IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA,

Atlanta Division

XXXXXX XXXXXXX,Plaintiff

v.

WAREHOUSE SENSATIONS, INCA Florida Corporation,

Defendant

CIVIL ACTION

FILE NO: 1:05-CV-1457-CAP

PLAINTIFF’S BRIEF IN SUPPORT OF HAVING THE CLERK SIGN AND SEAL SUBPOENA DIRECTING CHERYL A WALLER

TO PRODUCE DOCUMENTS

AND/OR

BRIEF IN SUPPORT OF AMENDING THIS COURT’S MARCH 12, 2006 RULING TO ADD CHERYL A. WALLER AS A JUDGMENT DEBTOR and

ISSUE WRIT OF EXECUTION____________________________________________________________

COMES NOW Xxxxx Xxxx Plaintiff, unrepresented by counsel and

proceeding pro se,1 files Plaintiff’s Brief in Support of Having the Clerk Sign

and Seal Subpoena Directing Cheryl A. Waller to Produce Documents and/or

1 Plaintiff’s Motion, filed contemporaneously herewith, explained to the Court that she is no longer represented by legal counsel and MOVED the Court for permission to proceed “in propria persona” or pro se, in this limited matter.

Brief in Support of Amending this Court’s March 12, 2006 Ruling to Add Cheryl

A Waller as Judgment Debtor and Issue Writ of Execution

Through research, after Plaintiff’s former attorney refused to assist in

collecting the Judgment, Plaintiff found that Warehouse Sensations, Inc. became

“inactive” following this Court’s Ruling in favor of Plaintiff; she also learned that

Ms. Waller had opened and allowed to become “Administratively dissolved”

several more corporations, discussed more thoroughly in the following pages.

A collection company that Plaintiff contacted about collecting the Award,

informed Plaintiff, that because the Corporation Judgment Debtor was no longer in

business under the same name, and due to circumstances surrounding the

corporations, that without showing the Court cause to add Ms. Waller as a

Judgment Debtor, there will be no way to collect the Judgment.

Plaintiff’s research suggests that in order to avoid the judgment, Ms. Waller

has continually moved around and changed the names of corporations; and

evidence gives cause to believe that Ms. Waller is the alter-ego, or that the

successor corporation is merely a continuation of the original corporation.

Without Amendment to the Ruling, and Writ of Execution, Plaintiff will

never have the ability to collect the Award Granted by this Honorable Court.

Plaintiff’s plan was to subpoena documents that will show alter-ego/successor,

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Fed. R. Civ. P. Rule 69(a) for the “… aid of execution the judgment creditor…may

obtain discovery from any person, including the judgment debtor…”

BRIEF BACKGROUND

Plaintiff filed a civil action against Warehouse Sensations, Inc. on June 03,

2005. The causes of action consisted of violation of the Federal Fair Debt

Collection Practices Act 15 U.S.C. §§ 1692 et. seq., the Georgia Fair Business

Practices Act O.C.G.A. §§ 10-1-390 et. seq., and other laws (Doc. 1).

Cheryl A. Waller, Owner and President of Warehouse Sensations, Inc filed a

pro se responsive pleading on September 21, 2005 (Doc. 2).

November 7, 2005 this Court issued an Order directing Ms. Waller to

within ten (10) days, notify the court of the identity for the attorney who would be

representing the defendant; the Court further Ordered the parties to file a Joint

Certificate of Interested Parties, a Joint Preliminary Report and Discovery Plan

(doc. 3). Although the Plaintiff complied with the Court’s Order within ten (10)

days, the defendant failed to respond.

November 29, 2005, this Court again Ordered the defendant to notify the

Court of it’s legal counsel; and directed the plaintiff to file a Brief explaining why

the defendant had not participated in the preparation of the required documents,

and inform the Court whether or not there had been communication between

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plaintiff’s counsel and the defendant (Doc. 8).

