Fagan v. Lawrence Nathan Associates, Inc.
Fagan v. Lawrence Nathan Associates, Inc.
Opinion of the Court
ORDER AND REASONS
Before the Court is Plaintiffs Andrea Derks Fagan and George D. Fagan’s (the “Fagans” or “Plaintiffs”) Motion for Default Judgment,
I. Background
A. Factual Background
1. The Parties
Andrea Derks Fagan and George D. Fagan are Louisiana residents that have
2. Car Rental
Prior to taking a business trip, Mr. Fagan used his corporate credit card to reserve a vehicle with Budget Rent-a-Car (“Budget”) on behalf of Leake & Anderson, for business use in Las Vegas, Nevada. On July 18, 2009, Mr. Fagan and another Leake & Anderson attorney, Margaret F. Swetman, traveled to Las Vegas to prepare for, and participate in, arbitration proceedings beginning on July 20, 2009, as attorneys for a securities brokerage firm in a separate and unrelated matter. Mr. Fagan provided Budget with his corporate credit card, which listed “George D. Fagan Leake & Anderson” as the cardholder, when he picked up the vehicle at McCarran International Airport in Las Vegas, Nevada. Upon first observing the car, Mr. Fagan and Ms. Swetman noticed that it had the wear and tear of a well-used vehicle, was not well-cleaned, and had scuffs and marks, but they did not notice any significant damage to the exterior of the vehicle.
On July 19, 2009, Franklin J. Best, managing corporate counsel for the securities brokerage firm, also arrived in Las Vegas. From July 20, 2009 to July 24, 2009, Mr. Fagan, Ms. Swetman, and Mr. Best participated in the arbitration proceedings. During this time, Mr. Fagan used the vehicle only for business use, mainly traveling to and from the airport, the hotel, and the arbitration proceedings. On July 24, 2009, Mr. Fagan turned the vehicle over to Mr. Best, who did not leave until July 25, 2009. Prior to leaving Las Vegas, Mr. Fagan contacted Budget and verified that Mr. Best was authorized to use the vehicle.
Mr. Best returned the vehicle to Budget at the McCarran International Airport in Las Vegas on July 25, 2009, and Mr. Fagan’s corporate American Express card was charged $695.97 for the rental. Between July 18 and July 25, 2009, the vehicle was driven 97 miles and, according to Mr. Fagan, Ms. Swetman, and Mr. Best, did not sustain any damage during that time. Upon returning the vehicle, the Budget attendant claimed to observe damage to the right rear passenger door of the Budget vehicle, but Mr. Best did not see the alleged damage. Mr. Best signed a document entitled Property Damage Incident Report furnished by the Budget attendant, and he stated in the report that the alleged damage was not visible.
3. Charge for Damage to the Vehicle
On July 27, 2009, Budget sent Mr. Fagan a letter claiming that the Budget vehicle was returned with damage on January 11, 2008, although Mr. Fagan did not rent the vehicle until July 18, 2009. The letter made no reference to Leake & Anderson. On July 81, 2009, Mr. Fagan sent a letter to Maleo Enterprises of Nevada d/b/a Budget Rent-a-Car on his law firm’s letterhead disputing the alleged damage. In sub
On August 8, 2009, Budget sent a letter to the physical address of Leake & Anderson at 1100 Poydras Street, New Orleans, Louisiana, but addressed directly to Mr. Fagan, which sought to collect $903.22 from Mr. Fagan, including $249.94 for loss of use, a $100.00 administration fee, and taxes in the amount of $38.60. On October 19, 2009, Budget sent a letter to Leake & Anderson to the attention of “George Fagan” that reiterated the allegations of damage and sought to collect $904.96.
Jp. Defendant’s Attempt to Collect the Alleged Debt
Budget subsequently engaged Defendant to collect the purported debt and furnished Defendant with Budget’s file relating to the incident. On November 19, 2009, Defendant sent a letter on behalf of Budget directly to Mr. Fagan seeking to collect $1,357.44, without explaining the increase. Mr. Fagan claims that within three months after the November 19, 2009 letter, Defendant sent another letter to Mr. Fagan seeking to collect the debt, but Mr. Fagan did not maintain a copy.
