Summary
holding that the defendant's repeated and continuous abusive calling—even after requests that such conduct cease—gave rise to damages for an invasion of privacy
Summary of this case from Herrera v. Allianceone Receivable Mgmt., Inc.Opinion
Case No.: 04-04479 JF.
March 8, 2007
[PROPOSED] ORDER GRANTING MOTION FOR DEFAULT
I. INTRODUCTION
Plaintiffs brought this action against Michael Frederick Gurney ("Gurney"), a.k.a. "Mike Gurney" and "Tom Wright," and CrecitC.A.R.E., Inc., a.k.a. "Creditcare, Inc. Defendant CreditC.A.R.E., Inc., has since filed bankruptcy, and the matter is hereby DISMISSED as to Defendant CreditC.A.R.E., Inc., as is the counterclaim against Jeannie Panahiasl.
Gurney is a debt collector under the Fair Debt Collection Practices Act ("FDCPA") and California Fair Debt Collection Practices Act (CA FDCPA"). Plaintiff Jeannie Panahiasl is a "consumer" under the FDCPA and "debtor" under the CA FDCPA. Plaintiff Sandy Pierson is an aggrieved person under the FDCPA. Defendant sent a series of harassing and deceptive collection letters, and engaged in repeated and continuous abusive telephone calls in an attempt to collect a debt. Defendant violated the FDCPA, the California FDCPA, and related common law (intrusion upon seclusion and tort-in-se), by engaging in abusive, harassing and deceptive conduct in an attempt to collect a debt.
15 U.S.C. § 1692 et seq.
Civil Code § 1788 et seq.
Defendant originally answered the complaint and engaged in several motions. However, since such time Defendant has failed to defend the action, failed to appear before the Court at several Case Management Conferences, and failed to appear at properly noticed depositions. Such failure to appear before the Court, appear for depositions, and to defend the action, gives cause for a default judgment.
Defendant's actions in failing to appear for deposition, dismissing counsel, giving vague and unresponsive answers to interrogatories, and failing to appear for trial are sufficient to support finding that he failed to plead or otherwise defend under Rule 55(a). Au Bon Pain Corp. v. Artect, Inc., 653 F.3d 61 (2d Cir. 1981).
II. ACTUAL DAMAGES A. PLAINTIFFS ARE ENTITLED TO ACTUAL DAMAGES UNDER THE FDCPA
Under the FDCPA, actual damages may be awarded to Plaintiffs as a result of the failure of defendants to comply with the Act. 15 U.S.C. 1692k(a)(1). Actual damages not only include any out of pocket expenses, but also damages for personal humiliation, embarrassment, mental anguish or emotional distress. Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D. Del. 1991). Thus, the Plaintiffs may be compensated for emotional distress even without proving the elements of the state law cause of action for intentional infliction of emotional distress. McGrady v. Nissan Motor Acceptance Corp., 40 F. Supp. 2d 1323, 1998 WL 897014, at *16 (M.D. Ala. 1988) (finding that the Fair Debt Collection Practices Act ("FDCPA") permits damages for mental anguish); Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D. Del. 1991) (noting that FCRA provides for actual damages for emotional distress, and finding that actual damages for emotional distress are permitted under FDCPA). In McGrady v. Nissan Motor Acceptance Corp., the Court noted:
In Smith v. Law Offices of Mitchell N. Kay, the court found to be proper a jury instruction stating that "actual damages not only include any out of pocket expenses, but also damages for personal humiliation, embarrassment, mental anguish or emotional distress." 124 B.R. 182, 185 (D. Del. 1991). Rather than compare the FDCPA with a state law claim, the court reached this conclusion by comparing the FDCPA with the Fair Credit Reporting Act ("FCRA"):
Under the FCRA, a statutory scheme very similar to the FDCPA, a plaintiff who proves a violation of the act is entitled to actual damages for emotional distress arising from the violation, without first having to prove a right of action under state law. This Court similarly holds that, when a violation of the FDCPA has been established, actual damages for emotional distress can be proved independently of state law requirements. Id. at 188.
