United States District Court, N.D. Texas, Dallas Division
GREG L. ANDERSON, Plaintiff,
EASTERN ASSET SERVICES, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Greg L. Anderson's Motion for
Default Judgment (Doc. 12), filed May 9, 2019. For the
reasons discussed below, the Court GRANTS in
part and DENIES in part
a Fair Debt Collection Practices Act (FDCPA) suit. On March
29, 2019, Anderson filed a complaint against Eastern Asset
Services, LLC (EAS), alleging that EAS violated the FDCPA by
informing a third party of Anderson's debt and falsely
suggesting Anderson could be arrested for nonpayment of an
outstanding debt owed to ACE Loan Company. Doc. 1, Compl.,
¶¶ 9-10, 12-14. Specifically, Anderson alleges EAS
called Anderson's son on March 11, 2019, to collect on
behalf of ACE. Id. ¶ 12. During the call
EAS's representative, Bethany, allegedly relayed
information regarding Anderson's debt and included that
EAS suspected fraud in connection with the debt. Id.
¶ 13. As instructed by Bethany, Anderson's son
relayed the information to Anderson who then called Bethany.
Id. ¶¶ 14-15. Bethany accused Anderson of
fraud against ACE and stated that Anderson could go to jail
unless he paid the debt. Id. ¶ 16. Anderson
agreed to make a $65 payment towards the debt and to continue
making these payments. Id. ¶¶ 17-18.
Defendant then sent documents via the online platform
DocuSign to attempt to make Anderson agree to $400 monthly
payments to satisfy the debt. Id. ¶ 19.
now sues under the FDCPA, alleging EAS and its
representatives: (1) contacted and disclosed Anderson's
debt to a third party, Anderson's son, on March 11, 2019,
in violation of 15 U.S.C. § 1692b(2) and c(b); (2)
harassed, oppressed, or abused Anderson by contacting a third
party in order to put pressure on Anderson in violation of 15
U.S.C. § 1692d; and (3) falsely represented the legal
status of the debt in violation of 15 U.S.C. § 1692e.
Id. ¶¶ 27-34. Anderson alleges that he
suffered a number of concrete harms:
including but not limited to: pecuniary loss stemming from
Defendant's unlawful threats, emotional distress, false
fear of being arrested, invasion of privacy, embarrassment
stemming from having details of indebtedness disclosed to a
third party, and undue anxiety.
Id. ¶ 21. Anderson alleges pecuniary damages
and seeks a declaration that the aforementioned practices are
unlawful and violate the governing body of law, 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 6.
April 12, 2019, Anderson served EAS a copy of his complaint
on Mark Zammet, who is alleged to be designated by law to
accept service of process for EAS. Doc. 9, Return of Summons,
3. To date, EAS has neither answered nor otherwise made an
appearance in this case. Consequently, Anderson requested the
Clerk enter default against EAS on May 7, 2019 (Doc. 10),
which the Clerk did that same day (Doc. 11). On May 9, 2019,
Anderson moved the Court for a default judgment against EAS.
Doc. 12, Mot. for Default J. EAS failed to respond to
Anderson'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 ...