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C.H. Robinson Worldwide, Inc. v. Phillips Produce, LLC

United States District Court, M.D. Florida, Tampa Division

September 16, 2019

PHILLIPS PRODUCE LLC, et al., Defendants.



         Before 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.


         Plaintiff, 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.

         Plaintiff 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.

         Despite 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.[1]


         To 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).[2] 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).

         Once 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).


         All 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).

         In 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 creditors”).

         Under 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.”[3] For the produce purchased by Phillips Produce, the interest totals $45, 661.77, through August 19, 2019.[4] Dkt. 18-1 at 5. For the produce bought by Big Red Barn, the interest is $4, 729.25. Dkt. 18-1 at 6.[5] 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.

         Plaintiff 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. §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 ...

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