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Batiste v. Hewitt Capital LLC

United States District Court, N.D. Texas, Dallas Division

April 23, 2019

ZACH BATISTE, Plaintiff,



         Before 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 Batiste's Motion.

         I. BACKGROUND

         This is 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.

         Batiste 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 telephone services.

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.

         Batiste 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.


         Federal 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).

         That 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)).

         In 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.

         Second, 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.

         Third, 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 ...

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