In response of this Court’s Order to Show Cause, the Plaintiff informed the

Court that she had mailed copies of the draft documents to defendant, who

accepted delivery, but still failed to respond (Doc. 9).

December 27, 2005 this Court issued yet another Order to Show Cause and

stated that the Court had the following address for the defendant: Warehouse

Sensations, Inc., Box 11873, Jacksonville, FL 32239 (Doc. 10). The Plaintiff

communicated to the Court that she had served the complaint upon the defendant

at: 2270 Belen Drive, Deltona, FL 32738; and according to the 2004 Annual

Report on file with the state of Florida the registered agent at the time was

Legalzoom Nevada, Inc. 44 West Flagler Street, Suite 375 Miami, FL 33130.

Out of an abundance of caution, this Court directed the clerk to send the

December 27, 2005 Order to all three (3) of the defendant’s known addresses, and

allowed twenty (20) days for the defendant to respond. Additionally, the Court

directed Defendant to notify the Court of the proper address and that “Failure to

comply with this order will result in sanctions being imposed, including the

possible striking of the defendant’s answer and the entry of default against the

defendant.” (Doc. 10)

After offering the defendant numerous opportunities to participate in the

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case, on January 31, 2006 the Court struck the defendant’s answers and entered

default against the defendant; a hearing was held April 11, 2006 to determine

damages (Doc. 11).

Defendant failed to appear at the April 11, 2006 hearing, either in person or

by counsel. This Court awarded to Plaintiff, the following damages:

Actual Damages (General): $4,000.00

Actual Damages (Special): $ 2,250.00

Federal Statutory Damages: $ 1,000.00

Florida Statutory Damages: $ 1,000.00

Treble Damages: $18.750.00

Punitive/Exemplary Damages: $31.250.00

Attorney’s Fees and Costs: $ 4,216.00

Additional Court Awards: $ 250.00

In sum, total of Fifty-eight Thousand Two Hundred-Fifty Dollars ($58,

250.00) in damages, Four Thousand Two Hundred Sixteen ($4,216.00) in

attorney’s fees and Two Hundred-Fifty ($250.00) in costs. According to records

at Florida Secretary of State’s Office, September 16, 2005 is the last filing date for

Warehouse Sensations, Inc “ADMIN DISSOLUTION” status listed as “inactive”.

To date, Plaintiff has been denied the Award Granted by this Court.

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MS. WALLER’S NUMEROUS CORPORATIONS

Through research Plaintiff has found the following facts:

The first filing showing with Florida Secretary of State’s Office for

Warehouse Sensations, Inc. was June 12, 2003; address: Warehouse Sensations,

Inc., 7353 Lawn Tennis Lane, Jacksonville, FL 322772; during the same time the

home address for Cheryl Waller was: 7353 Lawn Tennis Lane, Jacksonville, FL

32277, phone: (904) 743-32253 “Exhibit A”

August 31, 2004 records indicate the home address for Cheryl A Waller and

Sensations Warehouse, Inc. FEI Number: 20-0076993, changed to: 2270 Belen

Dr., Deltona FL 32738 showing Cheryl A. Waller Registered Agent and

President.4 “Exhibit B”. September 16, 2005 is the last filing date for Warehouse

2 The registered agent at that time: Lenhi Tang, Legalzoom.com, Inc., 7083 Hollywood Blvd., Suite 180, Los Angeles, CA 90028:http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&inq_doc_number=P03000064978&inq_came_from=NAMFWD&cor_web_names_seq_number=0000&names_name_ind=N&names_cor_number=&names_name_seq=&names_name_ind=&names_comp_name=WAREHOUSESENSATIONS&names_filing_type=3http://www.standard.netdetective.net/people_search.php?type=name&first_name=Cheryl&middle_initial=A&last_name=Waller&state=FL&search=search&submit_x=53&submit_y=10&__utma=188475626.2116180705.1247196978.1247196978.1247544448.2&__utmz=188475626.1247544448.2.2.utmccn=(referral)|utmcsr=netdetective.com|utmcct=/|utmcmd=referral&__utmb=188475626&__utmc=188475626&PHPSESSID=volufee2782fu3v795pm8sn8c6&animate=14 As shown on Document #: P03000064978 2004 For Profit Corporation Annual