In August 2011, the Fagans contacted Wells Fargo Home Mortgage (‘Wells Fargo”) to refinance their home and open a home equity line of credit. Initially, Wells Fargo quoted the Fagans a 4.25% interest rate to refinance their home assuming the Fagans had an “excellent” credit rating. When Wells Fargo requested a Reis Report summarizing credit reporting information about the Fagans, the Reis Report indicated that Defendant had reported an outstanding debt to Experian and Equifax in the amount of $1,357.00. Defendant had not reported the debt to TransUnion. Accordingly, Equifax and Experian reported scores that Wells Fargo classified as “good;” whereas, TransUnion reported a score that Wells Fargo classified as “excellent.” Due to Mr. Fagan’s lower credit score, Wells Fargo could not honor its prior quotation.
On September 19, 2011, Mr. Fagan sent a letter by telecopier, email, and U.S. mail to Defendant disputing Budget’s claims and requesting validation. On October 18, 2011, Mr. Fagan sent a follow-up letter to Defendant by Federal Express, attaching a draft Complaint. Defendant did not respond to any of Mr. Fagan’s letters.
On October 27, 2011, the Fagans accepted a higher 4.375% interest rate to refinance their home on December 14, 2011 based on the “good” credit rating. In addition, on January 2, 2012, the Fagans purchased a new Nissan Murano automobile, and ultimately refinanced the vehicle through Capital One. Because the Equifax and Experian credit scores were still “good” the Fagans accepted a higher 3.99% interest rate through Capital One, rather than a 3.5% interest rate available through USAA Federal Savings Bank, N.A. for individuals with an “excellent” credit rating. Finally, the Fagans claim that they maintain a few credit cards that have been subject to a .5% to 1.0% increase in the interest rates due to lowering of the Fagans credit rating from “excellent” to “good.”
B. Procedural Background
The Fagans filed the instant lawsuit on January 23, 2012, after learning that Defendant had furnished false information to Equifax and Experian and after receiving no response from Defendant to Mr. Fa
Although Defendant was served, Defendant never contacted the Fagans or their counsel or made any appearance in the lawsuit.
II. Law and Analysis
A. Personal Jurisdiction and Service of Process
A district court “ ‘has an affirmative duty to look into its jurisdiction both over the subject matter and the parties’ ” before granting a motion for a default judgment,
In Jackson v. Tanfoglio Giuseppe, S.R.L., the Fifth Circuit stated:
A federal district court in Louisiana ... may exercise personal jurisdiction over a non-resident defendant if (1) the defendant has purposefully availed himself of the protections and benefits of Louisiana by establishing “minimum contacts” in the state, and (2) the exercise of the jurisdiction complies with traditional notions of “fair play and substantial justice.”13
The Fifth Circuit elaborated on the extent of the “minimum contacts” necessary to support personal jurisdiction:
“Jurisdiction may be general or specific,” depending on the nature of the defendant’s forum-related contacts.” “Where a defendant ‘has continuous and systematic general business contacts’ with the forum state, the court may*792 exercise general jurisdiction over any action brought against the defendant. Where contacts are less pervasive, the court may still exercise ‘specific’ jurisdiction ‘in a suit arising out of or related to the defendant’s contacts with the forum.’ ”14
1. General Jurisdiction
“[Gjeneral jurisdiction may be found when the defendant’s contacts with the forum state are substantial, continuous, and systematic,”
Here, the extent of Defendant’s contact with Louisiana includes two letters sent to Mr. Fagan in the state of Louisiana and the fact that Defendant was licensed as a “debt collector” in Louisiana years before the alleged incident between April 24, 2000 and March 28, 2005. Similar to Jackson, these contacts are not systematic, continuous, or substantial enough to support general jurisdiction.
2. Specific Jurisdiction
Even when a defendant is not subject to general personal jurisdiction in a forum state, a district court may nonetheless exercise specific jurisdiction over the defendant based on a three-prong analysis: “(1) whether the defendant has minimum contacts with the forum state; (2) whether the plaintiffs cause of action arises out of or results from the defendant’s forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.”
