UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 Plaintiff Carmelisha Ayers claims that in January 2015, she received a phone call about a 

debt. She told the person on the phone, a representative of Defendant Receivables Performance 

Management, LLC, that they had the wrong number and that she did not want RPM to call her 

anymore. But, says Ayers, RPM continued to call her. So she filed this lawsuit. 

 Despite service on its registered agent, RPM has not defended the lawsuit. The clerk 

entered a default against RPM, and now Ayers asks the Court to enter a default judgment. (See 

R. 6.) RPM again has not responded. Having reviewed Ayers’ briefing, the Court will forego oral 

argument, see E.D. Mich. LR 7.1(f)(2), and will GRANT IN PART Ayers’ motion for a default 

judgment. 

I. 

A. 

Because Ayers seeks a default judgment pursuant to Federal Rule of Civil Procedure 

55(b)(2), the Court accepts the factual allegations of her complaint as true and presents them as 

fact. Joe Hand Promotions, Inc. v. Yakubets, 3 F. Supp. 3d 261, 270 & n.7 (E.D. Pa. 2014); 

CARMELISHA AYERS, 

 Plaintiff, 

 

v. 

 

RECEIVABLES PERFORMANCE 

MANAGEMENT, L.L.C., 

 Defendant. 

Case No. 2:15-cv-12082 

Honorable Laurie J. Michelson 

OPINION AND ORDER GRANTING IN PART 

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT [6] 

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McIntosh v. Check Resolution Serv., Inc., No. 10-14895, 2011 WL 1595150, at *3 (E.D. Mich. 

Apr. 27, 2011). 

At some point, Jamie Collins, whom Ayers does not know, became indebted to a creditor. 

(R. 1, PID 2.) The debt was “primarily for family, personal or household purposes.” (Id.) At 

some later point, Defendant “RPM was employed by the [c]reditor to collect the [d]ebt” or the 

debt was “purchased, assigned or transferred to RPM for collection.” (Id.) 

In January 2015, RPM called Ayers on her cell phone in an attempt to collect the debt 

Collins owed. (R. 1, PID 2.) This was despite that Ayers had never provided her cell phone 

number to RPM or the creditor and that she had never provided her consent to be contacted on 

her cell phone to RPM or the creditor. (R. 1, PID 5.) Ayers informed RPM that it had called her 

cell phone and that the debtor could not be reached at that number. (R. 1, PID 3.) Ayers also told 

RPM “to remove her telephone number from the account and cease all calls to her.” (Id.) 

Nonetheless, RPM continued to call Ayers in an attempt to collect the debt. (Id.) 

B. 

Based on the foregoing, in June 2015, Ayers filed suit asserting that RPM had violated 

both the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. (R. 1, 

PID 3–4.) According to an affidavit filed by Ayers’ process server, RPM’s registered agent was 

served with the complaint and a summons on July 27, 2015. (R. 3, PID 12.) 

But RPM did not answer Ayers’ complaint. So in September 2009, Ayers sought (R. 4) 

and obtained (R. 5) a clerk’s entry of default against RPM. See Fed. R. Civ. P. 55(a). 

In January 2016, Ayers moved for a default judgment. (R. 6.) 

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II. 

While a defendant may waive a personal jurisdiction challenge or chose to contest it later 

in the proceedings or in a collateral proceeding, courts have nonetheless sua sponte addressed the 

issue prior to entering a default judgment. E.g., Amica Mut. Ins. Co. v. Epplett, No. 15-10442, 

2015 WL 5439946, at *3 (E.D. Mich. Sept. 15, 2015) (citing cases). It appears that the rationale 

for doing so, as set forth by one of the seminal cases on the issue (if not the seminal case), is that 

since a judgment is void without jurisdiction over the defendant, the court should first find 

jurisdiction over the defendant before entering judgment. See Williams v. Life Sav. & Loan, 802 

F.2d 1200, 1203 (10th Cir. 1986). 

