United States District Court, D. New Jersey
M. MILZ CARY L. FLITTER FLITTER MILZ, P.C. On behalf of
THOMAS LOPEZ-JACOBS FLITTER MILZ, P.C. On behalf of
L. HILLMAN, U.S.D.J.
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
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
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.
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.
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
Subject Matter Jurisdiction
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.
Standard for Default Judgment
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)).
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).
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 ...