh in favor 11 of default judgment. 12 3. The sum of money at stake in the action 13 Under the fourth Eitel factor, “the Court must consider the amount of money 14 at stake in relation to the seriousness of Defendant’s conduct.” Dr. JKL Ltd., v. HPC 15 IT Educ. Ctr., 749 F. Supp. 2d 1038, 1050 (N.D. Cal. 2010) (citation and quotation 16 marks omitted). When the amount at stake is substantial or unreasonable in light of 17 the allegations in the complaint, default judgment is disfavored. See Eitel, 782 F.2d 18 at 1472 (affirming the denial of default judgment where the plaintiff sought $3 19 million in damages and the parties disputed material facts in the pleadings). 20 “However, when the sum of money at stake is tailored to the specific misconduct of 21 the defendant, default judgment may be appropriate.” Yelp Inc. v. Catron, 70 F. 22 Supp. 3d 1082, 1100 (N.D. Cal. 2014). Here, Plaintiff seeks $1,000 in statutory fees 23 under the FDCPA. Because this is neither substantial nor unreasonable and the 24 damages are tied to Defendant's misconduct, the fourth factor weighs in favor of 25 default judgment. 26
27 1 4. The possibility of dispute concerning material facts 2 The fifth Eitel factor examines the likelihood of dispute between the parties 3 regarding the material facts surrounding the case. Eitel, 782 F.2d at 1471-72. 4 However, upon entry of default, the defendant is “deemed to have admitted all well- 5 pleaded factual allegations” in the complaint. DirecTV, 503 F.3d at 851 (citing Fed. 6 R. Civ. P. 55(a)). Further, nothing in the record before the Court suggests a factual 7 dispute. Accordingly, this factor also weighs in favor of granting default judgment. 8 5. Whether default was due to excusable neglect 9 The sixth Eitel factor examines whether the defendant’s failure to respond to 10 the complaint was the result of excusable neglect. Eitel, 782 F.2d at 1471-72. Here, 11 Defendant failed to appear in the case. See S.E.C. v. Internet Sols. for Bus. Inc., 509 12 F.3d 1161, 1166 (9th Cir. 2007) (“A signed return of service constitutes prima facie 13 evidence of valid service which can be overcome only by strong and convincing 14 evidence.”) (citations and quotation marks omitted). Further, there is nothing in the 15 record suggesting this failure is based on excusable neglect. See Shanghai 16 Automation, 194 F. Supp. 2d at 1005 (default after proper service was not excusable 17 neglect). Thus, this factor supports default judgment. 18 6. Policy favoring deciding a case on its merits 19 The last Eitel factor examines whether the policy of deciding a case based on 20 the merits precludes entry of default judgment. Eitel, 782 F.2d at 1472. In Eitel, the 21 Ninth Circuit admonished that "[c]ases should be decided on their merits whenever 22 reasonably possible." Id. “The existence of Federal Rule of Civil Procedure 55(b), 23 however, shows that this policy is not dispositive.” McMillan Data Commc'ns, Inc. 24 v. AmeriCom Automation Servs., Inc., 2015 U.S. Dist. LEXIS 93393, 2015 WL 25 4380965, at *11 (N.D. Cal. July 16, 2015) (citing Kloepping v. Fireman's Fund, 26 1996 U.S. Dist. LEXIS 1786, 1996 WL 75314, at *3 (N.D. Cal. Feb. 13, 1996)). And 27 a defendant’s failure to appear makes a decision on the merits impracticable, if not impossible. Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. 1 Cal. 2010) (citation and quotation marks omitted). 2 Given that Defendant failed to appear, a decision on the merits is 3 impracticable. “In situations such as this, Rule 55(b) allows the court to grant default 4 judgment." Bd. of Trs. v. Diversified Concrete Cutting, Inc., 2018 U.S. Dist. LEXIS 5 111349, 2018 WL 3241040, at *5 (N.D. Cal. July 3, 2018), report and 6 recommendation adopted sub nom. Bd. of Trustees as Trs. of Laborers Health & 7 Welfare Tr. Fund for N. Cal. v. Diversified Concrete Cutting, Inc., 2018 WL 8 4775429 (N.D. Cal. July 27, 2018). This final factor weighs in favor of granting 9 the Motion. 10 7. Summary of the Eitel factors 11 Based on the analysis above, the Court finds each Eitel factor weighs in favor of 12 granting default judgment. Accordingly, the Court GRANTS Plaintiff's motion 13 and enters default judgment against Defendant. 14 IV. Statutory damages 15 Once the clerk enters a default, the well-pleaded factual allegations of the 16 complaint are taken as true, except for those allegations relating to damages. E.g., 17 Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). The 18 plaintiff is required to prove all damages sought in the complaint, and those damages 19 may not “differ in kind from, or exceed in amount, what is demanded in the 20 pleadings.” Fed. R. Civ. P. 54(c). In her complaint and motion for default judgment, 21 Plaintiff seeks $1,000 in statutory damages under 15 U.S.C. § 1692k(a)(2)(A). 