ORDER
This is an action under the Fair Debt Collection Act. It is before Court on the Report and Recommendation [Doc. 10] of the Magistrate Judge recommending that the Plaintiffs Motion for Default Judgment [Doc. 7] be granted. I approve and adopt the Report and Recommendation as the judgment of the Court. The Plaintiffs Motion for Default Judgment [Doc. 7] is GRANTED in the amount of $1,000.00 in statutory damages, $1,430.00 in attorney fees and $385.00 in costs.
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review.
United States v. Slay,
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
UNITED STATES MAGISTRATE JUDGE’S FINAL REPORT AND RECOMMENDATION
Currеntly before the Court is Plaintiffs Motion for Entry of Default Judgment, [Doc. 7]. For the reasons set forth herein, the undersigned RECOMMENDS that Plaintiffs motion for default judgment be GRANTED.
I. Introduction
On July 7, 2010, Plaintiff filed a one-count civil action against Absolute Collection Service, Inc., (“Absolute” or “Defendant”), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). [Doc. 1]. Plaintiff served Defendant on August 2, 2010, which meant that Defendant had until August 23, 2010, to file an answer. [Doc. 3]. When Defendant failed to file its answer, Plaintiff, with the Court’s prompting, sought and was granted an entry of default from the Clerk pursuant to Fed. R. Civ. P. 55(a). [See Docs. 5-6, 9; Dkt. Entry dated 12/1/2010]. Plaintiff now seeks a default judgment against Defendant. [Doc. 7]. 1
After reviewing the materials submitted with the motion for default judgment, the undersigned concludes that Plaintiff is en
II. Findings of Fact
A. Facts Relating to the FDCPA Claims and Damages 2
1. Defendant uses the mail and telephones in its business, the principal purpose of which is debt collection. (Complaint ¶¶ 10-12 in Doc. 1).
2. To perform its business, Defendant regularly collects or attempts to collect debts owed to others. (Id. ¶ 13).
3. Plaintiff incurred a debt following an emergency room visit to the Gwinnett Hospital. (Frazier Decl. ¶ 7 in Doc. 7-3).
4. This visit was for Plaintiffs own personal or household purposes. (Frazier Decl. ¶ 8).
5. Beginning around June 2010, Absolute attempted to collect this Gwinnett Hospital debt from by leaving a “handful” of identical recorded messages on Plaintiffs home phone. (Complaint ¶ 16; Frazier Dec. ¶¶ 6,10).
6. Absolute did not identify itself in these messages, did not state that the calls were from a debt collector, and did not state that the communications were an attempt to collect a debt. (Complaint ¶¶ 17-19).
7. Plaintiff recorded one message from Absolute, which she received in late May or early June of 2010. This message stated:
Hello, this is an important courtesy call for Deborah Frazier. Please return this call to a customer service representative. Our phone number is 800 752 4172. Our hours of operation are Monday through Thursday 8:30 am to 9:00 pm, Friday from 8:30 am to 5:00 pm, and Saturday from 8:00 am to 1:00 pm. All times are for the eastern time zone. Thank you.
(Frazier Decl. ¶ 14).
B. Facts Relating to Costs and Attorneys’ Fees 3
2. Feagle billed 4.4 hours in this case. (Time Ticket Diary Report in Doc. 7-5; Feagle Aff. ¶ 27).
3. These 4.4 hours were spent as follows: (1) .6 hours meeting with client; (2) .6 hours finalizing the complaint; (3) .2 hours ensuring that service of process was made; (4) .3 hours discussing a settlement demand with Absolute’s attorney; (5) .2 hours reviewing two court orders; (6) .6 hours rectifying a missed court deadline; (7) .5 hours meeting with client concerning her declaration for the default judgment motion; and (8) 1.4 hours drafting and finalizing the default judgment motion. (Time Ticket Diary Report in Doc. 7-5).
4. Feagle seeks an hourly rate of $325 per hour, which is his usual hourly rate and which he has been awarded in other recent federal cases. (Feagle Aff. ¶¶ 28-29).