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Sensations, Inc “ADMIN DISSOLUTION” status listed as “inactive”

September 1, 2007 Ms. Waller filed “2007 Limited Liability Company

Annual Report, Document #: L05000110025 for Volusia 360, LLC for which

showed Ms. Waller as Registered Agent and Manager. The address for the

Company as well as the home address for Ms. Waller. The Principal Place of

Business address changed from: 1676 Providence Blvd., Suite C, Deltona, GA

32725 to the New Principal Place of Business: 2270 Belen Drive, Deltona, FL

32738 “Exhibit C”

October 9, 2007 Ms. Waller attempted to register: Volusia 360, LLC with

the Florida Secretary of State’s Division of Corporations, address: 211 Stony Point

Dr., Sebastian, FL 32958. Apparently, Ms. Waller failed to use the proper forms,

the registration was rejected and mailed back to her; the address has been

confirmed as property belonging to Ms. Waller,5 see “Exhibit D”.

Plaintiff has also attached “Exhibit E” which shows corporations, also

shows information about Ms. Waller’s corporations not specifically listed herein.

Report filed with Florida Secretary of State Office on August 31, 2004 8:00 am5http://www.standard.netdetective.net/people_search.php?type=name&first_name=Cheryl&middle_initial=A&last_name=Waller&state=FL&search=search&submit_x=53&submit_y=10&__utma=188475626.2116180705.1247196978.1247196978.1247544448.2&__utmz=188475626.1247544448.2.2.utmccn=(referral)|utmcsr=netdetective.com|utmcct=/|utmcmd=referral&__utmb=188475626&__utmc=188475626&PHPSESSID=volufee2782fu3v795pm8sn8c6&animate=1

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Ms. Waller is currently shown on her website: www.CherylWaller.com6 as

well as on http://www.facebook.com ;7 both the business and home address shown

for Ms. Waller is the same: 172 SW Mil Ct, Port Saint Lucie, FL, 34953.

The latest filing with Secretary of State’s Office is “2008 Not-For-Profit

Corporation Annual Report” filed April 30, 2008, Document #: N06000006677

“Kids of the Arts Foundation, Corp” 1002 Mori Ct. Port Orange, FL 32127 with

Kendra A Waller as registered agent and President; Cheryl A Waller as Vice

President “Exhibit F”. Ms. Waller’s home address at that time: 1002 Mori Ct.,

Port Orange, FL 32127-7959, Phone Number (386) 322-2450 8 Plaintiff has

6 Website http://www.cherylwaller.com Address 172 SW Mil Ct, Port Saint Lucie, FL, 34953 Description Online Marketing Consultant for Real Estate Agents and Small Business Owners - FREE DVD Reveals 7 Secrets to Dominating Google Search Engine Results ----> www.CherylWaller.com ---> Social Renegade Sys © 2009 Cheryl Waller - www.CherylWaller.com - all rights reserved7 http://www.facebook.com shows: http://activerain.com/cherylwaller Name Cheryl Waller Marketing Consultant - Social Renegade Company www.CherylWaller.com E-mail Contact Cheryl Waller Marketing Consultant - Social Renegade (www.CherylWaller.com) Website http://www.cherylwaller.com Address 172 SW Mil Ct, Port Saint Lucie, FL, 34953 Description Online Marketing Consultant for Real Estate Agents and Small Business Owners - FREE DVD Reveals 7 Secrets to Dominating Google Search Engine Results ----> www.CherylWaller.com ---> Social Renegade Sys 8http://www.standard.netdetective.net/people_search.php?type=name&first_name=Cheryl&middle_initial=A&last_name=Waller&state=FL&search=search&submit_x=53&submit_y=10&__utma=188475626.2116180705.1247196978.1247196978.1247544448.2&__utmz=188475626.1247544448.2.2.utmccn=(referral)|utmcsr=netdetective.com|utmcct=/|utmcmd=referral&__utmb=188475626&__utmc=188475626&PHPSESSID=voluf

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attached documentation of several, but not all of the real estate belonging to Ms.

