HUNTER v. BETTER SPEECH AND FEEDING CTR., INC. et al

Filing 24

ORDER denying Without Prejudice 18 Motion for Default Judgment. Signed by Judge Renee Marie Bumb on 1/7/2021. (rtm, )

Case 1:18-cv-10556-RMB-JS Document 24 Filed 01/07/21 Page 1 of 7 PageID: 122
[Dkt. No. 18]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KELI HUNTER,
Civil Action
No. 18-cv10556 (RMB/JS)

Plaintiff,
v.
BETTER SPEECH AND FEEDING CENTER, INC.; and
SPEECH PATH SERVICES, LLC; and
MELISSA MILES, as the Corporate Alter Ego

MEMORANDUM
ORDER

Defendants.

BUMB, District Judge
Thi

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( M

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J dg e

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Hunter ( P ai

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) [D

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. N . 18] fi ed b

M
P ai

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f

Defa

iff Ke i

iff ) on January 3, 2020. For the reasons set

forth below, Plaintiff

Motion will be denied without prejudice

to allow her to refile her Motion consistent with this
Memorandum Order.

Background
Plaintiff Keli Hunter brings this suit against Defendants
Be

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S eech a d Feedi g Ce

S eech Pa h Se
P ai

iff

P ai

iff ha

e , I c., ( Be

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S eech ),

ice , LLC., ( S eech Pa h ), a d Me i

a Mi e .

Motion will be denied for several reasons. First,
fai ed

e

e

e Be

e

S eech

Case 1:18-cv-10556-RMB-JS Document 24 Filed 01/07/21 Page 2 of 7 PageID: 123

registered agent, as ordered by United States Magistrate Judge
Joel Schneider on May 8, 2019. [See Dkt. No. 12]. Second,
Plaintiff has failed to provide sufficient evidence against
Speech Path to warrant default judgment. Third, although
Plaintiff has properly served Melissa Miles in her individual
capacity, Plaintiff has not sufficiently established a basis for
Miles

individual liability.

I. Service upon and evidence against Better Speech
P ai

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and S eech Pa h
each

he

Complaint avers that Defendants Better Speech
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hei

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[Dkt. No. 1, pg. 2]. The Court, however, has not received any
evidence regarding the relationship between these two companies.
For example, the Plaintiff has not introduced any documents at
all, including pay stubs, that would indicate an employeremployee relationship.
P ai

iff

Amended Complaint [Dkt. No. 3], filed on July

25, 2018, adds Defendant Melissa Miles to the matter as the sole
Director of Better Speech, and the sole managing member of
Speech Path. Id. at 2. Plaintiff makes these assertions based on
b ic b

i e

e

i

ec

d .

Plaintiff later provided the

Court with documentation from the Business Entity Information
and Records Service of the New Jersey Business Gateway
2

Case 1:18-cv-10556-RMB-JS Document 24 Filed 01/07/21 Page 3 of 7 PageID: 124

indicating that Melissa Miles is a Director of Better Speech.
[Dkt. No. 9, Ex. D].
While Defendant Miles was successfully served in her
individual capacity on April 6, 2019 [Dkt. No. 11], Plaintiff
has failed to comply with the order issued by Judge Schneider on
May 8, 2019. [Dkt. No. 12]. In that order, Judge Schneider
instructed the P ai

iff

ha ,

i

de

e

e Be

e

S eech,

plaintiff need only effect service once more [emphasis added]
upon Miles in her capacity a

he c

a i

pursuant to N.J. Ct. R. 4:4-4(a)(6).
Judge Schneider denied P ai

iff

di ec

[Dkt. No. 12, page 5].

Motion for alternative

service upon Better Speech and directed that P ai

iff

may

serve Better Speech by personally serving Melissa Miles, in her
capacity as Director of Better Speech, pursuant to N.J. Ct. R.
4:4-4(a)(6).

Id. at 6. Si ce J dge Sch eide

de , Plaintiff

has not submitted proof that service was conducted upon Melissa
Miles in her capacity as Director of Better Speech.
Plaintiff seemingly

de

d J dge Sch eide

de

when

she advised the Court on August 20, 2019 that she hired an
investigator to locate Defendant Miles, after Miles failed to
leave a forwarding address. [Dkt. No. 15]. The fact that
Plaintiff successfully served Miles with the application for
defa

a d

ice

f c e

e

f defa

[Dkt. No. 18, Ex.