5. Plaintiff incurred a filing fee cost of $350 and expended $35 to pay for the Wake County, N.C. sheriffs office to serve process on Defendant. (Feagle Aff. ¶ 32).
III. Conclusions of Law
A. Default Judgment Standard
Although the Clerk entered default against Defendant, this does not mean that a default judgment is automatically warranted for Plaintiff.
Nishimatsu Const. Co., Ltd. v. Houston Nat’l Bank,
B. FDCPA Liability
The FDCPA seeks to remedy abusive, deceptive, and unfair debt collection practices by debt collectors against consumers.
See
15 U.S.C. § 1692(e);
LeBlanc v. Unifund CCR Partners,
(1) [she] [has] been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a “debt collector” under the Act; and (3) the defendant has engaged in a prohibited act оr has failed to perform a requirement imposed by the FDCPA.
Buckley v. Bayrock Mortg. Corp.,
Civ. No. 1:09-cv-1387-TWT,
1. Collection Activity Arising from a Consumer Debt
This element of an FDCPA claim has two requirements. First, there must be collection activity. Second, this activity must relate to a consumer debt.
See Buckley,
The “FDCPA does not expressly define ‘collection activity.’ ”
LeBlanc v. Unifund CCR Partners,
The undersigned concludes that the allegations in the complaint along with the Plaintiffs declaration establish the collection activity element. The complaint and Plaintiffs declaration indicate that Defendant made a “handful” of telephone calls to Plaintiff relating to her debt stemming from her ER visit to Gwinnett Hospital. (See Complaint ¶ 16; Frazier Decl. ¶¶ 6-7, 10, 14). These telephonic communications aimed at collecting a debt constitute collection activity.
The undersigned next turns to whether this collection activity was aimed at collecting a consumer debt. A debt is “any obligation or alleged obligation of a consumer to pay money arising out of a transaction ... [that is] primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). In other words, the FDCPA is limited to “consumer debt,”
Heintz,
Accordingly, the undersigned concludes that Plaintiff has established the first element of her FDCPA claim—there was collection activity of a cоnsumer debt.
2. Debt Collector
A debt collector is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).
The undersigned concludes that Plaintiff has established that Defendant was a debt collector. Here, the complaint indicates that Defendant uses the mails and telephone communications in its business in which it regularly collects debts owed to others. (See Complaint ¶¶ 10-13). These allegations establish that Defendant is a debt collector under the FDCPA, so the Plaintiff has established the second element of her FDCPA claim.
3. Acts Prohibited under the FDCPA
In her motion for default judgment, Plaintiff indicates that Defendant violated 15 U.S.C. §§ 1692d(6) and 1692e(11). [See Doc. 7 at 3]. Each provision is discussed separately.
a. 15 U.S.C. § 1692d(6)
Under § 1692d, “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt,” which includes “the placement of telephone calls without meaningful disclosure of the caller’s identity.” 15 U.S.C. § 1692d(6). When a debt collector places phone calls without identifying itself, there is no additional requirement that these calls contain harassing language.
Edwards v. Niagara Credit Solutions, Inc.,
Plaintiffs complaint and declaration allege that starting around June 2010, Defendant left a “handful” of messages on her home phone without disclosing its identity or that it was attempting to collect a debt. (Complaint ¶¶ 16-17, 19; Frazier Decl. ¶¶ 10-11, 14). These unidentified messages from Defendant violated § 1692(d)(6).
See Edwards,
b. 15 U.S.C. § 1692e(11)
Section 1692e prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of a debt,” includ
The allegations in Plaintiffs complaint and declaration demonstrate a violatiоn of § 1692e(11). Plaintiff states that Defendant left messages without identifying that they were from a debt collector. (Complaint ¶¶ 16, 19). The one message cited in Plaintiffs Declaration also demonstrates that the messages never stated that they were from a debt collector.
(See
Frazier Decl. ¶ 14). “This is plainly a violation of the statute.”
Edwards,
Accordingly, the undersigned concludes that the well pleaded allegations in Plaintiffs complaint and her declaration testimony entitle her to default judgment on the FDCPA claims.