In Guidry v. United States Tobacco Co., Inc.,
[w]hen a nonresident defendant commits a tort within the state, or an act outside the state that causes tortious injury within the state, that tortious conduct amounts to sufficient minimum contacts with the state by the defendant to constitutionally permit courts within that state, including federal courts, to exercise personal adjudicative jurisdiction over the tortfeasor and the causes of actions arising from its offenses or quasi-offenses.21
Thus, specific jurisdiction may arise without the non-resident defendant ever set
In Brown v. Flowers Industries, Inc.,
In this case, the publicly accessible records maintained by the Secretary of State for the State Louisiana indicate that Defendant was licensed as a “debt collector” in Louisiana for a certain period between April 24, 2000 and March 28, 2005, but has been “inactive” and has not been licensed to do business in the State of Louisiana since that date. Nevertheless, Defendant sent a letter to Mr. Fagan in Louisiana seeking to collect a debt on November 19, 2009, and sent an additional letter on at least one other date. Further, by reporting the alleged debt to Experian and Equifax, Defendant caused the Fagans to sustain damages in Louisiana, despite the fact that any alleged damage to the Budget vehicle would have been a debt of Leake & Anderson, rather than Plaintiffs. Accordingly, this Court finds that Defendant purposefully availed itself of the benefits of the forum state by attempting to collect a debt from, and ultimately reporting information about, a resident of Louisiana, which caused injury or damage in this state.
Once it has been established that the defendant purposefully established minimum contacts within the forum state sufficient to sustain this Court’s exercise of personal jurisdiction, “these contacts may be considered in light' of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ”
Applying these factors in Brown, the Fifth Circuit stated:
These considerations lead us to conclude that the defendants are not denied due process by being subjected to suit in [the forum state]. [The defendant] initiated the telephone call and allegedly committed an intentional tort. The injurious effect of the tort, if one was committed, fell in [the forum state], which the defendant could easily have foreseen. The injury was felt entirely by a [forum state] resident and a [forum state] corporation. Forcing them to travel to [the defendant’s state of residence] to litigate would not advance “(their) interest in obtaining convenient and effective relief.” There are only two witnesses likely to be called with regard to the content of the telephone call.... All of the witnesses to the effect of the call reside in [the forum state].31
Here, Budget initiated the debt collection process against Mr. Fagan by sending him letters on three separate occasions. The last letter sent on October 19, 2009, was addressed to “Leake and Anderson, LLP,” indicating an awareness that the debt was legally owed by the law firm. According to the complaint, Defendant received the Budget file containing Budget’s correspondence with Mr. Fagan and his reply disputing the claim. After receiving Budget’s file regarding the claim, Defendant then purposefully engaged in activity within the state of Louisiana by sending two letters to collect the debt to Mr. Fagan in Louisiana. Further, by reporting the debt to Equifax and Experian, Defendant also took action outside of the state with foreseeable consequences in Louisiana. Thus, Brown indicates that under such circumstances traditional notions of fair play and substantial justice are not offended, because Defendant initiated the debt collection activities in the forum state resulting in foreseeable injury felt entirely within the forum state.
In addition, the injury was felt entirely by Louisiana residents. Forcing Plaintiffs to travel to Nevada to litigate would not advance their interests in obtaining convenient and effective relief. Further, all of the witnesses to the injurious effects of the debt collection practices are in Louisiana, including the Fagans and Jane M. Ashbire, the Wells Fargo employee involved in refinancing the Fagans’ home. Finally, Louisiana has a substantial interest in protecting its residents from misrepresentations or unfair debt collection practices by debt collectors. The fact that Defendant was not registered as a debt collector in 2011 in the State of Louisiana, despite its efforts to collect debts in Louisiana, does not preclude this Court from exercising specific personal jurisdiction when Defendant chooses to engage in activities targeting Louisiana residents and resulting in foreseeable injury within Louisiana.
3. Service of Process
Additionally, service of process must be effective under the Federal Rules of Civil Procedure before a default judgment may be entered against a defendant.
*795 A. In a suit under R.S. 13:3201, a certified copy of the citation or the notice in a divorce under Civil Code Article 102 and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.
D. For purposes of this Section, a “commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:
(1) Acquires a signed receipt from the addressee, or the addressee’s agent, of the letter or parcel upon completion of delivery.
(2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.33
Within twenty days after being validly served with the summons and complaint, Federal Rule of Civil Procedure 12(a) requires the defendant to serve an answer.