The Court will leave for another day whether it is always required to sua sponte address 

personal jurisdiction because, in this case, Ayers’ complaint makes a prima facie showing that 

this Court may exercise jurisdiction over RPM.1

 As such, addressing the issue will not adversely 

affect Ayers (as would be the case if a prima facie showing was lacking). Further, as this Court 

only makes a prima facie finding and RPM has not litigated the issue, the Court does not believe 

that its ruling should have any preclusive effect should RPM seek to challenge personal 

jurisdiction in this or a collateral proceeding. See Ins. Corp. of Ireland v. Compagnie des 

Bauxites de Guinee, 456 U.S. 694, 706 (1982) (“A defendant is always free to ignore the judicial 

proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds 

 

1

 This Court found no binding authority on the issue. In a non-binding decision, a panel 

of the Sixth Circuit stated, “Personal jurisdiction over a defendant is a threshold issue that must 

be present to support any subsequent order of the district court, including entry of the default 

judgment.” Citizens Bank v. Parnes, 376 F. App’x 496, 501 (6th Cir. 2010). But in Parnes, the 

defendant had filed a motion to vacate based, in part, on lack of personal jurisdiction. In other 

words, the defendant in Parnes ultimately appeared and raised a personal-jurisdiction defense. 

Moreover, Parnes cited Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir. 2006), 

for its “threshold issue” statement, but in Kroger, the defendant had appeared and raised a 

personal-jurisdiction defense. 

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in a collateral proceeding.”); Homer v. Jones-Bey, 415 F.3d 748, 753 (7th Cir. 2005) (“If the 

district court had no jurisdiction over the movant, its judgment is void and it is an abuse of 

discretion to deny the movant’s request to set aside the judgment under Rule 60(b).”). 

“When a federal court’s subject-matter jurisdiction is based on a federal question, the 

court’s exercise of personal jurisdiction must be both authorized by the forum State’s long-arm 

statute and in accordance with the Due Process Clause of the Fourteenth Amendment.” 

Alixpartners, LLP, v. Brewington, — F.3d —, No. 16-1027, 2016 WL 4578358, at *3 (6th Cir. 

Sept. 2, 2016).2

Michigan’s long-arm statute permits this Court to exercise jurisdiction over RPM. Under 

section (2) of the statute, if RPM “d[id] or caus[ed] any act to be done, or consequences to occur, 

in [Michigan] resulting in an action for tort,” RPM can be required to defend a case filed in 

Michigan. See Mich. Comp. Laws § 600.715(2). Ayers says that RPM repeatedly called her, 

which is an intentional act. And Ayers is a Michigan resident, so any injury from RPM’s calls 

was felt in Michigan. See Green v. Wilson, 565 N.W.2d 813, 817 (Mich. 1997) (providing that 

under § 600.715(2), “either the tortious conduct or the injury must occur in Michigan”); Rohn v. 

Commercial Recovery Sys., Inc., No. 13-CV-10780, 2013 WL 6195578, at *4 (E.D. Mich. Oct. 

29, 2013) (finding that non-forum defendant’s calls to a Michigan plaintiff giving rise to a 

FDCPA claim was conduct that fell within § 600.715(2)), report and recommendation adopted 

by, 2013 WL 6195578 (E.D. Mich. Nov. 26, 2013). 

 

2

 Federal courts have often said that because Michigan’s long-arm statute extends to the 

full reach of what constitutional due-process allows, a court in Michigan answering the personaljurisdiction question need only conduct a due-process inquiry. E.g., Alixpartners, 2016 WL 

4578358, at *3. But the Michigan Supreme Court has said this is not correct. Green v. Wilson, 

565 N.W.2d 813, 816 (Mich. 1997); see also Finnsugar Bioproducts, Inc. v. Monitor Sugar Co., 

No. 00–10381–BC, 2002 WL 31758644, at *4 (E.D. Mich. Sept. 30, 2002). 

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As for the Due Process Clause, the exercise of personal jurisdiction over RPM comports 

with that constitutional provision if (1) RPM “purposefully avail[ed] [it]self of the privilege of 

acting in [Michigan] or causing a consequence in [Michigan],” (2) the cause of action arises from 

RPM’s activities in Michigan, and (3) “the acts of [RPM] or consequences caused by [RPM] . . . 

have a substantial enough connection with the forum state to make the exercise of jurisdiction 

over the defendant reasonable.” SFS Check, LLC v. First Bank of Delaware, 774 F.3d 351, 356 

(6th Cir. 2014). 

Given that RPM has not appeared, and that Ayers need only make a prima facie showing, 

the Court finds the purposeful-availment prong to be satisfied. RPM elected to dial a phone 

number with a Michigan area code for the purpose of collecting a debt. In other words, Ayers 

effectively reached into Michigan to conduct business. Other courts have found that this amounts 

to purposeful availment. See Luna v. Shac, LLC, No. C14-00607 HRL, 2014 WL 3421514, at *3 

(N.D. Cal. July 14, 2014) (“The Court agrees with Luna that where Shac intentionally sent text 

messages directly to cell phones with California based area codes, which conduct allegedly 

violated the TCPA and gave rise to this action, Shac expressly aimed its conduct at California.”); 

Abramson v. Caribbean Cruise Line, Inc., No. 2:14-CV-00435, 2014 WL 2938626, at *9 (W.D. 