C. Damages
Since Plaintiff is entitled to default judgment on her FDCPA claims, the undersigned now turns to the issue of damages. “While well-pleaded facts in the complaint are deemed admitted, plaintiffs’ allegations relating to the amount of damages are not admitted by virtue of default; rather, the court must determine both the amount and character of damages.”
Virgin Records Am., Inc. v. Lacey,
Plaintiff argues that she is entitled to the $1,000 statutory maximum in damages based on the Defendant’s violations of the FDCPA. [Doc. 7 at 4-6]. First, Plaintiff notes that Defendant committed two separate violations of the FDCPA, namely Absolute’s failure to identify its identity, in violation of 15 U.S.C. § 1692d(6), and its failure to identify that it was a debt collector, in violation of 15 U.S.C. § 1692e(ll).
[Id.
at 5]. Second, Plaintiff asserts that the maximum penalty has remained unchanged since the FDCPA’s enactment, so
Under the FDCPA, a debt collector that fails to comply with any рrovision of the FDCPA is liable for, inter alia, “in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000.” 15 U.S.C. § 1692k(a)(2)(A). In determining statutory damages under § 1692k(a)(2)(A), a court must consider “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.” 15 U.S.C. § 1692k(b)(l).
The undersigned concludes that Plaintiff is entitled to the statutory maximum damages of $1,000 for the FDCPA violations. The unrebutted facts indicate thаt Defendant made telephone calls that violated two distinct provisions of the FDCPA on a handful of occasions. That Defendant made repeated calls suggests that Defendant acted in disregard of the FDCPA’s requirements. Finally, Defendant through its default and non-appearance has not provided any basis for concluding that an amount less than the statutory maximum is appropriate.
Accordingly, the undersigned RECOMMENDS that Plaintiff be AWARDED $1,000 in statutory damages for Defendant’s violations of the FDCPA.
D. Attorneys’Fees and Costs
Since Plaintiff successfully demonstrated that Absolute violated the FDCPA, she is entitled to “costs of the action, together with a reasonable attorney’s fee.” 15 U.S.C. § 1692k(a)(3). As a result, the undersigned turns to Plaintiffs request for attorney’s fees and costs.
1. Attorneys’ Fees
“The starting point in fashioning an award of attorney’s fees is to multiply the number of hours reasonably expended by a reasonable hourly rate.”
Loranger v. Stierheim,
A district court’s order on attorney’s fees “must articulate the decisions it made, give principled reasons for those decisions, and show its calculations.”
Loranger,
a. Reasonable Hourly Rate
The reasonable hourly rate “is the prevailing market rate in the relevant legal community for similar services by
The undersigned concludes that the hourly rate of $325 for Feagle is reasonable. In the default judgment motion, Plaintiff points to four sources as evidence of the reasonableness of Feagle’s hourly rate. First, Plaintiff cites to Feagle’s experience and awards in other FDCPA cases. [Doc. 7 at 6-7]. Second, Plaintiff asserts that attorney James Hunt has opined that the requested hourly rate is reasonable. [Id. at 7]. Third, she notes that the hourly rate is consistent with the Laffey Matrix. [Id at 7-10]. Fourth, Plaintiff identifies other cases in which Judges in this District have аwarded a similar hourly rate. [Id. at 10-11]. The undersigned concludes that the evidence identified in the motion for default judgment establishes the reasonableness of the hourly rate requested. The undersigned adds that, based on his own experience and knowledge, the $325 hourly rate is reasonable for an experienced attorney in the Northern District of Georgia. Accordingly, the undersigned finds that Feagle’s requested hourly rate of $325 is reasonable.
b. Reasonableness of Compensable Hours
To show entitlement to recover attorney’s fees, “counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.”
