Adams v. Oakridge Direct Solutions Corp.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Athena Adams
v. 	Civil No. 17-cv-202-AJ
Oakridge Direct Solutions Corp.
REPORT AND RECOMMENDATION
Athena Adams brought suit against Oakridge Direct Solutions
Corporation (“Oakridge”) alleging claims arising out of
communications that Oakridge made to her in an attempt to
collect a debt. 	On August 22, 2017, the Clerk of the Court
entered default against Oakridge. 	See doc. no. 9. 	Before the
court for Report and Recommendation1 is Adams’s motion for
default judgment (doc. no. 11) pursuant to Federal Rule of Civil
Procedure 55(b)(2). 	For the reasons that follow, the court
1 The undersigned cannot enter a final disposition in this
matter, as the defaulted party has not consented to jurisdiction
as required by 28 U.S.C. § 636(c)(1). 	See Henry v. Tri-Servs.,
Inc., 33 F.3d 931, 933 (8th Cir. 1994); cf. Roell v. Withrow,
538 U.S. 580, 590 (2003) (noting that consent can be inferred
when “the litigant or counsel was made aware of the need for
consent and the right to refuse it, and still voluntarily
appeared . . . before the Magistrate Judge” (emphasis added));
Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d 67, 72-73 (1st
Cir. 2001) (holding that magistrate judge did not have the
authority on referral under a different subsection of § 636 to
make a final determination on damages following an entry of
default). 	The court accordingly issues a report and
recommendation, to be reviewed by a district judge.
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recommends that Adams’s motion be granted as to liability and
damages, but holds its recommendation with respect to fees and
costs in abeyance.
Standard of Review
After default is entered and when the amount at issue is
not a sum certain, “the party must apply to the court for a
default judgment.” 	Fed. R. Civ. P. 55(b)(2); see also KPS &
Assocs., Inc. v Designs by FMC, Inc., 318 F.3d 1, 19 (1st Cir.
2003). 	Before entering a default judgment, the court “may
examine a plaintiff’s complaint, taking all well-pleaded factual
allegations as true, to determine whether it alleges a cause of
action.” 	Ramos-Falcón v Autoridad de Energía Electríca, 301
F.3d 1, 2 (1st Cir. 2002) (quoting Guirindongo Pacheco v. Rolon
Morales, 953 F.2d 15, 16 (1st Cir. 1992)). 	The defaulted party
is “taken to have conceded the truth of the factual allegations
in the complaint . . . .” 	Ortiz-Gonzalez v. Fonovisa, 277 F.3d
59, 62-63 (1st Cir. 2002) (internal quotation marks omitted)
(quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n. 3 (1st
Cir. 1999)). 	The defaulted party does not, however, “admit the
legal sufficiency of those claims.” 	10 James Wm. Moore, Moore’s
Federal Practice § 55.32[1][b] (3d ed. 2013). 	Therefore, before
entering default judgment, the court must determine whether the
admitted facts state actionable claims. 	See Hop Hing Produces
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Inc. v. X & L Supermarket, Inc., No. 12-cv-1401-ARR-MDG, 2013 WL
1232919, at *2 (E.D.N.Y. Mar. 4, 2013); E. Armata, Inc. v. 27
Farmers Market, Inc., No. 08-cv-5212-KSH, 2009 WL 2386074, at *2
(D.N.J. July 31, 2009).
Background
By virtue of its default, Oakridge concedes the following
facts. 	Athena Adams resides in Hillsborough County, New
Hampshire. 	Oakridge is a New York corporation in the debt-
collection business. 	Oakridge left two voicemails on Adams’s
home answering machine. 	In the first voicemail, Oakridge stated
that an attempt at service had been made to Adams, requested
that Adams immediately call back, and indicated that if she did
not do so a “refusal of allegations” would automatically be
entered and “forcible recovery” would begin. 	In the second
voicemail, Oakridge claimed to be a “person locator” with a
“case number,” and threatened to execute service at Adams’s
place of employment if she did not call back or accept service
at her residence. 	Oakridge made no attempt at forcible recovery
or service following these phone calls, and did not provide
Adams with the information identified in 15 U.S.C. § 1692g
either in its initial communication with Adams or within five
days of those communications.
