UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MEGAN MILLER,

Plaintiff,

vs.

ABILITY RECOVERY SERVICES, 

LLC., 

Defendant.

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Case No. 1:18-cv-266

Judge Timothy S. Black

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

This civil case is before the Court on Plaintiff’s motion for default judgment (Doc. 

7) and supplemental memorandum (Doc. 8).

I. BACKGROUND

On April 14, 2018, Plaintiff Megan Miller commenced the instant civil action 

against Defendant Ability Recovery Services, LLC (“ARS”), pursuant to the Fair Debt

Collection Practices Act (“FDCPA”) (15 U.S.C. § 1692, et seq.), the Telephone

Consumer Protection Act (“TCPA”), (47 U.S.C. § 227, et seq.), and the Ohio Consumer 

Sales Practices Act (“OCSPA”) (Ohio Rev. Code § 1345.01 et seq.). (Doc. 1). 

Plaintiff alleges that in December 2017, ARS, a third-party debt collector, first 

contacted her regarding recovery in the amount of $226.50. Defendant subsequently 

provided purported verification of the debt, which verification showed only $217.50

owed. Plaintiff informed Defendant that she had already paid the debt, but Defendant 

continued to call her cellular telephone every few days, from different telephone 
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numbers, for several weeks. Plaintiff further asserts that Defendant left pre-recorded 

voicemail messages and utilized an Automated Telephone Dialing System, absent 

Plaintiff’s consent. Plaintiff states that Defendant threatened to harm her credit if she did 

not pay Defendant the amount sought, regardless of whether or not the debt had already 

been satisfied. Subsequently, Defendant also claimed to have already reported the debt to 

credit bureaus and told Plaintiff to contact Defendant if she wished to fix her credit 

report. Plaintiff further asserts that Defendant erroneously informed her that she bore the 

burden to prove the debt had been satisfied.

Thus, Plaintiff claims to have suffered harm as a result of Defendant’s actions,

including but not limited to invasion of privacy, aggravation resulting from collection 

calls, emotional distress, confusion as to her legal rights, and increased usage of her 

telephone services. 

II. STANDARD OF REVIEW

Following the Clerk’s entry of default pursuant to Fed. R. Civ. P. 55(a), a party 

may seek entry of a default judgment by the Court. Applications for default judgment are 

governed by Fed. R. Civ. P. 55(b). In determining whether to enter a default judgment, 

the Court should consider: “1) possible prejudice to the plaintiff; 2) the merits of the 

claims; 3) the sufficiency of the complaint; 4) the amount of money at stake; 5) possible 

disputed material facts; 6) whether the default was due to excusable neglect; and 7) the 

preference for decisions on the merits.” Russell v. City of Farmington Hills, 34 F. App’x 

196, 198 (6th Cir. 2002) (citing Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)). 
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 However, “[a] default judgment on well-pleaded allegations establishes only 

defendant’s liability; plaintiff must still establish the extent of damages.” Antoine v. 

Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (quoting Kelley v. Carr, 567 F.Supp. 

831, 841 (W.D. Mich. 1983)). 

As to damages, “[i]f the plaintiff’s claim is for a sum certain or a sum that can be 

made certain by computation, the clerk--on the plaintiff’s request, with an affidavit 

showing the amount due--must enter judgment for that amount and costs against a 

defendant who has been defaulted for not appearing.” Fed. R. Civ. P. 55(b)(1). 

“In all other cases, the party must apply to the court for a default judgment,” and

“[t]he court may conduct hearings or make referrals ... [to] determine the amount of 

damages ....” Fed. R. Civ. P. 55(b)(2). Thus, Rule 55(b)(2), “by its terms, allows but 

does not require the district court to conduct an evidentiary hearing.” Vesligaj v. 

Peterson, 331 F. App’x 351, 354–55 (6th Cir. 2009) (citing Fustok v. ContiCommodity 

Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)) (emphasis added). The Court may rely on 

affidavits and documentary evidence to determine the issue of damages. P&G Health & 

Longterm Disability Plan v. Molinary, No. 1:18-CV-283, 2019 WL 358936, at *2 (S.D. 

