Sidney Davis , Iii v. Charles T. Hutchins

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4189
S IDNEY D AVIS , III,
Plaintiff-Appellee,
v.
C HARLES T. H UTCHINS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 5236—George W. Lindberg, Judge.
____________
A RGUED N OVEMBER 4, 2002—D ECIDED F EBRUARY 26, 2003
____________
Before B AUER , P OSNER , and K ANNE , Circuit Judges.
K ANNE , Circuit Judge. A default judgment was entered
against Charles T. Hutchins, a New Jersey attorney
proceeding pro se. The judgment awarded Sidney Davis,
III, individual damages and attorney’s fees and also
awarded class-action damages. On appeal, we vacate the
award of class-action damages and affirm the judgment
as modified.
I. History
Charles T. Hutchins has been licensed to practice law
in the State of New Jersey since 1988. From February

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2 No. 01-4189
2000 through January 2002, he served as in-house coun-
sel to Goldman & Company. According to Hutchins,
Goldman is a debt collection organization that specializes
in seeking restitution for its customers from individuals
who make payment with nonsufficient-fund-checks.
In August 2000, a form debt-collection letter was sent
to Davis, a Chicago, Illinois resident. The letter reads as
follows:
CHARLES T. HUTCHINS
ATTORNEY AT LAW
GOLDMAN & COMPANY
HARMON COVE TOWER ONE SUITE AL-13
SECAUCUS, NEW JERSEY 07094
DATE: 08/11/00
CASE NO. 009437258
AMOUNT DUE: $216.73
RE: BURLINGTON COAT FACTORY SC
* * *
Dear SIDNEY DAVIS III,
I have been retained by the above-referenced client
to assess the possibility of taking legal action against
you. This matter involves the issuance of fraudulent
checks. Issuance of fraudulent checks is a violation
of criminal state statute. The law provides my client
with certain legal remedies to enforce their claim. They
may file a criminal complaint with local authorities
seeking criminal charges against you. If you are prose-
cuted and convicted, you may have a permanent crim-
inal record. If my client decides to sue civilly, you
may receive a summons at home or work that may
require a court appearance. Losing the lawsuit may
allow the court to order garnishments of your wages,
attachment of bank accounts and seizure of property.

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No. 01-4189 3
1 It is not entirely clear from the record why the action was
filed only against Hutchins rather than against the company for
which he allegedly worked. According to Davis’s attorney, in
response to a question at oral argument, Goldman & Company
does not exist; therefore, he sued Hutchins, the only real person
he could find connected with the company. Hutchins disputes
the fact that Goldman is a fiction, but this issue has no bear-
ing on our decision, so we need not delve any deeper into this
mystery.
This matter was previously placed with a collection
agency that made numerous unsuccessful efforts at a
resolution. This is a serious matter involving possible
violation of state law and will be your last opportu-
nity for amicable resolution. THE CHOICE IS YOURS.
You can avoid the possibility of the aforementioned
criminal and/or civil action only by paying the total
amount due within 10 days.
* * *
Sincerely,
PAUL ANDERSON
201-392-0500 Ext. 200
Some months thereafter, Davis filed a class-action
complaint against Hutchins, 1 alleging that he had violated
various sections of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (2003), including
§ 1692e(3) (false representation of attorney involvement),
§ 1692e(5) (false threat to sue and misleading statement
of legal consequences of a lawsuit), § 1692e(11) (failure to
provide “Mini-Miranda” notice), and § 1692g (failure to
provide statutorily required validation notice).
In the complaint, Davis defined the proposed class as
all persons in Illinois from whom Hutchins attempted to
collect a debt allegedly owed to Burlington Coat Factory,

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4 No. 01-4189
within one year before the filing of the complaint. As the
only named plaintiff in the complaint, Davis sought to be
appointed as representative of the class, which he alleged
consisted of more than 30 persons.
Hutchins was served with the complaint on August 6,
2001. He then chose to represent himself in this matter,
and the following debacle ensued.
Hutchins responded to the complaint by mailing a
document entitled “Brief in Support of Motion to Dismiss”
to the clerk of the district court in Chicago with a copy
to counsel for Davis. No motion to dismiss accompanied
the brief, and the brief exceeded the page limit allowed
by the Local Rules of the district court. Hutchins did not
send a notice of presentment, also as required by the
Local Rules. Further, on the cover letter that Hutchins
sent to the clerk (but not on his brief) he listed the wrong
case number. As a result, on August 27, the district-court
clerk misfiled the brief, and the filing did not show up
on the docket for this case. To add to these transgres-
sions, Hutchins also failed to enter an appearance.
On September 21, 2001, counsel for Davis contacted
Hutchins by fax to inform him of the several deficiencies,
including the fact that the court’s docket did not reflect
that Hutchins had filed anything. Davis’s attorney indi-
cated that he would move for a default if Hutchins did not
file a proper response to the complaint.
In turn, Hutchins made multiple calls to the district
court case manager and the trial court’s courtroom deputy
clerk regarding the status of his “motion.” At some point
during these calls Hutchins realized that he had put the
wrong case number on the cover letter and suggested to the
case manager that his brief might be found under that
wrong number.
On September 25, the courtroom deputy clerk called
Hutchins to inform him that his brief had been located, but

