Motion in Opposition to Motion for Relief from Judgment

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 13-CV-22730

JUDGE UNGARO/TORRES

REPRESENTACIONES FULLTONER C.A.

Plaintiff,

v.

PACK AND SEND CARGO, INC.

and

MARTAINER, INC.

and

KING OCEAN SERVICES LTD.

Defendants
____________________________/

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).

ORIGINAL JURISDICTION
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
Michael Stewart
+“9/17/13
to Becky, Damon, dml, Ryon
All:
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.”
(Emphasis added).
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.”).
CONCLUSION
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.

Respectfully submitted,
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
P: 305-590-8909
ms@themiamilaw.com

Copies:

Darlene M. Lidondici, Esq.
Fla. Bar No. 516521
Fertig and Gramling
Attorney for Defendant Martainer, Inc.
200 SE 13th St.
Fort Lauderdale, Florida 33316
dml@fertig.com

Damon T. Hartley, Esq.
Fla. Bar No. 41136
DeLeo and Kuylenstierna PA
Attorney for Defendant King Ocean
King Ocean Services Ltd.
Town Center One
Suite 1710
8950 SW 74th Court
Miami, Florida 33156
dhartley@dkmartime.com

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

Writ of Garnishment Notice

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 13-CV-22730

JUDGE UNGARO/TORRES

REPRESENTACIONES FULLTONER C.A.

Plaintiff,
v.

PACK AND SEND CARGO, INC.

and

MARTAINER, INC.
and

KING OCEAN SERVICES LTD.

Defendants
____________________________/

GARNISHMENT NOTICE

TO: PACK AND SEND CARGO, INC.
YOU ARE NOTIFIED that garnishee MERCANTIL COMMERCEBANK, N.A., has answered the writ of garnishment issued in this action. Attached to this notice is a copy of the writ of garnishment and a copy of the garnishee’s answer. You must move to dissolve the writ within 20 days after the date in the certificate of service in this notice, exclusive of the day of service, serve a copy of the motion on plaintiff’s attorney, Michael D. Stewart, Esq., and file the original with the clerk of this court either before service on the attorneys or immediately thereafter. If you fail to do so, a default under the writ of garnishment will be entered against you. You may have exemptions from the writ of garnishment that must be asserted as a defense.

Respectfully submitted,

s/Michael D. Stewart/
Law Offices of Michael D. Stewart
Fla. Bar No. 12457
200 S.E 1st Street, #701
Miami, Fl. 33131 | (305) 590-8909

CERTIFICATE OF SERVICE

I hereby certify that on December 20, 2013 this document was served on counsel of record and unrepresented parties on the attached service list via transmission of Notices of Electronic Filing by CM/ECF or by other means of authorized service on those not represented by counsel.
s/Michael D. Stewart/
ms@themiamilaw.com
Attorney for Plaintiff
Pack and Send Cargo Inc.
Rebeca H. Argilagos, Office Manager
10850 NW 30th St
Doral, Florida 33172
Becky@packandsendcargo.com

Martainer, Inc.
Darlene M. Lidondici, Esq.
Fertig and Gramling
200 SE 13th St.
Fort Lauderdale, Florida 33316
dml@fertig.com

King Ocean Services Ltd.
Damon T. Hartley, Esq.
DeLeo and Kuylenstierna PA
Town Center One
Suite 1710
8950 SW 74th Court
Miami, Florida 33156
dhartley@dkmartime.com

Designation of Mediator United States District Court Southern District of Florida

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 13-22730-CIV-UNGARO

REPRESENTACIONES FULLTONER C.A.

Plaintiff,

v.

PACK AND SEND CARGO, INC.

and

MARTAINER, INC.

and

KING OCEAN SERVICES LTD.

Defendants
____________________________/

AGREED NOTICE OF DESIGNATION OF MEDIATOR

COMES NOW the Plaintiff, REPRESENTACIONES FULLTONER C.A. (“FULLTONER), by and through undersigned counsel, and after consultation and agreement with opposing counsel, designates the following as mediator in this matter:

Michael P. Essington, P.A.
1 Southeast Third Avenue
Suite 1750
Miami, Florida 33131
(T) 305-347-5678
(F) 305-347-5676
(C) 305-282-1783

CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2013 this document was served on counsel of record and unrepresented parties on the attached service list via transmission of Notices of Electronic Filing by CM/ECF or by other means of authorized service on those not represented by counsel.
s/Michael D. Stewart/
ms@themiamilaw.com
Attorney for Plaintiff

Martainer, Inc.
Darlene M. Lidondici, Esq.
Fertig and Gramling
200 SE 13th St.
Fort Lauderdale, Florida 33316
dml@fertig.com

King Ocean Services Ltd.
Damon T. Hartley, Esq.
DeLeo and Kuylenstierna PA
Town Center One
Suite 1710
8950 SW 74th Court
Miami, Florida 33156
dhartley@dkmartime.com

COGSA Subject Matter Jurisdiction

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 13-CV-22730

JUDGE UNGARO/TORRES

REPRESENTACIONES FULLTONER C.A.