According to the online records of the Secretary of State for the State of Nevada, Defendant is incorporated and domiciled in the State of Nevada, and the registered agent for service of process is Michael D. Mazur, 3037 East Warm Springs Road, Building 10 — Suite 200, Las Vegas, Nevada 89120. The Clerk of Court issued summons to Defendant through its registered agent at Plaintiffs’ request. Three days after the complaint was filed, Plaintiffs’ counsel sent a letter via Federal Express to Defendant enclosing the complaint and the summons issued by the Clerk of Court on January 26, 2012. On January 27, 2012, Federal Express properly delivered and thus effected service upon Defendant in accordance with Louisiana’s long-arm statute,
B. Entry of Judgment
I. Default Judgments Pursuant to Federal Rule of Civil Procedure 55
The duty to respond to a complaint is triggered by the service of summons or lawful process, and the failure to do so may result in the entry of a default or default judgment under Federal Rule of Civil Procedure 55.
(a) Entering a Default. Wfiien a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
(b) Entering a Default Judgment.
*796 (1) By the Clerk. If the plaintiffs claim is for a sum certain or a sum that can be made certain by computation, the clerk — on the plaintiffs request, with an affidavit showing the amount due — must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by, a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals — preserving any federal statutory right to a jury trial — when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) - investigate any other matter.
As the Clerk of Court has found Defendant in default, the Court must determine whether entry of a default judgment should follow.
The Fifth Circuit has held that “default judgments are a drastic remedy not favored by the Federal Rules and resorted to by courts only in extreme situations.”
The Fifth Circuit looks at six factors when considering whether the entry of a default judgment was appropriate:
(1) if the default was caused by a good faith mistake or excusable neglect; (2) if there has been substantial prejudice; (3) the harshness of a default judgment; (4) if there are material issues of fact; (5) if grounds for a default judgment are clearly established; and (6) if the court would think itself obligated to set aside the default on the defendant’s motion.43
The fourth factor requires the Court to consider if there are any material issues of fact. However, when a party fails to respond to a complaint, as Defendant has done here, it also fails to place any material facts in dispute, and is barred from contesting on appeal the facts as established by the participating party’s pleadings.
2. Breach of the Fair Credit Reporting Act (“FCRA”)
Congress enacted the FCRA, 15 U.S.C. § 1681, et seq., “ ‘to require that consum
Although the Fifth Circuit has declined to reach the issue, the Ninth Circuit and district courts within this circuit and across the country have permitted the consumer to bring a private cause of action against the furnisher if it does not comply with the provisions of Section 1681s-2(b).
Here, Plaintiffs have similarly failed to point to any evidence, or even plead, that Defendant received notice of a dispute from Equifax or Experian, the consumer reporting agencies involved, within five days, as is required to trigger Defendants’ duties under Section 1681s-2(b). Instead, Plaintiffs have only provided evidence that they sent letters disputing the alleged debt directly to Budget and Defendant. There is no evidence or allegation
3. Breach of the Fair Debt Collection Practices Act (“FDCPA”)
The FDCPA, 15 U.S.C. § 1692, et seq., was enacted “ ‘to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.’ ”
Here, Plaintiffs allege, and the evidence supports, that Defendant was a debt collector within the meaning of the FDCPA, because it was attempting to collect a debt on behalf of Budget. Although the FDCPA requires that the “debt” at issue be primarily for personal purposes and Plaintiff claims that any debt incurred here technically would have been a business debt of Leake & Anderson, Defendant treated and regarded Mr. Fagan as a consumer who was using the Budget vehicle for his personal use and thus individually liable to Budget, as evidenced by Defendant’s attempts to collect the debt against Mr. Fagan individually.
Section 1692(e) of the FDCPA prohibits “threat[s] to take any action that cannot legally be taken or that is not intended to be taken” and “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain
L Claims Under Louisiana Law
a. Louisiana Civil Code Article 2315(A)
Plaintiffs claim that Defendant is liable for breach of Louisiana Civil Code Article 2315(A), which provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Under Louisiana law, a negligent misrepresentation claim is made out when a person, in the course of his business or other matters in which he has a pecuniary interest, supplies false information without exercising reasonable care, for the guidance of others, who justifiably and detrimentally rely on such information and thereby suffer a pecuniary loss.”
