Roland Carlisle v. National Commercial Service, Inc.
17-11762
11th Cir.Jan 2, 2018Background
- Carlisle alleged NCS attempted to collect a $1,892 debt, that he repeatedly disputed by phone and to credit bureaus, and that NCS reported the debt without noting the disputes.
- Carlisle sued NCS (and credit bureaus) under the FDCA, FCRA, and Georgia Fair Business Practices Act (GFBPA). NCS failed to file a responsive pleading and the clerk entered default.
- NCS moved to set aside the clerk’s entry of default, admitting counsel’s carelessness but later asserting insufficient service supported by a late declaration; the magistrate struck the declaration and recommended denying the motion to set aside. The district court adopted the recommendation.
- Carlisle moved for default judgment; the magistrate recommended awarding statutory FDCA damages, emotional distress under the GFBPA (trebled), and finding FCRA violations but declining duplicate emotional damages for FCRA violations. The district court adopted the recommendation and awarded $22,000.
- On appeal NCS challenged (1) striking the declaration, (2) denial of the motion to set aside default, (3) default judgment on FCRA claims, and (4) the damages award and absence of evidentiary hearing. The Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to strike Jovanovski declaration / waiver | Carlisle: declaration was untimely; magistrate properly struck it | NCS: strike was erroneous; later waived grounds by not objecting | NCS waived appellate review by not objecting; striking declaration upheld |
| Motion to set aside default (standard & service) | Carlisle: NCS failed to show good cause under Fed. R. Civ. P. 55(c) | NCS: default should be set aside for insufficient service and not willful; magistrate misapplied Rule 60(b) standard | No abuse of discretion; NCS waived service argument and Rule 55(c) analysis was applied properly |
| Sufficiency of allegations for FCRA claim (notice to furnisher) | Carlisle: alleged facts (including Equifax response that NCS verified debt) support that furnisher received notice | NCS: allegations are on "information and belief" and insufficient to show notice from credit bureaus | Allegations were adequate; court did not abuse discretion in entering default judgment on FCRA claim |
| Damages, evidentiary hearing, and overlap of remedies | Carlisle: affidavits support $1,000 FDCPA statutory damages, $7,000 emotional distress (trebled under GFBPA), and no separate FCRA emotional damages to avoid duplication | NCS: statutory factors not expressly weighed, emotional distress proof insufficient, FCRA-based GFBPA claims preempted, and court should have held a hearing | Damages award affirmed: statutory FDCPA max permissible, emotional distress under Georgia law supported and not duplicative, GFBPA recovery limited to FDCPA violations, and no hearing required absent a request or conflicting evidence |
Key Cases Cited
- Sanderford v. Prudential Ins. Co. of Am., 902 F.2d 897 (11th Cir.) (standard of review for denial of motion to set aside default)
- S.E.C. v. Smyth, 420 F.3d 1225 (11th Cir.) (abuse-of-discretion standard and when an evidentiary hearing is unnecessary)
- Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir.) (definition of abuse of discretion)
- Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361 (11th Cir.) (waiver for failing to timely challenge magistrate nondispositive order)
- In re Worldwide Web Sys., Inc., 328 F.3d 1291 (11th Cir.) (waiver of insufficient service argument when not raised promptly)
- Lodge v. Kondaur Capital Corp., 750 F.3d 1263 (11th Cir.) (discussion of emotional distress damages standard under a different statute)