Plaintiff,

v.

PACK AND SEND CARGO, INC.

and

MARTAINER, INC.

and

KING OCEAN SERVICES LTD.

Defendants
____________________________/

PLAINTIFF REPRESENTACTIONES FULLTONER C.A.’S
MEMORANDUM CONCERNING THIS COURT’S
SUBJECT MATTER JURISDICTION UNDER COGSA
AS TO DEFENDANT PACK AND SEND CARGO INC.

COMES NOW Plaintiff Representaciones Fulltoner (hereinafter “Fulltoner”) and files this Memorandum concerning this Court’s has Subject Matter Jurisdiction under COGSA as to Defendant Pack and Send Cargo Inc. (hereinafter “Pack and Send”), and in support hereof states:

INTRODUCTION
1. On February 10, 2014, this Court entered an Omnibus Order vacating a Default Judgment against Pack and Send, but stating that “the Clerk’s Entry of Default as against Pack and Send Cargo remains valid. Accordingly, liability has been established”.
2. 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.” The Complaint provides sufficient notice to Defendant Pack and Send that this is a claim under the Carriage of Goods by Sea Act. Under COGSA, this Court has original jurisdiction over the Defendant.
3. Defendant Pack and Send is an ocean shipper and/or freight forwarder and has been in business for over twenty (20) years. Defendant Pack and Send entered into a COGSA international shipping contract on behalf of Plaintiff and agreed to the terms contained therein. Defendant Pack and Send has admitted liability under a COGSA international shipping contract.
PLEADING REQUIREMENT
4. 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). 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). Defendant Pack and Send is in the business of international shipping and was given more than fair notice that the Complaint was based on COGSA.
SUBJECT MATTER JURISDICTION
5. This Court has subject matter jurisdiction under COGSA as to Defendant Pack and Send as a freight forward under a COGSA Bill of Lading who is liable to Plaintiff for its own negligent and/or intentional acts, and for breaching the King Ocean (hereinafter “King Ocean”) COGSA Bill of Lading. See attached Exhibit A. See Shonac Corp. v. Maerski, Inc., 159 F. Supp. 2d 1020, 1026 (S.D. Ohio 2001).
6. Defendant Pack and Send is liable to Plaintiff Fulltoner under COGSA as a freight forwarder for its own negligence, including a) its negligence in hiring a carrier, b) its negligence in respect of its handling the goods subject to the King Ocean Bill of Lading, c) its breach of the King Ocean COGSA Bill of Lading Warranties.
7. In addition, and alternatively, Defendant is liable to Plaintiff under the COGSA Bill of Lading terms as a NVOCC carrier for its negligent handling and/or conversion of the goods. Pack and Send consolidated the Hewlett Packard goods ordered by Plaintiff Fulltoner, issued bills of lading to shippers and carriers, hired King Ocean as ocean carrier, stuffed the container, consolidated goods from other companies, and applied the security seal together with Defendant Martainer. See attached registration with the Maritime Commission as Exhibit A.
COGSA
8. COGSA applies to a contract of carriage either by operation of law or through a bill of lading incorporating it. General Elec. Co. v. Inter-Ocean Shipping, 862 F. Supp. 166, 168 (S.D. Tex. 1994).
9. COGSA applies from the time cargo is loaded onto a carrier’s vessel until it is discharged. Crowley Am. Transp., Inc. v. Richard Sewing Mach. Co., 172 F. 3d 781, 785 n.6 (11th Cir. 1999). However, the parties may agree in the bill of lading to extend the applicability of COGSA to the pre-loading and post-discharge period. 46 U.S.C 30701, (“Nothing contained in this chapter . . . shall prevent a carrier or a shipper from entering into any agreement . . . as to the responsibility and liability of the carrier for the loss or damage to or in connection with the custody and care and handling of the goods prior to the loading on and subsequent to the discharge from the ship . . . .”); Eurosistemas, S.A. v. Antillean Marine Shipping, Inc., No. 11-21546-CIV, 2011 U.S. Dist. LEXIS 98624, 2011 WL 3878357, at 2 (S.D. Fla. Sept. 1, 2011).
10. COGSA was intended to govern all contracts for carriage of goods between the United States and foreign ports.” Polo Ralph Lauren, L.P. v. Tropical Shipping & Constr. Co., 215 F.3d 1217, 1220 (11th Cir. 2000). COGSA requires that a carrier “properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” Eurosistemas at 2. Where COGSA applies it preempts state law claims. See Polo, at 1220 , Eurosistemas at 2 (citing id.) (“Under COGSA, claims made pursuant to a bill of lading completely preempt state law causes of action and confer jurisdiction to federal district courts; plaintiffs are entitled to a single remedy and all other tort claims are excluded.”).
11. COGSA provides the exclusive remedy when it applies to a particular carriage of goods. See Polo at 1220; (any ‘artfully pled’ state law causes of action are in reality claims arising under COGSA”). Joe Boxer Corp v. Fritz Transp. Int’l, 33 F. Supp. 2d 851, 854 (C.D. Cal. 1998).

