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Gross v. Weinstein, Weinburg & Fox LLC

United States District Court, D. Delaware

September 24, 2018




         At Wilmington, this 24th day of September, 2018:

         Pending 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.

         On June 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.[1] (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)

         Pursuant 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).

         A. Actual and Statutory Damages

         Plaintiffs 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.

         Mr. 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)

         Having 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.)

         As a 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 practices).

         Plaintiffs 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.

         In 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.[2] (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, [3] the Court concludes that Plaintiffs should be awarded actual damages in the amount of $10, 000.

         Statutory 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.

         B. ...

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