United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
DEFAULT JUDGMENT [#9]
Gershwin A. Drain United States District Court Judge
Taylor Monicque Marshall, is an adult residing in Detroit,
Michigan. On February 27, 2018, Plaintiff filed the instant
action under the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. 227 et seq., and the
Michigan Occupational Code (“MOC”), M.C.L.
339.901 et seq., against Defendant. Dkt. No. 1.
Plaintiff claims that from 2015 throughout 2017, Defendant
called her cellular phone not less than fifty times to
collect an outstanding debt said to be owed by Plaintiff.
Id. at pg. 3-4 (Pg. ID 3-4). Plaintiff demanded the
phone calls to stop, but Defendant persisted in calling her.
Id. On March 13, 2018, a process server served
Defendant with the Summons and Complaint at its place of
business. Dkt. No. 6, pg. 2 (Pg. ID 17). Defendant had twenty
one days to file its answer, until April 3, 2018. Defendant
did not file an answer. On April 5, 2018, Plaintiff filed a
Request for Clerk's Entry of Default with this Court.
Dkt. No. 7. The Clerk entered a default that same day. Dkt.
No. 8. On April 9, 2018, Plaintiff filed the present Motion
for Default Judgment. Dkt. No. 9. Defendant did not file a
to Fed.R.Civ.P. 55(a), “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend, and that failure is shown by affidavit
or otherwise, the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). A default judgment is
governed by Fed.R.Civ.P. 55(b)(2). “An entry of default
and a default judgment are distinct concepts which must be
treated separately.” Northland Ins. Co. v. Cailu
Title Corp., 204 F.R.D. 327, 330 (W.D. Mich. 2000);
see also Ramada Franchise Sys. Inc., 220 F.R.D. 303,
305 (N.D. Ohio 2004) (“Entry of a default . . . is a
prerequisite to entry of a default judgment under Rule
55(b).”). Upon entry of default, the well-pleaded
allegations of the complaint relating to a defendant's
liability are taken as true, with the exception of the
allegations as to the amount of damages. See Kelley v.
Carr, 567 F.Supp. 831, 840 (W.D. Mich. 1983). Thus, the
plaintiff is required to provide proof of all damages sought
in the complaint. See John E. Green Plumbing and
Heating Co., Inc. v. Turner Constr. Co., 742 F.2d
965, 968 (6th Cir. 1984) (“We recognize that the law
‘does not require impossibilities' when it comes to
proof of damages, but it does require whatever ‘degree
of certainty tha[t] the nature of the case
Telephone Consumer Protection Act
Telephone Consumer Protection Act prohibits using an
automated telephone dialing system (ATDS) to call a
person's cell phone without her consent. 47 U.S.C. §
227(b)(1)(iii). In this case, Plaintiff alleges that
Defendant used an ATDS to call her cell phone not less than
fifty times between 2015-2017. Dkt. No. 1, pg. 5 (Pg. ID 5).
Plaintiff would hear a recorded message before being
connected to a live representative, and would also receive
multiple calls per day in short succession-leading Plaintiff
to believe that Defendant used an ATDS. Id.
Plaintiff further states in her complaint that she did not
consent to these phone calls. Id. Based on
Plaintiff's allegations, Defendant violated the TCPA.
TCPA allows damages in the amount of $500.00 for each
violation of the TCPA. 47 U.S.C. § 227(b)(3)(B).
Plaintiff alleges that Defendant called her not less than
fifty times in violation of the TCPA. Therefore, Plaintiff is
entitled to statutory damages in the amount of $25, 000.
Michigan Occupational Code
Michigan Occupational Code regulates collection agencies.
Under the MOC, a collection agency may not misrepresent the
legal rights of a creditor or debtor. M.C.L. §
339.915(f)(ii). In this case, Defendant was not legally
authorized to call Plaintiff's cell phone using an ATDS
without Plaintiff's consent. By calling Plaintiff,
Defendant was misrepresenting that it was legally authorized
to do so. Therefore, Defendant is liable under the MOC. The
MOC also prohibits collection agencies from “[u]sing a
harassing, oppressive, or abusive method to collect a debt,
including causing a telephone to ring or engaging a person in
telephone conversation repeatedly . . . .” Id.
at § 339.915(n). Here, Defendant used the telephone to
repeatedly call Plaintiff. Therefore, Defendant is also
liable under § 339.915(n) of the MOC.
awards damages in the amount of $50.00 if a court finds for
the plaintiff. M.C.L. § 339.916(2). The MOC also awards
reasonable attorney's fees and court costs. Id.
Here, the Plaintiff submitted a chart listing her
attorney's fees as $3, 562.50 and costs as $582.84.00,
for a total of $4, 415.34. Dkt. No. 9-2, pg. 3 (Pg. ID 33).
Plaintiff's attorney also submitted an affidavit
verifying that the attorney rates and fees are reasonable for
attorneys with similar experience. Dkt. No. 9-3, pg. 3 (Pg.
ID 36). Plaintiff requests damages under the MOC in the
amount of $4, 415.34. This Court finds that Plaintiff has
established that her attorney's fees are reasonable and
will award Plaintiff $4, 415.34 in attorney's fees and
reasons discussed herein, the Court will grant
Plaintiff's Motion for default judgment. Plaintiff is
awarded total damages in the amount of $29, 415.34: $25, 000
for violation of the TCPA, and $4, ...