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Discussion
In Counts I through V, Adams seeks statutory damages under
the Fair Debt Collect Practices Act (“FDCPA”), 15 U.S.C. § 1962,
et seq.2 	“In order to prevail on an FDCPA claim, a plaintiff
must prove that: 1) the plaintiff has been the object of
collection activity arising from consumer debt, 2) the defendant
is a debt collector as defined by the FDCPA, and 3) the
defendant has engaged in an act or omission prohibited by the
FDCPA.” 	Halsey v. Litton Loan Servicing, No. 12-cv-511-PB, 2013
WL 3754919, at *3 (D.N.H. July 13, 2013) (internal quotation
marks and citations omitted). 	By virtue of its default,
Oakridge concedes that it is a debt collector for FDCPA
purposes. 	The allegations in the complaint — and particularly
Oakridge’s representation that it would begin “forcible
recovery” — support a plausible inference that Oakridge was
attempting to collect a consumer debt from Adams. 	Thus, the
sole inquiry before the court is whether Adams has adequately
alleged that Oakridge engaged in an act or omission prohibited
by the FDCPA.
2 Adams also alleges violations of N.H. Rev. Stat. Ann.
§§ 358-A and 358-C and a common-law claim for invasion of
privacy. 	In her motion for default judgment, Adams indicates
that she does not wish to pursue damages under these claims.
The court accordingly recommends that they be dismissed.
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Adams alleges violations of 15 U.S.C. §§ 1692g, 1692e,
1692f, 1692d, and 1692c. 	As relevant here, § 1692g requires
that a debt collector provide a consumer with certain
information regarding a debt either in its initial communication
with the consumer or within five days of that communication.
Id. § 1692g. 	In her complaint, Adams alleges that she received
two voicemails from Oakridge, but that Oakridge failed to
provide her with the information required under § 1692g either
in its initial communication or within five days of the
communication. 	Assuming the truth of these allegations, Adams
has stated a cause of action under § 1692g(a). 	She is therefore
entitled to default judgment on Count I.3
Damages
“In the case of defaulting defendants, allegations of
damages are not deemed admitted in the context of a default
judgment, and it is the plaintiff’s burden to establish any
entitlement to recovery.” 	Joe Hand Promotions, Inc. v. Rajan,
No. 10-40029-TSH, 2011 WL 3295424, at *3 n.2 (D. Mass. July 28,
3 Because Adams is entitled to default judgment on Count I
based on Oakridge’s violation of § 1692(g), the court does not
address Adams’s claims under §§ 1692(e), 1692(f), 1692(d),
1692(c). 	See, e.g., Rhodes v. Olson Assocs., P.C., 83 F. Supp.
3d 1096, 1103 (D. Col. Mar. 13, 2015) (“Because the FDCPA is a
strict liability statute, Plaintiff need demonstrate only one
violation of its provisions to be entitled to a favorable
judgment.”).
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2011) (internal quotation marks and citations omitted). 	“The
FDCPA provides that successful plaintiffs are entitled to actual
damages [and] statutory damages of up to $1,000 . . . .” 	French
v. Corp. Receivables, Inc., 489 F.3d 402, 403 (1st Cir. 2007)
(quoting 15 U.S.C. § 1692k (a) (3)). 	Here, Adams seeks only
statutory damages.
“[S]tatutory damages under the FDCPA are limited to $1,000
per lawsuit, not $1,000 per violation.” 	Nelson v. Equifax Info.
Servs., LLC, 522 F. Supp. 2d 1222, 1238 (C.D. Cal. 2007); see
also Wright v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647, 650-51
(6th Cir. 1994) (en banc); Williams v. Pressler and Pressler,
LLP, No. 11-7296 (KSH), 2013 WL 5435068, at *10 (D.N.J. Sept.
27, 2013); Stilz v. Global Cash Network, Inc., No. 10 CV 1998,
2010 WL 3975588, at *4 (N.D. Ill. Oct. 7, 2010). 	“Whether
statutory damages should be granted, and, if so, whether the
full amount of $1,000 should be allowed is committed to the
discretion of the court.” 	Manopla v. Brant, Hodge and Assoc.,
LLC, No. 13-338 (JAP), 2014 WL 793555, at *6 (D.N.J. Feb. 26,
2014) (citations omitted). 	“In exercising that discretion,
courts look to the nature of the violation.” 	Id. 	“If the
violation is especially egregious, or if plaintiffs show that it
was repeated and persistent, courts are more likely to award the
full amount.” 	Id. (citations omitted). 	When assessing
statutory damages in an FDCPA action, the court should consider
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“the frequency and persistence of noncompliance by the debt
collector, the nature of such noncompliance, and the extent to
which such noncompliance was intentional.” § 1692k(b)(1).