Plaintiff argues that Defendant had a duty to furnish correct information about any alleged debt, which Defendant failed to do. However, in Young, the Fifth Circuit stated that “[t]he FCRA preempts state law defamation or negligent reporting claims unless the plaintiff consumer proves ‘malice or willful intent to injure’ him.”
b. Louisiana Unfair Trade Practices Act (“LUTPA”)
The LUTPA, La.Rev.Stat. § 51:1401, et seq., affords a cause of action to any natural or juridical person “who suffers any ascertainable loss of money or moveable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by La.R.S. 51:1405.”
Under Louisiana law a “debt collector” is:
any person, other than a licensed Louisiana attorney, who uses any instrumentality of intrastate or 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, and relative to Louisiana clients, notwithstanding the fact that such person has no employees, offices, equipment, or other physical facilities in this state.
Defendant is a “debt collector” under Louisiana law, because in addition to previously being a registered debt collector within the State of Louisiana, Defendant was attempting to collect a debt within Louisiana from Plaintiffs through the use of interstate mail.
Defendant’s conduct can also fairly be deemed deceptive, unscrupulous and substantially injurious to consumers. Defendant knew or should have known that any alleged debt was disputed and, in any event, was owed by Leake & Anderson based on Mr. Fagan’s letters. Nevertheless, Defendant reported the debt to Equifax and Experian as a personal debt of the Fagans. Further, Defendant failed to respond to Plaintiffs’ attempt to contact Defendant regarding the alleged debt. Therefore, considering the facts set forth by Plaintiffs, Defendant engaged in conduct amounting to unfair and deceptive debt collection practices under the FDCPA.
C. Damages
While this Court has found that entry of a default judgment is warranted on certain claims, it must further determine if it would be appropriate to award the remedies requested by Plaintiffs in the pending motion.
When a party seeks a default judgment for damages, the Fifth Circuit has held that “damages should not be awarded without a hearing or a demonstration by detailed affidavits establishing the necessary facts.”
1. Plaintiffs’ Damages under the FDCPA, the FCRA o/nd Louisiana Law
Plaintiffs request the following economic damages as part of their actual damages: $8,439.21 in damages relating to the Wells Fargo refinancing; $206.70 for the financing of the purchase of the Nissan Murano; and, $37.50 annually for the difference in the credit card interest charges for a period of seven years (which represents the length of time that the information may remain on any credit report under the FRCA).
the financing of new vehicle purchases, any further refinancing of any home mortgage (which the Fagans are contemplating by reason of the even lower interest rates now available for refinancing), the refinancing of the Fagans’ home equity line of credit for the same reasons, the purchase of a new home, and the purchase of other items that require financing separate from a credit card.78
Plaintiffs claim that a reasonable damages award for future economic damages and losses over the next seven years is $5,000. Therefore, Plaintiffs request a total of $13,908.41 in past and future economic damages.
Here, Plaintiffs are requesting the economic damages outlined above, and an award of $1,000 to each plaintiff in statutory “additional damages.” Additional damages are warranted here considering Defendant’s refusal to respond to this lawsuit or any of Plaintiffs efforts to dispute the alleged debt, thereby ensuring that the disputed debt remains on Plaintiffs credit score up to seven years, despite Plaintiffs efforts to resolve the issue. Plaintiffs are also requesting costs and attorney’s fees under the FDCPA, which are discussed in greater detail below.
Similarly, under Section 51:1409(A) of the LUTPA, Plaintiffs can “recover actual damages,” and “[i]n the event that damages are awarded under [Section 51:1409(A) ], the court shall award to the person bringing such action reasonable attorney fees and costs.”
Because Plaintiffs claims under the FCRA fail as a matter of law, Plaintiff may not recover damages under the FCRA. Plaintiffs note that actual damages under the FCRA “may include damages for humiliation or mental distress even if the consumer has suffered no out-of-pocket losses, as well as damages for injury to reputation and creditworthiness.”
Further, Plaintiffs claims under Louisiana Civil Code Article 2315 are preempted by the FCRA, unless Plaintiffs demonstrate malice and willful intent on the part of the Defendant. Plaintiffs have adduced
2. Attorney’s Fees and Costs
As discussed above, pursuant to 15 U.S.C. § 1692k(a)(3), a plaintiff is entitled to the costs of the FDCPA action, as well as reasonable attorneys’ fees.
