United States District Court, M.D. Florida, Tampa Division
C.H. ROBINSON WORLDWIDE, INC., Plaintiff,
PHILLIPS PRODUCE LLC, et al., Defendants.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Default Judgment
against all three Defendants (Dkt. 18). After carefully
considering the motion, the affidavits and exhibits, and the
entire court file, the Court concludes a default final
judgment is due to be entered.
as a wholesale seller of fruits and vegetables nationwide,
seeks damages under the Perishable Agricultural Act, 1930, 7
U.S.C. § 499a et seq. (“PACA”).
Dkt. 1. Defendants Phillips Produce LLC (“Phillip
Produce”) and Big Red Barn LLC (“Big Red
Barn”) are “dealers” and “commission
merchants” of perishable agricultural commodities
within the meaning of PACA. Dkt. 1 && 5, 6. Defendant
Christopher Phillips was a responsible owner, shareholder,
officer and/or director as well as a person in control of the
assets of both Phillips Produce and Big Red Barn. Dkts. 1
¶¶ 7, 31-36, 43-47; 18-1 ¶¶2, 3.
sold, on credit, produce to Phillips Produce between June and
October 2017 for $133, 094.10, which remains unpaid after
demand. Dkts 1 ¶ 13, 18-1 ¶ 7. During August 2017,
Plaintiff sold, on credit, produce to Big Red Barn for $13,
545.00, which remains unpaid after demand. Dkts 1 ¶24,
18-1 ¶ 8. The invoices contained the requisite statutory
language giving notice of the intent to preserve PACA trust
benefits. Dkts. 1 ¶¶ 13, 16, 24, 27; 1-1; 1-2; 18-1
¶¶ 11-13; see 7 U.S.C. § 499e(c)(4).
Defendants accepted the produce without objection and
continue to dissipate the statutory trust assets. Dkts. 1
¶¶ 11, 12, 18, 22, 23; 18-1 ¶¶9, 10.
being served with the summons and complaint (Dkts. 11, 12,
13), Defendants failed to plead or otherwise defend this
action. A clerk's default against all three Defendants
was entered on July 24, 2019. Dkt. 17.
determine whether the moving party is entitled to a default
final judgment under Rule 55(b), the Court must review the
sufficiency of the complaint and its underlying substantive
merits. Chudasma v. Mazda Motor Corp., 123 F.3d
1353, 1370 n.41 (11th Cir. 1997). For purposes of liability,
a defaulting defendant admits only the plaintiff's
well-pleaded allegations of fact. Buchanan v.
Bowman, 820 F.2d 359, 361 (11th Cir. 1987);
Nishimatsu Constr. Co. v. Houston Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975). If there is a
“sufficient basis in the pleadings, ” a default
judgment should be entered. Annon Consulting, Inc. v.
BioNitrogen Holdings Corp., 650 Fed.Appx. 729, 733 (11th
Cir. 2016) (quoting Nishimatsu, 515 F.2d at 1206).
the Court has established liability, then it must conduct an
inquiry to ascertain the amount and character of damages to
be awarded. Whole Space Indus. Ltd. v. Gulfcoast
Int'l Prods., Inc., 2009 WL 2151309, at *3 (M.D.
Fla. July 13, 2009) (citing Wallace v. Kiwi Group,
Inc., 247 F.R.D. 679, 681 (M.D. Fla. 2008)). [A]
judgment by default may not be entered without a hearing [on
damages] unless the amount claimed is a liquidated sum or one
capable of mathematical calculation.” United Artist
Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)
(citations omitted); see also Fed. R. Civ. P.
55(b)(1) (“If the plaintiff's claim is for a sum
certain or a sum that can be made certain by computation
[judgment may be entered on an affidavit].”). A hearing
is not necessary if essential evidence is before the Court.
SEC v. Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005).
three Defendants are liable under PACA. The limited liability
companies are liable as dealers and commerce merchants.
See 7 U.S.C. § 499b(4) (“It shall be
unlawful . . . [f]or any commission merchant, dealer, or
broker . . . to fail . . . to account and make full payment
promptly in respect of any transaction in any such commodity
to the person with whom such transaction [occurred.]”);
7 U.S.C. § 499e(a) (“If any commission merchant,
dealer, or broker violates any provision of section 499b . .
. he shall be liable to the person or persons injured thereby
for the full amount of damages . . . sustained in consequence
of such violation.”); Crescent Fruit &
Vegetables, LLC v. Advance Produce, Inc., No.
8:15-cv-366-T-36TGW, 2015 WL 13566922, at *2 (M.D. Fla. Sept.
1, 2015) (finding liability on default final judgment against
limited liability company in PACA case). Mr. Phillips, as the
person responsible for the daily operations of Phillips
Produce and Big Red Barn, is liable personally. Dkts. 1 &
7, 18-1 && 2, 3; see Red's Market v. Cape
Canaveral Cruise Line, Inc., 181 F.Supp.2d 1339, 1343-44
(M.D. Fla.) (finding that employees and officers of
corporation “who are in a position to control trust
assets” are trustees and therefore liable under PACA),
aff'd, 48 Fed.Appx. 328 (table), (11th Cir.
2002). Based on the breach of his fiduciary duty to
Plaintiff, Mr. Phillips is jointly and severally liable for
the unpaid produce. Packman1, Inc. v. Seasons Best
Produce Corp., No. 8:18-cv-816-T-23MAP, 2019 WL 96429,
at *3 (M.D. Fla. Jan. 3, 2019) (citations omitted).
damages, Plaintiff is entitled to its principal, prejudgment
interest, recoverable costs and reasonable attorney's
fees. Phillips Produce and Big Red Barn purchased and
received produce from Plaintiff, at which time Plaintiff
provided written notice of intent to preserve the trust
benefits. The Defendant limited liability companies became
the trustees of the PACA trust for the benefit of Plaintiff
until full payment was made. See 7 U.S.C. §
499e(c)(4) and (2). Because they accepted and failed to pay
for the produce, Plaintiff may recover its principal amount
as a priority under PACA. See Country Best v. Christopher
Ranch, LLC, 361 F.3d 629, 632 (11th Cir. 2004) (stating
PACA Acreates a >non-segregated floating trust,' which
gives produce suppliers priority over . . . other
PACA, Plaintiff is also entitled to recover interest and
attorney's fees “that the buyers and sellers have
bargained for in their contracts" as additional related
expenses. Country Best, 361 F.3d at 632. Here, the
parties agreed, through the invoices, to a rate of interest
and to the recovery of attorney's fees. All but one of
the invoices provide: “You agree to pay interest at
1.5% per month and any attorney's fees incurred necessary
to collect payment. Interest and attorney's fees
necessary to collect payment are sums owing in connection
with the transaction.” For the produce purchased by
Phillips Produce, the interest totals $45, 661.77, through
August 19, 2019. Dkt. 18-1 at 5. For the produce bought by
Big Red Barn, the interest is $4, 729.25. Dkt. 18-1 at
The Court finds the damages are a sum certain, which is
ascertainable by mathematical calculation and supported by
the allegations of the complaint and the declarations.
seeks attorney's fees of $17, 531.25, based on an hourly
rate of $375. Dkt. 18-2 ¶ 8. Plaintiff is entitled to a
reasonable attorney's fee pursuant to 7 U.S.C. Â§499g(b).
Based on the chart at docket 21, without descriptions of the
work performed and at what hourly rate, the Court is unable
to make a determination of reasonableness. The same holds
true for the costs sought in the amount of $1, 621.91, and