Courts determining actual damages under the FCRA have applied the same standard, allowing actual damages for personal humiliation, embarrassment, mental anguish and emotional distress. Indeed, in the recent case of Boris v. Choicepoint, the court indicated, "It is well settled that actual damages under the FCRA are not limited to out-of-pocket expenses and may instead include humiliation and mental distress." Boris v. Choicepoint Services, Inc., 249 F. Supp 2d 851 (W.D. KY 2003). Also see, Stevenson v. TRW, 987 F.2d 288, 292 (1993), citing the Ninth Circuit Court of Appeals, in Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir. 1995). Thus, Plaintiffs are not required to prove state law tort elements to be compensated for their emotional distress.
Plaintiffs have submitted declarations attesting to their emotional distress. Plaintiff Jeannie Panahiasl was subjected to abusive debt collection practices, including repeated telephone abuse, and suffered emotional distress, including: embarrassment, fear, anger, panic, humiliation, nervousness, crying fits, difficulty eating and sleeping, and diarrhea. Sandy Pierson was subjected to repeated telephone abuse and suffered emotional distress in the form of embarrassment, humiliation, harassment, anger, anxiety, lack of concentration and stress. The Court hereby awards Jeannie Panahiasl $50,000, and Sandy Pierson $10,000, for emotional distress based on the declarations submitted.
B. PLAINTIFFS ARE ENTITLED TO ACTUAL DAMAGES UNDER TORT LAW
Defendants acts constituted an invasion of privacy (intrusion upon their seclusion) and tort-in-se. The Northern District of California has recognized both of these common law tort claims in the FDCPA context. Joseph v. J. J. Mac Intyre Companies, 281 F. Supp. 2d 1156, 1169 (N.D. Cal. 2002) (discussing intrusion upon seclusion and tort-in-se). Indeed, the Northern District of California has stated, "intrusion upon seclusion is actionable under California law. Joseph v. J. J. Mac Intyre Companies, 281 F. Supp. 2d 1156, 1169 (N.D. Cal. 2002), citing, Shulman v. Group W. Productions Inc. 18 Cal.4th 200, 231, 955 P.2d 469, 74 Cal. Rptr. 2d 843. (1998), which quoted the Restatement (2d) of Torts § 652B. Also see, Kuhn v. Account Control Technology, 865 F. Supp. 1443, 1449 (D. Nev. 1994), and Lowe v. Surpas Resource Corporation, et al., 253 F. Supp. 2d 1209 (D. Kan. 2003).
Courts within the Ninth Circuit considering FDCPA violations have stated: "To recover for the tort of intrusion, a plaintiff must prove the following elements: (1) an intentional intrusion (physical or otherwise); (2) on the solitude or seclusion of another; (3) that would be highly offensive to a reasonable person." Kuhn v. Account Control Technology, 865 F. Supp. 1443, 1448 (D. Nev. 1994). Furthermore, other courts have stated, "improper conduct in knowingly and intentionally pursuing a person to force payment of a debt, whether or not he owes it, may, under certain circumstances, give rise to a right to damages for an invasion of privacy." Montgomery Ward v. Larragoite, 467 P.2d 399, 401 (Supreme Court of New Mexico, 1970).
Plaintiffs were subjected to repeated and continuous abusive calls at their place of employment. Defendants also sent Ms. Panahaisl collection letters in care of her employer. This unlawful conduct continued despite verbal and written requests that such conduct cease. The conduct constituted an invasion of privacy (intrusion upon seclusion), and violation of a statutory duty, resulting in tort-in-se, which caused the severe emotional distress suffered by Plaintiffs.
