United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S RENEWED
MOTION FOR DEFAULT JUDGMENT (ECF NO. 15)
D. Borman United States District Judge
in this action claims that Defendant Recovery Solutions
Group, LLC, attempted to collect a debt from her through
threatening and intimidating phone calls in violation of the
Fair Debt Collections Practices Act, 15 U.S.C. § 1692
et seq. (“the FDCPA”) and the Michigan
Occupational Code, Mich. Comp. Laws § 339.901 et
seq. (“the MOC”). Defendant has failed to
appear and defend this action, resulting in the Clerk of the
Court entering a default on September 29, 2017. Plaintiff now
moves for a default judgment under Fed.R.Civ.P. 55(b).
Defendant has not responded to the motion for default
judgment. The Court held a hearing on February 27, 2018,
which was attended only by counsel for the Plaintiff. For the
reasons that follow, the Court GRANTS the motion for default
judgment and awards Plaintiff the full amount of her
requested damages of $27, 057.00.
sought and obtained a Clerk's entry of default against
Defendant on September 29, 2017. (ECF No. 14, Clerk's
Entry of Default.) Once a default has been entered by the
clerk's office, all of a plaintiff's well-pleaded
allegations, except those relating to damages, are deemed
admitted. Antoine v. Atlas Turner, Inc., 66 F.3d
105, 110 (6th Cir. 1995). See also Ford Motor Co. v.
Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006). The
Court may either enter a default judgment in a certain
amount, or conduct a hearing to determine the appropriate
amount of damages. “Fed. R. Civ. P. 55 does not require
a presentation of evidence as a prerequisite to the entry of
a default judgment, although it empowers the court to conduct
such hearings as it deems necessary and proper to enable it
to enter judgment or carry it into effect.”
Cross, 441 F.Supp.2d at 848.
the Court deems the allegations of Plaintiff's Complaint
admitted and additionally considers the Affidavits filed by
Plaintiff in support of the motion for default judgment.
Plaintiff is a “consumer” as that term is defined
under the FDCPA. (ECF No. 1, Compl. ¶ 4.) Defendant is a
“debt collector” as that term is defined under
the FDCPA and a “collection agency” as that term
is defined under the MOC. (Compl. ¶ 5.) Plaintiff
incurred a financial obligation that was primarily for
personal, family, or household purposes based upon an alleged
debt to Serv-Pro that went into default and is therefore a
“debt” as that term is defined under the FDCPA.
(Compl. ¶ 6; Pl.'s Mot. Ex. 1.)
and her live-in boyfriend, Robert Norton, have two phones,
one of which is linked to Mr. Norton's cell phone and one
of which is linked to their house phone. When an important
call comes in, Plaintiff and Mr. Norton have worked out a
system where Mr. Norton, who drives trucks for a living, can
hear the call as well. To accomplish this, Plaintiff turns on
the speaker phone on the house phone land line and the
speaker phone on the cell phone, enabling Mr. Norton to hear
the call. (Pl.'s Mot. Ex. 2, Aug. 3, 2017 Affidavit of
Robert Norton ¶¶ 3, 6-8; Pl.' Mot. Ex. 3, Aug.
18, 2017 Affidavit of Teresa Link ¶¶ 3-8.) In
October 2016, while on the road driving his truck, Mr. Norton
received a call from an agent of the Defendant alleging that
he was a “private investigator” trying to track
down the Plaintiff because she had received an inheritance.
(Compl. ¶ 7; Norton Aff. ¶ 9.) Mr. Norton pulled
over and called Plaintiff to give her the number that the
“investigator” had given him, asking that
Plaintiff call him. Plaintiff called the number while Mr.
Norton listened in, and the “investigator” told
Plaintiff that he was hired by a collection agency and that
he would be driving by her property to see what property
Plaintiff had to sell. (Compl. ¶¶ 8-9.) The
investigator stated that there was a woman who needed to get
in touch with Plaintiff and gave Plaintiff the woman's
called the woman but she did not answer the phone. (Compl.
¶ 11; Norton Aff. ¶¶ 11-13; Link Aff.
