The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN CAREY,
Plaintiff, Case No. 6:22-cv-00277-MC
v. OPINION & ORDER
CAPITAL LINK MANAGEMENT, LLC,
Defendant.
MCSHANE, Judge:
Plaintiff John Carey brings this action against Defendant Capital Link Management,
LLC, for several violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
(“FDCPA”), and Oregon law. Compl., ECF No. 1. Defendant received service of the Complaint
on May 12, 2022 but has failed to file any responsive pleading. ECF No. 4. Accordingly, the
Court entered Defendant’s default pursuant to Fed. R. Civ. P. 55(a). ECF No. 8. Plaintiff now
moves for default judgment, attorney fees, and costs. For the below reasons, Plaintiff’s motion
(ECF No. 14) is GRANTED.
BACKGROUND!
Defendant, a debt-collecting business, attempted to collect a debt from Plaintiff by calling
and texting him on numerous occasions. Compl. 5, 9. The FDCPA and corresponding Oregon
statutes impose certain restraints on debt collectors regarding acceptable collection activities and
communications with consumers. Plaintiff alleges Defendant violated the FDCPA and Oregon
' Because Defendant failed to respond, all well-pleaded allegations in the Complaint that do not relate to the amount
of damages are deemed admitted. See Fed. R. Civ. P. 8(b)(6).
1 — OPINION AND ORDER
law in several ways:
(1) failing to identify as a debt collector in telephone communications to Plaintiff;
(2) falsely implying that Defendant was a law firm;
(3) threatening to sue Plaintiff but never intending to carry out the threat;
(4) failing to inform Plaintiff of his right to dispute the debt;
(5) creating false timelines; and
(6) failing to inform Plaintiff that the purpose of the calls was to collect a debt.
See Pl.’s Mot. Default J. 9–12; Compl. ⁋⁋ 10–21. As noted above, Defendant has entirely failed
to appear or defend against this action.
STANDARDS
A defendant must file a responsive pleading within 21 days of being served, or within 60
days if the defendant has timely waived service. Fed. R. Civ. P. 12(a)(1). “When 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.” Fed. R. Civ.
P. 55(a).
After entering an order of default, the district court has discretion to issue a default
judgment. See Fed. R. Civ. P. 55(b); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). In
exercising its discretion, the court may consider: (1) the possibility of prejudice to the plaintiff,
(2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of
money at stake in the action, (5) the possibility of a dispute concerning material facts, (6)
whether the default was due to excusable neglect, and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471–72.
The Court takes the Complaint’s well-pleaded factual allegations as true. DirecTV, Inc. v. Huynh,
503 F.3d 847, 854 (9th Cir. 2007). However, a “defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law.” DIRECTV, 503 F.3d at 854 (quoting Nishimatsu
Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
DISCUSSION
I. Entry of Default Judgment
In considering an entry of default judgment, the Court examines the seven factors laid out
in Eitel. To satisfy the first three factors, Plaintiff must state a valid claim in a well-pleaded
complaint, and sufficiently demonstrate prejudice to Plaintiff if default judgment is not entered.
After reviewing Plaintiff’s Complaint and the relevant law, the Court finds that Plaintiff
stated valid claims for multiple violations of the FDCPA and Oregon law. For instance, Plaintiff
asserts a violation of 15 U.S.C. § 1692d(6), which forbids debt collectors from placing
“telephone calls without meaningful disclosure of the caller’s identity.” Plaintiff sufficiently
stated a claim under this subsection by alleging that, on more than one occasion, Defendant
contacted Plaintiff and “did not inform [him] that the communication was a call from a debt
collector and/or that the call was an attempt to collect a debt.” Compl. ¶ 21.
Plaintiff also asserts violations of multiple subsections of 15 U.S.C. § 1692e.
Specifically, subsections 1692e(3) and (10) outlaw the “false representation or implication that
any individual is an attorney or that any communication is from an attorney” and the “use of any
false representation or deceptive means to collect or attempt to collect any debt.” 15 U.S.C. §
1692e(3), (10). Subsection 1692e(5) further prohibits “threat[s] to take any action. . . that is not
intended to be taken.” 15 U.S.C. § 1692e(5). Plaintiff adequately pleaded violations of these
subsections by alleging that Defendant said it was using “rocket dockets” to file lawsuits and
“impliedly or directly stated that it would sue Plaintiff to collect the Account.” Compl. ¶ 11.
Plaintiff alleged that Defendant’s statements “falsely implied that [Defendant] was a law firm or
employed the assistance of lawyers in its collection efforts.” Id. ¶ 13. Further, Plaintiff alleged
Defendant did not “have the present intention of suing Plaintiff.” Id. ¶¶ 11–12.
Plaintiff next claims Defendant violated 15 U.S.C. § 1692g(a). This section requires the
debt collector to send a written notice to the consumer containing (1) a warning to the consumer
that failing to dispute the validity of the debt will result in the debt collector assuming the debt is
valid and (2) a statement that the consumer can request verification of the debt from the debt
collector. 15 U.S.C. § 1692g(a)(3)–(4). Plaintiff adequately pleaded a violation by alleging that
Defendant “never informed Plaintiff of his right to dispute the debt in question and/or request
validation of the debt in question.” Compl. ¶ 14.
Finally, Oregon law prevents a debt collector from communicating with a debtor orally
without disclosing “the true purpose of the communication.” Or. Rev. Stat. § 646.639(2)(i).
Plaintiff pleaded a violation of this section by alleging that on multiple occasions, Defendant
“did not inform Plaintiff . . . that the call was an attempt to collect a debt.” Compl. ¶ 21.