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No. 01-4189 5
that the notice of presentment was missing and the page
limit had been exceeded. She told him that she would
return the documents to him and he could make correc-
tions. During this call, she also informed Hutchins that
an initial status hearing on the case had been set for
October 4. Hutchins asked her if he needed to appear
telephonically at the October 4 status conference. Accord-
ing to Hutchins, she informed him that if he returned the
corrected documents there would be no need to appear,
and further, that the court generally did not require
personal appearances for a motion to dismiss.
On September 28, Davis’s attorney faxed Hutchins a
document-production request, an interrogatory, and a
request that Hutchins contact him for a discovery con-
ference. Hutchins responded to the requests by faxing
the cover sheet back to Davis’s attorney with a handwrit-
ten notation stating, “You guys are pretty funny!” with a
smiley face drawn after the statement. This was the only
response Hutchins ever made to the discovery requests.
Three days later, on October 1, Davis filed a motion for
default. The motion for default was sent to Hutchins with
a notice that it would be presented on October 4 at the
previously scheduled status hearing.
Hutchins returned his “Brief in Support of Motion to
Dismiss” to the court on October 2, and noticed it for
hearing on October 10. He also filed a motion to accept
a brief in excess of the page limit. Again, however, he failed
to file an actual motion to dismiss or enter an appearance.
On the morning of October 4, Davis, by his counsel,
appeared before the district court for the status hearing
and to present his motion for default. Hutchins failed to
show. The courtroom deputy clerk explained at the be-
ginning of the hearing that Hutchins’s original brief
had been misfiled and contained certain errors, but that
the problems appeared to be corrected.

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6 No. 01-4189
Davis’s attorney, however, argued that default was
still appropriate based on the fact that Hutchins had
still not filed an appearance, that he had not filed a prop-
er response to the complaint, and that he had responded
to counsel’s discovery requests with a flippant refusal to
participate in discovery. The district judge ordered de-
fault entered against Hutchins and thereafter set Novem-
ber 1 as the date for the damage prove-up.
Though default had been entered, the hearing for
Hutchins’s motion to dismiss remained on the court’s
docket for October 10. On that day, Davis’s attorney
appeared to oppose the motion, but once again Hutchins
failed to show. Consequently, the district court struck
Hutchins’s motion for want of prosecution. Apparently,
also on October 10, the clerk’s office received by mail
Hutchins’s motion for reconsideration of the court’s de-
fault order, which he noticed for hearing on October 17.
On October 17, Hutchins actually appeared in court
to argue his motion to reconsider the default entry. The
judge, however, did not find satisfactory his explana-
tions for why he still had not filed an appearance, why
he failed to comply with the local rules on filing motions,
why he refused to participate in discovery, and why he
failed to appear at either the October 4 or October 10
hearings. Not surprisingly, the motion to reconsider was
denied.
On October 23, Davis filed a brief in support of his
damages claim. Davis sought actual damages of $1000,
statutory damages of $1000, and attorney’s fees of roughly
$18,000. On behalf of the class, Davis sought a $500,000
statutory damage award.
Hutchins did not file a brief opposing the damages claim.
He did file a brief on October 29 in opposition to class
certification, in which he argued that Davis could not
satisfy the numerosity requirement or show that his claim

