UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 13-CV-22730
REPRESENTACIONES FULLTONER C.A.
PACK AND SEND CARGO, INC.
KING OCEAN SERVICES LTD.
PLAINTIFF REPRESENTACTIONES FULLTONER C.A.’S
MOTION IN OPPOSITION TO PACK AND SEND CARGO, INC.’S MOTION FOR RELIEF FROM JUDGMENT
COMES NOW Plaintiff Representaciones Fulltoner (hereinafter “Fulltoner”) and files this Motion in Opposition to Pack and Send Cargo, Inc.’s Motion for Relief from Judgment (hereinafter “Pack and Send”) and in support hereof states:
1. Plaintiff Fulltoner served its Complaint in this action on Pack and Send on August 2, 2013. Plaintiff’s Complaint contains a short and plain statement under the Carriage of Goods by Sea Act (“COGSA”) and, inter-relatedly, the Carmack Amendment. Plaintiff’s Complaint states: “This is an action in admiralty for maritime claims for damages in excess of $75,000.00 and otherwise within the jurisdiction of this Court. This Court has original jurisdiction pursuant to 28 U.S.C. §1300 et. seq.”
2. COGSA is cited specifically, and the Carmack amendment is covered under the phrase “and otherwise within the jurisidiction of this Court”. Project Hope v. N/V IBN Sina, 250 F.3d 67 (May 4, 2001) (for the proposition that the prima facie case for both COGSA and Carmack Amendment are identical for all relevant purposes).
3. With respect to jurisdiction under COGSA, Pack and Send is not only a freight forwarder but also a licensed NVOCC with the Maritime Commission. See Exhibit A. Under the King Ocean Bill of Lading attached hereto as Exhibit B, Pack and Send acted as an agent for King Ocean under the King Ocean bill of lading.
4. Further, Pack and Send consented to jurisdiction in the Southern District of Florida under Paragraph 25 of the King Ocean Bill of Lading.
5. Defendant Pack and Send is also liable to the Plaintiff under the Carmack Amendment, as it arranged for the receipt, consolidation, packing, sealing and full shipment of the goods from Florida to Venezuela, under separate Bill of Lading with Defendant Martainer (See Exhibit C – Martainer Bill of Lading listing Pack and Send Bill of Lading number), at their point of origin on the inland leg of a multimodal shipment originating in the United States. Defendant Martainer admits that Carmack applies in this action in its motion for summary judgment, attached hereto as Exhibit D. and the intent of the parties in this respect is clear.
6. Plaintiff has jurisdiction over Pack and Send for the actual loss to the property which occurred in this matter, namely $406,055.51. See Exhibit E. The Carmack Amendment is a strict liability statute; once a party has been found to be subject to the Amendment, and that no exceptions or limitations apply, that party is liable for the “actual amount” of loss or injury to the goods. 28 U.S.C. § 11707. Tuggle, 1997 U.S. Dist. LEXIS 22175 (C.D. Cal. Aug. 22, 1997).
7. With respect to Default, Defendant Pack and Send has been in business for approximately twenty (20) years according to their website, and has been registered with the state of Florida since 1999. See Exhibit F. Defendant Pack and Send , in addition to being a freight forwarder, is also registered as an NVOCC with the Martime Commission. However, even given their business experience in the United States, Defendant Pack and Send failed to file an Answer to the Complaint , despite an email from the undersigned, attached hereto as Exhibit G, inquiring if they were going to obtain counsel as no Answer had been filed.
8. Nothing in the letter from Pack and Send appears to admit or deny any of the allegations contained in Plaintiff’s Complaint. The Clerk of Court also did not docket the letter from Pack and Send, presumably because it was not interpreted as an answer, or was not filed by a lawyer. Even after notice of default, and confirmation of default by counsel for Defendant Martainer, Pack and Send did nothing. Defendant Pack and Send was copied on the Joint Scheduling Report, where the undersigned inquired if they were going to obtain a lawyer and file an Answer, but did not participate in the scheduling. Pack and Send did not attend the deposition of the representative for Plaintiff. Defendant Pack and Send also failed to take any action after being personally served with a writ of garnishment.
9. Only after their bank account was frozen did Defendant Pack and Send finally consult with counsel.
STANDARD FOR RELIEF FROM JUDGMENT
10. Federal Rule of Civil Procedure 60(b) provides that a district court may grant relief from a final judgment because of, inter alia, mistake, inadvertence, or excusable neglect; fraud, misrepresentation or misconduct by an opposing party, the judgment is void, or any other reason that justifies relief. Fed.R.Civ.P. 60(b).
