United States District Court, D. Delaware
LEONARD P. STARK UNITED STATES DISTRICT COURT
Wilmington, this 24th day of
before the Court is Plaintiffs Randall Gross and Claire
Champagne's ("Plaintiffs") Motion for Damages,
Attorneys' Fees and Costs (D.I. 57) and Plaintiffs'
Motion to Strike Defendants Weinstein, Weinburg & Fox,
LLC, Darren Tillison, and Tyra Tillison's
("Defendants") Sur-Reply (D.I. 62). Having reviewed
the parties' submissions (D.I. 57-64), IT IS
HEREBY ORDERED that Plaintiffs' Motion for
Damages, Attorneys' Fees and Costs (D.I. 57) is
GRANTED and that Plaintiffs' Motion to
Strike (D.I. 62) is DENIED. For the reasons
set forth below, the Court concludes that Plaintiffs are
entitled to actual damages in the amount of $10, 000,
statutory damages in the amount of $1, 000 per Plaintiff,
attorneys' fees in the amount of $12, 258, and costs in
the amount of $611.60.
20, 2014, Plaintiffs filed a complaint with this Court
alleging that Defendants violated provisions of the Fair Debt
Collection Practices Act ("FDCPA") and used illegal
methods to collect a consumer debt from
Plaintiffs. (See D.I. 1) On August 30, 2017,
the Court granted Plaintiffs' motion for entry of a
default judgment, after Defendants failed to hire an attorney
despite being provided with significant leniency and time to
do so. (See D.I. 49)
to the FDCPA, a debt collector who fails to comply with the
FDCPA is liable for actual damages, statutory damages not to
exceed $1, 000 per plaintiff, reasonable attorneys' fees,
and costs. 15 U.S.C. § 1692k(a).
Actual and Statutory Damages
seek an award of actual damages to compensate for severe
emotional distress and suffering as a result of
Defendants' threats and intimidation, as well as
statutory damages in the amount of $1, 000 per Plaintiff.
(See D.I. 57 at 7) Plaintiffs each provide
affidavits in support. (See D.I. 57-1 (Affidavit of
Randall Gross ("Gross Aff.")); D.I. 57-2 (Affidavit
of Claire Champagne ("Champagne Aff"))) The Court
also considers the allegations in the Complaint (D.I. 1),
which have not been answered.
Gross affirms that on April 1, 2014, he received a telephone
call from a man who identified himself as Antonio Right, a
lawyer at Weinstein Weinburg & Fox ("WWF"), who
purported to be collecting a $1, 509 bill from Mr.
Gross's dentist, Delaware Modern Dental
("DMD"). (See Gross Aff. at 1) Without
providing any information about Mr. Gross's rights, Mr.
Right stated that Mr. Gross had to pay by that Friday and
threatened to file a lawsuit if Mr. Gross did not do so.
(See Id. at 2) "Feeling threatened and
intimidated, as well as embarrassed to be discussing the
matter while at work," Mr. Gross agreed and provided Mr.
Right with his debit card and bank account numbers. (See
id.) When Mr. Gross returned home from work to his
girlfriend and newborn baby, both of whom he supports
financially, he realized he may be a victim of identity fraud
and became frightened. (See Id. at 2-3)
learned of what happened, Ms. Champagne became upset and
worried and began researching WWF. (See Champagne
Aff. at 1-2) She called the business and spoke to a man she
believes was Darren Tillison, who threatened to sue her and
have her and her boyfriend sent to prison. (See Id.
at 2) The man on the phone warned Ms. Champagne not to visit
the office of WWF, insinuating that she may be beat up if she
did. (See id.) Eventually, the man admitted he was
not a lawyer and that WWF was not a law firm. (See
id.) Mr. Gross also had another phone call with Mr.
Right on April 8, 2014, during which Mr. Right continued to
threaten, harass, and humiliate him. (See Gross Aff.
at 4) Mr. Gross believes Mr. Right was actually Darren
Tillison. (See id.)
result of Defendants' actions, Mr. Gross has
"suffered emotional distress which manifests as mental
anguish, fear, anxiety, depression, humiliation, and
embarrassment" and is too frightened to return to the
dentist for needed dental care. (See Id. at 4-5) As
a result of Defendants' actions, Ms. Champagne affirms
that she "became anxious to the point of being
terrified," because she feared imprisonment and
suspension of her and Mr. Gross's drivers licenses.
(See Champagne Aff. at 2-3) She could not focus on
anything but researching her legal rights and protecting her
family from Defendants' threats. (See Id. at 3)
Having previously suffered from manic depression/anxiety
disorder, Ms. Champagne had a manic episode that became so
severe that she was hospitalized for about a week. (See
Id. at 1, 3) Both Mr. Gross and Ms. Champagne suffered
additional emotional distresses including, among other
things, negative impacts on their family relationships and
financial stresses. (See Id. at 3; Gross Aff. at
3-4) In sum, the only actual damages claimed by Plaintiffs is
emotional distress, which this Court has held is compensable
as actual damages in a FDCPA case. See Howze v.
Romano, 1994 WL 827162, at *3 (D. Del. Dec. 9, 1994)
(awarding $5, 000 in actual damages to compensate for
emotional distress as result of abusive debt collection
have not quantified the amount of actual damages they are
seeking, leaving that amount to the discretion of the Court.
Based on the Gross and Champagne Affidavits, in addition to
the allegations in the Complaint, the Court concludes that
Plaintiffs have demonstrated that damages are warranted for
emotional distress as a result of Defendants' threatening
and harassing conduct towards them.
determining the amount of liability, the Court must consider
"the frequency and persistence of noncompliance by the
debt collector, the nature of such noncompliance, and the
extent to which such noncompliance was intentional." 15
U.S.C. § l692k(b)(1). The Court finds that Defendants
persisted in their violations of the FDCPA and did so
intentionally. In an unauthorized sur-reply, Defendants argue
that Rule 55 of the Federal Rules of Civil Procedure
"mandates that a default judgment may be issued by the
clerk of the court when there is a 'sum certain,
'" and that there is no "sum certain"
here. (D.I. 61 at 1) However, through this
Order, the Court will provide a sum certain for the default
judgment. Having considered the entire record, the legal
factors under the statute, and emotional distress damages
awards in other FDCPA cases,  the Court concludes that
Plaintiffs should be awarded actual damages in the amount of
damages in an amount of no more than $1, 000 per plaintiff
per lawsuit may also be awarded under the FDCPA. See
Robertson v. Horton Bros. Recovery, Inc., 2007 WL
2009703, at *3 (D. Del. July 3, 2007). In this case, each
Plaintiff bases his or her claim on individual contacts by
Defendants that violated the FDCPA. In these circumstances,
the Court concludes that the conduct of Defendants toward
each Plaintiff warrants damages in the amount of the
statutory maximum. Accordingly, Plaintiffs will be awarded
$1, 000 each in statutory damages.