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No. 01-4189 7
was typical to the proposed class. He did, however, attach
an affidavit to the brief that asserted that his salary at
Goldman was $52,000 per year, that he had over $100,000
in law-school loans, and $15,000 in unsecured debt, and
therefore had no ability to satisfy Davis’s requested judg-
ment.
On November 1, 2001, the date set for the original
damage prove-up hearing, Hutchins again failed to at-
tend. The district court, however, decided not to deter-
mine damages at that time because Hutchins had (pre-
maturely) filed an appeal with this Court. The district
court stated that it would rather wait until we dis-
missed the premature appeal before ruling on damages.
Therefore, the district court reset the damage prove-up
hearing for November 21. At our behest, Hutchins filed a
motion for voluntary dismissal, and we dismissed the
appeal on November 8.
On November 21, the district court held the hearing
for damage prove-up. Once again, Hutchins failed to ap-
pear. The district court entered a default judgment against
Hutchins of $2000 for actual and statutory damages,
$500,000 in damages for the class, and $18,861.75 for
attorney’s fees and costs.
Following the entry of default judgment against him,
Hutchins brought this appeal, claiming that the district
court’s judgment violated his Fifth Amendment Due Proc-
ess rights and that the district court erred in entering
the default and in granting class-action damages.
Oral argument before this Court was originally set for
September 24, 2002. When the case was called, we discov-
ered that Hutchins was not present. On our own motion,
ascribing his absence to a clerk’s office error, we reset
oral argument for November 4, 2002. Both parties ap-
peared and oral argument was held.

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8 No. 01-4189
II. Analysis
A. Procedural Due Process
Hutchins argues that the entry of a default judgment in
an amount in excess of $500,000 violates his due process
rights because, according to him, it deprives him of his
property without a hearing. “Due process does not, of
course, require that the defendant in every civil case
actually have a hearing on the merits.” Boddie v. Connecti-
cut, 401 U.S. 371, 378 (1971). Indeed, in most cases where
default is entered there is by definition no hearing on the
merits. Id. Rather, due process is satisfied when the
defendant is given notice and an opportunity to respond.
Sports Center, Inc. v. Brunswick Marine, 63 F.3d 649, 651
(7th Cir. 1995).
There can be no dispute in this case that Hutchins
was afforded notice and the opportunity to respond. He
received notice of the motion for his default. He knew
that a hearing would be held on October 4 at which the
plaintiff would argue for default. Hutchins simply did
not attend the hearing. Further, he did not appear to ar-
gue his own motion to dismiss on October 10. And before
the entry of the default judgment, Hutchins failed to at-
tend two separate hearings on the issue of damages. Given
the several opportunities Hutchins had to respond, as well
as adequate notice of these opportunities, his due-proc-
ess argument is unavailing.
B. Entry of Default
Hutchins also argues that the district court’s entry of
default, default judgment, and denial of his motion to

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No. 01-4189 9
2 We note that neither Hutchins nor the district court specify
whether the “motion to reconsider” was brought under Rule 55(c),
Rule 59(e), or Rule 60(b). Because at the time the motion was
made a final order or judgment had not yet been entered, we
assume it was not a Rule 60(b) motion. And because it was
essentially a challenge to the entry of default, we think it most
appropriate to consider it as a Rule 55(c) motion. Because “the
standard to set aside an entry of default under Rule 55(c) is
essentially the same as the standard for vacating a default
judgment under Rule 60(b),” any practical impact regarding
how we construe the motion is negligible. Chrysler Credit Corp.
v. Macino, 710 F.2d 363, 367 (7th Cir. 1983); see also 10A W RIGHT
ET AL ., F EDERAL P RACTICE AND P ROCEDURE § 2694 (3d ed. 1998).
reconsider the entry of default were erroneous. 2 We re-
view the district court’s entry of default, the default judg-
ment, and the trial court’s disposition of a motion to
reconsider a default judgment under an abuse-of-discre-
tion standard. Robinson Eng’g Co. Pension Plan & Trust
v. George, 223 F.3d 445, 448 (7th Cir. 2000).
Generally, we have held that the district court is jus-
tified in entering default against a party and refusing
to vacate the default if the defaulting party has exhibited
a willful refusal to litigate the case properly. See Hal
Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1138
(7th Cir. 1987) (“[A]n appellate court will not reverse
the denial of Rule 60(b) relief when entry of the default
judgment resulted from the defaulting party’s willful
refusal to comply with the minimum standards of con-
duct expected of all litigants”); C.K.S. Eng’rs, Inc. v.
White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th
Cir. 1984) (“Where it appears that the defaulting party
has willfully chosen not to conduct its litigation with the
degree of diligence and expediency prescribed by the trial
court, this circuit has repeatedly upheld the trial court’s
[refusal to grant relief from the default]”). We have noted
that this willfulness is shown in a party’s continuing