Pa. June 30, 2014) (“[W]e note that the call made by [Defendant] CCL was to a phone number 

bearing a (412) area code—such a code is limited to residents of Pennsylvania. By initiating a 

call to such a number, it can be said that Defendant CCL ‘expressly aimed their conduct at 

Pennsylvania’ because the number was associated with the State of Pennsylvania. . . . This 

satisfies the requirement for sufficient minimum contacts under the law.”); Rohn, 2013 WL 

6195578, at *5 (finding that defendant purposefully availed itself to the benefits of doing 

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business in Michigan where it called a Michigan resident about a debt). Without briefing from 

RPM, the Court reaches the same conclusion. 

The other two prongs of the specific-jurisdiction test are satisfied as well. It is plain that 

both Ayers’ FDCPA and TCPA claims arise out of RPM’s calls. Indeed, RPM’s calls are 

virtually the entire basis for those two causes of action. As for the third requirement, once the 

first two are met, a defendant “must present a compelling case that the presence of some other 

considerations would render jurisdiction unreasonable.” Air Prod. & Controls, Inc. v. Safetech 

Int’l, Inc., 503 F.3d 544, 554 (6th Cir. 2007). Here, RPM has not appeared so it has not presented 

any compelling case. And, given the record before the Court, there is no undue unfairness in 

requiring RPM to defend here. To be sure, it is more costly for an LLC whose members likely 

reside in Washington to defend a case in Michigan. But it was not Ayers who made a call to 

Washington—it was RPM that called a Michigan resident. And it would likely be burdensome 

on Ayers to pursue her claim there. Moreover, “Michigan has an interest in ensuring that its 

residents have adequate recourse for harms inflicted by nonresidents.” Rohn, 2013 WL 6195578, 

at *5. 

In short, on the record before the Court, and absent any argument from RPM, Ayers has 

made a prima facie showing that this Court may exercise personal jurisdiction over RPM. 

III. 

When, as here, a plaintiff seeks a default judgment pursuant to Federal Rule of Civil 

Procedure 55(b)(2), she has the burden of establishing both liability and damages. 

As for liability, Ayers’ burden is similar to the one she must satisfy had RPM sought to 

dismiss her complaint pursuant to Rule 12(b)(6): the Court accepts as true the well-pled factual 

allegations of Ayers’ complaint, draws reasonable inferences from those allegations in her favor, 

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and then asks whether Ayers has stated a claim upon which relief may be granted. See Gen. 

Conference Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 407 (6th Cir. 2010); Joe 

Hand Promotions, Inc. v. Yakubets, 3 F. Supp. 3d 261, 270 & n.7 (E.D. Pa. 2014). 

As for damages, the complaint’s allegations about those are not simply accepted as fact, 

and so the Court may demand a plaintiff to prove her damages at an evidentiary hearing. See Joe 

Hand Promotions, 3 F. Supp. 3d at 271; McIntosh v. Check Resolution Serv., Inc., No. 10-14895, 

2011 WL 1595150, at *3 (E.D. Mich. Apr. 27, 2011). But such a hearing is not necessary “if 

sufficient evidence is submitted to support the request for damages or if the amount claimed is 

one capable of ascertainment from definite figures in the documentary evidence or affidavits.” 

See Joe Hand Promotions, 3 F. Supp. 3d at 271 & n.8; McIntosh, 2011 WL 1595150, at *4. 

Finally, even if liability and damages are established, the decision to enter a default 

judgment remains committed to the district court’s sound discretion. See AF Holdings LLC v. 

Bossard, 976 F. Supp. 2d 927, 929 (W.D. Mich. 2013); E. Elec. Corp. of New Jersey v. 

Shoemaker Const. Co., 657 F. Supp. 2d 545, 551 (E.D. Pa. 2009). 

IV. 

The Court addresses first the issue of liability. It then turns to damages. Lastly, the Court 

addresses the discretionary factors that inform the Court’s decision to enter a default judgment. 

A. 

1. 

Ayers says that RPM is liable under two sections of the Fair Debt Collection Practices 

Act: 15 U.S.C. § 1692d and § 1692f. Upon a review of these statutory provisions, the Court finds 

that Ayers’ complaint, at least when supplemented with the allegations set out in her affidavit, 

shows that RPM violated § 1692d. 