COGSA LIABILITY AS FREIGHT FORWARDER
12. Under COGSA, a freight forwarder is liable for lost goods if its own negligence (including negligence in hiring a carrier) caused the loss. Shonac Corp. v. Maerski, Inc.,159 F. Supp. 2d 1020, 1026 (S.D. Ohio 2001).
13. Here, Defendant Pack and Send has admitted liability. Defendant is the Shipper on the King Ocean Bill of Lading. Defendant is liable to Plaintiff for its negligent acts and breach of contract under the King Ocean Bill of Lading. Defendant is a) liable for negligently choosing an improper carrier, b) negligent and/or intentional acts in connection with the loss of goods that it consolidated, stuffed in the container, and purportedly sealed with Defendant Martainer under the King Ocean Bill of Lading, c) and liable to Plaintiff for breaching the contract provisions in the King Ocean Bill of Lading.
a) Negligently Choosing Improper Carrier
Plaintiff entrusted Defendant Pack and Send to act as its freight forwarder and agent in connection with its overseas shipment of goods. Defendant Pack and Send had a fiduciary duty to Plaintiff to act in its best interests as agent to Plaintiff. Included in this duty was choosing a carrier who would take reasonable care of the goods. Defendant chose King Ocean and entered into a COGSA agreement as the Shipper on behalf of Plaintiff. Due to the negligence of King Ocean and Pack and Send, Plaintiffs goods were lost.
b) Negligent and/or intentional acts as Shipper in connection with the loss of goods under the King Ocean Bill of Lading
Defendant Pack and Send admits it is liable under COGSA for its negligent and/or intentional acts in connection with the loss of Plaintiff’s goods.
c) Breach of the King Ocean Bill of Lading Contractual Provisions
Under the King Ocean Bill of Lading a Merchant includes, inter alia, the shipper, receiver of the goods. The King Ocean Bill of Lading states that “Packing of Containers-Shipper’s Guaranty – Indemnity. (1) If a Container has not been stuffed by or on behalf of Carrier, this bill of lading shall be a receipt for the Container(s) only and Carrier shall not be liable for loss of or damage to the contents thereof and Merchant shall indemnify Carrier against any injury, loss, damage, liability or expense incurred by Carrier if such exigency has been caused by:
a) the manner in which the Container has been packed or loaded;
b) the unsuitability of the Goods for carriage in Containers; or
c) the unsuitability or defective condition of the Container which would have been apparent upon reasonable inspection by Merchant at or prior to the time the Container was packed or loaded.”
Here Pack and Send , as agent/ shipper/merchant packed the container and allegedly sealed the container, in the presence of Martainer (so that the goods were effectively in the custody and control of King Ocean at the time). Pack and Send on behalf of Fulltoner guaranteed that the goods were as stated and agreed to indemnify King Ocean under the COGSA Bill of Lading. The goods were lost due to the liability of Pack and Send.
Similarly, under Paragraph 22 of the King Ocean Bill of Lading it states:
d) “SHIPPER’S WARRANTIES. Merchant warrants that he is the owner of and entitled to possession of the Goods or has the authority of the owner and all personal entitled to possession of the Goods to agree to the terms hererof.
Merchant warrants to Carrier that the particulars relating to the Goods as set out overleaf have been checked by Merchant on receipt of this Bill of Lading and that such particulars and any other particulars furnished by or on behalf of Merchant are correct. Merchant shall indemnify Carrier against all loss, damage or expense resulting from inaccuracies or inadequacy of such particulars.” See Yang Ming Marine Transp. Corp. v. Okamoto Freighters LTD., 259 F.3d 1086 (9th Cir. Cal. 2001).
Here the goods were not as listed and were lost, and Pack and Send is liable under the COGSA Bill of Lading.
NON-VESSEL OPERATING COMMON CARRIER LIABILITY
14. While there are similarities between acting as a freight forwarder and common carrier, Defendant Pack and Send is a registered Non-Vessel Operating Common Carrier (“NVOCC”) and was acting in this capacity in the subject case.
15. A forwarder who contracts to deliver the goods to their destination, as well as or instead of arranging for their transportation, becomes liable as a common carrier for loss or damages to the goods, whether the fault or other basis for liability for damages lies with the forwarders or with the underlying carrier actually transporting the goods.” See Zima Corp. v. M.V. Roman Pazinski, 493 F. Supp. 268, 274 (S.D.N.Y. 1980).
16. NVOCCs, take more responsibility than freight forwarders. They are carriers who issue bills of lading, and then receive bills of lading from actual carriers and become the shipper of record. If goods are lost, an NVOCC is liable to the same extent as a carrier that caused the loss. NVOCC’s arrange for transportation of goods and take on responsibility for delivering the goods. Scholastic Inc v. M/V Kitano, 362 F Supp 2d 449, 455 (SDNY (SDNY 2005).
17. COGSA, governs the liability of NVOCCs, not only with respect to damages occurring to merchandise in transit during the ocean portion of a multi-modal carriage of goods, but as well to the inland portions of carriage contemplated by the bill of lading issued by the NVOCC. See Indemnity Ins. Co. of N. America v. K-Line America, et al., No. 06 Civ. 0615 (BSJ), 2008 U.S. Dist. LEXIS 71931 (S.D.N.Y. Feb. 27, 2008); Rexroth Hydraudyne B.V. v. Ocean World Lines, et al, No. 06 Civ. 5549 (LAK), 2007 541958, 2007 U.S. Dist. LEXIS 14356 (S.D.N.Y. Feb. 14, 2007).
18. Pack and Send is a registered NVOCC, and acted as a Carrier to Plaintiff and a Shipper as to King Ocean. Pack and Send issued bills of lading, was responsible for the full shipment to Venezuela, contracted with King Ocean, paid King Ocean’s fees, did the heavy work, including consolidating the HP products in the warehouse, together with shipments from other companies, stuffed the container, and applied the security seal with Defendant Martainer.
19. Further, Defendant Pack and Send has admitted its liability herein. Pack and Send’s lack of response “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).
21. Based on the forgoing, the cause of action must fall under COGSA with respect to the relationship between Fulltoner and Pack and Send.
Respectfully submitted,
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
P: 305-590-8909
ms@themiamilaw.com