Waller as “Exhibit G”.

ARGUMENT AND CITATIONS OF AUTHORITY

The problem of tracking Ms. Waller down after this Court Granted Plaintiff

the Award, shows an obvious pattern of changing Business names and locations in

order to prevent Plaintiff, and possibly other Judgment creditors from collecting

the awards Granted by the Honorable Courts. There is no other reasonable

explanation, Ms. Waller allows a company name to become inactive, uses the

assets from the one company to carry on business under a different company name.

Plaintiff sought a subpoena for documents, with which to show that Ms.

Waller is the alter-ego, or that the successor corporation are merely a continuation

of the original corporation.

Adding Ms. Waller’s name as Judgment Debtor, and Granting a Writ of

Execution would enable Plaintiff to successfully collect the judgment, or levy one

of Ms. Waller’s many pieces of real property in Florida (see “Exhibit G”); thereby

enabling Plaintiff to collect her Award and move forward with her life.

ee2782fu3v795pm8sn8c6&animate=1

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I. ALTER-EGO/COMMON LAW CONTINUATION THEORIES

A. Alter Ego

Research shows that Ms. Waller doesn’t bother to properly dissolve a business,

but allows it go into inactive status. She then uses the same funds from the

inactive business’ to begin business under a new name, then she repeats the steps,

forever staying just far enough ahead that judgment cannot be collected.

Both Georgia and Federal statute recognize the alter-ego doctrine, as well as

the fact that a party overextends “his privilege in the use of a corporate entity in

order to defeat justice, perpetrate fraud”, confuse or avoid judgment creditors or

avoid liability. See Dews v. Ratterree, 246 Ga.App. 324, 246 Ga.App. 324, 540

S.E.2d 250, 540 S.E.2d 250 (Ga.App. 10/06/2000)

“The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility.”

Plaintiff planned to use the subpoena to show Ms. Waller is in fact the alter-

ego of corporations she runs, “that the defendant disregarded the separate entities

by commingling on an interchangeable or joint basis or confusing the otherwise

separate properties, records, or control" (Citations and punctuation omitted.)

Heyde v. Xtraman, Inc., 199 Ga. App. 303, 306 (2) (404 SE2d 607) (1991)

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(Emphasis supplied.)

Facts clearly show that Ms. Waller’s actions have merely been a means to

avoid paying the Award granted to Plaintiff by this Honorable Court. By

changing the name and/or the company altogether, or by transferring the assets to a

differently named corporation owned and run by herself, Ms. Waller has worked a

fraud against the judgment creditor.

Fed. R. Civ. P. Rule 69(a) permits judgment creditors in Georgia Federal

Courts to use enforcement methods consistent with Georgia State practice and

procedures. O.C.G.A. § 15-1-3(6) "Every court has power: . . . To amend and

control its processes and orders, so as to make them conformable to law and

justice, … so as to make them conform to the truth."

Under Georgia Law, where “a corporation has overextended its privileges in

use of the corporate entity in order to defeat justice, perpetrate fraud or evade tort

responsibility” it is acceptable to disregard corporate fiction”. See Jones v.

Cranman's Sporting Goods, 142 Ga.App. 838 (1977) which held:

The concept of "piercing the corporate veil, or disregarding the corporate entity" is well settled in our law. United States v. Milwaukee Refrigerator Transit Co., C.C., 142 F. 247; United States v. Hudgins-Dize Co., D.C., 83 F.Supp. 593, 598. Georgia recognized the rule of disregarding corporate fiction (Liberty Lumber Co. v. Silas, 181 Ga. 774), where a corporation has overextended its privileges in use of the corporate entity in orderto defeat justice, to perpetrate fraud, or to evade contractual or

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tort responsibility. Nadler, Georgia Corporation Law 71, section61.