22 Compl., ECF No. 1, ¶ 27; Mot., ECF No. 26. 23 Under the FDCPA, the Court may award statutory damages “not exceeding 24 $1,000,” in addition to actual damages. 15 U.S.C. 1692k(a)(2)(A). Statutory 25 damages are available under the Fair Debt Collection Practices Act without proof 26 of actual damages. Baker v. G. C. Servs. Corp., 677 F.2d 775, 776 (9th Cir. 1982). 27 1 In considering the amount of statutory damages, there are several factors to be 2 considered by the Court. 3 (b) Factors considered by court 4 In determining the amount of liability in any action under 5 subsection (a) of this section, the court shall consider, among other relevant factors -- 6 7 (1) in any individual action under subsection (a)(2)(A) of 8 this section, the frequency and persistence of noncompliance by the debt collector, the nature of such 9 noncompliance, and the extent to which such 10 noncompliance was intentional; . . . . 11 15 U.S.C. § 1692k. “We have wide discretion in determining statutory damages.” 12 Martinez v. Crosspoint Assocs., LLC, No. CV 11-7389-GHK (Ex), 2012 U.S. Dist. 13 LEXIS 171525, at *13 (C.D. Cal. Mar. 12, 2012) (citing Peer Int’l Corp. v. Pausa 14 Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990)). 15 Here, Defendant failed to send Plaintiff the written notices required by § 16 1692g, as discussed above. See 15 U.S.C. § 1692g(a). “Congress’s sole goal in 17 enacting § 1692g(a) was consumer protection.” Hernandez v. Williams, 829 F.3d 18 1068, 1080 (9th Cir. 2016). “Calling it a ‘significant feature’ of the FDCPA, 19 Congress ‘added the validation of debts provision specifically to ensure that debt 20 collectors gave consumers adequate information concerning their legal rights.” Id. 21 (citing S. Rep. No. 95-382 at 4.) (quotations omitted). 22 The nature of Defendant’s violations weigh in favor of awarding the 23 maximum $1,000 statutory damages. Reed v. Budzik & Dynia, LLC, No. 4:11-CV- 24 865(CEJ), 2012 U.S. Dist. LEXIS 91848, at *4-5 (E.D. Mo. July 2, 2012) (awarding 25 $1,000 in statutory damages where the debt collector “failed to indicate that the 26 communication was from a debt collector or to provide meaningful disclosure of 27 defendant's identity,” among other things); Rankins v. Nat'l Credit Works II, LLC, 1 No. 4:11-CV-885(CEJ), 2011 U.S. Dist. LEXIS 126488, at *7 (E.D. Mo. Nov. 2, 2 2011) (two telephone contacts with debt collector was sufficient to award maximum 3 statutory damages); Hernandez v. Williams, 829 F.3d 1068, 1078-79 (9th Cir. 2016) 4 (In enacting § 1692g, Congress intended to protect consumers from abusive debt 5 collection practices by giving consumers information about their debts and 6 opportunities to verify them); see also Perrigo v. Premium Asset Servs., No. 2:14- 7 cv-01052-GMN-PAL, 2015 U.S. Dist. LEXIS 99038, at *24 (D. Nev. June 8, 2015) 8 (awarding $1,000, the maximum statutory damages, as default judgment in FDCPA 9 action); Carlile v. N. Am. Asset Servs., LLC, No. 10-cv-3234, 2010 U.S. Dist. LEXIS 10 129967, at *5 (C.D. Ill. Dec. 8, 2010) (on a motion for default judgment, awarding 11 $1,000 in statutory damages and finding that the debt collector’s actions were willful 12 based on the inferences of its actions). 13 The Court finds that “the frequency and persistence of noncompliance by the 14 debt collector, the nature of such noncompliance, and the extent to which such 15 noncompliance was intentional” warrants an award of $1,000. 15 U.S.C. § 16 1692k(b)(1); see Am. Compl., ECF No. 17, ¶ 6 (Defendant’s violations were 17 knowing, willful and intentional), ¶ 14 (Defendant is a debt collector that regularly 18 collects debts), ¶ 19 (referring to Defendant’s “communications” [plural]), ¶ 20 19 (“Plaintiff felt helpless against Defendant”). 20 After weighing the factors, the Court finds that an award of $1,000 in 21 statutory damages is appropriate. 22 /// 23 /// 24 /// 25 26 27 1) V.CONCLUSION 2 IT IS ORDERED that Judgment be entered in Plaintiff's favor. The Court 3| enters default judgment against Defendant Central Billing Manager, LLC for 4| Plaintiff's FDCPA claim in the amount of $1,000.
IF IS FURTHER ORDERED that Defendant may move for reconsideration
4 and to vacate the judgment. In this motion, the moving Defendant will be required to submit evidence to demonstrate excusable neglect in responding to and appearing 9 in this matter.
10 11 Dated: November 17, 2023 12 AS 13 RICHARD F. BOULWARE, II 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27
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