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John Hett v. Bryant Lafayette and Associates

February 24, 2011

JOHN HETT PLAINTIFF,
v.
BRYANT LAFAYETTE AND ASSOCIATES, LLC, DEFENDANT.



The opinion of the court was delivered by: Paul D. Borman United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

This is a Fair Debt Collection Practices Act ("FDCPA") case. Now before the Court is Plaintiff John Hett's Motion for Default Judgment (Dkt. No. 6). Defendant Bryant Lafayette and Associates has not filed a response. At a hearing on January 12, 2011, the Court heard testimony from Plaintiff regarding his claimed damages. Defendant failed to appear at this hearing. For the reasons that follow, Plaintiff's Motion will be granted.

II. BACKGROUND

Plaintiff filed this lawsuit on June 23, 2010. Defendant's registered agent was served with a Summons and Complaint by certified mail on June 27, 2010. (Certificate of Service, Dkt. No. 3). Defendant did not file an answer or any responsive pleading. On July 26, 2010, default was entered against Defendant by the Court Clerk. (Dkt. No. 5). Plaintiff filed the current Motion for Default Judgment on the same day.

Plaintiff's Complaint alleged that Defendant's agents called him and his wife multiple times regarding a consumer debt owed by the Plaintiff's sister in law, Pamela Hett. Plaintiff told Defendant's agents that Pamela Hett did not reside with Plaintiff and his wife, and that they had no location information to offer Defendant. However, Defendant's agents continued to call Plaintiff attempting to collect Pamela Hett's debt. (Compl. ¶¶ 7-10).

According to the Complaint,*fn1 Defendant violated the FDCPA by: (1) failing to identify itself as a collection agency; (2) failing to state that it was confirming the debtor's location information; (3) repeatedly contacting the Plaintiff and his wife after being advised that they had no information regarding the debtor; (4) communicating with the Plaintiff about Pamela Hett's debt without her permission; (5) repeatedly calling Plaintiff knowing that Plaintiff had no information about the debt; (6) repeatedly calling Plaintiff knowing that its calls were "belittling and demeaning" to the Plaintiff and his wife, and (7) threatening to contact the Plaintiff's home when it had no right to do so. (Compl. ¶¶ 20-21). In addition, Plaintiff has alleged intentional infliction of emotional distress.*fn2 (Compl. ¶¶23-26).

In his Motion for Default Judgment, Plaintiff requests $23,755 in damages, including statutory damages of $1,000, filing fees of $350 along with $20 for service of process, attorney's fees of $2,385, and $20,000 as damages for intentional infliction of emotional distress.

III. LEGAL STANDARD UNDER FED. R. CIV. P. 55(b)(2)

Where damages are for an uncertain amount, a party must apply to the Court for a default judgment. Entry of default judgment by the Court is governed by Fed. R. Civ. P. 55(b)(2). The rule states that, in entering a default judgment:

[t]he court may conduct hearings or make referrals -- preserving any federal statutory right to a jury trial -- when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter. "This provision, by its terms, allows but does not require the district court to conduct an evidentiary hearing." Vesligaj v. Peterson, 331 F. App'x. 351, 354-55 (6th Cir. 2009) (citing Fustok v. ...


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