Copies:

Darlene M. Lidondici, Esq.
Fla. Bar No. 516521
Fertig and Gramling
Attorney for Defendant Martainer, Inc.
200 SE 13th St.
Fort Lauderdale, Florida 33316
dml@fertig.com

Damon T. Hartley, Esq.
Fla. Bar No. 41136
DeLeo and Kuylenstierna PA
Attorney for Defendant King Ocean
King Ocean Services Ltd.
Town Center One
Suite 1710
8950 SW 74th Court
Miami, Florida 33156
dhartley@dkmartime.com

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

Motion in Opposition to Motion for Relief from Judgment Southern District of Florida

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 13-CV-22730

JUDGE UNGARO/TORRES

REPRESENTACIONES FULLTONER C.A.

Plaintiff,

v.

PACK AND SEND CARGO, INC.

and

MARTAINER, INC.

and

KING OCEAN SERVICES LTD.

Defendants
____________________________/

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 is liable under COGSA in accordance with 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).

ORIGINAL JURISDICTION
13. Maritime jurisdiction in this matter is proper and was sufficiently pled. First, Defendant Pack and Send, under the bill of lading with 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
Michael Stewart
+“9/17/13
to Becky, Damon, dml, Ryon
All:
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.”
(Emphasis added).
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.”).
CONCLUSION
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.

Respectfully submitted,
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
P: 305-590-8909
ms@themiamilaw.com

Copies:

Darlene M. Lidondici, Esq.
Fla. Bar No. 516521
Fertig and Gramling
Attorney for Defendant Martainer, Inc.
200 SE 13th St.
Fort Lauderdale, Florida 33316
dml@fertig.com

Damon T. Hartley, Esq.
Fla. Bar No. 41136
DeLeo and Kuylenstierna PA
Attorney for Defendant King Ocean
King Ocean Services Ltd.
Town Center One
Suite 1710
8950 SW 74th Court
Miami, Florida 33156
dhartley@dkmartime.com

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