United States District Court, D. Maryland
REPORT AND RECOMMENDATION
P. Gesner United States Magistrate Judge
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. 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.
filed her original Complaint against Weinstein, Weinburg &
Fox, LLC ("WWF") and John Doe a/k/a Alex Martin
a/k/a Darron Tillison ("Tillison" or "Mr.
Tillison")(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).
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.
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.
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. 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
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.)
Plaintiffs Factual Allegations
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).
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. (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. (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. 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.)
Legal Standard for Entry of Default
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).
Fair Debt Collection Practices Act
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 are "debt
collectors" within the meaning of the FDCPA. 15 U.S.C.
§ 1692a. (ECF No. 12 at ¶¶ 4-6.)
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.)
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