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Miller v. Adler

United States District Court, D. New Jersey

October 29, 2018

JOEL MILLER, et al., Plaintiffs,
v.
ALISA ADLER, et al., Defendants.

          MEMORANDUM OPINION

          HON. JEROME B. SIMANDLE, DISTRICT JUDGE

         This matter comes before the Court on the motion of Plaintiffs Joel Miller and Stephanie Segal Miller (hereinafter, collectively, “Plaintiffs”) for default judgment against Defendant Alisa Adler [Docket Item 29] and Defendant Daniel Hirsch [Docket Item 33] (hereinafter, collectively, “Defendants”). On September 15, 2017, Plaintiffs filed this suit alleging four counts of breach of contract, unjust enrichment, fraud, and civil conspiracy against Defendants related to two proposed real estate transactions. (See Complaint [Docket Item 1].) Because Defendants have not answered Plaintiffs' Complaint and the time to do so has long expired, Plaintiffs now seek default judgment against Defendants under Federal Rule of Civil Procedure 55(b). For the reasons that follow, Plaintiffs' unopposed motions for default judgment will be granted in part, denied without prejudice in part, and dismissed without prejudice in part, [1] and the Court will enter a Default Judgment in favor of Plaintiffs and against Defendant Adler in the amount of fifty-three thousand, seven hundred and sixty dollars ($53, 760.00) and against Defendants Adler and Hirsch, jointly and severally, in the amount of two hundred and nineteen thousand, five hundred and thirty-four dollars ($219, 534.00).

         The Court finds as follows:

         1. Factual and Procedural Background.

         Plaintiffs filed their Complaint [Docket Item 1] on September 15, 2017, alleging that Defendants breached their obligations to Plaintiffs with respect to two separate transactions. Plaintiffs allege that on August 26, 2014 Plaintiff Stephanie Segal Miller entered into the first transaction: a Promissory Note with Defendant Adler, under which Plaintiff Stephanie Segal Miller would loan Defendant Adler fifty-thousand dollars ($50, 000.00), to be repaid within six (6) months with interest.[2] (See Complaint [Docket Item 1], ¶¶ 1-2.) Plaintiffs allege that they transferred the fifty thousand dollars ($50, 000.00) from an account held jointly by Plaintiffs to Defendant Adler on August 29, 2014, [3] but that Plaintiff Stephanie Segal Miller was never repaid, despite her repeated requests. (Id. at ¶¶ 2A, 4.) Plaintiffs further allege that they are owed 15% per annum interest on the loan for the duration of the loan, from August 29, 2014 to February 28, 2015. (See Declaration of Stephanie Segal Miller (hereinafter “Miller Dec.”) [Docket Item 29-3], ¶ 9.) Plaintiffs calculate such interest to total three thousand, seven hundred and sixty dollars ($3, 760.00).[4] (See id.) Therefore, in relation to the first loan, Plaintiffs seek total damages in the amount of fifty-three thousand, seven hundred and sixty dollars ($53, 760.00) from Defendant Adler. (See id. at ¶¶ 9-10.)

         2. Plaintiffs further allege that on March 26, 2015 Plaintiff Stephanie Segal Miller entered into a second transaction with both Defendants: “a loan/investment for $150, 000 for property in Atlanta, Georgia, ” of which Defendants “personally guaranteed repayment.”[5] (Complaint [Docket Item 1], ¶¶ 2B-3.) Plaintiffs allege that the one hundred and fifty thousand dollars ($150, 000.00) from an account held jointly by Plaintiffs to Defendants on March 26, 2015, [6] but that Plaintiff Stephanie Segal Miller was never repaid, despite her repeated requests. (Id. at ¶¶ 2B, 4.) Plaintiffs further allege that they are owed 15% per annum interest on the loan for the duration of the loan, from May 26, 2015[7] to June 27, 2018.[8] (See Miller Dec. [Docket Item 29-3], ¶ 11.) Plaintiffs calculate such interest to total sixty-nine thousand, five hundred and thirty-four dollars ($69, 534.00).[9] (See id.) Therefore, in relation to the second “loan/investment, ” Plaintiffs seek total damages in the amount of two hundred and nineteen thousand, five hundred and thirty-four dollars ($219, 534.00) from both Defendants. (See id. at ¶¶ 11-12.)

         3. Defendant Hirsch was Properly Served and is in Default.

         The Complaint together with the summons were personally served upon Defendant Hirsch on September 21, 2017 at 45 W. Bluff Drive, Savannah, GA 31406. (See Proof of Service Summons [Docket Item 8].) Defendant Hirsch has never filed an answer to Plaintiffs' Complaint, and the Clerk of Court accordingly entered default against Defendant on July 18, 2018.[10] Plaintiffs' motion for default judgment against Defendant Hirsch followed, to which Defendant has not filed a response.[11] (See Motion for Default Judgment [Docket Item 33].)

         4. Defendant Adler was Properly Served and is in Default.

         Plaintiffs assert that they initially made numerous attempts to personally serve Defendant Adler with the Complaint and summons, at her residence, 365 West 28th Street, Apartment 18B, New York, NY 10001, as detailed in their Certification of Service. (See Certification of Service [Docket Item 18], ¶¶ 2-5.) Plaintiffs assert that their attempts at personal service were unsuccessful, though it appeared to their process server that Defendant Adler was at home during the attempted service and was refusing to answer the door. (See id.)

         5. After the numerous failed attempts at personal service, Plaintiffs concluded that Defendant Adler was “actively evading service, ” and Plaintiffs therefore sought to serve Defendant Adler, pursuant to Federal Rule of Civil Procedure 4(e)(1), by utilizing the laws of the State of New Jersey (the state in which this Court is located) and of the State of New York (the state in which service was being made). (See id. at ¶¶ 7-8; Fed.R.Civ.P. 4(e)(1).)

         6. New Jersey law specifies that

[i]f personal service cannot be effected after a reasonable and good faith attempt, . . . service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant . . . . If the addressee refuses to claim or accept delivery of registered or certified mail, service may be made by ordinary mail addressed to the defendant's usual place of abode. The party making service may, at the party's option, make service simultaneously by registered or certified mail and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service.

N.J. Ct. R. § 4:4-3(a). Plaintiffs allege that they effected service “by mailing a copy of the Summons, Verified Complaint, and Case Information Statement to Defendant [Adler] simultaneously by certified mail, return receipt requested, and ordinary mail to Defendant [Adler]'s residence at 365 West 28th Street, Apartment 18B, New York, New York 10001.” (Certification of Service [Docket Item 18], ¶ 8.) It appears to the Court that Plaintiffs sent the certified and ordinary mail on November 22, 2018. (See Exhibit 3 [Docket Item 18], 21 on the docket.)

         7. New York law specifies that where personal service of a defendant or service to a defendant's place ...


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