BONIFACIO

v.

NORTHEASTERN ACQUISITIONS GROUP, INC.

state a claim upon which relief can be granted. Therefore, the Court will deny the motion, vacate the Clerk’s entry of default and require Plaintiff to amend his complaint.

I. Background

Plaintiff seeks statutory damages for violations of the Fair Debt Collection Practices Act (“FDCPA”),¹⁵ U.S.C. § 1692

et seq.

Plaintiff filed this FDCPA lawsuit

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on March⁵, 2011. [DE¹]. On March 26, 2011, Plaintiff served the Complaint and Summons on a representative of Defendant Northeastern Acquisitions Group, Inc. (“Defendant”). [DE 8-1], On May 16, 2011, the Clerk of Court entered a Default against Defendant pursuant to Federal Rule of Civil Procedure 55(a) for its failure to appear or otherwise defend the action. [DE 10]. Plaintiff filed the instant Motion for Final Default Judgment on July 11, 2011.

II. Legal Standard

Pursuant to Federal Rule of Civil Procedure 55(b)(2), a court may enter a final judgment of default against a party who has failed to plead in response to a complaint. However, “a defendant’s default does not in itself warrant the court entering a default judgment.”

See Tyco Fire & Sec. LLC v. Alcocer,

218 Fed.Appx. 860, 863 (11th Cir.2007). Further, “[t]he defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.... [A] default is not treated as an absolute confession by the defendant of his liability and of the plaintiffs right to recover.”

Nishimatsu Constr. Co. v. Houston Nat’l Bank,

515 F. 2d 1200, 1206 (5th Cir.1975).

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“[A]llegations that parrot the language” of the statute the defendant allegedly violated, “are not well-pleaded facts; they are simply [plaintiffs] legal conclusions, which a [defendant is] not held to have admitted through default.”

See DirecTV, Inc. v. Huynh,

503 F. 3d 847, 856 (9th Cir.2007) (citing

Nishimatsu Constr. Co.,

515 F. 2d at 1206).

III. Fair Debt Collection Practices Act

The FDCPA seeks to remedy abusive, deceptive, and unfair debt collection practices by debt collectors.

See

Owen v. I.C Sys., Inc.,

629 F. 3d 1263, 1270 (11th Cir.2011). In furtherance of that purpose, the FDCPA prohibits,

inter alia,

debt collectors from engaging “in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”

See id. § 1692d. A debt collector who “fails to comply with any [FDCPA] provision ... with respect to any person is liable to such person” for “actual damage[s],” costs, “a reasonable attorney’s fee,” and up to $1,000.00 in statutory damages.

See id. § 1692k(a).

IV. Analysis and Discussion

Plaintiff alleges that in the month of February 2011, a debt collector em

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ployed by Defendant, a collection agency, left one (1) telephone message on Plaintiffs answering machine, and failed to disclose in the telephone message that he was a debt collector. [Compl. ¶¶ 14-15, 23]. Plaintiff avers that by failing to disclose in the telephone message that it is a debt collector, Defendant violated¹⁵ U.S.C. §§ 1692d(6) and 1692e(11), and this entitles Plaintiff to $1,000.00 in statutory damages. Section 1692d(6) prohibits “the placement of telephone calls without meaningful disclosure of the caller’s identity.”¹⁵ U.S.C. § 1692d(6). Furthermore, section 1692e(11) requires a debt collector “to disclose

in subsequent communications

that the communication is from a debt collector.”

Id. § 1692e(11) (emphasis added).

Here, the “facts” contained within Plaintiffs Complaint

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and Affidavit of Damages

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fail to establish that Defendant’s activities violated the FDCPA. First, Plaintiff does not state the substance of the voice message. Without specifying the content of the voice mail message, the “well-plead” factual allegations fail to state a violation of section 1692d(6) of the FDCPA. Simply alleging that a debt collector failed to identify himself as a debt collector does not establish that Defendant failed to provide “meaningful disclosure of the caller’s identity.” Additionally, since Plaintiff alleges that a debt collector employed by Defendant communicated with Plaintiff once, Plaintiff cannot recover under section 1692e(11) of the FDCPA, which only requires a disclosure that the communication is from a debt collector “in subsequent communications.”

Finally, after reviewing the record in this case, the Court is convinced that Plaintiff cannot plead any set of facts that would entitle him to relief under the FDCPA.⁵

However, prior to dismissing this action for failure to state a claim, the Court will allow Plaintiff an opportunity to amend his Complaint.

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Should Plaintiff fail to cure the defects in the Complaint,

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the Court will

sua sponte

dismiss this action.

V. Conclusion

In sum, Plaintiff fails to allege facts to support a violation of the FDCPA. For the reasons stated above, the Court will deny the motion for entry of final default. Moreover, the Court will vacate the default previously entered against the Defendant and require Plaintiff to amend his complaint. Therefore, it is

ORDERED that

(1) Plaintiffs Motion for Final Default Judgment [DE 11] is DENIED.

(2) The default entered by the Clerk of Court against Defendant Northeastern Acquisitions Group, Inc. on May 16, 2011 [DE 10] is VACATED.

(3) Plaintiff must file an amended complaint no later than July 28, 2011. If Plaintiff does not file an amended complaint by such date, the Court will dismiss this action.