United States District Court, E.D. Wisconsin
ORDER DIRECTING THAT BY A DATE CERTAIN, THE PLAINTIFF
SHALL FILE SUPPORTING DOCUMENTATION FOR HER MOTION FOR
DEFAULT JUDGMENT AGAINST CONTINENTAL FINANCIAL COMPANY, LLC
ON A SUM CERTAIN (DKT. NO. 10)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
October 16, 2017, the plaintiff filed a complaint against
Continental Finance Company, alleging violations of the
Telephone Consumer Protection Act (TCPA) under 47 U.S.C.
§227, et seq. and the Wisconsin Consumer Act
(WCA) under Wis.Stat. §427, et seq. Dkt. No. 1.
The plaintiff served the defendant on October 23, 2017. Dkt.
No. 8. The defendant did not answer or otherwise respond to
the complaint. On November 16, 2017, the plaintiff moved for
entry of default and filed an affidavit in support. Dkt. No.
9. The clerk of court entered default the next day. On
December 7, 2017, the plaintiff filed a motion for default
judgment, along with documentation of costs and fees and the
affidavit of Nathan C. Volheim. Dkt. No. 10.
question jurisdiction exists under 28 U.S.C. §1331,
because the cause of action arises under Telephone Consumer
Protection Act, 47 U.S.C. §227. The court may exercise
supplemental jurisdiction over the state-law claims under 28
years ago, the Internal Revenue Service informed the
plaintiff that her identity had been compromised and that her
personal information, including her Social Security number,
was being used by another individual. Dkt. No. 1 at ¶9.
In August 2017, the plaintiff began receiving calls to her
cellular phone from the defendant-“one of America's
leading marketers and servicers of credit cards for consumers
with less-than perfect credit.” Id. at
¶10. The defendant primarily called from the number at
(888) 288-5843. Id. at ¶12. When answering, the
plaintiff experienced a significant pause lasting several
seconds before a live person began to speak. Id. at
¶14. The speaker informed the plaintiff that he/she was
calling to collect on an outstanding credit card balance.
Id. at ¶15. The plaintiff informed the
defendant that her identity was stolen and the debt did not
belong to her. Id. at ¶16. The defendant
refused to stop calling the plaintiff despite the
plaintiff's demands. Id. at ¶¶17-18.
The plaintiff received at least twenty-two calls after
telling the defendant to stop calling. Id. at
¶21. To address the conduct, the plaintiff spent $64 to
purchase an application on her phone to stop the telephone
calls; despite this effort, the calls continued. Id.
plaintiff alleges that she has been unfairly and
unnecessarily harassed by the defendant, and has suffered
concrete harm, “including but not limited to, invasion
of privacy, aggravation that accompanies collection telephone
calls, emotional distress, increased risk of personal injury
resulting from the distraction caused by the never-ending
calls, increased usage of her telephone services, loss of
cellular phone capacity, diminished cellular phone
functionality, decreased battery life on her cellular phone,
and diminished space for data storage on her cellular phone.
Id. at ¶24.
Entry of Default
of the Federal Rules of Civil Procedure requires a two-step
process before a court may enter a default judgment. The
party first must seek entry of default based on the opposing
party's failure to plead. Fed.R.Civ.P. 55(a). Only after
the clerk has entered default may the party move for default
judgment. Fed.R.Civ.P. 55(b).
support of her motion for entry of default, the plaintiff
filed the affidavit of counsel averring that Doug Perri, a
certified process server for LawServe, LLC, served the
summons and complaint on October 19, 2017 on Stacy Smith,
administrative assistant for Lamiaa Elfar, the
defendant's registered agent. Counsel further stated that
defendant is not in the military, an infant or incompetent
person. Dkt. No. 9-1. The clerk's office properly entered
default on November 16, 2017.
Default Judgment Standard
the clerk of court enters default against the defendant, Rule
55(b) provides for the entry of judgment. Rule 55(b)(1)
permits entry of judgment by the clerk, on the
plaintiff's request, where the claim is for a sum
certain. Fed.R.Civ.P. 55(b)(1). Rule 55(b)(2) requires an
application to the court and permits the court to conduct
hearings or make referrals when it needs to conduct an
accounting, determine the amount of damages, establish the
truth of an allegation by evidence or investigate any other
matter. Fed.R.Civ.P. 55(b)(2).
purposes of determining liability, the court must accept all
well-pleaded facts relating to liability as true. J&J
Sports Prod. Inc. v. ARH Enter. LLC, 2014 WL 4656118, at
*1 (E.D. Wis. Sept. 16, 2014) (citations omitted). The
plaintiff, however, still has “the responsibility to
prove up damages under Rule 55(b)(2).” Id. The
court cannot enter default judgment “without a hearing
on damages unless ‘the amount claimed is liquidated or
capable of ascertainment from definite figures contained in
the documentary evidence or details in the
affidavits.'” e360 Insight v. The Spamhaus
Project, 500 F.3d 594, 602 (7th Cir. 2007). “In
other words, while a default judgment establishes liability,
it ‘does not answer whether any particular remedy is
appropriate.'” Campbell v. ECW, Inc., No.
13-C-1066, 2014 WL 3895534, at *1 (E.D. Wis. Aug. 7, 2014).