United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Zach Batiste's Motion for Default
Judgment (Doc. 14), filed January 16, 2019. For the reasons
discussed below, the Court GRANTS
a Fair Debt Collection Practices Act (FDCPA) suit. On August
30, 2018, Batiste filed a complaint against Hewitt Capital,
LLC, alleging that Hewitt violated the FDCPA on multiple
occasions when Hewitt phoned him in reference to an $800 debt
Batiste incurred by failing to repay an installment loan he
received from ACE Cash Express. Doc. 1, Compl., ¶¶
4, 6, 7, 11, 13, 15-19. Specifically, Batiste says Hewitt
started calling Batiste on July 23, 2018 to collect on behalf
of ACE. Id. ¶ 15. Allegedly, during the call
Hewitt's representative gave Plaintiff until July 26,
2018, to make payment before threatening Batiste with
suspension of his driver's license. Id. ¶
16. Additionally, during this initial call, Defendant's
representative allegedly informed Batiste that they were on
another line with attorney providing instructions on how to
suspended his driver's license. Id. ¶ 17.
And allegedly, on July 26, 2018, Hewitt placed no less than
seven calls to Batiste in an attempt to collect on this same
debt. Id. ¶ 18.
now sues under the FDCPA, alleging Hewitt and its
representatives: (1) caused his phone to ring seven times on
July 26, 2018, in violation of 15 U.S.C. § 1692d and
d(5); and (2) threatened to suspend his drivers license until
the debt was paid, in violation of 15 U.S.C. § 1692e(5).
Id. ¶¶ 23-23. He alleges that Hewitt's
calls have severely disrupted his everyday life and overall
well-being. Id. ¶ 20. In addition, he alleges
that he has suffered a number of harms:
including but not limited to, invasion of privacy, nuisance,
intrusion upon and occupation of Plaintiff's cellular
telephone capacity, wasting Plaintiff's time, the
increased risk of personal injury resulting from the
distraction caused by the phone calls, aggravation that
accompanies unsolicited telephone calls, emotional distress,
mental anguish, anxiety, loss of concentration, diminished
value and utility of telephone equipment and telephone
subscription services, the loss of battery charge, and the
per-kilowatt electricity costs required to recharge their
cellular telephone as a result of increased usage of their
Id. ¶ 21. He seeks actual damages under 15
U.S.C. § 1692k(a)(1), additional damages up to the
statutory cap of $1, 000 under 15 U.S.C. §
1692k(a)(2)(A), costs and reasonable attorneys' fees
under 15 U.S.C. § 1692k(a)(3), and any other relief the
Court deems just. Id. at 5.
served Hewitt a copy of his complaint on September 11, 2018,
through Terri Thongsavat, who is alleged to be designated by
law to accept service of process for Hewitt. Doc. 8, Return
of Summons, 3. To date, Hewitt has neither answered nor
otherwise made an appearance in this case. Consequently,
Batiste requested the Clerk enter default against Hewitt on
January 15, 2019 (Doc. 12), which the Clerk did that same day
(Doc. 13). On January 16, 2019, Batiste moved the Court for a
default judgment against Hewitt. Doc. 14, Mot. for Default J.
Hewitt failed to respond to Batiste's Motion and the time
to do so has passed. The Court now considers that Motion.
Rule of Civil Procedure 55 provides for the entry of default
judgments in federal court. According to the Rule,
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, . .
. the clerk must enter the party's default.”
Fed.R.Civ.P. 55(a). Once default has been entered, the court
may enter a default judgment against the defaulting defendant
upon motion of the plaintiff. Fed.R.Civ.P. 55(b).
being said, “[d]efault judgments are a drastic remedy,
not favored by the Federal Rules and resorted to by courts
only in extreme situations.” Sun Bank of Ocala v.
Pelican Homestead & Sav. Ass'n, 874 F.2d 274,
276 (5th Cir. 1989). A party is not entitled to a default
judgment merely because the defendant is technically in
default. Ganther v. Ingle, 75 F.3d 207, 212 (5th
Cir. 1996). “Rather, a default judgment is generally
committed to the discretion of the district court.”
United States v. 1998 Freightliner Vin #:
1FUYCZYB3WP886986, 548 F.Supp.2d 381, 384 (W.D. Tex.
2008) (citing Mason v. Lister, 562 F.2d 343, 345
(5th Cir. 1977)).
determining whether a default judgment should be entered
against a defendant, courts have developed a three-part
analysis. See, e.g., 1998 Freightliner Vin #:
1FUYCZYB3WP886986, 548 F.Supp.2d at 384. First, courts
consider whether the entry of default judgment is
procedurally warranted. See Lindsey v. Prive Corp.,
161 F.3d 886, 893 (5th Cir. 1998). The factors relevant to
this inquiry include: (1) whether material issues of fact
exist; (2) whether there has been substantial prejudice; (3)
whether the grounds for default are clearly established; (4)
whether the default was caused by a good faith mistake or
excusable neglect; (5) the harshness of a default judgment;
and (6) whether the court would think itself obliged to set
aside the default on the defendant's motion. Id.
courts assess the substantive merits of the plaintiff's
claims and determine whether there is a sufficient basis in
the pleadings for the judgment. See Nishimatsu Constr.
Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975) (noting that “default is not treated as
an absolute confession by the defendant of his liability and
of the plaintiff's right to recover.”). In doing
so, the Court is to assume that due to its default, defendant
admits all well-pleaded facts in the plaintiff's
complaint. Id. However, “defendant is not held
to admit facts that are not-well pleaded or to admit
conclusions of law.” Id.
courts determine what form of relief, if any, the plaintiff
should receive. Ins. Co. of the W. v. H & G
Contractors, Inc., at *4 (S.D. Tex. Oct. 5, 2011)
(“A defendant's default concedes the truth of the
allegations of the Complaint concerning the defendant's
liability, but not damages.”) (citing Jackson v.
FIE Corp., 302 F.3d 515, 524-25 (5th Cir. 2002).
Normally damages are not to be awarded without a hearing or a
demonstration by detailed affidavits establishing the
necessary facts. See United Artists Corp. v.
Freeman, 605 F.2d 854, 857 (5th Cir. 1979). However, if
the amount of damages can be ...