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Banana Connection, Inc. v. M/V CCNI Aysen

November 9, 2006

THE BANANA CONNECTION, INC., PLAINTIFF,
v.
M/V CCNI AYSEN, COMPANIA SUD-AMERICANA DE VAPORES, S.A. & HOWLAND HOOK CONTAINER TERMINAL, INC., DEFENDANTS.
HOWLAND HOOK CONTAINER TERMINAL, INC., 3D PARTY PLAINTIFF,
v.
FORCE ONE EXPRESS, INC., 3D PARTY DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Presently before the Court is the inquest motion for damages against third party defendant Force One Express, Inc. ("Force One"). For the reasons set forth below, plaintiff The Banana Connection, Inc. ("Banana Connection") is granted judgment against Force One for $14,265.50 plus prejudgment interest of $4,667.67, and Banana Connection's claims against defendants Compania Sud-Americana de Vapores, S.A. ("CSAV") and Howland Hook Container Terminal, Inc. ("Howland") are dismissed with prejudice and without costs.

FACTS AND PROCEDURAL BACKGROUND

Where, as here, "'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).

Plaintiff Banana Connection sued CSAV and Howland in admiralty, Fed. R. Civ. P. 9(h), alleging that on or about January 2, 2003, Banana Connection shipped 960 boxes of bananas in "good order and condition," in refrigerated containers on a CSAV vessel, from Ecuador to New York, where Howland acted for CSAV with respect to delivery of the bananas. (Dkt. No. 1: Compl. ¶¶ 1, 6, 7.) When the bananas arrived at the delivery destination, they were "in a chilled and damaged condition, resulting in a total loss," because no "Gen Set" had been placed on the refrigerated container. (Compl. ¶¶ 7(C)-(E).)

Howland, in turn, brought a third party complaint against Force One, asserting that Howland had contracted for Force One to receive delivery of the container and transport it to Massachusetts. (Dkt. No. 12: 3d Party Compl. ¶ 8.) Force One refused a Gen Set for the container, causing the damage to the bananas. (3d Party Compl. ¶¶ 10, 12.)

Howland's Third Party Complaint was served on Force One, and the process server's affidavit asserted it was served on "John Allocca, Authorized Agent" of Force One. (Dkt. No. 13.)

When Force One did not respond, Judge Holwell granted a default and referred the matter to me for an inquest. (Dkt. Nos. 20, 22.)

In response to my inquest scheduling order (Dkt. No. 24), Force One moved to vacate the default. (Dkt. No. 28.) Force One submitted an affidavit from Phillip Notaro, in which he identified himself as President of Force One and asserted that Force One never employed anyone named "John Allocca," and that Force One was never served. (Dkt. No. 28: Notaro ¶¶ 1, 3.)

On October 6, 2006, I held a hearing on Force One's motion to vacate. (See 10/6/06 Conf. Tr.) Mr. Notaro testified at the hearing that he was the Executive Vice President, not President, of Force One. (10/6/06 Conf. Tr. at 19, 42, 49-51.) He repeated that no one named John Allocca worked for Force One, but on questioning by the Court as to whether he knows anyone named Allocca, he conceded that James Allocca is Force One's President. (10/6/06 Conf. Tr. at 22.) On cross-examination, Notaro admitted that the signature on the process server's receipt was that of Force One's President, James Allocca. (Id. at 33-34.) Force One's counsel then conceded that Force One had been properly served. (Id. at 35.) Based on these and other facts, the Court found the default was willful and declined to vacate the default. (10/6/06 Conf. Tr. at 53-58; see also Dkt. No. 33: 10/6/06 Order.) The Court also set a schedule for inquest damage submissions. (10/6/06 Conf. Tr. at 58-60; 10/6/06 Order 2.)

The parties consented to my decision of this case on a dispositive basis pursuant to 28 U.S.C. § 636(c).

ANALYSIS

The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).

Banana Connection "has agreed to dismiss its complaint against the defendants CSAV and Howland Hook if a judgment is entered in favor of the Plaintiff and directly against [third party] defendant Force One, as permitted by Fed. R. Civ. P. ยง 14(c)." (Dkt. ...


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