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Section 1692d provides in relevant part, “A debt collector may not engage in any conduct 

the natural consequence of which is to harass, oppress, or abuse any person in connection with 

the collection of a debt.” It then says, “Without limiting the general application of the foregoing, 

the following conduct is a violation of this section: . . . (5) Causing a telephone to ring or 

engaging any person in telephone conversation repeatedly or continuously with intent to annoy, 

abuse, or harass any person at the called number.” 15 U.S.C. § 1692d. Here, Ayers says that she 

told RPM that the debtor could not be reached at her cell phone number and requested that RPM 

not call again, but “RPM continued to place automated calls to [my] cellular telephone in an 

attempt to collect the [d]ebt.” (R. 1, PID 2–3, 5.) Thus, the question is whether the “natural 

consequence” of this conduct “[wa]s to harass,” § 1692d, or whether RPM “repeatedly or 

continuously” called Ayers “with intent to annoy, abuse, or harass,” § 1692d(5). 

If the Court limits itself to Ayers’ complaint, the answer is a close call. On the one hand, 

Ayers references additional “calls” after she told RPM not to call. So clearly there were multiple 

calls. Once RPM was on notice that Plaintiff was not the debtor, the natural inference is that the 

intent of the additional calls was to annoy, abuse, or harass her. Indeed, her complaint refers to 

the calls under the heading “RPM Engages in Harassment and Abusive Tactics.” (R.1, Complaint 

at PID 2.) On the other hand, “calls” could be as few as two. And although reasonable 

inferences from Ayers’ allegations should be drawn in her favor, Ayers’ complaint requires the 

Court to speculate about the number of calls, when the calls were made (e.g., late at night), 

whether Ayers answered the calls, what was said if she did answer (e.g., threats), and how 

frequent the calls were (e.g., six in one day). If RPM’s conduct was more like two mid-day calls 

over a month—even accepting that those two calls came after a request to stop—RPM would not 

likely have violated § 1692d. See Durthaler v. Accounts Receivable Mgmt., Inc., 854 F. Supp. 2d 

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485, 490 (S.D. Ohio 2012) (finding, as a matter of law, no violation of § 1692d where, within a 

73-day period, debt collector made 30 calls to debtor and two calls to debtor’s roommate, one of 

which was after the roommate informed collector that number was incorrect); Arteaga v. Asset 

Acceptance, LLC, 733 F. Supp. 2d 1218, 1229 (E.D. Cal. 2010) (finding, as a matter of law, no 

violation of § 1692d where collector called debtor on a near daily basis but there was “no 

evidence that [the collector] called [debtor] immediately after she hung up, called multiple times 

in a single day, called her place of employment, family, or friends, called at odd hours, or called 

after she requested [collector] to cease calling”); Saltzman v. I.C. Sys., Inc., No. 09-10096, 2009 

WL 3190359, at *7 (E.D. Mich. Sept. 30, 2009) (finding, as a matter of law, no violation of 

§ 1692d where there were at least 20 calls to debtor over a one month period, including some 

following the debtor’s request to stop calling, but where debtor failed to show that the “amount, 

frequency, pattern, or content” of the calls amounted to anything but “a legitimate, albeit 

persistent, effort to reach her”); Udell v. Kansas Counselors, Inc., 313 F. Supp. 2d 1135, 1143–

44 (D. Kan. 2004) (“KCI simply placed four telephone calls to plaintiffs over the course of seven 

days and chose not to leave a message. There is nothing harassing, oppressive, or abusive about 

this conduct.”). 

The Court does not need to make this close call. In an affidavit attached to her motion for 

default judgment, Ayers provides a key fact missing from her complaint: she says that RPM 

called her about 22 times after she told them to stop calling. (R. 6, PID 37.) The allegations of 

Ayers’ complaint, once supplemented with this allegation, permit the reasonable inference that 

the “natural consequence” of RPM’s 22 calls “[wa]s to harass” or that RPM “repeatedly or 

continuously” called Ayers “with intent to annoy, abuse, or harass.” See 15 U.S.C. § 1692d. 