11. While the filings of a pro se party are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant is not exempt from this rule, see Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“[O]nce a pro se [in forma pauperis] litigant is in court, he is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.)
12. Nonetheless, it is well established that a “district court has the authority to enter default judgment for failure … to comply with its orders or rules of procedure.” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985).
13. Maritime jurisdiction in this matter is proper and was sufficiently pled. First, Defendant Pack and Send, as NVOCC agent for King Ocean, can be governed by the Clause Paramount in Paragraph 3 of King Ocean’s Bill of Lading (Exhibit B) , which clearly invokes the Carriage of Goods by Sea Act (COGSA). Section 1333 of title 28 of the United States Code provides: “The district courts shall have original jurisdiction exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction saving to suitors in all cases all other remedies to which they are otherwise entitled”.
14. Second, under the King Ocean Bill of Lading, Pack and Send consented to jurisdiction in the Southern District of Florida. Because of “the well-established agency relationship between the shipper and the NVOCC,” Glyphics Media, Inc. v. M.V. “Conti Sing.”, 2003 U.S. Dist. LEXIS 4387, No. 02-4398, 2003 WL 1484145, at *7 (S.D.N.Y. Mar. 21, 2003), Wildwood is bound by the forum selection clause in Zim’s bill of lading despite not having itself entered into the contract.”.; see also Jockey Int’l, Inc. v. M/V “Leverkusen Express, 217 F. Supp.2d 447, 457 (S.D.N.Y. 2002) (holding that forum selection clause in a bill of lading issued to an NVOCC binds the cargo owner/shipper because the NVOCC acts as the shipper’s agent in arranging for the shipment through a VOCC);M. Prusman Ltd. v. M/V Nathanel, 670 F. Supp. 1141, 1142 (S.D.N.Y. 1987)
15. Third, jurisdiction is proper over Defendant Pack and Send under the Carmack Amendment as Plaintiff pleaded “and otherwise within the jurisdiction of this court” and the causes of action for COGSA and Carmack are nearly identical for jurisdictional purposes. Project Hope v. N/V IBN Sina, 250 F.3d 67 (May 4, 2001) . Here Pack and Send acted as both a freight forwarder and a receiving carrier.
16. FED. R. CIV. P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 1949 (2009); Magluta v. Samples, 256 F.3d 1282, 1284 & n.3 (11th Cir. 2001). Pursuant to FED. R.CIV. P. 8(d)(1) “[e]ach allegation must be simple, concise, and direct.” The complaint must simply “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Marsh v. Butler County, 212 F.3d 1318, 1321 (11th Cir. 2000)
17. See Allied American Adjusting Co., LLC v. Fair, 2007 WL 2462019, 1 (S.D.Ala., Aug. 24, 2007) explaining that a “motion for more definite statement ‘is intended to provide a remedy for an unintelligible pleading, rather than a vehicle for obtaining greater detail.’”) (quoting Fathom Exploration, 352 F.Supp.2d at 1221).
18. The Second Circuit has held that even when a plaintiff “might have stated [a] claim . . . more artfully,” a court should not dispose of a claim when “the essential elements of the charge do appear in the complaint.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000). The panel explained that, “[u]nder [Federal Rule of Civil Procedure] 15(b), a district court may consider claims outside those raised in the pleadings so long as doing so does not cause prejudice.” Id.
19. Here the Defendant was clearly on fair notice that a COGSA and/or Carmack Amendment case was being brought against it.
20. Undsr the Carmack Amendment a shipper can bring suit against a freight forwarder or a motor carrier.
“The Interstate Commerce Act defines “freight forwarder” as follows:
8) (Freight Forwarder)–The term “freight forwarder” means a person holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation of property for compensation and in the ordinary course of business–
(A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of shipments;
(B) assumes responsibility for the transportation from the place of receipt to the place of destination; and
(C) uses for any part of the transportation a carrier subject to the jurisdiction under this subtitle.
The term does not include a person using transportation of an air carrier subject to part A of subtitle VII.
49 U.S.C. § 13102(8). “
21. Further, the term “carrier” refers to a “motor carrier, a water carrier, or a freight forwarder.” 49 U.S.C. § 13102(3). The term “freight forwarder” is defined by statute as “a person holding itself out to the general public (other than as a . . . motor carrier . . .) to provide transportation of property for compensation and in the ordinary course of business – (A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments; (B) assumes responsibility for the transportation from the place of receipt to the place of destination; and (C) uses for any part of the transportation a carrier subject to jurisdiction under this subtitle. 49 U.S.C. § 13102(8)(A)—(C). A “freight forwarder” can be “both the receiving carrier and the delivering carrier.” 49 U.S.C. § 14706(a)(2); IBM v. Fernstrom, 1987 WL 8170 (N.D. Ill. March 18, 1987).
