In Hartung v. J.D. Byrider, Inc., 2009 WL 1876690 (E.D.Cal. 2009), Magistrate Judge Austin addressed the standard required for proof of emotional distress damages under the FDCPA, and found that a Plaintiff must meet the elements of a state court IIED claim. Judge Austin addressed the following fact pattern pursuant to Plaintiff’s effort to prove-up a default judgment.
Anderson is a debt collector and Hartung is a consumer under the FDCPA. Beginning on January 16, 2008, Defendant unlawfully obtained Plaintiff’s contact information from a third party. Thereafter, he sent a series of harassing messages and used continuous abusive tactics to collect a debt including misrepresenting that he was an attorney, threatening to contact Plaintiff’s employer, and making a phone call to Plaintiff’s employer. Furthermore, Defendant Anderson told Plaintiff that he would have her arrested if she did not pay the debt or return the car, called her names, told Plaintiff he had taken pictures of her, and made inappropriate sexual comments.
In addressing compensation for Plaintiff’s emotional distress damages, Judge Austin explained:
However how to interpret the “actual damage” language with respect to emotional distress is a controversial issue that has not yet been addressed by the Ninth Circuit. Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10-11 (E.D. Cal., Mar 17, 2009); Costa v. National Action Financial Services, 2007 WL 4526510 at *7-8 (E.D.Cal., December 19, 2007). District courts nationally have issued conflicting decisions regarding this issue. Some courts have determined that under the FDPCA a Plaintiff is not required to meet the state law standards for intentional infliction on emotional distress (“IIED”). Costa v. National Action Financial Services, 2007 WL 4526510 at *7-8. Courts that do not require state law requirements have analogized the FDCPA to the Fair Credit Reporting Act. (“FCRA”). Id. citing, Panahiasal v. Gurney, 2007 WL 738642 at *2 (N.D.Cal. March 8, 2007); Donahue v. NFS, Inc., 781 F.Supp. 188 (W.D.N.Y.1991) (“A plaintiff’s right to recovery of actual damages under the FDCPA predicated on claimed emotional distress remains independent of the plaintiff’s right, if any, to recover for emotional distress under state law”); see also Clodfelter v. United Processing, Inc., 2008 WL 4225557 (C.D.Ill. Sept. 12, 2008). [P] Alternatively, other courts, including two in this district, require a plaintiff to prove a claim for IIED under state law in order to collect damages for emotional distress. Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10-11 (Plaintiff’s transitory stress failed to meet state IIED standard); Costa v. National Action Financial Services, 2007 WL 4526510 at *7-8 (same); See also Pflueger v. Auto Finance Group, Inc., 1999 WL 33738434 at *4 (C.D.Cal., 1999); cf. Carrigan v. Central Adjustment Bureau, Inc., 502 F.Supp. 468, 470-471 (N.D.Ga.1980) (holding Plaintiff’s FDCPA’s claim for intentional infliction of mental distress met state requirements under Florida tort law); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671, 674-675 (Minn.Ct.App.1984) (finding Plaintiff satisfied state elements of IIED and could thus recover emotional distress damages). [P] Consistent with the decisions issued in this district and the approach adopted by Chief Judge Ishii, the Court will apply the California IIED standard. See, Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10-11.