“To calculate attorney’s fees, a court must first ‘calculate a lodestar fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.’ ”
(1) the time and labor required to litigate the matter; (2) the novelty and complieatedness of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney had to refuse other work to litigate the case; (5) the attorney’s customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or case imposed time constraints; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorney; (10) whether the case was ‘un*805 desirable’; (11) the type of attorney-client relationship and whether the relationship was long-standing; and (12) awards made in similar cases.93
Here, Plaintiffs are requesting the lodestar amount of $250 per hour for the twenty hours of work performed, without any upward or downward adjustment. Plaintiffs make the following arguments with respect to each factor:
The Declaration submitted by counsel for Plaintiff describes and details the work that he performed.... The nature of the proof submitted to support this motion ... and [the] detailed memorandum of law, the issues are complex and novel. Further, the prosecution of claims based on the FCRA, FDCPA and other laws require specific knowledge, experience and skills to properly litigate the issues. While counsel for Plaintiffs did not necessarily have to refuse other work to litigate the case, his time and ability to do so is limited by reason of his current employment in the oil and gas business while maintaining a part-time law practice. Mr. Kemmerly’s Declaration establishes that $250 is his hourly fee. Counsel for Plaintiffs’ fee is based on an hourly rate, which is a fixed fee. Mr. Kemmerly’s handling of this case was subject to time constraints because of his work in the oil and gas land business. The amount of damages [is] not substantial and a successful result should be obtained by reason of the Defendant’s obviously deliberate failure to ever respond to the Plaintiffs’ letters regarding the Budget claim and the negative credit reports and its plainly purposeful failure to appear in these proceedings. As set forth in George Fagan and Mr. Kemmerly’s Declarations, counsel for Plaintiffs has substantial experience, an excellent reputation and considerable abilities as an the attorney. Because of the relatively low amount of damages sought by the Plaintiffs and the nature of the declaratory requested relief, the case would be considered to be undesirable and Mr. Kemmerly’s handling of the case is largely due to his longstanding friendship with Mr. Fagan.
This Court finds that Plaintiffs’ arguments are supported by affidavits and other evidence before the Court indicating that attorneys’ fees in the amount of $250 per hour for twenty hours, or $5,000, is reasonable, and an upward or downward adjustment unwarranted.
Finally, Plaintiffs request that they be awarded the costs of the action pursuant to 28 U.S.C. § 1920, subject to the timely filing of a Bill of Costs. If Plaintiffs are awarded monetary damages under the FDCPA and the LUTPA, both statutes also provide for an award of costs.
III. Conclusion
The Court will grant Plaintiffs motion for a default judgment on Plaintiffs’ claims for breach of the FDCPA and the LUTPA. However, Plaintiffs’ claims under the FCRA fail as a matter of law, because Plaintiffs have not alleged that they ever contacted Equifax or Experian regarding the disputed debt. Further, Plaintiffs’ claims under Louisiana Civil Code article 2315 are preempted by the FCRA, because Plaintiffs have not pleaded facts to support the asserted malice or willful intent on behalf of Defendant. Thus, Plaintiffs are
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Default Judgment
IT IS FURTHER ORDERED that judgment is rendered against Defendant for the following damages: Plaintiffs are jointly awarded past and future economic damages in the amount of $13,908.41; each Plaintiff is awarded $1,000.00 in statutory damages under the FDCPA; and, as the prevailing parties, the Plaintiffs are jointly awarded $5,000.00 for the reasonable attorney’s fees incurred in connection with this matter;
IT IS FURTHER ORDERED that, as the prevailing parties, Plaintiffs are awarded costs pursuant to 28 U.S.C. § 1920, subject to the Plaintiffs timely submitting a Bill of Costs in accordance with Local Rules 54.3 and 54.3.1 and Rule 54(d) of the Federal Rules of Civil Procedure;
IT IS FURTHER ORDERED that Plaintiffs are awarded prejudgment interest at the rate described in 28 U.S.C. § 1961 on the award of damages from the date of judicial demand, and post judgment interest at the same rate on the award of damages, attorney’s fees and costs commencing from the date of the entry of this judgment until such amounts are paid in full and the judgment is satisfied.
. Rec. Doc. 16.
. Rec. Doc. 16-1 atpp. 14-15.
. Id. at Exs. 3 & 4 (Affidavit of George Fagan ¶ 34).
. Id. atp. 2.
. Rec. Doc. 8.
. Rec. Doc. 9.
