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Johnson v. Weinstein, Weinburg & Fox, LLC

United States District Court, D. Maryland

July 13, 2016

TIONNE JOHNSON, Plaintiff,
v.
WEINSTEIN, WEINBURG, & FOX, LLC, et al., Defendants.

          REPORT AND RECOMMENDATION

          Beth P. Gesner United States Magistrate Judge

         The above-referenced case was referred to the undersigned to review plaintiffs Motion for Default Judgment and to make recommendations concerning damages, pursuant to 28 U.S.C. § 636 and Local Rules 301 and 302. (ECF No. 24.) Currently pending is plaintiffs Motion for Default Judgment ("Motion") (ECF No. 23). No hearing is necessary.[1] See Fed.R.Civ.P. 55(b)(2); Loc. R. 105.6. For the reasons discussed below, I respectfully recommend that plaintiffs Motion (ECF No. 23) be GRANTED and that relief be awarded as set forth herein.

         I. Procedural Background

         Plaintiff filed her original Complaint[2] against Weinstein, Weinburg & Fox, LLC ("WWF") and John Doe a/k/a Alex Martin a/k/a Darron Tillison ("Tillison" or "Mr. Tillison")[3](collectively "defendants") on July 9, 2015 (ECF No. 1). Defendant WWF was served with process on August 26, 2015. (ECF No. 6.) Defendant Tillison was served with process on January 27, 2016. (ECF No. 18.) Neither defendant has responded to the Complaint. Accordingly, the clerk of court entered separate Orders of Default against WWF on September 21, 2015 (ECF No. 10) and against Tillison on February 23, 2016 (ECF No. 21).

         On May 10, 2016, the Clerk of Court docketed a letter from defendant WWF dated May 4, 2016 and written by co-defendant "Darren Tillison." (ECF No. 26.) In the letter, Mr. Tillison represents himself to be the certified agent of WWF and requests on WWF's behalf that the court deny plaintiffs Motion or, in the alternative, allow defendants an additional one hundred twenty (120) days to reply to plaintiffs motion. (Id.) In light of the Fourth Circuit's strong preference that "default should be avoided and that claims and defenses be disposed of on their merits, " Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010), the court directed defendants to "demonstrate good cause for the court to vacate the clerk's entry of default as to each defendant" by June 1, 2016. (ECF No. 27.)

         On May 31, 2016, defendant Tillison contacted the undersigned's chambers by telephone and requested additional time to respond to the court's May 11, 2016 Order. (ECF No. 27.) Mr. Tillison was advised that any request must be made in writing to the Court and that, pursuant to Local Rule 101.1(a), defendant WWF must be represented by counsel.

         The Clerk of Court subsequently received an unsigned, undated letter from Mr. Tillison on June 3, 2016. The letter did not contain an original signature, and a certificate of service was not affixed to the letter. Accordingly, Judge Hollander rejected this letter as deficient. (ECF No. 28.) On June 6, 2016, the Clerk of Court received an unsigned letter, dated May 31, 2016, from Tyra Tillison, who represented herself to be the resident agent for defendant WWF. The letter did not contain an original signature, and a certificate of service was not affixed to the letter. (ECF No. 29.) Consequently, Judge Hollander rejected this letter as deficient.[4] As neither defendant has moved to vacate the Entry of Default, and as both defendants failed to comply with the court's May 11, 2016 Order (ECF No. 27), both defendants remain in default, and plaintiffs Motion is ripe for adjudication.

         In order to determine an appropriate award of damages in this case, the undersigned directed plaintiff to file a supplemental memorandum, accompanied by affidavits and/or documentary evidence, in support of its request for an award of actual damages. (ECF No. 30.) Plaintiff filed her Supplemental Memorandum ("Memorandum") and Motion for Attorneys' Fees on June 27, 2016. (ECF Nos. 32, 31.)

         II. Plaintiffs Factual Allegations

         A common set of facts supports each of the causes of action set forth in plaintiffs Complaint. (ECF No. 12.) By virtue of the clerk's entry of default, the court accepts as true the well-pleaded factual allegations in the complaint as to liability. See Ryan v. Homecomings Fin. Network. 253 F.3d 778, 780-81 (4th Cir. 2001).

