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Smith v. Goldberg & Stein Associates LLC

United States District Court, S.D. Ohio, Western Division

March 30, 2017

REBECCA SMITH Plaintiff,
v.
GOLDBERG & STEIN ASSOCIATES, LLC, et al. Defendants

          Michael R. Merz Magistrate Judge.

          ORDER

          Walter H. Rice Judge.

         Plaintiffs Motion for Default Judgment having been duly considered and with good grounds having been shown and demonstrated in relation thereto, the Court having been fully advised in the matter finds as follows:

         1. The Court's Docket reflects an entry of default against Defendant MARCELLUS HORTON. ECF 11.

         2. The Defendant MARCELLUS HORTON has failed to file a proper motion, answer, or other defense of this matter in the time required under the Civil Rules and are, therefore, in default as provided in Civ. R. 55.

         3. The Court deems the failure of Defendant MARCELLUS HORTON to answer and defend this matter to be a confession of truth with respect to the allegations in the Complaint.

         4. Plaintiff is entitled to recover the relief prayed for in the Complaint, including injunctive relief and damages, with interest, costs, and attorney fees.

         5. As set forth in the Complaint, Plaintiff seeks injunctive relief, actual and statutory damages, attorney fees, and costs for violations of the CSPA (R.C. §1345.01 et seq.), the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq., (the "FDCPA"), the TCPA (47 U.S.C. 227 et seq.), and state racketeering laws.

         6. The CSPA, O.R.C. § 1345.09(B), provides for statutory damages of $200. Therefore, the Court awards judgment in the amount of $200 in statutory CSPA damages.

         7. The FDCPA, 15 U.S.C. §1692k(a)(2), provides for statutory damages of up to $1, 000. Therefore, the Court awards judgment in the amount of $1, 000 in statutory FDCPA damages.

         8. The TCPA provides for statutory damages of $500 per unlawful phone call, and $1, 500 per call if made knowingly. As Ms. Smith demanded that the calls cease, the continued calls were made knowingly. At least 40 calls were made. Therefore, the Court awards judgment under the TCPA in the amount of $60, 000.

         9. Furthermore, under 15 U.S.C. §1692k(a)(1), O.R.C. § 1345.09(B), and O.R.C. §2923.34(A), Plaintiff is entitled to compensation for non-economic injury, such as annoyance, aggravation, embarrassment, depression, anxiety, sleep deprivation, loss of appetite, and associated physical ailments as claimed in the Complaint by Plaintiff. Under the FDCPA and O.R.C. §2923.34(A), there is no cap to an award for this category of damages. Under the CSPA, a plaintiff may seek up to $5, 000 for this claim. Therefore, the Court awards judgment in the amount of $5, 000 under the FDCPA, the CSPA, and Ohio's racketeering law, for damage to his reputation, emotional damage, and associated physical ailments, including annoyance, aggravation, embarrassment, depression, anxiety, sleep deprivation, and loss of appetite.

         10. Additionally, because O.R.C. §2923.34(E) provides for recovery of treble actual damages and because the acts of Defendant MARCELLUS HORTON in calling Plaintiff with threats to extort monies were willful and malicious, and conducted with utter disregard for the rights of consumers in Ohio in general, and Ms. Smith in particular, the Court awards treble/punitive damages in the amount of $15, 000, which is three times the award for emotional and other injury.

         11. Plaintiff is entitled to recover interest, costs, and attorney fees pursuant to 15 U.S.C. §1692k(a)(3), O.R.C. §1345.09(F), and O.R.C. §2923.34(F)&(G). As such Defendant MARCELLUS HORTON is liable for Attorney fees and costs. To date, Plaintiffs attorney has spent 29.50 hours on this matter, and his billable rate is $275 per hour. Therefore, the Court ...


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