U.S. v. 302 Cases
| Decision Date | 05 November 1998 |
| Docket Number | No. 98-476-CIV-T-17C.,98-476-CIV-T-17C. |
| Citation | 25 F.Supp.2d 1352 |
| Parties | UNITED STATES of America, Plaintiff, v. 302 CASES, 321 CASES, AND 420 CASES, MORE OR LESS, OF FROZEN SHRIMP, CURRENTLY LOCATED AT AMERICOLD CORPORATION, 1601 North 50 Street, Tampa, Florida, Stored to the Account of Central Seaway Company, Inc., Each Case Containing 6/2 Kilogram Unlabeled Packages, Labeled in Part: (Case) "* * * Frozen Peeled Shrimp with Tail on Zhejiang Foreign Economic Relations and Trade Development 91/110 [or 110/130 or 150/200] * * * Net Wt: 2KGX6* * *," Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Janette Meredith Wester, Ruden, McClosky, Smith, Schuster & Russell, P.A., Tampa, FL, for Central Seaway Co., Inc.
ORDER ON PLAINTIFFS AMENDED MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Plaintiff's, United States of America, Amended Motion for Summary Judgment, (Docket No. 15), filed August 28, 1998. Claimant, Central Seaway Company, Inc., filed a response, (Docket No. 16), to Plaintiff's Amended Motion for Summary Judgment on September 10, 1998.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).
The plain language of Rule 56(c) mandates that the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue of material fact' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which that party has the burden of proof.
Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of genuine issues of material fact. See id. That burden can be discharged by "showing ... that there is an absence of evidence to support the non-moving party's case." See id. at 323, 325, 106 S.Ct. 2548.
Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. See id. at 248, 106 S.Ct. 2505.
In determining whether a material fact exists, the court must consider all the evidence in a light most favorable to the non-moving party. See Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. See Hayden v. First Nat'l Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir.1979)(quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969)).
Although factual disputes preclude summary judgment, the "mere possibility that factual disputes may exist, without more, is not sufficient to overcome a convincing presentation by the party seeking summary judgment." See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). When a party's response consists of "nothing more than a repetition of his conclusional allegations" summary judgment is not only proper but required. See Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982).
On March 4, 1998, Plaintiff filed a Verified Complaint for Forfeiture in Rem, (Docket No. 1), seeking the seizure, condemnation, and forfeiture of the Defendant shrimp, in accordance with the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301-395. Concurrent with the filing of the Verified Complaint for Forfeiture in Rem, (Docket No. 1), Plaintiff filed a Motion for Issuance of Warrant of Arrest in Rem, (Docket No. 2). The Court ordered the issuance of a Warrant for Arrest in Rem, (Docket No. 3), on March 4, 1998. Pursuant to this warrant, process was executed upon the Defendant shrimp. On March 18, 1998, Claimant filed an Answer, (Docket No. 6), to Plaintiff's Verified Complaint for Forfeiture in Rem, (Docket No. 1), requesting permission to submit the seized articles to expert analysis, to determine whether the items were decomposed or adulterated under 21 U.S.C. § 342(a)(3). Claimant also requested in the Answer, (Docket No. 6), that reexportation be permitted pursuant to 21 U.S.C. § 334(d)(1), 21 U.S.C. § 334(e), and 21 U.S.C. § 381(e). Concurrent with the filing of the Answer, (Docket No. 6), Claimant filed a Statement of Claim, (Docket No. 7).
Plaintiff filed the original Motion for Summary Judgment, (Docket No. 9), on July 24, 1998. Claimant responded, (Docket No. 10), in opposition to Plaintiff's Motion for Summary Judgment, (Docket No. 9), on August 11, 1998. Claimant filed a Motion for Exportation, (Docket No. 11), on August 11, 1998, which admitted that Defendant shrimp are decomposed and liable for condemnation under 21 U.S.C. § 334(a). Plaintiff responded, (Docket No. 13), to Claimant's request for exportation on August 27, 1998. On August 28, 1998, Plaintiff filed an Amended Motion for Summary Judgment, (Docket No. 15). Claimant's response, (Docket No. 16), to Plaintiff's Amended Motion for Summary Judgment was filed on September 10, 1998.
