G.W. Palmer & Co. v. Fla. Fresh Produce Corp., Case No: 2:17-cv-657-FtM-29MRM
| Decision Date | 07 February 2019 |
| Docket Number | Case No: 2:17-cv-657-FtM-29MRM |
| Court | U.S. District Court — Middle District of Florida |
| Parties | G.W. PALMER & CO., INC., Plaintiff, v. FLORIDA FRESH PRODUCE CORP., MARIA ELUDIS RODRIGUEZ, JOSE LUIS RODRIGUEZ, SERAFIN RODRIGUEZ, S&A ENTERPRISES OF IMMOKALEE LLC, IMMOKALEE PRODUCE CENTER, LLC, IMMOKALEE PRODUCE CENTER HOLDINGS, LLC, YOJAIRA RODRIGUEZ, and GABRIEL ALMONTE, Defendants. |
This matter comes before the Court on plaintiff's Motion for Default Judgment (Doc. #75) filed on October 3, 2018. No responses have been filed, and all parties in this case are now in default. The Court issued an Opinion and Order (Doc. #31) granting a preliminary injunction and directing that "Florida Fresh Produce Corp. shall have an affirmative obligation to maintain all documents related to all sales of produce and all payments received." (Doc. #31, p. 6.) Florida Fresh was directed to escrow all proceeds, and the Order remains in full force and effect.
A Clerk's Entry of Default (Doc. #39) was issued as to Jose Luis Rodriguez and S&A Enterprises of Immokalee, LLC before plaintiff filed an Amended Complaint (Doc. #48)1 on April 17, 2018. A Clerk's Entry of Default (Doc. #59) was entered as to Gabriel Almonte on June 19, 2018. On September 12, 2018, the Court issued an Opinion and Order (Doc. #68) directing the Clerk to enter a Clerk's default against defendants Florida Fresh Produce, Corp., Maria Eludis Rodriguez, and Serafin Rodriguez. The Entry of Default (Doc. #69) was issued on the same day. On October 30, 2018, an Entry of Default (Doc. #78) was entered as to defendants Immokalee Produce Center, LLC and Immokalee Produce Center Holdings, LLC. On November 1, 2018, an Entry of Default (Doc. #84) was issued as to Yojaira Rodriguez. Plaintiff has obtained a default as to all defendants, and is therefore entitled to seek a default judgment. Fed. R. Civ. P. 55(a).
When a defendant defaults, he, she, or it is "deemed to admit the plaintiff's well-pleaded allegations of fact, [but] is not held to admit facts that are not well-pleaded or to admit conclusions of law." Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239, 1245 (11th Cir. 2015). To warrant a default judgment,the facts alleged in the pleadings must provide a sufficient basis for judgment. Id. (quoting Nishimatsu Const. Co., Ltd. V. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). The sufficiency standard is that "necessary to survive a motion to dismiss for failure to state a claim." Surtain, 789 F.3d at 1245 (citations omitted).
Plaintiff asserts jurisdiction under the Perishable Agricultural Commodities Act (PACA), 7 U.S.C. § 499, et seq., and supplemental jurisdiction over various state claims. Plaintiff sells wholesale quantities of perishable agricultural commodities in interstate commerce. Defendant Florida Fresh Produce, Corp. (Florida Fresh) is a dealer and commission merchant, and defendant Maria Eludis Rodriguez was its sole officer in control of the PACA trust assets. Defendant Jose Luis Rodriguez is Maria and defendant Serafin Rodriguez's son and also controlled the PACA trust assets. Defendant S&A Enterprises of Immokalee, LLC's (S&A Enterprises) sole members and managers were Maria and Serafin Rodriguez. Defendant Immokalee Produce Center, LLC's (Immokalee Produce) sole member is Immokalee Produce Center Holdings, LLC, (Immokalee Holdings), and S&A Enterprises is the sole member ofImmokalee Holdings. Defendants Yojaira Rodriguez and Gabriel Almonte are individuals added in the Amended Complaint.
Between October 3 and November 7, 2017, plaintiff sold $341,324.25 in produce to Florida Fresh, which was accepted by Florida Fresh. Once the produce is received, plaintiff becomes the beneficiary of the PACA trust consisting of the produce, all assets derived from the sale of the produce, accounts receivable and assets commingled with, purchased with, or otherwise acquired from proceeds from the sale of produce. Plaintiff delivered invoices containing language entitled it to attorney's fees and costs. Under PACA, Florida Fresh is required to tender full payment to its unpaid suppliers.
Count One alleges a violation of PACA against Florida Fresh for failure to maintain the PACA trust, and the failure to pay PACA trust assets in the amount of $341,324.25, plus prejudgment interest, costs and attorney's fees. Count Two alleges a breach of contract for the failure to pay for produce that was accepted and resulting in damages in the amount of $341,324.25.
