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Interglobo Customs Broker, Inc. v. Herschel Imports, Inc.

United States District Court, S.D. New York

June 5, 2015

INTERGLOBO CUSTOMS BROKER, INC., Plaintiff,
v.
HERSCHEL IMPORTS, INC. a/k/a HERSCHEL IMPORTS CORPORATION AND UNITED STONES INTERNATIONAL, INC., Defendants. UNITED STONES INTERNATIONAL, INC, Counter Claimant,
v.
INTERGLOBO CUSTOMS BROKER, INC., Defendants. Counter Defendant.

MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX, Magistrate Judge.

BACKGROUND

The plaintiff, Interglobo Customs Broker, Inc., commenced this action for damages, asserting claims for an account stated and breach of contract against Herschel Imports, Inc. a/k/a Herschel Imports Corporation and United Stones International, Inc. ("USI"). On November 20, 2014, the Clerk of Court entered a default against Herschel Imports, Inc. a/k/a Herschel Imports Corporation. On November 25, 2014, the plaintiff made a motion for summary judgment against USI, pursuant to Rule 56 of the Federal Rules of Civil Procedure. On December 30, 2014, USI opposed that motion, making a cross-motion for leave to file an amended answer and counterclaim and for counsel fees and costs, which the plaintiff opposed.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff's Motion for Summary Judgment

The plaintiff contends that summary judgment is warranted because, in its answer to the amended complaint, "USI admits that it owes $33, 465.87 to Plaintiff, " and "a formal judicial admission is conclusive against the party that makes the admission." The plaintiff asserts that, even without USI's admission, USI is liable to the plaintiff for that amount on its account stated claim because USI did not object to the plaintiff's invoices, "dated November 2013 and early to mid-2014."

The plaintiff contends that USI is liable for the plaintiff's invoices for brokerage services and duties paid because the plaintiff's "brokerage services were performed and billed pursuant to the POA [Power of Attorney] and the Standard Terms and Conditions of Services, which govern the contractual relationship between Interglobo and USI." The plaintiff maintains that, "as shown in the Entry Summaries annexed to Interglobo's affidavit[1] in support of this motion, USI is listed as the importer of record on each of the relevant Entry Summaries filed with the U.S. Customs." According to the plaintiff, the "POA" and the "Standard Terms and Conditions of Services" are "clear in that the compensation of Interglobo for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by Interglobo to transport and deal with the goods." The plaintiff asserts that, "regardless whether Interglobo, per USI's instruction, sent invoices to Herschel, USI is still" entitled to recover "$18, 234.06 from USI."

The plaintiff contends that USI is liable for the plaintiff's invoices for transportation charges, because "[u]nder each of the relevant bills of lading is [sic] suit, USI is the consignee of the cargo, " and the plaintiff's bill of lading defines "Merchant" as the consignee of the cargo. The plaintiff maintains that "Section 17 of the bill of lading provides that the Merchant (and therefore the consignee) is responsible for the Charges relating to the bill of lading." Furthermore, "the bills of lading at issue are stamped freight collect, '" and the plaintiff "is entitled to recover $33, 449.63 from USI, as consignee." The plaintiff contends it is entitled to attorney's fees because "the parties have entered into the POA, which incorporates the Standard Terms and Conditions of Services, a binding agreement that provides" for reasonable attorney's fees and costs incurred in this litigation.

In support of its motion, the plaintiff submitted a declaration by: (a) Michele Lupo ("Lupo") the plaintiff's officer, with exhibits; and (b) Francesco Di Pietro, the plaintiff's attorney, with an exhibit. Lupo states that the following exhibits are attached to Lupo's declaration: (1) Exhibit A, "[a] true and correct copy of the POA [Power of Attorney] executed by USI"; (2) Exhibit B, "[t]rue and correct copies of Interglobo's invoices and Entry Summaries"; (3) Exhibit C, "[t]rue and accurate copies of the invoices and respective bills of lading"; (4) Exhibit D, "a true and correct copy of the back-side of Interglobo's bill of lading"; and (5) Exhibit E, "[t]rue and accurate copies of [the] invoices" sent by the plaintiff to USI "for brokerage and transportation services performed on behalf of USI in the total amount of $33, 456.87." Lupo "also supplied a blank copy of the power of attorney form, as part of Exhibit A, to assist the Court in reading the original carbon copy of the POA." Concerning the plaintiff's Exhibit B, Lupo contends, in a footnote:

Invoices 6214, 190 and 618 contain charges for customs brokerage services to USI as importer of record, for which USI is liable as well as transportation services to Herschel as consignee, for which Herschel is liable. Invoice 6214: USI is liable for $3, 685.36 and Herschel is liable for $8, 925; Invoice 190: USI is liable for $1, 895.71 and Herschel is liable for $5, 950; Invoice 618: USI is liable for $3, 480.87 and Herschel is liable for $8, 925.

Defendant's Opposition to the Motion

Local Civil Rule 6.1 of this court provides that, on a civil motion under Rule 56 of the Federal Rules of Civil Procedure, "any opposing affidavits and answering memoranda shall be served within fourteen days after service of the moving papers." Local Civil Rule 6.1(b). "In computing any period of time prescribed or allowed by the Local Civil Rules or the Local Admiralty and Maritime Rules, the provisions of Fed.R.Civ.P. 6 shall apply unless otherwise stated." Local Civil Rule 6.4. "A paper is served under [Rule 5] by... sending it by electronic means if the person consented in writing-in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served." Fed.R.Civ.P. 5(b)(2)(E). "When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a)." Fed.R.Civ.P. 6(d). "In cases assigned to the ECF [Electronic Case Filing] system, service is complete provided all parties receive a Notice of Electronic Filing (NEF), which is sent automatically by email from the Court. Transmission of the NEF constitutes service upon all Filing and Receiving Users who are listed as recipients of notice by electronic mail." Rule 9.1 of the Electronic Case Filing Rules & Instructions.

Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. Any less rigid standard would risk encouraging a lax attitude toward filing dates. A filing ...

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