United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
the Court is Plaintiff Alex Alvarado's Motion for Default
Judgment (Doc. 10), filed January 22, 2019. For the reasons
discussed below, the Court DENIES
Alvarado's Motion, and declines to award him damages at
a Fair Debt Collection Practices Act (FDCPA)
suit. On September 13, 2018, Alex Alvarado
(Alvarado) filed a complaint against Eltman Law, P.C.
(Eltman). Alvarado alleged that Eltman violated the FDCPA
when it obtained a state-court default judgment for
approximately $2, 400 plus $400 in attorneys' fees
through the false, misleading, or deceptive representation to
the court that Alvarado was properly served in that lawsuit
about a debt owed to Conn's Electronics. Doc. 1, Compl.,
¶¶ 23, 27, 29. Specifically, Alvarado says Eltman
served notice to Alvarado's prior address and not the
address that he resided at the time of service. Id.
¶ 26. Alvarado only became aware of the default judgment
regarding his debt when he noticed his wages were garnished
by his bank. Id. ¶ 24. He inquired to his bank
about the garnishment and learned that the garnishment
occurred due to a lawsuit filed by Eltman at some prior date.
Id. ¶ 25.
now sues under the FDCPA alleging Eltman used a false,
deceptive, or misleading representation to collect the debt
in violation of 15 U.S.C. § 1692e. Id.
¶¶ 30-33. Alvarado also sues alleging Eltman's
actions violate the Texas Debt Collection Practices Act by
making unlawful representations to collect the debt, namely
using unfair or unconscionable means to collect a debt.
Id. ¶ 34-36 (citing Tex. Fin. Code §
392.303). Alvarado seeks punitive damages, actual damages,
statutory damages under 15 U.S.C. § 1692k(a) and Tex.
Fin. Code § 392.403(e), costs and attorneys' fees
under 15 U.S.C. § 1692k(a)(3) and Tex. Fin. Code §
392.403(b), and any other relief the Court deems just.
Id. at 8. The Court notes that Alvarado does not
seek to reverse or modify the state-court judgment.
Id. ¶ 10. The only injury he
identifies as actionable is Eltman's failure to serve him
at his proper address.
September 14, 2018, Alvarado served Eltman a copy of his
Complaint on Amanda Holt who is alleged to be designated by
law to accept service of process for Eltman. Doc. 7-1, Return
of Summons, 3. To date, Eltman has neither answered nor
otherwise made an appearance in this case. Consequently,
Alvarado requested the Clerk enter default on January 22,
2019 (Doc. 9), which it did that same day (Doc. 11). On
January 22, 2019, Alvarado moved the Court for a default
judgment against Eltman (Doc. 10), supported by an affidavit
from his attorney (Doc. 12). The Court now considers that
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., No. C-10-390, 2011 WL 4738197, 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
determined with mathematical calculation by reference to the
pleadings and supporting documents, a hearing is unnecessary.
James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).
case, after reviewing Alvarado's Motion in light of the
six Lindsey factors, the Court concludes that a
default judgment is procedurally warranted, but unsupported
by sufficient factual basis in Alvarado's Complaint.
Additionally, even if default were supported by sufficient
factual basis, the Court cannot determine the amount of
damages with mathematical calculation by reference to
information in the pleadings and supporting documents to
award damages. See James, 6 F.3d at 310.
Whether An Entry of Default Judgment Is ...