¶¶ 9-12.) The woman, a representative of the
Defendant, called Plaintiff back and Mr. Norton heard the
conversation. The woman told Plaintiff that she was a lawyer
and that Plaintiff had 24 hours to pay a debt related to an
insurance claim on a fire at Plaintiff's former
residence. (Compl. ¶¶ 13; Norton Aff.
¶¶14-16; Link Aff. ¶¶ 13-16.) The woman
represented that she was going to have people come to
Plaintiff's home to seize property. Plaintiff did not
know she owed the debt to Serv-Pro and asked if she could
have time to investigate the alleged debt. The woman insisted
that Plaintiff had 24 hours to pay the debt and stated that
she would contact the State insurance commissioner and that
Plaintiff would go to prison for insurance fraud if she did
not pay in that time frame. (Compl. ¶¶ 13-16;
Norton Aff. ¶¶ 17-24; Link Aff. ¶¶
became hysterical crying as a result of the call, her arms
became numb and her head hurt. She thought she would be going
to jail because she had no idea how she would come up with
the money in 24 hours. (Compl. ¶ 19; Norton Aff.
¶¶ 21-27; Link Aff. ¶¶ 28-29.) She asked
Mr. Norton what she should do and he called a friend, Carolyn
Norton (no relation) and asked her to call Plaintiff to try
to calm her down. (Compl. ¶ 20; Norton Aff. ¶¶
28-29; Link Aff. ¶ 30.) Ms. Norton did call Plaintiff
and they spoke for one and a half to two hours. Plaintiff
reiterated to Ms. Norton the events that had transpired and
Plaintiff was worried, scared and crying during the call.
(Pl.'s Mot. Ex. 4, Aug. 18, 2017 Affidavit of Carolyn
Norton 1-16.) Plaintiff eventually did calm down after
speaking with Ms. Norton but the collector continued to call
her, again and again. (C. Norton Aff. ¶¶ 18; Link
Aff. 32.) Every time the phone rang, Plaintiff feared it was
the collector calling again and she would mumble to herself,
“it's them again, I'm not answering.”
(Norton Aff. ¶¶ 30-31; Link Aff. ¶¶
32-33.) Ms. Norton suggested that Plaintiff contact a lawyer,
which Plaintiff did. (Link Aff. ¶ 34-35; C. Norton Aff.
requests a default judgment in the amount of $27, 057.00,
representing: (1) statutory damages under the FDCPA of $1,
000.00; (2) actual damages under the FDCPA of $5, 000.00; (3)
three times actual damages under the MOC of $15, 000.00; (4)
costs for service of process of $267.00; and (5)
attorneys' fees of $5, 790.00.
to Federal Rule of Civil Procedure 55(b) a judgment by
default may be entered against a defendant who has failed to
plead or otherwise defend against an action. In order to
obtain judgment by default, the proponent must first request
the clerk's entry of default pursuant to Rule 55(a).
See Hanner v. City of Dearborn Heights, No.
07-15251, 2008 WL 2744860, at *1 (E.D. Mich. July 14, 2008).
Once a default has been entered by the clerk's office,
all of a plaintiff's well-pleaded allegations are deemed
admitted. Ford Motor Co. v. Cross, 441 F.Supp.2d at
846 (citation omitted).
default is obtained, the party may then file for a default
judgment by the clerk or by the court. Fed.R.Civ.P. 55(b).
When the plaintiff's complaint alleges damages for a sum
certain a default judgment by the clerk is appropriate.
Fed.R.Civ.P. 55(b)(1). “In all other cases, the party
must apply to the court for a default judgment.”
Fed.R.Civ.P. 55(b)(2). Although Rule 55(b)(2) does not
provide a standard to determine when a party is entitled to a
judgment by default, the court must exercise “sound
judicial discretion” when determining whether to enter
the judgment. Wright & Miller, 10A Federal Practice &
Procedure, § 2685 (3d ed. 1998) (collecting cases).
After a court determines that a default judgment should be
entered, it will determine the amount and character of the
recovery awarded. See id. § 2688 (collecting
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 Federal Rule of Civil Procedure
55(b)(2). The rule states that, in entering a default
court may conduct hearings or make referrals-preserving any
federal statutory right to a jury trial-when, to enter ...