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McGilvra v. Abbott & Rose Associates, LLC

United States District Court, E.D. Washington

October 28, 2019



          Stanley A. Bastian United States District Judge.

         Before the Court is Plaintiff's Motion for Default Judgment, ECF No. 6. Plaintiff is represented by Ryan McBride. Defendant has not appeared. The motion was decided without oral argument. In her Motion, Plaintiff requests that the Court enter default judgment in her favor and award damages and attorney's fees pursuant to the Fair Debt Collection Practices Act (FDCPA). See ECF No. 8. Having considered the motion an d relevant caselaw, the Court grants Plaintiff's Motion for Default Judgment.

         Factual and Procedural Background

         Plaintiff alleges that Defendant violated the FDCPA by making material misrepresentations to Plaintiff in connection with the collection of an alleged debt. ECF No. 1 at 2. On March 7, 2019, Plain tiff received a call from Lacy St evens, Defendant's representative, attempting to collect on a debt of Plaintiff that had been transferred to Defendant. Id. at 4. In this call, Ms. Stevens told Plaintiff that Defendant intended on serving Plaintiff at her place of employment and that Plaintiff should have a manager present to accept the documents. Id. On March 8, Ms. Stevens left a voicemail for Plaintiff indicating Ms. Stevens was in Plaintiff's “jurisdiction” and that she intended to deliver the “legal documents” at Plaintiff's place of employment that day. Id. Ms. Stevens also indicated that she would attempt to contact Plaintiff's manager so that they should be made available at the time of service. Id. Ms. Stevens also told Plaintiff in the voicemail that she would need a valid form of identification, provided Plaintiff with a case number, and told Plaintiff this was her final notification. Id. at 5. Ms. Stevens never showed up at Plaintiff's workplace, nor has Plaintiff been served with a lawsuit by Ms. Stevens or any other representative of Defendant. Id.

         Plaintiff believes that there is no active court case against her involving Defendant, that Ms. Stevens was not in her “jurisdiction” on March 7 and 8, that the “legal documents” referred to in the phone calls are nonexistent, and that Ms. Stevens never intended on serving Plaintiff with legal documents. Id. Plaintiff therefore alleges a myriad of violations under 15 U.S.C. §§ 1692d, 1692e, and 1692f related to these phone calls from Ms. Stevens.

         Plaintiff filed her complaint on April 3, 2019. On April 12, 2019, Defendant was properly served a copy of the summons and complaint. ECF No. 6, Ex. A. Plaintiff's counsel mailed a letter to Defendant requesting that Defendant file a response. ECF No. 6, Ex. B. In response, Defendant's representative indicated that he was aware of the lawsuit. ECF No. 6, Ex. C. However, Defendant never filed an answer and Plaintiff's Motion for Default was granted by the Clerk of Court on July 29, 2019. Plaintiff seeks the statutory maximum award of $1, 000 in addition to attorney's fees and costs.


         Motions for entry of default judgment are governed by Federal Rule of Civil Procedure 55(b). If the plaintiff is seeking damages in a “sum certain, ” then the Clerk may enter default judgment; otherwise, if there is any doubt as to the sum of damages due the plaintiff, the court must enter default judgment. Franchise Holding, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 929 (9th Cir. 2004). The entry of default judgment under Rule 55(b) is “an extreme measure.” Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1170 (9t h Cir. 2002). “As a general rule, default judgements are disfavored; cases should be decided upon their merits whenever reasonably possible.” Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009). In determining whether t o enter default judgment, a court should consider the following factors: “(1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claims; (3) the sufficiency of the complaint; (4) 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 excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). All well pleaded allegations in a complaint are deemed admitted on a motion for default judgment. In re Visioneering Const., 661 F.2d 119, 124 (9th Cir. 1981).

         Plaintiff also requests attorney's fees and costs in her motion for default judgment. The FDCPA provides that a prevailing party be awarded attorney's fees and costs. 15 U.S.C. § 1692k(a)(3). The Supreme Court has defined a prevailing party as a party in whose favor a judgment is rendered. Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Res., 532 U.S. 598, 603 (2001). Thus, if t he Court grants Plaintiff's motion for default judgment, then she is a prevailing party and is entitled to costs an d fees under § 1692k(a)(3). See Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1032 (9t h Cir. 2012) (noting that awards of attorney's fees and costs to the prevailing party are mandatory under the FDCPA).

         In the Ninth Circuit, attorney's fees under the FDCPA are calculated using the lodestar method. Id. at 1033. The lodestar method calculates fee by multiplying the hours reasonable expended by an allowed hourly rate. The burden is on the applicant to prove that the fee request is reasonable. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). After computing the lodestar, the district court must consider twelve factors in determining whether the amount requested is reasonable. These factors include:

(1) the time and labor required;
(2) the novelty and difficulty of the questions involved;
(3) the skill requisite to perform the legal service properly;
(4) the preclusion of other employment due to acceptance of ...

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