         WWF is a limited liability company, organized under the laws of Delaware, which is in the business of collecting debts and regularly attempts to collects debts owed to another.[5] (ECF No. 12 at ¶ 4.) Plaintiff asserts that on or about July 1, 2014, she received a letter from defendant WWF seeking to collect on a debt allegedly owed by plaintiff. (ECF No. 32-1 at 3.) Plaintiff alleges that approximately two weeks after receiving the letter, an individual who identified himself as "Alex Martin" began contacting her two to four times per day by telephone in order to attempt to collect on the debt. (ECF No. 12 at ¶ 7.) Plaintiff alleges that defendants' activities lasted for approximately eight days-from July 15 through July 23, 2014. (Id.) The individual who identified himself as "Alex Martin" was in fact defendant Darren Tillison, an employee of WWF.[6] (Id. at ¶ 5.) During these calls, defendant Tillison threatened to press charges of fraud against plaintiff. (Id. at ¶ 8.) Plaintiff further alleges that defendant Tillison contacted plaintiffs employer, plaintiffs mother, plaintiffs father, and one of plaintiffs friends as part of his collection activities. (ECF No. 12 ¶¶ 9-11.) When speaking with these individuals, defendant threatened that plaintiff "could be facing jail time, " the loss of her phlebotomy licensure, and the loss of her job for failure to pay the alleged debt. (Id.) On or about July 21, 2014, plaintiff requested that defendant cease contacting plaintiff, her family, and her friends. (Id. at ¶ 12.) Nevertheless, defendant continued to contact plaintiff for two more days.[7] Plaintiff alleges that she "suffered undue stress, mental anguish and embarrassment in front of her family and friends" as a result of defendants' conduct. (Id. at ¶ 13.)

         III. Legal Standard for Entry of Default Judgment

         In reviewing a motion for default judgment, the court accepts as true the well-pleaded factual allegations in the complaint as to liability. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780-81 (4th Cir. 2001). It remains for the court, however, to determine whether these unchallenged factual allegations constitute a legitimate cause of action. Id. If the court determines that liability is established, the court must then determine the appropriate amount of damages. Id. The court does not accept factual allegations regarding damages as true, but rather must make an independent determination regarding such allegations. See, e.g., Credit Lyonnais Sees. (USA), Inc. v. Alcantara, 183 F.3d 151, 154-155 (2d Cir. 1999). The court "is not required to conduct an evidentiary hearing to determine damages, and may instead rely on affidavits or documentary evidence in the record to determine the appropriate sum." Liversage v. Nationwide DebtMgmt. Sols., LLC, No. ELH-15-1266, 2016 WL 106301, at *2 (D. Md. Jan. 11, 2016). See also Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 794-95 (D. Md. 2010); Trustees of the Nat'l Asbestos Workers Pension Fund v. Ideal Insulation, Inc., Civ. No. ELH-11-832, 2011 WL 5151067, at *4 (D. Md. Oct. 27, 2011).

         IV. Defendants' Liability

         A. Fair Debt Collection Practices Act ("FDCPA")

         To state a claim under the FDCPA, a plaintiff must allege that: (1) they were the object of collection activity arising from consumer debt; (2) defendants are debt collectors as defined by the FDCPA; and (3) defendants engaged in an act or omission prohibited by the FDCPA. Stewart v. Bierman, 859 F.Supp. 2d. 754, 759 (D. Md. 2012). In her Complaint, Motion, and Memorandum, plaintiff has sufficiently alleged that she was the object of consumer debt collection activity and that defendants WWF and Tillison[8] are "debt collectors" within the meaning of the FDCPA. 15 U.S.C. § 1692a. (ECF No. 12 at ¶¶ 4-6.)

         With respect to the third element, plaintiff alleges that defendants WWF and Tillison engaged in a series of acts and omissions in violation of §1692c(b), §1692e(2)(A), §1692e(5), §1692e(10), and §1692d(5). (ECF No. 12 at ¶ 15.)

         Section 1692c(b) of the FDCPA prohibits debt collectors from communicating with most third parties regarding an individual’s debt without the debtor’s consent. 15 U.S.C. § 1692c(b). By contacting plaintiff’s mother, father, and friends regarding plaintiff’s ...


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