PHILADELPHIA – A beauty salon says litigation against it from a California woman, who claimed she developed a staph infection due to the salon’s unsanitary practices, should be dismissed for failure to state its claims.
Victoria Millard of Sonoma, Calif. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 23 versus Zara Brow Bar (doing business as “Zara Beauty Bar” and/or “Zara Beauty Salon”) of King of Prussia.
(An amended complaint filed on June 8 named Yaseen Associates, LLC, Z Brow Bar, LLC, Sadaf Naqvi, Syed Naqvi and Fatima Nakvi, with named defendant Zara Brow Bar simultaneously dismissed.)
Millard claimed in her suit that on Feb. 21, 2021, she had “threading” done to parts of her face at the Zara Brow Bar in the King of Prussia Mall. She alleged that the employee doing the threading had put the thread in her mouth and did not change gloves between clients, which caused her to develop a staph infection and cellulitis, and subsequently caused her eye to be swollen shut.
Millard further claimed she spent five days being treated in the hospital for her injuries, and suffered disfigurement and incurred medical costs. She alleged the defendants collectively committed negligence for failing to properly train their employees, failing to supervise their employees and for allowing their employees to create an unsterile environment.
On Aug. 12, the defendants motioned to dismiss the case.
“Plaintiff does not allege any corporate fraud, illegality, or injustice, or set forth any factors that are typically considered in disregarding the corporate form for purpose of piercing the corporate veil to hold the individual members of the corporation liable. Plaintiff also does allege any fact to establish that said individual defendants have participated in the tortious or wrongful act that allegedly caused plaintiff’s injuries,” the dismissal motion stated, in part.
The plaintiff countered that their claims were indeed valid, in an Aug. 26 response filing.
U.S. District Court for the Eastern District of Pennsylvania Judge John R. Padova denied the defendants’ dismissal motion in a memorandum opinion issued on Nov. 21.
“Defendants argue that the entire amended complaint should be dismissed pursuant to Federal Rule of Civil Procedure 15(a). Specifically, defendants contend that plaintiff filed her amended complaint beyond the time period permitted for unilateral amendments in Rule 15(a)(1) and they argue that, as a result, plaintiff was required to obtain either defendants’ written consent or the Court’s leave to amend, neither of which plaintiff did. Defendants further maintain that, if plaintiff had sought judicial leave to amend, the Court would have denied the amendment as futile,” Padova said.
“Defendants, however, misunderstand Rule 15, which permits a plaintiff to amend his/her complaint “once as a matter of course within…21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Here, plaintiff filed the amended complaint on June 8, 2022, before defendants’ filing of either a responsive pleading or their Rule 12(b)(6) Motion. Thus, Rule 15(a)(1)(B)’s 21-day time period for amendment had not yet begun to run, and plaintiff timely amended her complaint “as a matter of course” pursuant to Rule 15(a)(1).”
Padova added that even when applying New Jersey law, the law of the state where the defendant LLC was formed, Millard may seek recovery from the individual defendants pursuant to N.J. Stat. Ann. Section 42:2C-51, if she pled sufficient facts to show that (1) she had a claim against an LLC prior to its dissolution; (2) the LLC dissolved; and (3) after its dissolution, the LLC distributed its remaining assets to its members – which is in fact what had taken place here.
“Here, plaintiff alleges that her claims against Yaseen arose on Feb. 21, 2021. Nearly one year later, on Feb. 8, 2022, plaintiff alleged that Yaseen applied for dissolution in the state of New Jersey and, following its dissolution, Yaseen distributed its remaining assets to the individual defendants. Based upon these allegations, plaintiff has plausibly asserted a claim against the individual defendants pursuant to Section 42:2C-51(d)(2). For all of these reasons, we deny defendants’ motion as to Count III,” Padova said.
Finally, Padova explained that the plaintiff had plausibly alleged claims to pierce the corporate veil of the LLC defendant.
“Here, plaintiff alleges that Yaseen and ZBB, through the individual defendants, failed to register as foreign businesses with the state of Pennsylvania, failed to pay taxes in Pennsylvania, failed to obtain liability insurance, failed to properly capitalize their businesses, failed to adhere to corporate structures and failed to separate corporate assets from personal assets. Plaintiff alleges that these failures resulted in a ‘façade corporate shell’ that operated to ‘avoid obligations to plaintiff,” Padova stated.
“Additionally, plaintiff specifically alleges that on Feb. 2, 2021, Yaseen transferred its assets to ZBB, without receiving fair compensation in return, and on Feb. 8, 2022, while on notice of plaintiff’s claims, the individual defendants liquidated and dissolved Yaseen. We conclude that these allegations go beyond merely restating the elements of a veil piercing claim and ‘raise a right to relief above the speculative level.’ Accordingly, we deny defendants’ Motion as to Count IV.”
UPDATE
The defendants answered the complaint on Dec. 9, arguing that the case should be thrown out, has not been pled correctly under the law and that its substantive claims are without merit.
“Plaintiff’s claims fail to allege facts sufficient to state any cause of action upon which relief can be granted. Plaintiff’s claims may be barred, in whole or in part, by the applicable statutes of limitations and/or the doctrines of estoppel, waiver, ratification and/or laches. Plaintiff’s claims are barred by the doctrine of unclean hands. Plaintiff’s claims are barred by their failure to mitigate damages. Plaintiff’s claims may be barred, in whole or in part, because of mistake of fact. Plaintiff lacks standing to bring or maintain the claims asserted in the complaint,” the answer’s affirmative defenses stated, in part.
“Answering defendants believe and, therefore aver that if the plaintiff sustained the damages as alleged in the complaint, said damages were not the result of any act or failure to act on the part of the answering defendants, all such allegations being expressly denied by the answering defendants, and plaintiff’s action is therefore barred. Any tortious act on the part of the answering defendants, the same being specifically denied, was not the factual cause of any damages allegedly sustained by the plaintiff, the existence of same being specifically denied. The alleged injury and/or losses which are the subject of this complaint were caused by parties other than answering defendants and for whose actions answering defendants cannot be held responsible. If plaintiff suffered losses as alleged, her damages were caused by persons, entities, occurrences, instrumentalities, or events unrelated to and not under the control of the answering defendants. Defendants specifically deny that they acted with any interest, willfulness, oppression, fraud, malice or knowledge to cause any injury or loss to plaintiff. Plaintiff’s claims are barred pursuant to the doctrines of contributory negligence and/or assumption of the risk.”
For multiple counts of negligence, state law counts and piercing of the corporate veil, the plaintiff is seeking compensatory damages in excess of $75,000, interest and costs of suit.
The plaintiff is represented by Kevin S. Riechelson of Kamensky Cohen & Riechelson, in Trenton, N.J.
The defendants are represented by Ying Zhou of the Law Office of Ying Zhou, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-00694
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com