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It is true that some courts have held that a court should not look beyond the four corners 

of the complaint in assessing liability under Rule 55(b)(2). See Cty. of Suffolk v. Golden Feather 

Smoke Shop, Inc., No. 09CV162CBAVMS, 2016 WL 1245001, at *5 n.4 (E.D.N.Y. Mar. 23, 

2016) (“Although the County urges the Court to look outside the four corners of the complaint in 

assessing liability, the law is clear that in evaluating a default judgment motion the Court is 

limited to the non-conclusory, factual allegations in the complaint.” (internal quotation marks, 

citations, and alterations omitted)); Johannes Baumgartner Wirtschafts-Und Vermogensberatung 

GmbH v. Salzman, 969 F. Supp. 2d 278, 287 (E.D.N.Y. 2013) (finding that magistrate judge 

erred in considering exhibits that were not attached to or referenced in the complaint in 

recommending entry of a default judgment). The rationale behind this rule is that a defendant 

should be able to review a complaint, and, if it is confident that the complaint fails to state a 

claim for relief, elect to conserve its resources and not defend the case. See Siemieniewicz v. CAZ 

Contracing Corp., No. 11-CV-0704, 2012 WL 5183375, at *9 (E.D.N.Y. Sept. 21, 2012) (“[Rule 

55] not only provides a just and efficient remedy for a plaintiff confronted by a defendant’s 

recalcitrance; it also allows a defendant to review a deficient complaint and make the rational 

decision to expend no resources in answering it.”), report and recommendation adopted in 

relevant part, 2012 WL 5183000 (E.D.N.Y. Oct. 18, 2012). 

But this rationale does not apply with great force in this case. Certificates of service 

attached to Ayers’ motion indicate that Ayers mailed her motion for default judgment, to which 

her affidavit is attached, to RPM’s place of business. (R. 6, PID 41.) Under the Federal Rules of 

Civil Procedure, this mailing constitutes proper service. Fed. R. Civ. P. 5(b)(2) (“A paper is 

served under this rule by . . . (C) mailing it to the person’s last known address—in which event 

service is complete upon mailing.”). Thus, it is fair to say that RPM knew of Ayers’ claim of 22 

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calls. And so even if RPM had made an initial assessment that Ayers’ complaint did not state a 

violation of § 1692d, it would not be unfair to say that RPM should have reassessed the strength 

of Ayers’ case upon receipt of her affidavit. Yet RPM has not appeared in this case to set aside 

the default or to oppose Ayers’ motion for default judgment. On these facts, the Court finds it 

proper to consider Ayers’ affidavit in assessing whether RPM engaged in conduct that § 1692d 

prohibits. See Gordon v. Enhanced Acquisitions LLC, No. 14-13839, 2015 WL 7423809, at *1 

(E.D. Mich. Nov. 23, 2015) (considering plaintiff’s affidavit in determining whether defaulted 

defendant was liable under the FDCPA); Gomez v. El Rancho de Andres Carne de Tres Inc., No. 

CV 2012-1264 CBA MDG, 2014 WL 1310296, at *4 (E.D.N.Y. Mar. 11, 2014) (considering 

plaintiff’s affidavit because defendants had received notice of the supplemental allegations when 

plaintiff served motion for default judgment and because it would be “inefficient” to require 

plaintiff to file an amended complaint), report and recommendation adopted, 2014 WL 1310299 

(E.D.N.Y. Mar. 31, 2014). 

In short, the Court finds that Ayers’ complaint, at least when supplement with Ayers’ 

affidavit, states a violation of § 1692d. And because Ayers does not assert that she is entitled to 

different damages for a violation of § 1692f, the Court does not address Ayers’ § 1692f claim. 

2. 

Ayers’ complaint also permits the reasonable inference that RPM violated the Telephone 

Consumer Protection Act. 

When Ayers filed this suit, the section of the TCPA upon which she relies read, “It shall 

be unlawful for any person within the United States . . . to make any call . . . using any automatic 

telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone 

service.” 47 U.S.C. § 227(b)(1)(A)(iii). Thus, Ayers only needed to plead facts showing that “(1) 

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a call was placed to a cell or wireless phone, (2) by the use of any automatic dialing system 

and/or leaving an artificial or pre-recorded message, and (3) without prior consent of the 

recipient plaintiff.” Duchene v. Onstar, LLC, No. 15-13337, 2016 WL 3997031, at *1 (E.D. 

Mich. July 26, 2016). 

The factual allegations of Ayers’ complaint satisfy these elements. In particular, Ayers 

has alleged that RPM called her cell phone and that she did not give RPM or the creditor her cell 

phone number or permission to call her cell phone. That takes care of the first and third elements. 

And the TCPA defines an automatic telephone dialing system as “equipment which has the 

capacity to store or produce telephone numbers to be called, using a random or sequential 

number generator; and to dial such numbers.” 47 U.S.C. § 227(a)(1). In that regard, Ayers has 

pled that when she answered calls from RPM, “she heard silence or music followed by an 

automated click before being transferred to a RPM operator.” (R. 1, PID 2.) That satisfies the 

second element. 