Plaintiff has stated valid claims under the FDCPA and Oregon law. In terms of prejudice
to Plaintiff, if this Court does not enter default judgment, Plaintiff has no other avenue to collect
damages from Defendant. The first three Eitel factors are satisfied. Regarding the fourth and fifth
factors, the sum of money at stake in this action is consistent with the allowable damages under
the FDCPA and Oregon law (discussed more below), and there is no material dispute concerning
Defendant’s violations. As to the sixth factor, Defendant has not provided the Court any
explanation that would constitute excusable neglect. Although the seventh factor favors decisions
on the merits, Defendant’s inaction in this matter has rendered a decision on the merits
impossible. If the general policy in favor of a decision on the merits, standing alone, outweighed
the previous six Eitel factors, then defendants could always refuse to defend an action and still
avoid a default judgment. The Eitel factors therefore support an entry of default judgment in this
case.
II. Damages
Because the Court accepts as true all allegations from the Complaint except those relating
to damages, Plaintiff must prove the amount of damages he seeks. The FDCPA provides for
statutory damages of up to $1,000 and recovery of reasonable attorney fees and costs. 15 U.S.C.
§ 1692k(a). Oregon law provides for statutory damages of up to $200, as well as punitive
damages and reasonable attorney fees. Or. Rev. Stat. § 646.641(1).
Plaintiff’s request for $1,000 in statutory damages under the FDCPA is reasonable. Based
on Plaintiff’s well-pleaded Complaint, Defendant’s frequent and persistent noncompliance with
the FDCPA warrants collection of the maximum statutory damages available. 15 U.S.C. §
1692k(a)(2)(A). Similarly, Plaintiff is entitled to $200 for Defendant’s violation of section
646.639 under Oregon law. Or. Rev. Stat. § 646.641(1).
Plaintiff’s request for $5,000 in punitive damages under Oregon law is reasonable.
Section 646.641(1) gives the Court discretion to award punitive damages for the willful use of an
unlawful debt collection practice. Or. Rev. Stat. § 646.641(1). Defendant here committed
unlawful collection practices on multiple occasions, as detailed above, then ignored a notice
from Plaintiff’s lawyer requesting that Defendant cease and desist contact with Plaintiff. Compl.
¶ 17–19. Defendant’s text message to Plaintiff, sent after receiving Plaintiff’s lawyer’s notice,
still failed to disclose Defendant’s identity in violation of the FDCPA and Oregon law. Id. ¶ 19–
20. Further, Defendant refused to engage in this litigation despite confirmed email
correspondence between Plaintiff’s lawyer and Defendant’s counsel and corporate
representative. Pl.’s Mot. Default J., Ex. 2. Plaintiff also notes the several other recent lawsuits
against Defendant for similar violations. Pl.’s Br. 14. Based on Defendant’s incessant disregard
for the law and failure to respond to allegations against it, Plaintiff’s request for $5,000 in
punitive damages is warranted.
Plaintiff’s request for attorney fees and costs is also reasonable. To determine a
reasonable hourly rate for an attorney, courts look to the “prevailing market rates in the relevant
community.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013). The relevant
community is the “one in which the district court sits.” Davis v. Mason County, 927 F.2d 1473,
1488 (9th Cir. 1991). The Oregon State Bar Economic Survey provides a benchmark to compare
an attorney’s hourly rate with the hourly rate ordinarily charged in the area. Precision Seed
Cleaners v. Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1244 (D. Or. 2013).
Plaintiff’s counsel has been licensed to practice in the state of Arkansas since 2006 and
began handling FDCPA cases in approximately 2008. Pl.’s Mot. Ex. 2. He began focusing on
consumer law cases fulltime in 2010 and charges an hourly rate of $400. Id. Counsel submitted
an itemized fee statement with an hourly breakdown of his time spent on this case, totaling 19.9
hours. Id. Ex. 1.
Counsel’s time spent on this case is reasonable in light of his repeated communications
with Defendant’s counsel attempting to resolve the matter via settlement prior to moving for
default judgment. Additionally, counsel’s hourly rate is reasonable for attorneys of comparable
skill and experience. While $400 per hour is slightly higher than the average rate for an attorney
with 16–20 years of experience in Oregon ($359), it is not excessive.2 Plaintiff is therefore
entitled to $7,960 in attorney fees and $447 in court costs.
2 Oregon State Bar 2022 Economic Survey, at 43, https://www.osbar.org/_docs/resources/Econsurveys/
22EconomicSurvey.pdf (last visited August 8, 2023).
Finally, Plaintiff is entitled to post-judgment interest. Federal law governs the post-
judgment interest rate. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1107 (9th Cir. 1998).
Under 28 U.S.C. § 1961, post-judgment interest “shall be calculated . . . at a rate equal to the
weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors
of the Federal Reserve System, for the calendar week preceding the date of the judgment.” The
previous week’s auction price of 52-week treasury bills, as posted by the Federal Reserve, was
5.35 percent.3
CONCLUSION
For the above reasons, Plaintiff’s motion for default judgment, attorney fees, and costs
(ECF No. 14) is GRANTED. Plaintiff is entitled to:
a. $1,200 in statutory damages;
b. $5,000 in punitive damages;
c. $7,960 in attorney fees;
d. $447 in court costs; and
e. Post-judgment interest at a rate of 5.35 percent.
IT IS SO ORDERED.
DATED this 9th day of August, 2023.
_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge
3 Board of Governors of the Federal Reserve System, Selected Interest Rates (Daily) – H.15,
http://www.federalreserve.gov/releases/h15/current/ (last visited August 8, 2023)