Ohio Jan. 29, 2019).

III. ANALYSIS

A. Liability

Defendant ARS is in default, as evidenced by the Clerk’s Entry of Default. (Doc. 

6). Accordingly, the factual allegations of the Complaint (Doc. 1), except those related to 

the amount of damages, are deemed as true. Antoine, 66 F.3d at 105. 
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Upon review of the record, the Court finds that default judgment is warranted. 

Defendant’s failure to respond to the Complaint, the application for entry of default, or 

the motion for default judgment has made it clear Defendant does not intend to defend 

this action. Indeed, as detailed in Plaintiff’s motions, this is not the first or only case in 

which ARS has failed to respond to similar claims. (Doc. 7, Ex. B). Moreover, the 

communications between Plaintiff’s counsel and Defendant clearly indicate that 

Defendant was well-aware of the pending action. (Doc. 8, Exs. 2, 4, 5, 6). Plaintiff’s 

counsel appears to have attempted to negotiate a resolution with Defendant in good faith, 

but to no avail. (See id.) Thus, Plaintiff is left with no other recourse but the present 

action and faces significant potential harm if the Court were to deny default judgment.

The unchallenged factual allegations set forth in the Complaint sufficiently state 

claims against Defendant for violating the FDCPA (15 U.S.C. §§ 1692d(5), 1692e(2), (5), 

(8), (10), and 1692f), the TCPA (47 U.S.C. § 227(b)(1)(A)(iii)), and the OCSPA (Ohio 

Rev. Code § 1345.02(A)). Accordingly, default judgment as to liability is appropriate.

B. Damages 

Plaintiff seeks $1,000 in statutory damages under the FDCPA, plus attorney fees; 

$500 in statutory damages per call under the TCPA, trebled for willful or knowing 

violations; and $200 per call plus attorney fees under the OCSPA. (Doc. 7).

1. FDCPA

The Court may award statutory damages of up to $1,000 for a violation of the

FDCPA. 15 U.S.C. § 1692k(a)(2)(A). 
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Here, the Court finds an award for the full amount of $1,000 appropriate, based on 

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

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

§ 1692k(b)(1). 

2. TCPA 

Plaintiff also moves for an award of $10,500.00 under the TCPA. (Doc. 7 at 16-

17). 

The TCPA proscribes the use of an automatic telephone dialing system or an 

artificial or prerecorded voice to call a cellular telephone for non-emergency purposes 

and without prior consent, “unless such call is made solely to collect a debt owed to or 

guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii).1

 The TCPA permits an 

award of $500.00 in damages per violation. 47 U.S.C. § 227(b)(3)(B). Further, it is 

within the Court’s discretion to award treble damages if the Court finds the violations 

were committed willfully or knowingly. 47 U.S.C. § 227(b)(3). 

Here, Plaintiff’s uncontested allegations and documentary evidence show that

Defendant, without obtaining prior consent, used an automatic dialing system or prerecorded voice, or both, to make seven calls to Plaintiff’s cellular telephone. (Doc. 7, Ex. 

E). Thus, at a minimum, Plaintiff is entitled to $3,500.00 in damages under the TCPA.

 1 The exemption constitutes an affirmative defense and thus Defendant bears the burden of proof. 

See Ayers v. Receivables Performance Mgmt., L.L.C., No. 2:15-CV-12082, 2016 WL 5402962, 

at *6 (E.D. Mich. Sept. 28, 2016) (collecting cases). Plaintiff “only need[s] to plead facts 

showing that (1) 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.” Id. (citations omitted).
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Additionally, given the pendency of similar cases against Defendant ARS, filed in 

various jurisdictions, Defendant had ample notice of the TCPA’s proscriptions. (Doc. 7, 

Ex. B). Moreover, Defendant ARS was undoubtedly aware of its own practice of using 

automatic dialing systems and pre-recorded voice calls. (See Id., Exs. B, F). In short, 

Defendant ARS’s persistent use of violative practices against debtors was both knowing 

and willful, and thus treble damages are warranted. 