It would thus seem that the TCPA-liability analysis is complete. But after a default was 

entered against RPM, and before Ayers moved for a default judgment, the provision of the 

TCPA upon which Ayers relies was amended. Effective November 1, 2015, § 227(b)(1)(A)(iii) 

makes it unlawful to use an automatic telephone dialing system to call a cell phone “unless such 

call is made solely to collect a debt owed to or guaranteed by the United States.” At least one 

court has not only applied this new language to a lawsuit pending at the time of the amendment, 

but also held that the defendant was not liable under the new exception because it was collecting 

a federal student loan. See generally Silver v. Pennsylvania Higher Educ. Assistance Agency, No. 

14-CV-0652-PJH, 2016 WL 1258629 (N.D. Cal. Mar. 31, 2016). And here, Ayers’ complaint 

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does not plead that the debt was not owed to or backed by the United States. So does the Court’s 

conclusion that Ayers’ complaint states a violation of § 227(b)(1)(A)(iii) stand? 

Given the current procedural posture, the answer is “yes.” There is support for the 

proposition that when a statute uses words like “unless” or “except,” what follows those terms is 

an affirmative defense, not an element of the claim. See Fed. Trade Comm’n v. Morton Salt Co., 

334 U.S. 37, 44–45 (1948) (“the burden of proving justification or exemption under a special 

exception to the prohibitions of a statute generally rests on one who claims its benefits”); 

Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 362, 367 (3d Cir. 2015) (analyzing 

“unless” language in the FDCPA and applying rule that a “party seeking shelter in an exception 

to a statute has the burden of proving it”); United States v. Franchi-Forlando, 838 F.2d 585, 591 

(1st Cir. 1988) (“[W]e recognize that the language that asserts the ‘approved drug’ portion of 

§ 952(a) and the ‘listed in the manifest’ portion of § 955 makes them exceptions to a general rule 

of liability. That is to say, the statutes introduce those portions with the words ‘unless’ and 

‘except,’ and [criminal] defendants may have to treat them as affirmative defenses.”). Given this 

law—and because RPM has not appeared in this case to argue that the “unless” clause of 

§ 227(b)(1)(A)(iii) is not an affirmative defense—the Court finds that Ayers was not required to 

plead that RPM’s calls were not made “to collect a debt owed to or guaranteed by the United 

States.” 

In short, when the well-pled factual allegations of Ayers’ complaint are accepted as true, 

RPM violated 47 U.S.C. § 227(b)(1)(A)(iii). 

B. 

This leads to the question of damages. The Court first addresses damages under the 

FDCPA and then the TCPA. 

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1. 

Under the FDCPA, a plaintiff may recover actual damages caused by the debt collector’s 

wrongful conduct. See 15 U.S.C. § 1692k(a)(1). Here, Ayers claims that RPM’s conduct caused 

her $5,000 in actual damages. (R. 6, PID 28–29.) 

The Court declines to award Ayers $5,000 under § 1692k(a)(1). Both the allegations of 

Ayers’ complaint and those in her affidavit are conclusory on how RPM’s calls caused harm. In 

her complaint, Ayers says, “[a]s a direct consequence of Defendant’s acts, practices and conduct, 

Plaintiff suffered and continues to suffer from humiliation, anger, anxiety, emotional distress, 

fear, frustration and embarrassment.” (R. 1, PID 3.) Similarly, in her affidavit, Ayers avers, “[a]s 

a result of RPM’s repeated phone calls to me after I asked it to cease calling me, I suffered and 

continue to suffer from anger, anxiety, and emotional distress.” (R. 6, PID 37.) Missing from 

these allegations is how RPM’s conduct caused emotion distress. Did RPM call at unpredictable 

times? Did RPM’s calls interrupt sleep or work? Did RPM call three times in a row? Or, perhaps, 

did Ayers ignore the calls upon seeing RPM’s number on her caller ID? (See R. 6, PID 36.) And 

why were RPM’s calls embarrassing? Did anyone know that the number on Ayers’ cell phone 

was that of a debt collector? In addition, Ayers provides no medical records or even lay evidence 

of any treatment that she required due to RPM’s calls. Arguably then, Ayers is not entitled to any 

actual damages. See Wantz v. Experian Info. Sols., 386 F.3d 829, 834 (7th Cir. 2004) (“Where, as 

here, the plaintiff’s own testimony is his only evidence of emotional damages, he must explain 

the circumstances of his injury in reasonable detail and not rely on conclusory statements, unless 

the facts underlying the case are so inherently degrading that it would be reasonable to infer that 

a person would suffer emotional distress from the defendant’s action.” (internal quotation marks 

omitted)), abrogated on other grounds by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007). 