In view of the facts alleged in the complaint, the court
considers $1,000 in statutory damages to be an appropriate
award. 	As previously discussed, Adams’s claim is based on two
voicemail messages left by Oakridge. 	Assuming the truth of the
allegations in the complaint, Oakridge violated the FDCPA in at
least three separate ways by failing to provide the required
notice under § 1692g(a)(3), § 1692g(a)(4), and § 1692g(a)(5).
See Kaylore-Trent v. John C. Bonewicz, P.C., 910 F. Supp. 2d
1112, 1115-16 (C.D. Ill. 2012) (noting how even a single debt
collector message can violate the FDCPA in multiple ways).
Because Oakridge left multiple voicemails attempting to collect
a debt and failed to provide the required notice of validation
rights, the court views Oakridge’s failure to provide any
written notice to Adams as sufficient grounds to award $1,000 in
statutory damages.
Accordingly, the Court recommends that the district judge
award Adams $1,000 in statutory damages.
Costs and Fees
Under the FDCPA, a prevailing party is entitled to “the
costs of the action, together with reasonable attorney’s fees as
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determined by the court.” 	French, 489 F.3d at 403 (1st Cir.
2007) (internal quotations and ellipsis omitted) (quoting 15
U.S.C. § 1692k (a) (3)). “An award of attorney’s fees to
successful plaintiffs under the FDCPA is obligatory.” 	Id.
An award of reasonable attorney’s fees is typically
calculated by the lodestar method in which the court multiplies
the hours productively spent by a reasonable hourly rate.
Spooner v. EEN, Inc., 644 F.3d 62, 67-68 (1st Cir. 2011).
“‘Reasonable hourly rates will vary depending on the nature of
the work, the locality in which it is performed, the
qualifications of the lawyers, and other criteria.’” 	Hutchinson
ex rel. Julien v. Patrick, 636 F.3d 1, 16 (1st Cir. 2011)
(quoting United States v. One Star Class Sloop Sailboat, 546
F.3d 26, 38 (1st Cir. 2008)). 	The determination of what
constitutes a “reasonable” fee is left to the court’s
discretion. 	de Jesus v. Banco Popular de P.R., 918 F.2d 232,
233-34 (1st Cir. 1990).
The party seeking a fee award bears the burden of producing
materials to support the request. 	Hutchinson, 636 F.3d at 13.
“Appropriate supporting documentation includes counsel’s
contemporaneous time and billing records and information
establishing the usual and customary rates in the marketplace
for comparably credentialed counsel.” 	Spooner, 644 F.3d at 68;
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see also Bogan v. City of Boston, 489 F.3d 417, 426 (1st Cir.
2007).
Adams seeks an award of $3,962.50 in attorney’s fees and
$470 in costs. 	Her counsel submits a sworn affidavit in support
of this request. 	In this affidavit, counsel states that he and
members of his firm have spent at least 14.5 billable hours on
this matter. 	He states that the work on this case has been
charged at a rate of $325 per hour for attorney time and $125
per hour for staff time. 	He also states in the affidavit that
he has previously been assigned an hourly rate of $325 per hour
in other, more complex matters, and has been awarded $295 per
hour by this court in the past.
In the court’s view, Adams has not provided sufficient
documentation for her costs and fees request. 	Though the court
has recommended costs and fees awards in the past based solely
on counsel’s affidavit, counsel has made little attempt in this
case to explain why the billable rate for attorneys has
increased by $30 per hour over the rate approved in previous
cases. 	Similarly, counsel has failed to identify which of the
14.5 total hours billed in this matter are attributable to
attorney work versus work done by law firm staff, which bills as
a significantly lower rate. 	In light of these facts, the court
cannot determine whether Adams’s request is reasonable.
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The court therefore holds its recommendation on attorney’s
fees and costs in abeyance until counsel submits
“contemporaneous time and billing records, suitably detailed,
and information [concerning] the law firm’s standard billing
rates.” 	Hutchinson, 636 F.3d at 13 (emphasis added). 	In a
separate endorsed order, issued simultaneously with this report
and recommendation, the court directs counsel to submit
appropriate supporting documentation for the costs and fees
request within thirty (30) days. 	The court will issue a
subsequent report and recommendation at that time with respect
to costs and fees.
Conclusion
For the foregoing reasons, the court recommends that the
district judge: (1) grant Adams’s motion for default judgment
(doc. no. 11) on Count I; and (2) award Adams $1,000 in
statutory damages. 	The court holds in abeyance its
recommendation on attorney’s fees and costs.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72 (b) (2). 	The fourteen-day period may be extended
upon motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos v.
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Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ.
P. 72 (b) (2).
________________________
Andrea K. Johnstone
United States Magistrate Judge
April 3, 2018
cc: 	John. F. Skinner, III, Esq.
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