United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge
MATTER is before the Court on Plaintiff Atlantic
Broadband Finance, LLC's (“Plaintiff”) Second
Motion for Default Judgment and supporting brief and
exhibits. (Doc. No. 24).
filed suit against Defendants Equinox Global
Telecommunications, Inc. and Ladonna Martin (collectively,
“Defendants”) on January 15, 2016. (Doc. No. 1:
Compl.). Defendants were served with the Summons and
Complaint on January 26, 2016. (Doc. No. 5). On February 5,
2016, Plaintiff filed a Motion for Preliminary Relief. (Doc.
No. 6). Defendants failed to respond to Plaintiff's
Motion, which the Court then granted on March 29, 2016. (Doc.
No. 16). Pursuant to Federal Rule of Civil Procedure
12(a)(1)(A)(i), Defendants had until February 19, 2016, to
file an Answer to Plaintiff's Complaint. Defendants
failed to file an answer or otherwise make an appearance in
this case. Accordingly, on July 13, 2016, this Court ordered
Plaintiff to file a Motion for Entry of Default. (Doc. No.
17). Default was entered on July 26, 2016. (Doc. No. 19).
March 9, 2017, Plaintiff filed its Motion for Default
Judgment, (Doc. No. 20), but failed to attach a supporting
brief, in violation of Local Rule 7.1(c). See LCvR
7.1(c). On February 22, 2018, this Court denied
Plaintiff's Motion for Default Judgment without prejudice
to renewal. (Doc. No. 22 at 9). The Court ordered Plaintiff
to submit another motion accompanied by (1) a supporting
brief connecting [its] allegations to the causes of action
they are meant to support and (2) further documentary
evidence illustrating the amount Plaintiff sent to Defendants
pursuant to their contract. (Doc. No. 22 at 9). On February
5, 2019, the Court issued an Order to Show Cause why
Plaintiff had not yet provided the Court with a renewed
motion for default judgment along with a supporting brief and
exhibits. (Doc. No. 23). The Court gave Plaintiff fourteen
days to file a renewed motion and supporting documentation
and warned that failure to do so would result in dismissal of
all claims against Defendants. (Id.).
compliance with the Court's Show Cause Order, Plaintiff
submitted a New Motion for Default Judgment accompanied with
a supporting brief and exhibits on February 19, 2019. (Doc.
No. 24). Accordingly, the Court now turns its attention to
this Motion today. But first, the Court gives a summary of
the facts giving rise to this suit.
limited liability company organized under the laws of
Delaware with its principal place of business in
Massachusetts—filed this breach-of-contract, diversity
suit against Defendants on January 15, 2016. (Doc. No. 1
¶ 1). In doing so, Plaintiff seeks to recover a money
judgment in the amount of $445, 224.00, which represents the
sum of two payments made by Plaintiff to Defendant Equinox, a
North Carolina corporation: (1) a wire transfer of $428,
100.00 in June of 2014 and (2) a check for $17, 124.00 sent
and negotiated in February 2015. (Doc. No. 1 at 1- 2).
Plaintiff alleges that it made each payment at the direction
of Defendant Martin, a resident of Mecklenburg County, North
Carolina, who is listed on documents filed with the North
Carolina Secretary of State as the president of Defendant
Equinox and who has represented herself as the sole owner and
director of Defendant Equinox. (Id. ¶¶
3-4). Plaintiff alleges that these “funds were a
deposit for the goods and services to be provided by
Defendant Equinox for the laying over 170 miles of fiber
optic cable through part of South Carolina and Georgia
pursuant to a written Dark Fiber TRU Agreement executed in
full on May 20, 2014 (the ‘Fiber Optic
Contract').” (Id.) This contract was
reviewed and executed between Plaintiff and Defendant Martin,
acting on Defendant Equinox's behalf. (Id.
¶¶ 8-9; Doc. No. 1-1: Fiber Optic Contract at 18).
Plaintiff contends that “[d]espite glimpses of
legitimacy, Defendant Equinox was never adequately
capitalized, its corporate formalities were barely
established, its business operations were grossly overstated,
and the most salient aspects of its business enterprise were
expressly misrepresented by Defendant Martin.” (Doc.
No. 1 at 1-2). Plaintiff believes that Defendant Martin
converted Plaintiff's money, “directly or
indirectly, for her personal benefit and to prop up the
supposed enterprise of Defendant Equinox.”
(Id. at 2). Plaintiff further alleges in the
Complaint that “little to no work has been performed on
the Fiber Optic Contract, despite a subsequent invoice from
Defendant Equinox, which Plaintiff paid, seeking $17, 124 in
additional funds.” (Id.). Plaintiff asserts
that, at Defendant Martin's request, Plaintiff sent a
check for that invoice to a new address also in Charlotte,
and Defendant Martin negotiated the check in what appears to
be her handwriting. (Id.). Plaintiff contends that
Defendant Equinox never rendered services under the contract.
Plaintiff filed this breach-of-contract action to recover the
money it advanced to Defendant Equinox and to pierce the
corporate veil to recover a money judgment against Defendant
Martin. (Id. ¶¶ 39-46). Plaintiff believes
that Defendant Martin has secreted Defendant Equinox's
assets—specifically, the funds paid by
Plaintiff—to circumvent the claims of Plaintiff and
other creditors. (Id.). By separate motion,
Plaintiff filed a Motion for Preliminary Relief for
prejudgment attachment to freeze the assets of Defendant
Equinox, and to the extent traceable, to Defendant Martin.
(Doc. No. 6). On March 29, 2016, the Court granted
Plaintiff's Motion and entitled Plaintiff to the
following preliminary relief:
• A prejudgment Order of Attachment, freezing up to the
amount of $445, 224.00, found in any bank account in the name
of Equinox Global Telecommunications, Inc. or in any bank
account using certain EIN (tax identification numbers)
utilized by Defendants;
• A preliminary Order of Garnishment directed to
SunTrust Bank, the bank to which Plaintiff had sent funds;
• The authority for Plaintiff to provide a copy of the
Order along with other information "in order to discover
whether and where assets of Defendants may be found so that
they may be attached."
(Doc. No. 16 at 5-6). Subsequent to this Order, Plaintiff
alleges that it sought information from SunTrust Bank (where
Plaintiff wired funds) to discover whether there were assets
warranting enforcement of the Prejudgment Order. (Doc. No.
24- 2 ¶ 12). Plaintiff further contends that no assets
were located and no writ of attachment to Defendants or writ
of garnishment to SunTrust was initiated, despite Plaintiff
having deposited $1, 000.00 for an attachment bond into its
counsel's Client Trust Account. (Doc. No. 24-1 ¶ 6).
Plaintiff alleges that it was able to confirm from
SunTrust's documents that Defendant Equinox received the
June 2014 wire, drained Plaintiffs monies from the account
through large cash withdrawals, and to payees unrelated to
the Fiber Optic Project. (Id. ¶ 7). Plaintiff
believes that Defendant Martin has instead used Plaintiffs