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10 No. 01-4189
disregard for the litigation or for the procedures of the
court. Inryco Inc. v. Metro. Eng’g Co., 708 F.2d 1225, 1231
(7th Cir. 1983).
After reviewing the facts of the case before us, we
find that the lengthy list of Hutchins’s failings displays
a willful choice not to exercise even a minimum level of
diligence. While some of the requirements may be more
technical than substantive, his unwillingness to abide by
them shows a disregard for the most basic rules that en-
sure efficiency in litigation. First, Hutchins did not file
an appearance until October 17, 2001, over two months
after he received the complaint and thirteen days after
the district judge had ordered default entered against
him. The only reason he filed an appearance at this point
was because the district judge and court clerk informed
him at the October 17 hearing that he needed to do so.
Second, Hutchins’s attempted responsive pleading, even
assuming that the case-number and misfiling mix-up
was not entirely attributable to him, was woefully inade-
quate. His “Brief in Support of Motion to Dismiss” was
not accompanied by an actual motion to dismiss and
exceeded the specified page limit. Moreover, he did not
file a notice of presentment along with his “motion.” All
of these requirements are plainly set forth in the Local
Rules of the district court.
Third, he responded to the plaintiff’s requests for dis-
covery and a discovery conference with the totally unpro-
fessional and extraordinarily flippant answer of “You
guys are pretty funny!” and a smiley face. This approach
to discovery practice is completely unacceptable, and
Hutchins offers no satisfactory explanation, nor could he,
as to what might justify such a response.
Fourth, Hutchins did not attend the October 4 hearing
at which the district judge ordered default entered
against him. Just as he does in attempting to explain his

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No. 01-4189 11
failure to file an appropriate responsive motion, he blames
his absence on someone else, claiming that the court-
room deputy told him on September 25 that if he re-
turned a corrected motion to dismiss to the court, there
would be no need for him to appear telephonically or
otherwise at the initial status hearing on October 4.
We note at the outset that Hutchins does not, in his
appellate brief, cite to any portion of the record to sup-
port this version of the facts, and our review of the
record reveals none. Even assuming, however, that
Hutchins’s version is correct, we are not satisfied with
his excuse. Relying only on oral representations by a
courtroom deputy clerk as to when you need to be present
for a hearing is an extremely precarious way to conduct
one’s defense.
Further, five days after the alleged conversation, Davis
filed a motion for default and noticed it for hearing on
October 4. Hutchins was fully aware that the default
motion would be presented on October 4. Surely, Hutchins
should have realized that the courtroom deputy clerk’s
statement (assuming such statement was made) about
not needing to appear for an initial status hearing was
no longer operative since this was now a hearing on de-
fault. Yet despite the changed nature of the hearing,
Hutchins still did not attend.
That Hutchins’s actions leading up to the entry of de-
fault were not just a series of unfortunate miscom-
munications and missteps is bolstered by his continuing
willful disregard and refusal to appropriately participate
in the litigation following the default entry. He did not
appear to present his motion to dismiss on October 10. He
did not appear at either of the scheduled hearings on
damages, nor did he file any briefs with the court regard-
ing damages.
While any single one of Hutchins’s actions or omissions
alone might not have warranted a default (although we

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12 No. 01-4189
do not foreclose that possibility), when we look at the en-
tire scenario it is clear that Hutchins exhibited a continu-
ing and willful disregard for this litigation and for the
procedures in federal court.
Furthermore, this is not a scenario where an unscrupu-
lous plaintiff and his attorney have taken advantage of
an unwary defendant. Here, Davis’s attorney notified
Hutchins that his filing did not show up on the district
court docket, notified him that his filing did not comply
with local rules, gave Hutchins the web address where
the local rules could be accessed, warned him that if the
errors were not corrected he would seek default, gave him
time to correct the problems, and notified him when he
filed his motion for default. All this is capped off by the
fact that Hutchins is a licensed attorney.
Consequently, we find that the district court did not
abuse its discretion by ordering Hutchins defaulted or
by refusing to vacate the default entry.
C. Damages
At the completion of the November 21 damage prove-
up hearing, the district court entered default judgment
against Hutchins, awarding Davis all damages sought:
actual and statutory individual damages of $2000 pursu-
ant to § 1692k(a)(1) and § 1692k(a)(2)(A) of the FDCPA,
costs and attorney’s fees of $18,861.75 pursuant to
§ 1692k(a)(3), and $500,000 in class damages pursuant to
§ 1692k(a)(2)(B), which allows for a class recovery not to
exceed the lesser of $500,000 or 1% of the net worth of
the offending debt collector.
Hutchins raises no valid objection to the entry of actual
and statutory individual damages; thus, we will affirm
those damages against him. Hutchins also raises no
objection to the entry of costs and attorney’s fees, which are