Count Three alleges a breach of fiduciary duty against Maria and Jose Rodriguez for the same amount, and for the failure to maintain and preserve sufficient PACA trust assets. Count Four alleges conversion and unlawful retention of PACA trust assets against defendants Maria, Jose, and Serafin Rodriguez, S&A Enterprises, Yojaira Rodriguez, and Gabriel Almonte based on thetransfer of trust assets by Florida Fresh to defendants, which plaintiff seeks to disgorge. Count Five seeks damages for the fraudulent transfer in violation of Florida's Uniform Fraudulent Transfer Act by Florida Fresh to defendants Maria, Jose, Serafin, and Yojaira Rodriguez, Gabriel Almonte, S&A Enterprises, Immokalee Produce, and Immokalee Holdings. Count Six seeks to establish a constructive trust on real property located at 1819 Tomaso Avenue, Lehigh Acres, Florida because trust assets were used to maintain and improve the property owned by Serafin and Maria Rodriguez. Count Seven alleges a fraudulent transfer against Maria, Jose, and Serafin Rodriguez because Maria and Serafin Rodriguez owned the Tomaso property as constructive trustees of plaintiff. Defendants used PACA trust assets received from Florida Fresh to make payments for the Tomaso property resulting in the property becoming a PACA trust asset.
After suit was filed, Florida Fresh paid plaintiff $15,000, thereby reducing the unpaid principal claim to $326,324.25. (Doc. #75, ¶ 2.)
Plaintiff seeks a default judgment on Counts I through IV, and on Count VI against all defendants. As Counts V and VII under the Uniform Fraudulent Transfer Act, Fla. Stat. § 726.101, et seq. are not being pursued, the counts will be dismissed without prejudice. Attached to the motion are the Declarations of AlstonPalmer (Doc. #75-2), President of plaintiff company, and Katy Koestner Esquivel (Doc. #75-4), as well as the Affidavit of Bank of America Bank Officer and/or Custodian of Records (Doc. #75-9) regarding attached bank statements showing withdrawals of trust assets. See Doc. #75-6. Also provided as evidence are summaries of transfers made to other defendants, and a summary of payments related to the individual defendants' residential property. (Doc. #75-7,#75-8, #75-10 to #75-13, #75-21.) Plaintiff also references the previously filed Affidavit of Alston J. Palmer in Support of Motions for Temporary Restraining Order and for Preliminary Injunction (Doc. #30-2).
Counts I and II (Florida Fresh)
Plaintiff is a dealer of perishable agricultural commodities, and operates its business under a valid PACA license issued by the United States Department of Agriculture. (Doc. #75-2, ¶ 9.) Between October 3 and November 7, 2017, plaintiff and Florida Fresh entered into contracts for the sale of produce to Florida Fresh for payment in the amount of $326,324.25. (Id., ¶ 10.) Florida Fresh accepted the produce, and plaintiff issued invoices for payment with a notice of intent to preserve trust benefits to Florida Fresh on the face of the invoices. (Id., ¶¶ 11-13.) Florida Fresh failed to pay despite repeated demands, and the invoices provide for recovery of reasonable attorney fees, prejudgment interest at the rate of 18% per annum. (Id., ¶¶ 14-15.) The invoices are attached as an exhibit to the Declaration of Alston Palmer. (Doc. #75-3.)
7 U.S.C. § 499e(c)(2). "[A] licensee may use ordinary and usual billing or invoice statements to provide notice of the licensee's intent to preserve the trust." 7 U.S.C. § 499e(c)(4).
In this case, the well-pled facts in the Complaint and the Declaration of Alston Palmer establish that plaintiff provided perishable agricultural commodities, i.e. fresh produce, to Florida Fresh, and also provided PACA notice on each of the invoices. Florida Fresh failed to tender payment upon demand. Therefore, plaintiff has established that it is a PACA trust beneficiary for the amount of the invoices, $326,324.25, plus attorney fees and interest accruing at a rate of 1.5% per month on past due invoices. (Doc. #75-3.) Default judgment will be granted as to Count I.
As to Count II, plaintiff alleges a breach of contract for Florida Fresh's failure to pay for the accepted produce as contracted for with plaintiff. Plaintiff seeks the outstanding amount of the invoices, $326,324.25. Plaintiff has established the existence of a valid contract, that Florida Fresh breached the contract by failing to pay for the produce, and that plaintiff suffered damages as a consequence of non-payment. Havens v. Coast Florida, P.A., 117 So. 3d 1179, 1181 (Fla. 2d DCA 2013). Default judgment will be granted as to Count II.
Count III (Maria and Jose Rodriguez)
Plaintiff alleges that Maria Rodriguez and Jose Rodriguez each owed a statutory fiduciary duty to plaintiff to ensure that...
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