As held in Schwob Manufacturing Co v. Huiet, 69 Ga.App. 285(1): "[U]pon equitable principles the legal entity of a corporation may be disregarded when it is the mere alter ego orbusiness conduit of an individual, or when the motion of its legalentity is used to defeat public conveniences, justify wrong, protect fraud, or defend crime." This court stated in CondenserService v. Brunswick Port Authority, 87 Ga.App. 469, 474: "Bywhatever means the conclusion to disregard corporate entity isarrived at, when it is reached it merely means that under the factsof the case the person or corporation in control of the subservientcorporation is held liable for the acts or omissions of the subservient corporation."

In Robertson-Ceco Corp. v. Cornelius, No. 3:03cv475/RV/EMT (N.D.Fla.

03/30/2007) the Court addressed the view under Florida law: “if a successor

corporation ‘suddenly liquidates’ its predecessor at or around the same time that a

debt of the former is about to come due, ‘the timing and magnitude of the

transaction might raise suspicions sufficient to establish 'improper conduct’”

Resolution Trust Corp. v. Latham & Watkins, 909 F. Supp. 923, 932 (S.D.N.Y.

1995); The Robertson-Ceco Court went on to explain:

“In light of NIC Construction's confession that it is liable for the Georgia judgment, and in light of the judgment already entered in this case (doc. 76), this argument is well-taken. Robertson-Ceco next argues, and Mary impliedly concedes, that William formed NIC Construction for the improper purpose of avoiding the debt that was owed to Robertson-Ceco. Given the sudden and suspicious transfer of assets from NIC to NIC Construction, and

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Mary's implied concession, I accept this argument as well.*fn5

The facts clearly show that Cheryl A. Waller as Owner, President, Principal,

and possibly other positions within Warehouse Sensations, Inc. Ms. Waller

answered the complaint filed in this Court, then disregarded every Order and

direction by the Court. This Court found her in default after giving Ms. Waller and

Warehouse Sensations, Inc. every possible consideration, and opportunity to

participate in the action.

The facts further show that within a short period of time after Judgment

against Warehouse Sensations was granted to Plaintiff, the company ceased to

exist, Florida Secretary of State records shows the status of the corporation became

“inactive”. In order to hide from and thereby defeat the ruling against Warehouse

Sensations, Ms. Waller, the Owner, Principal, and President allowed her

corporation to become inactive, rather than properly dissolve the corporation.

Ms. Waller during the next few years went on to form new corporations,

moved from one address to the next as a means of hiding from the judgment, then

allow corporations to become Administratively dissolved, never properly

dissolving any of them.

B. Successor/Common Law Continuation Theory

Further, the new corporations fall within the category of successors and

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assigns. The Supreme Court in Regal Knitwear Co. v. NLRB, 324 U.S. 9, 65 S.

Ct. 478, 89 L. Ed. 661 (1945), found that those denominated "successors and

assigns" could be held liable for damages flowing from failure to abide by an

injunction. "Successors and assigns may . . . be instrumentalities through which

defendant seeks to evade an order or may come within the description of persons in

active concert or participation with them in the violation of an injunction”.

In Georgia, the common law continuation theory has been applied where

there was some identity of ownership. Ney-Copeland & Assoc., Inc. v. Tag Poly

Bags, Inc., 154 Ga. App. 256 (267 SE2d 862) (1980); Johnson-Battle Lumber Co.

v. Emanuel Lumber Co., 33 Ga. App. 517 (126 SE 861) (1924). The successor

corporation assumes the liabilities of the predecessor if one or more of the

following are applicable: (1) there is an agreement to assume liabilities; (2) the

transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid

liabilities; or (4) the purchaser is a mere continuation of the predecessor

corporation. Fletcher, Cyclopedia of the Law of Private Corporations, 7122; see 66

ALR3d 824, 827.