Plaintiff's Statement of Facts include the following:
1. On October 7, 1997, Singleton Seafood Co. (Singleton) requested the National Marine Fisheries Service (NMFS) to inspect four (4) lots of shrimp for weight, count, quality, and condition. Singleton intended to purchase these lots from Claimant, on the condition that the shrimp was of sufficient quality and weight. NMFS sampled three (3) of the four (4) lots of frozen Chinese shrimp, which were packed by the Zhejiang Foreign Economic Relations and Trade Development Corporation. NMFS analysis showed that the samples contained poor quality shrimp and that two (2) contained insect filth and rust fragments. Singleton notified Claimant on October 24, 1997, that it was rejecting lot numbers 96205, 96206, 96213. (Docket No. 15, Paragraph 1)
2. On the basis of its findings that the three (3) lots of shrimp contained evidence of decomposition and filth, NMFS sent the Florida District Office of the United States Food and Drug Administration (FDA) a Notice of Violation and Request for Action on October 31, 1997. (Docket No. 15, Paragraph 2).
3. In response, the FDA has conducted an investigation into lot numbers 96205, 96206, and 96213. All three (3) lots, which have been shipped in interstate commerce, are in the possession of Americold Corporation and are stored to the account of the Claimant. (Docket No. 15, Paragraph 3).
4. On November 4 and 6, 1997, FDA collected official samples from all three (3) lots of the frozen Chinese shrimp. The samples were kept frozen and shipped, via overnight delivery, to the FDA's Southeast Regional Laboratory, in Atlanta, Georgia. (Docket No. 15, Paragraph 4).
5. The FDA sample Custodian at the Southeast Regional Laboratory, received the frozen samples and stored them in a freezer until the laboratory was prepared to begin the analysis. When the laboratory was ready, the custodian transferred the shrimp to five (5) FDA analysts, who are experts in organoleptic, chemical, and microscopic analysis of seafood, and who examined the samples for decomposition and filth. (Docket No. 15, Paragraph 5).
6. Based upon the results of the tests conducted by the analysts, the FDA has determined that the shrimp seized in this case are decomposed and contained filth. (Docket No. 15, Paragraph 6).
7. On March 4, 1998, the United States filed a Verified Complaint for Forfeiture in Rem, pursuant to 21 U.S.C. § 334, for the seizure, condemnation, and forfeiture of the Defendant shrimp as an article of food which is adulterated, within the meaning of 21 U.S.C. § 342(a)(3), when introduced into, while in, or while held for sale after shipment in, interstate commerce, in that the Defendant shrimp consist, in whole or in part, of decomposed shrimp. (Docket No. 15, Paragraph 7).
8. On March 5, 1998, the United States Marshals Service arrested the Defendant shrimp pursuant to a Warrant of Arrest in Rem issued by this Court. (Docket No. 15, Paragraph 8).
9. Notice of Arrest and Seizure of the Defendant shrimp was published in La Gaceta, a newspaper of general circulation in Hillsborough County, Florida, on March 20, March 27, and April 3, 1998. (Docket No. 15, Paragraph 9).
10. Claimant has filed the only claim to the Defendant shrimp, and the time within which additional claims to the defendant shrimp could be filed has expired. (Docket No. 15, Paragraph 10).
Claimant's statement of facts include the following:
1. Claimant is an importer of food products into the United States. (Docket No. 16, Page 3).
2. In July, 1997, Claimant conditionally purchased two (2) loads of frozen shrimp, each containing four-hundred twenty (420) and nine-hundred thirty-five (935) cartons of frozen shrimp, which included the Defendant shrimp, from Zhejiang Foreign Economic Relations and Trade Development Corporation. (Docket No. 16, Page 4).
3. The two (2) loads of frozen shrimp were conditionally sold to Singleton, prior to leaving the China...
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