3. OCSPA

Plaintiff also seeks an award of $2,200.00 in statutory damages under the OCSPA. 

(Doc. 7 at 17-19). 

Pursuant to Ohio Rev. Code § 1345.02(A), “[n]o supplier shall commit an unfair 

or deceptive act or practice in connection with a consumer transaction.” For any such 

violation, “the consumer may ... recover the consumer’s actual economic damages plus 

an amount not exceeding five thousand dollars in noneconomic damages.” Ohio Rev. 

Code § 1345.09(A). If, however, the violation was an act or practice committed after an 

Ohio state court had already deemed the conduct to violate § 1345.02, “the consumer 

may ... recover ... three times the amount of the consumer’s actual economic damages or 

two hundred dollars, whichever is greater, plus an amount not exceeding five thousand 

dollars in noneconomic damages.” Ohio Rev. Code § 1345.09(B); see also Ferron v. 

Dish Network, L.L.C., 961 N.E.2d 705, 707-08 (Ohio Ct. App. 2011). However, “Ohio 

courts have limited the recovery of statutory damages when multiple violations occur in 

the same transaction or cause the same injury.” Charvat v. NMP, LLC, 656 F.3d 440, 451 
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(6th Cir. 2011) (collecting cases). Thus, Plaintiff is entitled to damages under the 

OCSPA for violation resulting in “separate and distinct” harms. Id.

Here, Plaintiff asserts that Defendant ARS’s violation of the FDCPA results in 

four distinct harms constituting remediable violations of the OCSPA: “(1) Plaintiff was 

harassed by phone calls; (2) Plaintiff was misled as to the amount and character of the 

debt, and ARS attempted to collect an amount not owed; (3) Plaintiff was threatened with 

illegal actions with respect to her credit report; and (4) ARS misrepresented Plaintiff’s 

legal rights to her.” (Doc. 7 at 18). Accordingly, Plaintiff seeks statutory damages in the 

amount of $200.00 for each of the four violations, amounting to a total of $800.00 for the 

FDCPA-related violations. (Id.) Plaintiff also seeks an additional $200.00 for each of 

the seven calls made in violation of the TCPA, for a total of $1,400.00. (Id. at 18-19). 

Accordingly, Plaintiff asserts that her combined damages under the FDCPA and the 

TCPA amount to $2,200.00. (Id.) The Court agrees that Plaintiff is entitled to damages 

under the OCSPA, but finds Plaintiff’s computation to be in error. 

Specifically, Plaintiff asserts that a violation of the FDCPA or TCPA is, in and of 

itself, a violation of OCSPA. (Doc. 1 at 10-12; Doc. 7 at 17-19). The Court disagrees 

with Plaintiff’s oversimplification. See Charvat at 450-51 (noting that Ohio courts have 

found some, but not all, TCPA violations to also constitute unfair or deceptive practices 

under the OCSPA); see also Edwards v. McCormick, 136 F. Supp. 2d 795, 806 n.13 (S.D. 

Ohio 2001) (“Plaintiffs would have this Court find that any violation of the FDCPA 

is per se a violation of the OCSPA ... [but] Ohio courts have not spoken in unison on the 

issue”). Notably, “delivering a prerecorded message without prior express consent, in 
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violation of [the TCPA], is not, by itself, a violation of the OCSPA.” Charvat at 450 

(citing Culbreath v. Golding Enters., L.L.C., 872 N.E.2d 284 (Ohio 2007)). However, the 

content or circumstances of that same prerecorded message may indeed constitute one or 

more violations of the OCSPA. Id. at 451. Thus, assessing “recovery on a per-call basis 

is too narrow of a view of the OCSPA.” Id. 

