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Frischberg v. Global Service Group, LLC

United States District Court, D. New Jersey

July 18, 2018


          ANDREW M. MILZ CARY L. FLITTER FLITTER MILZ, P.C. On behalf of Plaintiffs

          JODY THOMAS LOPEZ-JACOBS FLITTER MILZ, P.C. On behalf of Plaintiffs


          NOEL L. HILLMAN, U.S.D.J.

         Pending before the Court is Plaintiffs Daniel Frischberg and Michelle Perez's Motion for Default Judgment against Defendant Global Service Group, LLC. For the reasons that follow, the Motion for Default Judgment will be granted. However, the Court will defer its determination on attorneys' fees and entering Judgment in this matter for the reasons detailed below.

         I. Essential Facts

         Plaintiffs' June 19, 2017 Complaint pleads as follows. Defendant is a company which assists other companies in managing and collecting overdue accounts. Plaintiffs, brother and sister, each own a cellphone. Within the last four years, Defendant began placing calls to Plaintiffs' cellphones. Plaintiffs never had any account with Defendants. These calls were made using an automated telephone dialing system or artificial or prerecorded voice. During these calls, Defendants indicated they were calling to collect an alleged pay day loan. However, Plaintiffs have no liability for any such debt. Plaintiffs plead Defendant knew Plaintiffs had no such liability.

         Plaintiffs separately instructed Defendant that they had no liability for the debt and that Defendant was not to call their cellphones. Nonetheless, Defendant continued to make calls. Plaintiffs never consented to these calls. One of the voicemails Frischberg received stated, in its entirety: “Hello, this is Beth from Global Services, please call me back at 888-240-0182 regarding a personal matter. Thank you.” Defendant did not otherwise identify itself during this call or others. Defendant made at least fifteen calls to Frischberg and at least fifteen calls to Perez.

         II. Procedural Posture

         Plaintiffs filed a Complaint with this Court on June 19, 2017. The Complaint asserts three counts: (1) violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), (2) violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692e(11), and (3) invasion of privacy.

         On June 29, 2017, the Court received an Affidavit of Service providing that Defendant was served on June 23, 2017. On August 18, 2017, Plaintiffs requested an entry of default against Defendant. Default was entered on November 3, 2017. On November 30, 2017, Plaintiffs filed a Motion for Entry of Default Judgment.

         III. Subject Matter Jurisdiction

         The Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over this matter, as Plaintiffs bring claims under two federal statutes: the TCPA and the FDCPA.

         IV. Standard for Default Judgment

         “Federal Rule of Civil Procedure 55(b)(2) authorizes courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading.” Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 535 (D.N.J. 2008) (citing Anchorage Assocs. v. V.I. Bd. of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)). “The entry of a default judgment is largely a matter of judicial discretion, although the Third Circuit has emphasized that such ‘discretion is not without limits, however, and we repeatedly state our preference that cases be disposed of on the merits whenever practicable.'” Id. (quoting Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)).

         “Although the Court should accept as true the well-pleaded allegations of the Complaint, the Court need not accept the moving party's legal conclusions or allegations relating to the amount of damages.” Id. at 535-36 (citing Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990); Directv, Inc. v. Asher, No. 03-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006)). “Consequently, before granting a default judgment, the Court must first ascertain whether ‘the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.'” Id. at 536 (quoting Asher, 2006 WL 680533, at *1).

         Once a valid claim has been asserted, “[t]hree factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d ...

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