22. Whether a company is a carrier or freight forwarder, as opposed to a broker, is determined by how it holds itself out to the world and in its relationship with the shipper. See e.g., Phoenix Assur. Co. v. Kmart Corp., 977 F. Supp. 319, 325-26 (D.N.J. 1997) Nipponkoa Ins. Co. v. CH Robinson Worldwide, Inc., 2011 U.S. Dist. LEXIS 17752, 2011 WL 671747, * 4—6 (S.D.N.Y. 2011) .
23. A freight forwarder is liable to shipper for loss or damage to the freight exactly as if it were a carrier subject to the Interstate Commerce Act.. Chicago, Milwaukee, St. Paul & PR Co. v. Acme Fast Freight, Inc., 336 U.S. 465, 469, 93 L. Ed. 817, 69 S. Ct. 692 (1949).
24. Plaintiff has jurisdiction over Pack and Send for the actual loss to the property which occurred in this matter Under the Carmack Amendment, an injured party is entitled to recover “the actual loss or injury to the property caused by [a carrier].” 49 U.S.C. §14706(a)(1). Generally, actual loss is measured by fair market value of the damaged goods at destination. See Jessica Howard Ltd. v. Norfolk Southern R.R. Co., 316 F.3d 165, 168 (2d Cir. 2003).
25. Here the intent of the parties is clear. Pack and Send and Martainer issued separate bills of lading on the inland portion of the subject multimodal shipment originating in the United States (See American Home Assurance Co. v. Panalpina, Inc. 2011WL 666388 (S.D.N.Y.), received the goods from Hewlett Packard, consolidated the goods in its warehouse, stuffed the container, placed the security seal on the container, contracted for the carriage of the goods, and held itself out to Plaintiff as a freight forwarder. Counsel for Martainer in its motion for summary judgment also makes clear that Carmack applies here.
DEFAULT – FRAUD AND MISCONDUCT
26. The allegation of Fraud and Misconduct is misguided. As indicated in the attached Affidavit as Exhibit H, it never even occurred to undersigned counsel that Defendant Pack and Send could have been attempting to defend themselves by re-providing materials they had sent to us before. In fact, undersigned counsel clearly inquired of Becky Argilagos, the non-lawyer representative as to why no file answer, stating in email (attached as Exhibit G):
July 30, 2013 Summons sent to them
to Becky, Damon, dml, Ryon
Attached is a draft of the proposed scheduling order. Please provide input on the dates, as well as any other changes you believe is needed.
The attorney for Martainer will be unavailable for a telephone conference tomorrow so perhaps we can just do this by email?
Becky: Is Pack and Send going to get a lawyer? N.B. no answer has been filed with the court.”
This email notice to Defendant Pack and Send clearly shows that there was no misconduct or fraud etc. Defendant Pack and Send merely failed to defend itself in any way.
27. The letter from Pack and Send did not in any way Answer the allegations in the Complaint, nor did it admit or deny liability. While pleadings of a pro se litigant are to held to less stringent standards than those drafted by an attorney, Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), a pro se litigant must still meet minimal pleading standards. Olsen v. Lane, 832 F. Supp. 1525 (M.D. Fla. 1993).
The Federal Rules of Civil Procedure provide:
“8(b) DEFENSES; ADMISSIONS AND DENIALS.
(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.”
28. Here, Pack and Send did not deny anything or otherwise defend itself. The Clerk of Court apparently did not consider Defendant’s letter an Answer or other defense as the letter was not docketed. Undersigned counsel did not in any way interpret the letter as an Answer. Even after notice of default, with confirmation of default from counsel for Martainer, Defendant Pack and Send failed to even inquire with the Clerk of Court or with counsel.
29. Defendant Pack and Send should have, and should have known to, obtain a lawyer at the outset. See Richter v. Higdon Homes, Inc., 544 So.2d 300 (Fla. 1st DCA 1989); Nicholson Supply Co. vs. First Federal Savings & Loan Assoc. of Hardee County, 184 So. 2d 438 (Fla. 2d DCA 1966). See also Szteinbaum v. Kaes Inversiones by Valores, 476 So.2d 247 (Fla. 3d DCA 1985); Punta Gorda Pines Dev., Inc. v. Slack Excavating, Inc., 468 So.2d 438 (Fla. 2d DCA 1985); Hub Financial Corp. v. Olmetti, 465 So.2d 618 (Fla. 4th DCA 1985); Daytona Migi Corp. v. Daytona Automotive Fiberglass, Inc., 417 So.2d 272 (Fla. 5th DCA 1982); Angelini v. Mobile Home Village, Inc., 310 So.2d 776 (Fla. 1st DCA 1975).