Courts within the Ninth Circuit have held that repeated and continuous calls in an attempt to collect a debt give rise to a claim for intrusion upon seclusion. Joseph v. J. J. Mac Intyre Companies, 281 F. Supp. 2d 1156, 1169 (N.D. Cal. 2002), citing, Shulman v. Group W. Productions Inc. 18 Cal.4th 200, 231, 955 P.2d 469, 74 Cal. Rptr. 2d 843. (1998), which quoted the Restatement (2d) of Torts § 652B. Also see, Kuhn v. Account Control Technology, 865 F. Supp. 1443, 1449 (D. Nev. 1994), and Lowe v. Surpas Resource Corporation, et al., 253 F. Supp. 2d 1209 (D. Kan. 2003). Furthermore, as in Montgomery Ward v. Larragoite, the improper conduct in knowingly and intentionally pursuing Plaintiffs to force payment of the alleged debt, whether or not it was owed, gives rise to a right to damages for an invasion of privacy.
Defendants' abusive conduct caused Jeannie Panahiasl to suffer emotional distress, including: crying fits, embarrassment, fear, anger panic, humiliation, nervousness, crying fits, difficulty eating and sleeping, lack of concentration, grief, anxiety and diarrhea. Plaintiffs' declarations clearly demonstrate they were harmed by Defendants' intrusion and violation of a statutory duty. Thus, Plaintiffs are not only entitled actual damages under the FDCPA, but also for intrusion upon seclusion and tort-in-se. However, since the Court has already awarded actual damages for emotional distress under the FDCPA, no additional award is necessary here.
III. STATUTORY DAMAGES
Under the FDCPA Plaintiffs are entitled to statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A). Under the California FDCPA Plaintiffs are entitled to statutory damages pursuant to Civil Code § 1788.17 and § 1788.30. Furthermore, Civil Code § 1788.32 indicates: "The remedies provided herein are intended to be cumulative and are in addition to any other procedures, rights, or remedies under any other provision of law.
Furthermore, 15 U.S.C. 1692n states that the federal law does not exempt or affect any person from complying with the law of any State with respect to debt collection practices, unless those laws are inconsistent with the federal FDCPA, and then only to the extent of the inconsistency.
Additionally, Jeannie Panahiasl is entitled to statutory damages, pursuant to Civil Code § 1812.702, for Defendant's failure to send the consumer disclosure required by Civil Code § 1812.700. The statutory damages awarded herein are detailed below.
IV. ATTORNEY'S FEES AND COSTS
Both the FDCPA and California FDCPA direct a court to award attorney's fees to a prevailing consumer. 15 U.S.C. 1692k(a)(3) Cal. Civil Code 1788.30(c). A number of cases decided under 15 U.S.C. 1692k have held that if the plaintiff prevails, an attorney fee award is required. See, e.g. Zagorski v. Midwest Billing Services, Inc., 178 F.3d 116 (7th Cir. 1997).
Plaintiffs shall file a motion for fees and costs within 45 days of the Court's Judgment.
V. CONCLUSION
For the reasons stated above, the Court hereby awards damages for Plaintiffs and against Michael Frederick Gurney as follows:
1) $50,000 actual damages for Jeannie Panahiasl
2) $10,000 actual damages for Sandy Pierson
3) $1,000 statutory damages for Jeannie Panahiasl pursuant to 15 U.S.C. § 1692k(a)(2)(A).
4) $1,000 statutory damages for Sandy Pierson pursuant to 15 U.S.C. § 1692k(a)(2)(A).
5) $1,000 statutory damages for Jeannie Panahiasl pursuant to Civil Code § 1788.17.
6) $1,000 statutory damages for Sandy Pierson pursuant to Civil Code § 1788.17.
7) $1,000 statutory damages for Jeannie Panahiasl pursuant to Civil Code § 1788.30 (which also includes a remedy for a violation of Civil Code § 1812.700).
IT IS SO ORDERED.
[PROPOSED] JUDGMENT
For the reasons stated in the Order Granting Plaintiffs' Motion for Default, the Court hereby enters Judgment for Plaintiffs and against Michael Frederick Gurney (a.k.a "Mike Gurney" and "Tom Wright") as follows: $53,000 for Jeannie Panahiasl and $12,000 for Sandy Pierson. Plaintiffs shall file a motion for attorney's fees and costs within 45 days of the Court's Judgment.