United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
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 in part.
to the allegations in the complaint, plaintiff is a
perishable produce dealer, organized and operating under the
laws of New York, and licensed to sell its produce products.
The corporate defendant, Page Food Distributors, is also a
New York corporation and has its principal place of business
in Staten Island. The complaint alleges that the individual
defendant Sciandra is an officer, director, principal, owner
and/or shareholder of Page, and that the individual defendant
Reynolds is in control of Page's assets.
July 2, 2019, and August 20, 2019, Page made ten purchases of
perishable produce from plaintiff, each of which was
delivered to and accepted by Page. The complaint alleges that
each of the 10 invoices notified Page of plaintiff's
right to a trust over the goods or their proceeds under PACA,
as well plaintiff's right to recover interest and
attorneys' fees. Nevertheless, Page has failed to pay the
invoices, despite plaintiff's demands, leaving a
principal balance due of $107, 775.50.
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. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
155, 159 (2d Cir. 1992). 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 and citations omitted).
support of its motion for default judgment, plaintiff has
submitted the declaration of its attorney, which
authenticates the invoices annexed to the complaint and again
to his affidavit. Each invoice bears the notation that the
sale is subject to PACA's statutory trust. In addition,
the affidavit annexes a Statement of Damages for the
principal amount due; interest at 9% per annum from the last
delivery date to the filing of the motion; and attorneys'
fees and costs.
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 defendants' role in
the business are sufficient to impose liability. See
e.g., Felix Produce Corp. v. New Lots Food
Corp., No. 08-cv-5161, 2009 WL 2985444, at *2 (E.D.N.Y.
Sept.14, 2009); John Georgallas Banana Distribs. of N.Y.,
Inc. v. N & S Tropical Produce, Inc., No.
07-cv-5093, 2008 WL 2788410, at *4 (E.D.N.Y. July 15, 2008);
Brigiotta's Farmland Produce & Garden Ctr., Inc.
v. Przykuta, Inc., No. 05-cv-273, 2006 WL 3240729, at
*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, courts will generally enforce a contractually
agreed-upon interest rate. See Taylor & Fulton
Packing, LLC v. Marco Int'l Foods, LLC, No.
09-cv-2614, 2011 WL 6329194, at *8-9 (E.D.N.Y. Dec. 16,
2011). However, contrary to a statement in in one part of
plaintiff's supporting memorandum, I see nothing on the
invoices fixing an 18% interest rate. Interest will therefore
be allowed, by analogy, to the rate provided under New York
law in breach of contract cases, see N.Y. C.P.L.R.
§ 5004, from the date of last delivery.
although plaintiff includes attorneys' fees and costs in
its Statement of Damages, I see no such provision in the
invoices. Attorneys' fees and costs will therefore not be
awarded. See Higueral Produce, Inc. v. CKF Produce
Corp., No. 18-cv-6760, 2019 WL 5694079, at *11 (E.D.N.Y.
Aug. 16, 2019).
motion for a default judgment is granted in part. The Clerk
is directed to enter judgment for plaintiff against
defendants, jointly and severally, in the amount of $107,