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But because RPM has not appeared to advocate the position in Wantz, and because courts in this 

District have awarded a reduced amount of actual damages in comparable scenarios, this Court 

will award Ayers $500 in actual damages under § 1692k(a)(1). Cf. Gordon v. Enhanced 

Acquisitions LLC, No. 14-13839, 2015 WL 7423809, at *2 (E.D. Mich. Nov. 23, 2015) 

(awarding $3,000 in emotional distress damages under the FDCPA where plaintiff requested 

$25,000 because plaintiff had not “submitted any medical records or other evidence 

corroborating the emotional distress alleged”); Hett v. Bryant Lafayette & Associates, LLC, No. 

10-CV-12479, 2011 WL 740460, at *3 (E.D. Mich. Feb. 24, 2011) (awarding $2,000 in 

emotional distress damages under the FDCPA where plaintiff requested $20,000 because 

plaintiff had not “presented any medical records, telephone records, witness affidavits, or other 

evidence to substantiate his claimed damages”). 

Ayers also seeks statutory damages under the FDCPA. Section 1692k(a)(2)(A) provides 

that, in addition to actual damages, a “court may allow” damages “not exceeding $1,000.” In this 

case, the Court believes that RPM’s 22 additional calls after Ayers told RPM to stop calling 

warrants the full $1,000 in statutory damages. See 15 U.S.C. § 1692k(b)(1) (directing courts to 

consider “the frequency and persistence of noncompliance by the debt collector, the nature of 

such noncompliance, and the extent to which such noncompliance was intentional”). 

In sum, for violating the FDCPA, the Court finds that RPM owes Ayers $1,500 in 

damages. 

2. 

As for damages under the TCPA, that Act provides, “A person who has received more 

than one telephone call within any 12-month period by or on behalf of the same entity in 

violation of the regulations prescribed under this subsection may . . . bring . . . an action to 

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recover for actual monetary loss from such a violation, or to receive up to $500 in damages for 

each such violation, whichever is greater.” 47 U.S.C. § 227(c)(5)(B). 

As noted, Ayers’ uncontradicted affidavit provides that she received “approximately 

twenty-two” calls after she told RPM that it had the wrong number for the debtor. (R. 6, PID 37.) 

Ayers claims that under subparagraph (B) of § 227(c)(5) she is entitled to $500 for each of these 

22 calls, or $11,000 total. (R. 6, PID 32.) 

The Court agrees. Given the repeated calls following Ayers’ request, the Court believes 

the full $500 per call permitted by subparagraph (B) of § 227(c)(5) is proper, i.e., that Ayers is 

entitled to $11,000 total under subparagraph (B). 

 Ayers, relying on another part of § 227(c)(5), asks this Court to treble the $11,000 award. 

The language upon which Ayers relies reads, “If the court finds that the defendant willfully or 

knowingly violated the regulations prescribed under this subsection, the court may, in its 

discretion, increase the amount of the award to an amount equal to not more than 3 times the 

amount available under subparagraph (B) of this paragraph.” 47 U.S.C. § 227(c)(5). 

Courts, apparently, have construed “willfully or knowingly” differently. Some have 

suggested (if not held) that the defendant must know that its conduct is prohibited by the TCPA. 

See Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892, 899 (W.D. Tex. 2001); Maryland v. 

Universal Elections, Inc., 862 F. Supp. 2d 457, 463 (D. Md. 2012). Others have adopted an 

interpretation of “willfully or knowingly” that “simply requires that the act be intentional or 

volitional, as opposed to inadvertent, and not that defendant must have known that the conduct 

would violate the statute.” Bridgeview Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2013 WL 

1154206, at *7 (N.D. Ill. Mar. 19, 2013). And in Harris v. World Fin. Network National Bank, a 

court in this District found that the defendant’s violations of the TCPA were willful because the 

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defendant continued to call after being informed that it had the wrong number. 867 F. Supp. 2d 

888, 896 (E.D. Mich. 2012). 

Given that there is no briefing on this issue (and that this case is being litigated from only 

one side), the Court will not attempt to address this split in authority. Instead it assumes without 

deciding that RPM willfully violated § 227(b)(1)(A)(iii) by calling Ayers 22 times after being 

told that it had the wrong number. 