. Rec. Doc. 16.
. Sys. Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY, 242 F.3d 322, 324 (5th Cir. 2001) (quoting Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986)).
. Id. (citing Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278 (5th Cir. 1987)).
. Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002); see also Interfirst Bank Clifton v. Fernandez, 844 F.2d 279, 282 (5th Cir. 1988).
. Id. (citing La.Rev.Stat. § 13:3201(B); Growden v. Ed Bowlin & Assocs., 733 F.2d 1149, 1150 (5th Cir. 1984)); see also Guidry v. U.S. Tobacco Co., Inc. 188 F.3d 619, 624 (5th Cir. 1999).
. Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 584 (5th Cir. 2010).
. Id. (quoting Walk Haydel & Assocs. v. Coastal Power Prod. Co., 517 F.3d 235, 243 (5th Cir. 2008)).
. Id. (quoting Luv N’ Care v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006)).
. Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-19, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).
. Id. (quoting Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008)).
. Id.
. Id. at 584-85 (internal citations omitted).
. Id. at 585 (citing Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)).
. 188 F.3d 619 (5th Cir. 1999).
. Id. at 628.
. Stuart v. Spademan, 772 F.2d 1185, 1191 (5th Cir. 1985).
. 688 F.2d 328 (5th Cir. 1982).
. Id. at 333.
. Id.
. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
. 688 F.2d at 333 (quoting Miss. Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1007 (5th Cir. 1982)) (emphasis added).
. Id. (quoting Prod. Promotions, Inc. v. Cousteau, 495 F.2d 483, 494 n. 17 (5th Cir. 1974)).
. Id.
. Id.
. Id. at 333-34.
. See Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 941-42 (5th Cir. 1999).
. La. Rev. Stet. 13:3204.
. Fed.R.Civ.P. 12(a)(1)(A).
. Proof of Service, Rec. Doc. 5 (attaching signed receipt of delivery to the addressee from Federal Express).
. La.Rev.Stat. § 13:3204.
. Rogers, 167 F.3d at 937; see also Georgia Power Project v. Georgia Power Co., 409 F.Supp. 332, 336 (N.D.Ga. 1975); McMillen v. J. C. Penney Co., 205 F.R.D. 557, 558 (D.Nev. 2002).
. See T-Mobile USA Inc. v. Shazia & Noushad Corp., No. 08-CV-00341, 2009 WL 2003369, at *2 (N.D.Tex. July 10, 2009).
. Id.
. Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989).
. Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996).
. See James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993); Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977).
. T-Mobile USA Inc., 2009 WL 2003369, at *2 (citing Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998) ("Relevant factors [in deciding whether to enter a default judgment] include whether material issues of fact are at issue, whether there has been substantial prejudice, whether the grounds for default are clearly established, whether the default was caused by a good faith mistake or excusable neglect, the harshness of a default judgment, and whether the court would think itself obliged to set aside the default on the defendant's motion.”)).
. See United States v. Fincanon, No. 08-CV-61, 2009 WL 301988, at *2 (N.D.Tex. Feb. 6, 2009) (holding that a plaintiff’s interests were prejudiced because the defendant's failure to respond to the complaint halted the adversary process).
. United States for Use of M-CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987).
. See T-Mobile USA Inc., 2009 WL 2003369, at *3 (stating that courts must determine if the relief requested is appropriate under governing law).
. Nishimatsu Constr. Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (citing Ohio Cent. R. Co. v. Cent. Trust Co., 133 U.S. 83, 10 S.Ct. 235, 33 L.Ed. 561 (1890) (“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.”)); Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885).
. Id.
. Id.
. Stevenson v. TRW Inc., 987 F.2d 288, 292 (5th Cir. 1993) (quoting 15 U.S.C. § 1681(b)).
. See 15 U.S.C. § 1681s-2(b)(l).
. See Thomasson v. Bank One, La., N.A., 137 F.Supp.2d 721, 723 (E.D.La. 2001). The Fifth Circuit has not decided whether a private cause of action exists. See Young v. Equifax Credit Info. Servs., 294 F.3d 631, 639-40 (5th Cir. 2002) (“We need not decide, and do not decide, whether a private right of action exists against a' furnisher of information because, as we explain below, [Plaintiff] has not established an element that would be required if any such action does exist. We observe— without approving or disapproving the holding — that the only circuit court that has decided this issue held that there is a private right of action. Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057 (9th Cir. 2002).’’)