EXCUSABLE NEGLECT AND MISTAKE
30. R. Civ. P. 60(b)(1). To establish excusable neglect, the defaulting party must show that: “(1) it had a meritorious defense that might have affected the outcome; (2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a good reason existed for failing to reply to the complaint.” In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003)
31. While the filings of a pro se party are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant is not exempt from this rule, see Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“[O]nce a pro se [in forma pauperis] litigant is in court, he is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.) (referring to Federal Rule of Civil Procedure 55(a) rather than 60(b)).
32. The he culpable conduct of Defendant Pack and Send in not defending this action does not amount to mere negligence, but purposeful non-action, and should therefore not be considered excusable.
FACTUAL EVIDENCE TO SUPPORT DAMAGES
33. Here Defendant Pack and Send is liable to Plaintiff for the actual loss of its goods under the Carmack Amendment. Under the Carmack Amendment, an injured party is entitled to recover “the actual loss or injury to the property caused by [a carrier].” 49 U.S.C. §14706(a)(1). Generally, actual loss is measured as by fair market value of the damaged goods at destination. See Jessica Howard Ltd. v. Norfolk Southern R.R. Co., 316 F.3d 165, 168 (2d Cir. 2003).
34. The Carmack Amendment is a strict liability statute; once a party has been found to be subject to the Amendment, and that no exceptions or limitations apply, that party is liable for the “actual amount” of loss or injury to the goods. 28 U.S.C. § 11707. Tuggle Id. at 3.
35. Here Defendant Pack and Send was acting as both a freight forwarder and a receiving carrier in this transaction and is therefore liable for the actual loss to the property.
36. Further, by defaulting, Defendant Pack and Send has admitted to the damages caused under the Carmack Amendment. Pack and Send’s lack of defense “effectively constitutes an admission that the damages were proximately caused by the defaulting party’s conduct: that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged.” Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 111 (E.D.N.Y. 1997). An evidentiary hearing is not required provided there is a basis for the damages awarded. Transatlantic Marine Claims Agency v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)
37. Federal Rule of Civil Procedure 54(c) provides: “A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” Fed. R. Civ. P. 54(c); Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir.1993); In re Dierschke, 975 F.2d 181, 185 (5th Cir.1992) (“Rule 54(c), and for that matter fundamental fairness, dictate that a judgmenet by default operates as a deemed admission only as to the relief requested in the complaint.”).
38. Here Plaintiff claimed in excess of $400,000.00 in loss, while the actual sum certain loss is greater ($406,055.51). Plaintiff is willing to supplement its filings with additional clear proof of loss, or to attend a hearing on same. Flynn v. Extreme Granite, Inc., 671 F. Supp.2d 157, 160 (D.D.C. 2009) (district court is not required to hold hearing to fix damages in default judgment context as long as it ensures there is a basis for damages specified); Eastern Elec. Corp., 652 F. Supp. 2d at 605 (“In considering the amount of damages …, the Court may make its determination by conducting a hearing or by receiving detailed affidavits from the claimant.”).
39. Defendant Pack and Send is subject to jurisdiction under both the Carmack Amendment and COGSA. Pack and Send was aware of the Complaint against it and failed to take actions to in any way defend itself. Plaintiff obtained a default judgment against Pack and Send for the actual value of the loss of goods. Plaintiff has been without money needed to run his business for a significant period of time. Defendant Pack and Send’s culpable conduct was the cause of the default judgment. The default judgment should stand.
s/Michael D. Stewart/
Law Offices of Michael D. Stewart
Fla. Bar No. 12457
Attorney for Plaintiff Representaciones Fulltoner C.A.
200 SE 1st St., Suite 701
Miami, Florida 33131
Darlene M. Lidondici, Esq.
Fla. Bar No. 516521
Fertig and Gramling
Attorney for Defendant Martainer, Inc.
200 SE 13th St.
Fort Lauderdale, Florida 33316
Damon T. Hartley, Esq.
Fla. Bar No. 41136
DeLeo and Kuylenstierna PA
Attorney for Defendant King Ocean
King Ocean Services Ltd.
Town Center One
8950 SW 74th Court
Miami, Florida 33156
Stephen James Binhak P.L.L.C.
Florida Bar No.: 0736491
The Law Office of Stephen James Binhak, P.L.L.C.
Attorney for Pack and Send Cargo
2 South Biscayne Blvd., Suite 3570
Miami, Florida 33131