Here, relying upon Plaintiff’s uncontested facts, and based on the evidentiary 

record, the Court finds that one of more of the calls resulted in three separate and distinct 

harms under the OCSPA, including: (1) deceiving the consumer by threatening to take, 

and stating that it had taken, impermissible actions; (2) deceiving the consumer as to the 

amount of the debt to be collected; and (3) deceiving the consumer by providing false 

information regarding the consumer’s rights and obligations under the law.2

 See

Edwards v. McCormick, 136 F. Supp. 2d 795, 806 (S.D. Ohio 2001) (“[Ohio court] found 

knowingly misstating the law with respect to the consumer’s obligations to the creditor, 

as well as the exaggeration of remedies available to the creditor and the consequences to 

the consumer of nonpayment, to be deceptive”); Taylor v. First Resolution Invest. Corp., 

72 N.E.3d 573, 598 (Ohio 2016) (holding that claim may be brought under OCSPA for 

creditor’s attempt to collect an amount in excess of what creditor is entitled).

 2 The Court cannot conclude that merely placing several telephone calls in an effort to collect a 

debt violates OCSPA. McIntosh v. Controlled Credit Corp., No. 1:17-CV-009, 2018 WL 

4761456, at *6-7 (S.D. Ohio Sept. 30, 2018) (holding that conduct aimed at collecting a debt, 

even if in error, is not, in and of itself, “conduct that the [O]CSPA was designed to guard against, 

such as making false statements of fact, false statements about what will happen if the consumer 

fails to satisfy the claim, or misrepresentations about the law”). To the extent that the issue is 

actually placing the calls to collect a debt that had already been paid, the conduct falls under the 

Court’s third identified category of harm, i.e., “deceiving the consumer ... regarding [her] ... 

obligations under the law.”
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Thus, Plaintiff is entitled to $200.00 statutory damages each time any of these

harms occurred. 

Based on Defendant ARS’s own call logs, Plaintiff has substantiated seven distinct 

calls made to her telephone. (Doc. 7, Ex. E). However, the Court cannot conclude that 

all three harms occurred during each of the seven telephone calls. As an initial matter, 

Defendant ARS’s call logs show that only five of the calls are marked as “Answered.” 

(Id.) And only three calls out of seven lasted for more than three seconds.3

 (Id.) More 

significantly, however, the dates of the allegations on which the OCSPA violations are 

predicated do not match any of the dates on the call logs. (Compare Doc. 1, ¶¶ 7-24, with

Doc. 7, Ex. E). 

Relying upon Plaintiff’s uncontested facts, and based on the evidentiary record, 

the Court concludes that six violations of the OCSPA are supported. 

Specifically, the Complaint alleges that, “[o]n one occasion,” Defendant made

misrepresentations regarding Plaintiff’s obligation to pay a satisfied debt and threatened

to harm her credit if she did not comply. (Doc. 1, ¶¶ 19-20) (emphasis added).4

 Thus, 

 3 Defendant ARS’s call log provides durations of the calls (listed chronologically) as follows: 

00:00, 00:03, 03:09, 02:15, 00:01, 00:41, and 00:03. (Doc. 7, Ex. E). The first call is marked as 

a “Hangup.” (Id.) The second call is listed as “Timeout.” (Id.) The remaining five are all 

marked as “Answered.” (Id.)

4 Although Plaintiff fails to specify, it appears that the misrepresentation regarding Plaintiff 

bearing the burden to prove payment of the debt occurred in the course of the same single 

conversation. (Id. at ¶ 21). As deceit regarding Plaintiff’s burden of proof is the same harm as 

deceit regarding her obligation to pay the satisfied debt (i.e., deceiving Plaintiff regarding her 

legal rights and obligations), it would not constitute a separate harm in this context.
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these allegations constitute two violations (i.e., one for each separate and distinct harm 

that occurred on that one occasion). 

On a separate occasion, Defendant again misled Plaintiff as to her legal rights and 

obligations by informing her that she was required to prove satisfaction of the debt. (Id.

at ¶ 21). This constitutes one additional violation. 

The Complaint further specifies that on February 22, 2018 and March 2, 2018, 

Defendant misrepresented the amount of the debt and attempted to collect more than the 

amount Plaintiff originally owed. (Id. at ¶¶ 11, 23). Although the same harm is at issue, 

each repeated occurrence constitutes a new violation, for a total of two. 