Am. Civil Liberties Union of Ga. v. Barnes,
The undersigned concludes that the 4.4 hours spent by Feagle in this case are reasonable. A review of the hours indicates that the amount of time Feagle spent on the case was appropriate for the work product presented to the Court. The complaint and default judgment motion are standard documents used by Feagle and his law firm in FDCPA cases, indicating that little time was needed to prepare and draft these documents. Also, the work for which Feagle seeks reimbursement involves activities normally performed by an attorney, including drafting the complaint, reviewing court orders, drafting the motion, and ensuring service of process was made. This work by Feagle is not excessive, redundant or otherwise unnecessary. Accordingly, the undersigned concludes that Feagle is entitled to attorney’s fees based on the 4.4 hours of work on this case.
The lodestar amount may be adjusted,
Norman,
The undersigned concludes that there is no reason to adjust the lodestar amount in this ease. First, this is a typical FDCPA case as demonstrated by the form documents filed by Plaintiff, so it is hardly the “rare” or “exceptional” case that requires an upward adjustment. Second, Plaintiff succeeded on her FDCPA claims, and Defendant, by failing to defend this case, did not make any showing that a downward adjustment is required. As a result, a downward adjustment is also inappropriate.
Accordingly, the undersigned RECOMMENDS that Plaintiff be AWARDED $1,430 4 in attorney’s fees under § 1692k(a)(3).
2. Costs
Besides attorney’s fees, a prevailing FDCPA plaintiff is entitled to “costs of the action.” 15 U.S.C. § 1692k(a)(3). Courts have determined that the cost award pursuant to § 1692k(а)(3) is limited to the costs allowed under 28 U.S.C. § 1920.
Montgomery v. Fla. First Fin. Group, Inc.,
No. 6:06-cv-1639-Orl-31KRS,
IV. Conclusion
For the reasons discussed above, the undersigned RECOMMENDS that Plaintiffs motion for default judgment, [Doc. 7], be GRANTED and that Plaintiff be AWARDED $1,000 in statutory damages, $1,430 in attorney’s fees, and $385 in costs.
The Clerk is DIRECTED to send this Report and Recommendation by first class mail to Defendant at the following address:
Absolute Collection Service Inc.
421 Fayetteville Street Mall Apt: 500
Raleigh, NC 27601-1792
Finally, the Clerk is DIRECTED to terminate the referral to the undersigned.
IT IS SO DIRECTED AND RECOMMENDED, this 28th day of December, 2010.
Notes
. The undersigned notes that Plaintiff filed her motion for default judgment prior to the Clerk's entry of default.
[See
Doc. 7 (default judgment); Doc. 9 (default)]. Under Rule 55 of the Federal Rules of Civil Procedure, there is "a two-step procedure for obtaining a default judgment.”
Deforest v. Johnny Chisholm Global Events, LLC,
No. 3:08-cv-498,
. These facts are derived from the well-pleaded allegations in Plaintiff's complaint and Plaintiff’s declaration submitted with the motion for default judgment.
See Nishimatsu Const. Co., Ltd. v. Houston Nat’l Bank,
Plaintiff states that the Court can deem the following three statements admitted: (1) "The placement of telephone calls without meaningful disclosure of the caller’s identity, in violation of 15 U.S.C. § 1692d(6)”; (2) "The use of any false, deceptive, or misleading representations оr means in connection with the collection of any debt, in violation of 15 U.S.C. § 1692e”; and (3) “The failure to disclose in subsequent communications that the communication is from a debt collector, in violation of 15 U.S.C. § 1692e(ll).” [See Doc. 7-1 at 2 (citing paragraphs 24-26 in the complaint) ]. The undersigned concludes that it is inappropriate to treat these statements as admitted because they merely recite the statutory language and/or present conclusions of law. Instead, the undersigned, in making findings of fact, cites to only those well-рleaded factual allegations in the complaint and the non-conclusory statements in Plaintiff’s declaration.
. In summarizing these facts relating to costs and attorney’s fees, the undersigned uses the affidavits and documents that were submitted
. This figure represents the product of the 4.4 hours spent on the case and the $325 hourly rate.
. “When the U.S. Marshal’s Service serves process, its rate is $55 per hour for each item served, plus travel costs and any other out-of-pocket expenses.”
K.S.R. X-Ray Supplies, Inc. v. Southeastern X-Ray, Inc.,
No. 09-cv-81454,