D] on November 12, 2019 in Bristol, Tennessee, however, does not
3

Case 1:18-cv-10556-RMB-JS Document 24 Filed 01/07/21 Page 4 of 7 PageID: 125

comply with J dge Sch eide

order to serve the initial summons

to Defendant Miles in her capacity as Director of Better Speech.
Throughout the course of this case, Plaintiff has yet to
properly serve Better Speech, as indicated in detail by Judge
Schneider in his order. Thus, service upon Better Speech has not
been effected and the Court will deny the Motion for Default
Judgment against Better Speech without prejudice.

II. Evidence against Speech Path
P ai

iff

e e ci e
b
a d

Amended Complaint asserts that Defendant Miles

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ia

ha

di

a

a

a i e c

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ega d

f

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Defe da

he Defe da

e a a e

e a e i

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,
f

ac

i h

he Defe da

,

ch a way that there exists

serious ambiguity about the manner and capacity in which each of
he Defe da

a e ac i g.

Id. at 10.

While Plaintiff has provided the Court with business
ec

d

i dica i g Defe da

Mi e

e a

a Director with

Better Speech, the Court has received no such evidence that
denotes the relationship between Miles and Speech Path. Outside
f

he a

ega i

a

e

ed i

P ai

iff

Amended Complaint,

Plaintiff has not provided sufficient evidence of her
entitlement to an award against Speech Path.
Service of process was successfully effected upon Speech
Path on August 31, 2018 [Dkt. No. 7], yet mere successful
4

Case 1:18-cv-10556-RMB-JS Document 24 Filed 01/07/21 Page 5 of 7 PageID: 126

service is insufficient to grant a Motion for Default Judgment
without further evidence to support Plaintiff

a

ega i

. In

deciding a motion for default judgment, "the factual allegations
in a complaint, other than those as to damages, are treated as
conceded by the defendant." DIRECTV, Inc. v. Pepe, 431 F.3d 162,
165 (3d Cir. 2005). The Court, however, must make "an
independent inquiry into 'whether the unchallenged facts
constitute a legitimate cause of action'" and "must make an
independent determination" regarding questions of law. Days Inn
Worldwide, Inc. v. Mayu & Roshan, L.L.C., No. 06-1581, 2007 U.S.
Dist. LEXIS 41997, 2007 WL 1674485, at *4 (D.N.J. June 8, 2007).
Despite proper service upon Speech Path, the Court does not
understand how, nor was it presented evidence of,

hi

c

relationships with Defendants and Plaintiff. Indeed, Plai
Amended Complaint alleges

serious ambiguity

a
iff

between the two

Defendants. Plaintiff must do more to persuade this Court that
she is entitled to judgment against Speech Path. The Court
therefore denies the Motion for Default Judgment without
prejudice.

III. Defendant Miles as Corporate Alter Ego
While Defendant Miles was successfully served in her
individual capacity on April 6, 2019 [Dkt. No. 11], Plaintiff
has failed to put forth sufficient evidence to support why Miles
5

Case 1:18-cv-10556-RMB-JS Document 24 Filed 01/07/21 Page 6 of 7 PageID: 127

should be personally liable in this case. To support personal
liability on behalf of Miles requires an analysis as to how her
actions and practices would allow for a piercing of the
corporate veil.
As Plaintiff seeks, piercing the corporate veil requires
two elements: a unity of interest and ownership that the
separate personalities of the corporation and the individual no
longer exist, and the circumstances must indicate that adherence
to the fiction of a separate corporate existence would sanction
a fraud or promote injustice. The Mall at IV Group Props., LLC
v. Roberts, 2005 U.S. Dist. LEXIS 31860, *3 (D.N.J. 2005). The
Court must consider six non-exhaustive factors in addressing the
first element:
1) gross undercapitalization; ... 2) failure to observe
corporate formalities, 3) non-payment of dividends; 4) the
insolvency of the debtor corporation; siphoning of funds of
the corporation by the dominant stockholder; 5) nonfunctioning of other officers or directors; absence of
corporate records; and 6) the fact that the corporation is
merely a facade for the operations of the dominant
stockholder[s]. Craig v. Lake Asbestos of Quebec, Ltd., 843
F.2d 145, 150 (3d Cir.1988).
For the second element, Plaintiff must allege that the
corporation committed a fraud, injustice, or the like. The Mall
6

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at IV, supra, at 10. None of these factors are detailed, much
less mentioned, i

P ai

iff

filings, and therefore the Court

is unpersuaded that individual liability attributed to Defendant
Miles is supported at this time. Therefore, the Motion for
Default Judgment is denied without prejudice.

THEREFORE,
IT IS HEREBY on this 7th day of January, 2021
ORDERED that for the foregoing reasons, the Motion for
Default Judgment is denied without prejudice. To the extent
Plaintiff can cure the foregoing deficiencies, she may file a
renewed motion.

RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

7