The successor corporation theory is consistent with the principle that “[i]f a

corporation organizes another corporation with practically the same shareholders

and directors, transfers all the assets but does not pay all the first corporation’s

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debts, and continues to carry on the same business, the separate entities may be

disregarded and the new corporation held liable for the obligations of the old.

[Citations.]” (9 Witkin, Summary of Cal. Law, supra, Corporations, § 19, p. 532).

C. Writ of Execution

Plaintiff believed that through subpoenaed documents, she would be able to

show alter-ego, or common law continuation, which would persuade the court to

add Ms. Waller added as Judgment Debtor in the Ruling, thereby enabling the

Court to Grant a Writ of Execution, which is the “appropriate remedy” “when a

party fails to satisfy a court-imposed money judgment”.

“It is equally clear that when a party fails to satisfy a court-imposed money judgment the appropriate remedy is a writ of execution,…Shuffler v. Heritage Bank, 720 F.2d 1141, 1147-48 (9th Cir. 1983); Fed.R.Civ.P. 69(a) ("Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise."). The "otherwise" clause is read narrowly.” 7 J. Moore, Moore's Federal Practice para. 69.02[2] at 69-10 to -10.1 (2d ed. 1985)

Given the circumstances, one could easily conclude there was skimming,

funneling, and comingling of money between Ms. Waller and the different

corporations; and possibly one or more of the other corporations had judgments

against them as well.

Plaintiff MOVES this Honorable Court for a Writ of Execution.

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CONCLUSION AND PRAYER FOR RELIEF

Plaintiff, is proceeding pro se due to her previous attorney’s refusal to

pursue the Award Granted by this Honorable Court, an uncollectible Judgment

amounts to nothing, so she had to pursue the matter on her own. Plaintiff prays

that this Honorable Court will liberally construe her pro se pleadings; she had

planned to use the subpoena to obtain records to show Ms. Waller is an alter-ego of

her corporations and that once a judgment was made against her corporation, she

allowed it to go into “inactive status” and began another corporation using a new

name and address to avoid the judgment.

Plaintiff MOVES this Honorable Court to GRANT Plaintiff relief by 1)

Adding Ms. Waller as Judgment Debtor, and/or; 2) Direct the clerk to sign and

seal the Subpoenas; and 3) Grant a Writ of Execution. Plaintiff collect the Award

Granted by this Honorable Court March 12.2006.

Plaintiff has provided Proposed Orders for this Honorable Court’s

convenience.

Respectfully submitted this 19th day of October, 2009

By: ___________________________GA 30189

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CERTIFICATE OF COMPLIANCE

In compliance with LR 7.1D, N.D. Ga., I certify that the foregoing Motion

has been prepared in conformity with LR 5.1, N.D. GA. This Motion was prepared

with Times New Roman (14 point) type, with a top margin of one and one-half

(1.5”) inches and a left margin of one (1”) inch, is proportionately spaced.

This 19th day of October, 2009

___________________________GA 30189

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA,

Atlanta Division

Plaintiff

v.

WAREHOUSE SENSATIONS, INCA Florida Corporation,

Defendant

CIVIL ACTION

FILE NO: 1:08-CV-1971-WSD

______________________________________________________________

CERTIFICATE OF SERVICE

I Certify that I have this 19th day of October, 2009 served a true and correct

copy of the foregoing Plaintiff’s Brief in Support of Having the Clerk Sign and

Seal Subpoena Directing Cheryl A. Waller to Produce Documents and/or Brief in

Support of Amending this Court’s March 12, 2006 Ruling to Add Cheryl A

Waller as Judgment Debtor upon Defendant, by causing to be deposited with

U.S.P.S., First Class Mail, proper postage affixed thereto addressed as follows:

Cheryl A. Waller

______________________

______________________ ___________________________GA 30189

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