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No. 01-4189 13
3 Federal Rule of Civil Procedure 23(a) provides that “One or
more members of a class may sue or be sued as representa-
tive parties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable, (2) there are
questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims
or defenses of the class, and (4) the representative parties
will fairly and adequately protect the interests of the class.” F ED .
R. C IV . P. 23(a)
4 Federal Rule of Civil Procedure 23(c)(1) states: “As soon as
practicable after the commencement of an action brought as a
class action, the court shall determine by order whether it is to be
so maintained. An order under this subdivision may be condi-
tional, and may be altered or amended before the decision on
the merits.”
awarded under the FDCPA to any plaintiff succeeding in
an action to enforce the act; therefore, we will affirm this
aspect of the judgment.
Hutchins objects to the class-action damages because,
he claims, Davis cannot satisfy the four basic require-
ments of Federal Rule of Civil Procedure 23(a) for class
certification. 3 Further, he maintains that the $500,000
award exceeds the amount allowed by the § 1692k(a)(2)(B)
because in order to justify this judgment his net worth
would have to be greater than $50,000,000, whereas his
actual net worth is negative.
Putting these arguments aside, we find a more funda-
mental problem with the award of class damages in this
case. Although the district court awarded class damages,
no class was certified as required by Rule 23(c)(1). 4 Class
damages cannot be awarded if no class is certified. Davis
v. Romney, 490 F.2d 1360, 1366 (3d Cir. 1974) (“Relief
cannot be granted to a class before an order has been
entered determining that class treatment is proper.”); see

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14 No. 01-4189
also 7B Wright et al., F EDERAL P RACTICE AND P ROCEDURE
§ 1785 (3d ed. 1998).
Davis, while admitting that the district court never
actually certified the class in this case, appears to argue
that the class was effectively certified by the entry of
default, apparently basing this claim on the principle that
when a judge orders a default entered, the factual allega-
tions in the complaint are deemed to be admitted by the
defendant. And since the complaint alleged facts neces-
sary to satisfy the requirements of Rule 23(a), the defen-
dant has admitted those facts to be true.
There is the general principle that factual allegations
in the complaint are deemed admitted by the defen-
dant upon default; however, application of that general
principle does not solve the class-certification issue. Rule
23(c) imposes an independent duty on the district court
to determine by order that the requirements of Rule 23(a)
are met regardless of the defendant’s admissions. No
such judicial determination was made here.
The Supreme Court has made clear that a class “may
only be certified if the trial court is satisfied, after a
rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied,” and “actual, not presumed, confor-
mance with Rule 23(a) remains . . . indispensable. Gen.
Tele. Co. of the S.W. v. Falcon, 457 U.S. 147, 160-61 (1982).
The requirement that the district court conduct this
“rigorous analysis,” among other things, serves the impor-
tant function of protecting absent class members whose
rights may be affected by the class certification. Davis, 490
F.2d at 1366 (“Because the class action determination
affects the rights of class members not before the court,
as well as named plaintiffs and defendants, it is not
sufficient that plaintiffs make an uncontested motion for
a class determination. The Rules impose the additional
requirements of class determination and definition on the

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No. 01-4189 15
district judge.”); see also 7B W RIGHT ET AL ., F EDERAL
P RACTICE AND P ROCEDURE § 1785 (3d ed. 1998) (“A formal
class certification determination plays an important role
in assuring adequate protection to the absent class mem-
bers. The judge in reviewing whether all the criteria of
Rule 23 are satisfied can consider possible conflicting
interests, and can redefine the class to accommodate
those concerns or utilize notice to ensure that the class
members have an opportunity to be heard.”). Allowing
certification by default or because the defendant has
admitted that the class exists, with no independent analy-
sis or determination by the district judge, would remove
this important protection.
With no class certification, § 1692k(a)(2)(B) is not ap-
plicable and no class damages can be awarded pursuant
thereto.
III. Conclusion
Because no class was certified in this case, the $500,000
award of class damages is vacated. The district court
properly granted the individual damages award to Davis
of $1000 in actual damages, $1000 in statutory damages,
and $18,861.75 in attorney’s fees and costs. As so M ODIFIED ,
the district court’s default judgment is A FFIRMED . Post-
judgment interest shall accrue from the date of the orig-
inal judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-26-03

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