The Court can proceed this way because, even if RPM’s conduct was willful or knowing, 

enhanced damages are not proper in this case. As an initial matter, there is a good argument to be 

made that the enhanced-damages provision was meant to compensate the plaintiff rather than 

punish the defendant. See Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 778–79 

(11th Cir. 2011). And here, as stated, Ayers’ allegations of “humiliation, anger, anxiety, 

emotional distress, fear, frustration and embarrassment” are conclusory and provide little detail 

of the disruption to her life. Second, the Court has not heard RPM’s side of the story. To be sure, 

that is its own fault. But the possibility that there may be some valid reason that RPM continued 

to call Ayers after she informed them that they had the wrong number counsels against 

enhancing damages. 

In sum, the Court finds that for violating the TCPA, RPM owes Ayers $11,000. 

3. 

Before ending the damages inquiry, the Court must address one more issue. As discussed 

earlier, a defendant is permitted to examine a complaint and decide that a default judgment may 

be preferable to fighting the lawsuit. So, for example, had Ayers’ complaint demanded only 

$2,000 in damages, RPM could decide to default safe in the assumption that it would owe Ayers 

not a penny more than $2,000. In that situation, it would be improper to award Ayers $12,500, 

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even if she proved those damages at the default-judgment stage. See Fed. R. Civ. P. 54(c) (“A 

default judgment must not differ in kind from, or exceed in amount, what is demanded in the 

pleadings.”); see also Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (“By limiting damages to 

what is specified in the ‘demand for judgment,’ [Rule 54(c)] ensures that a defendant who is 

considering default can look at the damages clause, satisfy himself that he is willing to suffer 

judgment in that amount, and then default without the need to hire a lawyer.”). 

But Ayers’ complaint did not cap her damages. Moreover, her complaint provided the 

legal basis for claims of actual, statutory, and punitive damages, and attorneys’ fees. In other 

words, Ayers’ damages demand gave RPM fair notice that it could be liable for an amount in the 

range of $12,500. See Trustees of the Nat'l Automatic Sprinkler Indus. Welfare Fund v. Harvey, 

No. GJH-15-521, 2016 WL 297425, at *5 (D. Md. Jan. 21, 2016) (discussing split in authority, 

but finding that the better rule is that Rule 54(c) is not abridged where complaint gives defendant 

fair notice that plaintiff was seeking unspecified damages and the grounds for those damages); 

Ames v. STAT Fire Suppression, Inc., 227 F.R.D. 361, 362 (E.D.N.Y. 2005) (“Although Rule 

54(c) limits the damages recoverable by a plaintiff following a default judgment to the type and 

quantity of damages demanded in the complaint, it does not require plaintiff to have demanded a 

sum certain in order to recover on default.”). 

C. 

As noted, even when the plaintiff has demonstrated liability and damages, a default 

judgment does not automatically follow. Instead, the court must exercise its discretion in 

deciding whether to enter a default judgment under Rule 55(b)(2). 

Factors informing the court’s discretion include, “the amount of money potentially 

involved; whether material issues of fact or issues of substantial public importance are at issue; 

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whether the default is largely technical; whether plaintiff has been substantially prejudiced by the 

delay involved; and whether the grounds for default are clearly established or are in doubt.” AF 

Holdings LLC v. Bossard, 976 F. Supp. 2d 927, 929 (W.D. Mich. 2013) (internal quotation 

marks and citation omitted). 

Upon considering these and other factors, the Court finds that a default judgment against 

RPM in the amount of $12,500 is warranted. The grounds for default are clearly established: a 

certificate of service was filed in this case indicating that RPM’s registered agent was served 

with the summons and complaint on July 27, 2015. (R. 3.) Thus, RPM had fair notice of this suit 

and the relief sought and yet it did not appear to defend. Further, the damages in this case are not 

so large that the Court is concerned that it would be unduly prejudicial to RPM. Finally, while 

there are unsettled legal issues of general interest raised by Ayers’ motion, the Court has not seen 

the need to resolve them. All in all then, the Court believes that a default judgment is proper in 

this case. 

V. 

For the reasons given, the Court GRANTS IN PART Ayers’ motion for a default 

judgment. In particular, the Court finds that RPM violated both 15 U.S.C. § 1692d and 47 U.S.C. 

§ 227(b)(1)(A)(iii). And for these violations of the FDCPA and TCPA, the Court concludes that 

RPM owes Ayers $12,500. Ayers is granted leave to file a well-supported motion for attorney 

fees under the FDCPA, 15 U.S.C. § 1692k(a)(3). 

SO ORDERED. 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

Dated: September 28, 2016 U.S. DISTRICT JUDGE 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court=s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on September 28, 2016. 

s/Keisha Jackson 

Case Manager 

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