United States District Court, E.D. New York
MISSION PRODUCE, INC. Plaintiff,
AP ROYAL PRODUCT, INC. and ALEKSANDR YAKUBOV, Defendants.
MEMORANDUM DECISION AND ORDER
M. Cogan U.S.D.J.
an action for goods sold and delivered pursuant to the
Perishable Agricultural Commodities Act, 7 U.S.C. § 499a
et seq. (“PACA”). Before me is
plaintiff's motion for default judgment under Rule
55(b)(2) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the motion is granted.
to the allegations in the complaint, plaintiff is a
perishable produce dealer, organized and operating under the
laws of California, and is licensed by the U.S. Department of
Agriculture. The corporate defendant, AP Royal Produce, Inc.
(“AP Royal”), is a New York corporation that held
itself out as being a wholesaler buyer, broker, or
distributor of produce, and the individual defendant,
Aleksandr Yakubov, is either the primary shareholder,
officer, or director of AP Royal. Yakubov is responsible for
the daily management and control of AP Royal, including its
finances, accounts receivable, and accounts payable.
alleges that it sold AP Royal wholesale quantities of fresh
avocados on September 16, 2016, and September 18, 2016, and
invoiced AP Royal for the agreed purchase price of $170, 250.
The invoices were payable by their terms within 10 days from
the receipt of the avocados. The invoices also advised AP
Royal of the statutory PACA trust; that interest on past due
amounts would be charged at 1.5% per month of the balance;
and that the failure to pay would subject AP Royal to
reasonable attorneys' fees and costs of collection.
Royal has failed to pay the invoices, despite plaintiff's
demands. Plaintiff therefore brought this action. Defendants
have failed to timely appear and the Clerk of Court has
entered their default on the docket pursuant to Federal Rule
of Civil Procedure 55(a). Defendants have also failed to
respond to plaintiff's motion for a default judgment.
light of defendants' default in this case, all of the
well-pleaded allegations in plaintiff's complaint
pertaining to liability are deemed true. However,
“[e]ven when a default judgment is warranted based on a
party's failure to defend, the allegations in the
complaint with respect to the amount of the damages are not
deemed true.” Credit Lyonnais Sec. (USA), Inc. v.
Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Rule
55(b)(2) provides that when granting default judgment, a
court may conduct a hearing if it is necessary to
“determine the amount of damages” or to
“establish the truth of any allegation by
evidence.” The Second Circuit has held that it is not
necessary to conduct a hearing if a district court has
“ensured that there was a basis for the damages
specified in the default judgment, ” such as by relying
on detailed affidavits and documentary evidence.
Transatlantic Marine Claims Agency, Inc. v. Ace Shipping
Corp., 109 F.3d 105, 111 (2d Cir. 1997) (internal
quotation marks omitted).
support of its motion for default judgment, plaintiff has
submitted the declaration of Jeremy B. Warren,
plaintiff's Corporate Counsel. The Warren affidavit
describes the sales between plaintiff and AP Royal and has
annexed and authenticated the invoices totaling $170, 250.
Each invoice bears the notation that the sale is subject to
PACA's statutory trust. The Warren affidavit also
contains a table listing each sale and computing interest,
which when added to the principal totals $194, 240.95.
principal amount claimed is sufficiently proven by the
invoices; it is essentially an account stated, see
generally In re Rockefeller Ctr. Props., 266 B.R. 52, 57
(S.D.N.Y. 2001), with additional protection provided by
federal law as a PACA trust. Similarly, the allegations in
the complaint as to the individual defendant Yakubov's
control of the business are sufficient to impose liability.
See e.g., Felix Produce Corp. v. New Lots Food
Corp., 2009 WL 2985444, *2 (E.D.N.Y. Sept.14, 2009);
John Georgallas Banana Distribs. of N.Y., Inc. v. N &
S Tropical Produce, Inc., 2008 WL 2788410, *4 (E.D.N.Y.
July 15, 2008); Brigiotta's Farmland Produce &
Garden Ctr., Inc. v. Przykuta, 2006 WL 3240729, *3-4
(W.D.N.Y. July 13, 2006); see also “R” Best
Produce, Inc. v. DiSapio, 540 F.3d 115, 125 n. 8 (2d
interest, the invoices contain a contractual term fixing the
interest rate, and courts will generally enforce such a rate.
See Taylor & Fulton Packing, LLC v. Maro Int'l
Foods, LLC, 2011 WL 6329194 (E.D.N.Y. Dec. 16, 2011).
as provided by the invoices, plaintiff is entitled to recover
attorneys' fees and costs pursuant to the invoices. PACA
explicitly provides for an award of attorneys' fees when
“the parties' contract so provides, ” as the
fees “become subject to the PACA trust together with
the principal debt.” Dayoub Mktg., Inc. v. S.K.
Produce Corp., 2005 WL 3006032, *4 (S.D.N.Y. Nov. 9,
2005) (citing, inter alia, Country Best v.
Christopher Ranch, LLC, 361 F.3d 629, 632-33 (11th Cir.
2004)). Plaintiff requests $4000 in attorneys' fees
computed at the rate of $250 per hour over 16 hours. Both the
rate and the hours expended are eminently reasonable and will
be awarded. In addition, plaintiff is entitled to
recover costs of $899.50, consisting of $400 for the filing
fee and $499.50 for process server fees.
motion for a default judgment is granted. Plaintiff shall
have judgment in its favor against defendants, jointly and
severally, in the amount of $199, 140.45 plus post-judgment
interest. Judgment will be ...