. Young, 294 F.3d at 639 (citing 15 U.S.C. § 1681i(a)(2)).
. Id. (citing 15 U.S.C. § 168ls-2(b)(l) (“After receiving notice pursuant to [section 1681i(a)(2) ] of this title of a dispute.”)).
. Id.
. Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1234 (5th Cir. 1997)(quoting 15 U.S.C. § 1692(e)).
. Id. (quoting 15 U.S.C. § 1692a(6)).
. Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 388 (5th Cir. 2002)(quoting 15 U.S.C. § 1692a(5)).
. Taylor, 103 F.3d at 1234 (quoting 15 U.S.C. § 1692(e)).
. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(internal quotations omitted).
. Hardy v. Hartford Ins. Co., 236 F.3d 287, 292 (5th Cir. 2001).
. Soc’y of the Roman Catholic Church of the Diocese of Lafayette v. Interstate Fire & Cas. Co., 126 F.3d 727, 742 (5th Cir. 1997).
. Young, 294 F.3d at 638.
. Monroe Med. Clinic, Inc. v. Hosp. Corp. of Am., 622 So.2d 760, 763 (La.App.Ct. 1993).
. La.Rev.Stat. § 51:1409(A); Roustabouts, Inc. v. Hamer, 447 So.2d 543, 548 (La.App.Ct. 1984).
. Monroe Med. Clinic, Inc. v. Hosp. Corp. of Am., 522 So.2d 1362, 1365 (La.App.Ct. 1988).
. Omnitech International, Inc. v. Clorox Company, 11 F.3d 1316, 1332 (5th Cir. 1994).
. Monroe Med. Clinic, Inc., 622 So.2d at 763.
. See T-Mobile USA Inc., 2009 WL 2003369, at *3.
. Id.
. Rec. Doc. 1 ¶61.
. See Rec. Doc. 16-1 at pp. 29-42 (discussing requested damages and attaching Proposed Order).
. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979).
. Columbia Pictures Indus., Inc. v. Whitting, No. 06-CA-0133, 2006 WL 1851388, at *1 (W.D.Tex. June 1, 2006)(citing James, 6 F.3d at 310).
. Columbia Pictures Indus., Inc., No. 06-CA-0133, 2006 WL 1851388 at *2.
. James, 6 F.3d at 311 (citing Rule 55(b)).
. Rec. Doc. 16-1 atp. 34.
. Id. at pp. 34-35.
. 15 U.S.C. § 1692k.
. Guajardo v. GC Servs., LP, 498 Fed.Appx. 379, 382 (5th Cir. 2012).
. Johnson v. Eaton, 80 F.3d 148, 150 (5th Cir. 1996)(citing 15 U.S.C. § 1692k).
. Id. at 151.
. La.Rev.Stat. § 51:1409(A).
. Rec. Doc. 16-1 at p. 30 (quoting Cousin v. Trans Union Corp., 246 F.3d 359, 369 n. 10 (5th Cir. 2001))
. La. C.C. art. 2315(B).
. See Johnson, 80 F.3d at 150 (citing 15 U.S.C. § 1692k).
. Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
. See id. at 897, 104 S.Ct. 1541.
. Id. at 895 n. 11, 104 S.Ct. 1541.
. Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 661 (5th Cir. 2002) (citing Rutherford v. Harris County, Texas, 197 F.3d 173, 192 (5th Cir. 1999)).
. See, e.g„ Yelton v. PHI Inc., 2012 WL 3441826, at *5-6, 2012 U.S. Dist. LEXIS 114100, at *33 (E.D.La. Aug. 14, 2012) (Roby, Mag. J.)(awarding $250 hourly rate for attorneys with 11 to 15 years of experience); Filson v. Tulane Univ., Civ. A. No. 09-7451, 2010 U.S. Dist. LEXIS 110639, 2010 WL 3943543 (E.D.La. Oct. 4, 2010)(Roby, Mag. J.) (awarding $250 per hour for an attorney with 25 years experience).
. Green, 284 F.3d at 661.
. Id. at 661; see also, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-718 (5th Cir. 1974).
. See 15 U.S.C. § 1692k; La.Rev.Stat. § 51:1409(A).
. Rec. Doc. 16.
Reference
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