Finally, the Complaint states that on March 2, 2018, Defendant made a

misrepresentation regarding reporting Plaintiff’s allegedly unpaid debt. (Id. at ¶ 23). 

Thus, this constitutes one additional violation. 

The Court finds six total violations of the OCSPA. Accordingly, Plaintiff is 

entitled to statutory damages in the amount of $1,200.00 

 4. Attorney’s Fees

Finally, Plaintiff seeks a total of $9,587.00 in attorney’s fees, as authorized under

the FDCPA and the OCSPA. (Docs. 7, 8). 

“The FDCPA mandates the award of ‘a reasonable attorney’s fee’ and costs to a 

prevailing party.” Dowling v. Litton Loan Servicing LP, 320 F. App’x 442, 446 (6th Cir. 

2009); 15 U.S.C. § 1692k(a)(3). Also, pursuant to the OCSPA, “[t]he court may award to 

the prevailing party a reasonable attorney’s fee ... [if Defendant] has knowingly 

committed an act or practice that violates this chapter.” Ohio Rev. Code § 1345.09(F)
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“The starting point for determining the amount of a reasonable attorney fee is the 

‘lodestar’ amount, which is calculated by multiplying the number of hours reasonably 

expended on the litigation by a reasonable hourly rate.” Imwalle v. Reliance Med. Prod., 

Inc., 515 F.3d 531, 551 (6th Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 

(1983)). “Where the party seeking the attorney fees has established that the number of 

hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable 

fee to which counsel is entitled.” Id. at 552 (citing Pennsylvania v. Del. Valley Citizens 

Council for Clean Air, 478 U.S. 546, 564 (1986)). “A district court has broad discretion 

to determine what constitutes a reasonable hourly rate for an attorney.” Wayne v. Vill. of 

Sebring, 36 F.3d 517, 533 (6th Cir. 1994). The “prevailing market rate [ ] in the relevant 

community,” is a useful indication of what constitutes a reasonable rate. Dowling at 447 

(quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). The “prevailing market rate” is 

defined as “that rate which lawyers of comparable skill and experience can reasonably 

expect to command.” Id. (quoting Adcock–Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 

(6th Cir. 2000)).

Here, Plaintiff’s total fees of $9,587.00 represent $7,352.00 incurred as of the date 

of the motion for default judgment (Doc. 7), as well as $2,235.00 incurred subsequently 

as Plaintiff’s counsel attempted to resolve the matter with ARS (Doc. 8). Plaintiff’s 

counsel requests an hourly rate of $250 for attorney time and $100 per hour for all other 

employees, having expending a total of 36.26 hours and 5.22 hours of each respectively 

on this case. (Doc. 7, Ex. I; Doc. 8, Ex. 3). 
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Given the nature of the case and in light of the prevailing market rates for similar 

work completed by comparable attorneys in this community, the Court finds the rate and 

hours expended reasonable. The Court further finds that an award of attorneys fees is 

appropriate pursuant to the FDCPA. Moreover, the Court finds that Plaintiff is also 

entitled to reasonable attorney’s fees under the OCSPA, in light of Defendant ARS’s 

knowing acts in violation of the statute. Ohio Rev. Code § 1345.09(F).5

 Accordingly, 

the Court awards attorney fees in the full amount of $9,587.00.

IV. CONCLUSION

Based upon the foregoing, Plaintiff’s motion for default judgment (Doc. 7) and 

supplemental memorandum (Doc. 8) are GRANTED. Specifically: 

1. Plaintiff is granted default judgment;

2. Plaintiff is awarded $22,287.00, representing $1,000.00 in statutory 

damages for violation of the FDCPA; $10,500.00 in damages for violation 

of the TCPA; $1,200.00 in statutory damages under the OCSPA; and 

$9,587.00 in attorneys’ fees. 

3. The Clerk shall enter judgment accordingly, whereupon this case is 

TERMINATED on the docket of this Court.

IT IS SO ORDERED.

Date: 3/15/19 s/ Timothy S. Black

Timothy S. Black

United States District Judge

 5 Plaintiff’s counsel is not seeking a fee multiplier in this case. (Doc. 7 at 18).