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Cargo Airport Services USA, LLC v. Transcargo International Airways, C.A., Inc.

United States District Court, S.D. Florida, Miami Division

October 27, 2017

CARGO AIRPORT SERVICES USA, LLC, Plaintiff,
v.
TRANSCARGA INTERNATIONAL AIRWAYS, C.A., INC., Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO STRIKE AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE

         THIS CAUSE came before the Court upon Plaintiffs Motion for Judgment on the Pleadings or, alternatively, for Summary Judgment (D.E. 19), filed on September 12. 2017 and Defendant's Motion to Strike (D.E. 21), filed on September 26. 2017

         THE COURT has considered the motions, the responses in opposition, the replies, pertinent portions of the record, and being otherwise fully advised in the premises, it is

         ADJUDGED that Defendant's Motion to Strike is DENIED and Plaintiffs Motion for Summary Judgment is GRANTED.

         I. Background

         Plaintiff, Cargo Airport Services USA, LLC, sues Defendant, Transcarga International Airways, C.A., Inc., for breach of contract, or alternatively, unjust enrichment if the Court finds that the Standard and Settlement Agreements are not binding contracts. Plaintiff also includes a declaratory judgment count for the total amount allegedly owed by Defendant. Plaintiff and Defendant entered into a Standard Ground Handling Agreement whereby Plaintiff provided cargo handling services to Defendant. To the extent invoices were not timely paid by Defendant, interest and penalties accrued on the outstanding balance under the terms of the Standard Agreement. On May 12, 2016, Plaintiffs counsel advised Defendant that it was in default of the Standard Agreement in the amount of $267, 658.86. Subsequently, the parties entered into a Settlement Agreement on June 22, 2016, whereby Defendant was required to pay Plaintiff $301, 358.00, representing the outstanding invoice balance, in ten bi-monthly payments. The Settlement Agreement also entitles Plaintiff to its costs incurred in filing a lawsuit to enforce the terms of the Settlement Agreement, including attorney's fees and expenses. In the Settlement Agreement, Plaintiff also reserved its right to all penalties, fees and interest due under the Standard Agreement, if Defendant reneged on its promise to pay the installment payments due under the Settlement Agreement. Plaintiff seeks a judgment against Defendant in the amount of $241, 086.40.

         II. Legal Standard

         Summary judgment is authorized where there is no genuine issue of material fact. Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The party opposing the motion for summary judgment may not simply rest upon mere allegations or denials of the pleadings; the non-moving party must establish the essential elements of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The non-movant must present more than a scintilla of evidence in support of its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). A jury must be able to reasonably find for the non-movant. Id. at 254. In deciding a summary judgment motion, the Court must view the facts in the light most favorable to the non-moving party. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).

         III. Analysis

         A. Motion to Strike

         Defendant moves to strike the Declaration of Charles Cannon in support of Plaintiffs Motion for Summary Judgment. Any declaration supporting a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein." Fed.R.Civ.P. 56(e). Defendant argues that Cannon's declaration should be struck because he (1) fails to show he is competent to testify; (2) fails to demonstrate personal knowledge about the matters asserted in his declaration; and (3) relies on inadmissible hearsay.

         An affidavit submitted by a corporate representative in support of summary judgment is properly considered when the corporate representative expressly verifies that the matters stated therein are based on his own personal knowledge gained through review of business records. See Atlantic Marine Fla., LLC v. Evanston Ins. Co., No. 08-cv-538-J-20, 2010 WL 1930977 (M.D. Fla. May 13, 2010). In Atlantic Marine, the defendant attempted to strike the declaration of a corporate representative because the statements contained inadmissible hearsay and were not based on personal knowledge. 2010 WL 1930977 at *1. The court held that a corporate representative's review of business records established the "personal knowledge" required. Id. at *2. In his declaration, Cannon unequivocally states that he is the Director of Finance for Worldwide Flight Services, the successor to Plaintiff and that he has personal knowledge as to the amount Defendant owes Plaintiff because he reviewed the company's financial records. The same issue is presented here. Thus, Cannon's declaration is admissible because it asserts the basis of his personal knowledge, namely that he is the Finance Director for the successor company and he reviewed the financial records.

         Next, Defendant contends that Cannon's declaration should be struck because it relies on inadmissible hearsay. Generally, inadmissible hearsay cannot be considered on a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (internal quotations and citations omitted). A district court may consider hearsay statements in passing on a motion for summary judgment if the statement could be "reduced to admissible evidence at trial." Id. (citations omitted). Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." There are some exceptions to the hearsay rule, such as the business records exception in Rule 803(6). The Court finds that the financial records relied on by Cannon in his affidavit could likely be reduced to admissible evidence at trial in the form of a business record. See Saunders v. Emory Healthcare, Inc., 360 Fed.Appx. 110, 112 (11th Cir. 2010) (affirming denial of motion to strike declaration because the documents attached to the Declaration are either non-hearsay or could be reduced to admissible form). Thus, because the financial records could be reduced to admissible evidence at trial, the declaration should not be struck.

         B. Motion for ...


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