United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR. JUDGE
the Court is Plaintiff's Third Motion for Default
Judgment (Doc. 32), to which there has been no response. In
this motion, Plaintiff again requests a default judgment
against Defendants Mario Enterprises, Inc.
("Mario") and Martin Reed. For the following
reasons, Plaintiff's motion is GRANTED.
case arises from debt collection attempts that Plaintiff
alleges violated the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692. In her complaint,
Plaintiff initially alleges only that she was subject to an
undisclosed debt that arose from a transaction "in which
the money, property, insurance, or services . . . were
incurred primarily for personal, family, or household
purposes." (Doc. 15 at 3.) According to the complaint,
Defendants Mario and Reed, who were not Plaintiff's
creditors, attempted to collect the debt by filing an
Affidavit of Continuing Garnishment against Plaintiff's
employer on August 29, 2013. (Doc. 15 at 2-3.) In the
garnishment case, an entity called "Collection
Concepts" purported to be the plaintiff. (Doc. 15 at 3.)
On September 23, 2013, Plaintiff filed a traverse to the
garnishment. (Doc. 15 at 3.) On November 21, 2013, the
garnishment was dismissed after Defendant Mario twice failed
to appear at the garnishment hearings. (Doc. 15 at 4.)
Plaintiff's garnished funds were ultimately returned to
her several months later. (Doc. 15 at 4.) On March 14, 2014,
Plaintiff filed this suit bringing a claim under the FDCPA.
(Doc. 1.) On February 10, 2015, she amended that complaint to
bring three additional FDCPA claims. (Doc. 15.)
9, 2014, Defendants filed a Motion for Extension of Time in
order to seek an attorney (Doc. 7), which the Court granted
(Doc. 8). On July 11, 2014, Defendants filed a Motion to
Dismiss (Doc. 9), to which Plaintiff responded by requesting
an opportunity to amend her complaint (Doc. 12 at 6). On July
14, 2014, a Clerk's Entry of Default was entered as to
Defendant Mario. (Doc. 11.) On February 9, 2015, the Court
granted Plaintiff's request to amend and directed
Plaintiff to file an amended complaint. (Doc. 13.) On
February 10, 2015, Plaintiff filed her amended complaint.
(Doc. 15.) Defendants never answered the amended complaint.
On April 29, 2015, a Clerk's Entry of Default was entered
as to Defendant Reed. (Doc. 17.) On October 13, 2015,
Plaintiff filed a Motion for Default Judgment. (Doc. 18.) On
April 18, 2016, the Court dismissed Plaintiff s Motion for
Default Judgment for-among other concerns-her failure to
serve Defendants at the correct address. (Doc. 19.) Plaintiff
corrected these errors, and sought and received a Clerk's
Entry of Default as to both Defendants on July 6, 2016. (Doc.
August 25, 2016, Plaintiff filed a Second Motion for Default
Judgment. (Doc. 25.) Upon reviewing that motion, the Court
again rejected Plaintiff's request because she failed to
demonstrate that the disputed debt was a consumer debt
subject to the FDCPA. (Doc. 26.) Now, Plaintiff has filed a
Third Motion for Default Judgment. (Doc. 32.) In this motion,
Plaintiff provides more detailed information regarding her
underlying claim, including that the disputed debt in this
case was the result of a medical bill. (Doc. 32, Attach. 2.)
The Court will now consider whether Plaintiff has
sufficiently shown that she is entitled to default judgment.
noted by this Court in its previous ruling denying
Plaintiff's earlier request for default judgment, there
is no right to judgment by default; the matter lies within
the Court's discretion. Hamm v. DeKalb Cty., 774
F.2d 1567, 1576 (11th Cir. 1985) . Further, default judgment
can only be entered if the record adequately reflects the
basis for the award. Adolph Coors Co. v. Movement Against
Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir.
1985). To prevail on a claim pursuant to the FDCPA, a
plaintiff must establish that "(1) [she] [has] been the
object of collection activity arising from a consumer debt;
(2) the defendant attempting to collect the debt qualifies as
a Mebt collector' under the Act; and (3) the defendant
has engaged in a prohibited act or has failed to perform a
requirement imposed by the FDCPA." Frazier v.
Absolute Collection Serv., Inc., 767 F.Supp.2d 1354,
1363 (N.D.Ga. 2011) (quoting Buckley v. Bayrock Mortg.
Corp., 1:09-cv-1387, 2010 WL 476673, at *6 (N.D.Ga. Feb.
case, the Court finds that Plaintiff has adequately shown
that she could prevail on a claim pursuant to the FDCPA.
First, Plaintiff has satisfied this Court's earlier
concern that she failed to prove the disputed debt in this
action was a consumer debt. The FDCPA defines a debt as
"any obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to
judgment." 15 U.S.C. § 1692a(5). In her current
filing, Plaintiff provides an affidavit detailing that the
disputed debt in this case is the result of medical services
received at Statesboro OB/GYN. (Doc. 32, Attach 2.) As a
result, the Court is now satisfied that Plaintiff's debt
is an appropriate consumer debt covered by the FDCPA.
the Court is satisfied that Plaintiff is able to show that
Defendants Mario and Reed are debt collectors. The FDCPA
defines a "debt collector" as "any person who
uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the
collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another." 15 U.S.C.
§ 1692a(6). In the Court's view, both Defendants
Mario and Reed meet this definition. First, Defendant Mario
acted as a debt collector by improperly garnishing
Plaintiff's wages under a false company's name. (Doc.
15 at 6.) In addition, Defendant Reed acted as a debt
collector by taking an active role in the "day-to-day
management of Mario's debt collection business."
(Id. at 4.); see also Schwa rm v.
Craighead, 552 F.Supp.2d 1056, 1073 (E.D. Ca. 2008)
(quoting Piper v. Portnoff Law Assocs., 274
F.Supp.2d 681, 689-90 (E.D. Pa. 2003)) (discussing that
"courts have found an individual personally liable if
the individual . . . 'exercise[d] control over the
affairs of [the] business' " that sought to collect
the plaintiff's debt).
Plaintiff has shown that Defendants' actions likely
violated the FDCPA. In her complaint, Plaintiff alleges that
Defendants' conduct violated at least four different
provisions of the FDCPA. (Doc. 15.) For example, Plaintiff
alleges that Defendants used a false name, in violation of 15
U.S.C. § 1692e(l4), when attempting to collect the
garnished wages. (Doc. 15 at 6.) After careful review, the
Court is satisfied that Plaintiff has sufficiently shown that
Defendants' conduct violated the FDCPA.
Plaintiff is able to prove all the necessary elements of an
FDCPA claim. Accordingly, Plaintiff's motion for default
judgment is granted. The Court must now consider
Plaintiff's request for damages.