Sun Pacific Marketing Cooperative, Inc. v. Dimare Fresh, Inc.

Filing 177

ORDER RE: Motions for Reconsideration and Motion for Attorney's Fees and Costs (Docs. 166 , 167 , 168 , 169 ), Signed by Chief Judge Anthony W. Ishii on 9/27/2012. (Arellano, S.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUN PACIFIC MARKETING
COOPERATIVE, INC.,

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Appellant,
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v.
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DIMARE FRESH, INC.,
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Appellee.
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____________________________________ )

CIV-F-06-1404 AWI GSA
ORDER RE: MOTIONS FOR
RECONSIDERATION AND
MOTION FOR ATTORNEY’S FEES
AND COSTS

(Docs. 166, 167, 168, and 169)

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I. History
Both Appellant Sun Pacific Marketing Cooperative, Inc. (“Sun Pacific”) and Appellee

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DiMare Fresh, Inc. (“DiMare”) are companies engaged in buying and selling wholesale quantities

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of produce. DiMare agreed to buy from Sun Pacific a set quantity of various types of tomatoes at

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set prices every week from July 17, 2006 through October 31, 2006 (“Contract”). The Contract

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specified that “In the event of a product shortage caused by an Act of God, Natural disaster or

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other incident that could not be foreseen and is beyond the control of Sun Pacific, then

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performance under this contract shall be excused.” That summer, the San Joaquin Valley of

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California, where Sun Pacific’s growing facilities were located, experienced a heat wave that

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negatively affected tomato crops. Sun Pacific sought to invoke the Act of God clause. DiMare

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disagreed and insisted upon performance of the Contract. The parties filed suit in Fresno and

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filed a formal reparation complaint pursuant to PACA provision 7 U.S.C. §499f(a) with the

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USDA. The parties presented their cases before William Jenson, a Judicial Officer of the USDA,
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at a hearing in Los Angeles, CA. Judge Jenson concluded there was no product shortage and

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awarded DiMare $1,136,599 plus interest, fees, and costs.

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Sun Pacific appealed the decision to this court. A de novo bench trial was held in accord

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with PACA procedure. The court issued Findings of Fact and Conclusions of Law (“FOFCOL”),

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finding that Sun Pacific breached the Contract and was liable to DiMare for damages. Though

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Sun Pacific asserted that there was a product shortage that excused performance, there was

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insufficient evidence to support that conclusion. DiMare provided invoice records that show

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$1,225,362 worth of damages. However, DiMare did not account for purchases made at prices

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below Contract prices; these savings must be deducted from damages. In the absence of an

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accounting for these savings, the court cut damages by 20%. The court awarded 2.18%

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prejudgment interest as requested by DiMare.

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Both parties now seek reconsideration of the FOFCOL under Fed. Rules Civ. Proc 52(b)

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and 59(a)(2). Sun Pacific seeks a finding that a product shortage existed, excusing performance

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under the contract. Doc. 169. DiMare seeks an interest rate of 10% under California law and a

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difference calculation of the savings from cover. Doc. 166. Additionally, DiMare seeks

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attorney’s fees and costs. Doc. 167.

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II. Legal Standards

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Fed. Rule Civ. Proc. 52(b) states “On a party’s motion filed no later than 28 days after the

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entry of judgment, the court may amend its findings - or make additional findings - and may

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amend the judgment accordingly. The motion may accompany a motion for a new trial under

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Rule 59.” Fed. Rule Civ. Proc. 59(a)(2) states “After a nonjury trial, the court may, on motion

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for a new trial, open the judgment if one has been entered, take additional testimony, amend

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findings of fact and conclusions of law or make new ones and direct the entry of a new

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judgment.”

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Motions under Fed. Rule Civ. Proc. 52(b) are “designed to correct findings of fact which

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are central to the ultimate decision; the Rule is not intended to serve as a vehicle for a rehearing.”

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R.C. Fischer and Co. v. Cartwright, 2011 U.S. Dist. LEXIS 139388, *13 (N.D. Cal. Dec. 5,
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2011), citing Davis v. Mathews, 450 F. Supp. 308, 318 (E.D. Cal. 1978). Fed. Rule Civ. Proc.

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52(b) motions are appropriately granted in order to correct manifest errors of law or fact or to

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address newly discovered evidence or controlling case law. Fontenot v. Mesa Petroleum Co., 791

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F.2d 1207, 1219-20 (5th Cir. 1986). A motion to amend a court’s factual and legal findings is

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properly denied where the proposed additional facts would not affect the outcome of the case or

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are immaterial to the court’s conclusions. Weyerhaeuser Co. v. Atropos Island, 777 F.2d 1344,

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1352 (9th Cir. 1985). “Reconsideration is appropriate if the district court (1) is presented with

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newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law. There may also be other, highly

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unusual, circumstances warranting reconsideration.” School Dist. No. 1J Multnomah County v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), citations omitted.

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III. Discussion

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A. Product Shortage
In the FOFCOL, the court defined “a ‘product shortage’ of a category of tomato when

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Sun Pacific did not pack enough to fulfill the Contract quantities.” Doc. 165, FOFCOL, 11:22-

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23. Sun Pacific, as the party asserting the product shortage, had the burden of proof. Sun Pacific

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produced its pack records, which represent “the quantity available to ship...in hindsight what was

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actually packed.” Doc. 169, Sun Pacific’s Brief, 3:5-6 The court noted that on order sheets

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which sent back and forth between buyer and seller the week before shipment, Sun Pacific

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consistently represented that it had more tomatoes to sell (by filling in a pick-up number) than are

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ultimately reflected in the pack records. In some circumstances, Sun Pacific noted on these order

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sheets that they would not likely have the quantities requested by putting in a question mark

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instead of a pick-up number. See, e.g. Joint Exhibit 8. However, for many categories, Sun

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Pacific represented that they would have sufficient quantities even though the later pack records

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would seem to show that Sun Pacific fell far short. Based on these discrepancies, the court

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concluded that the pack records were not sufficiently reliable to show a product shortage in the

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relevant categories of tomatoes. Doc. 165, FOFCOL, 13:19-21.
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Sun Pacific argues that the court misinterpreted the evidence, explaining that the court

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has a “fundamental misunderstanding of the parties’ ordering procedures.” Doc. 169, Sun

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Pacific’s Brief, 3:13-14. Sun Pacific asserts “Providing the pick-up numbers simply proved that

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Sun Pacific placed DiMare’s orders in its computer system based upon Sun Paciric’s projected

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production, not that it had the actual inventory. Doc. 169, Sun Pacific’s Brief, 4:23-25.

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First, the court does not find this argument convincing as Sun Pacific put a question mark

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instead of a pick-up number when it thought the quantities would be insufficient. Sun Pacific

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asks that the court believe it often overestimated (sometimes grossly overestimated) its actual

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production 5-11 days before delivery. Second, in looking over the data again, the court has found

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serious problems with the pack records. For the week of 8/14-8/20, Sun Pacific’s pack records

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show 5,297 boxes of Medium Round 6x7 #1 grade tomatoes, 640 boxes of Medium Round 6x7

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#2 grade tomatoes, and 1,160 boxes of Large Round 6x6 #2 grade tomatoes packed. Plaintiff’s

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Exhibit 29, page 14. Mr. Bates, general manager of Sun Pacific, testified that Defendant’s

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Exhibit B was a spreadsheet that represented what was actually supplied to DiMare in the

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Contract period. Trial Transcript, 175:16-176:2. Sun Pacific also cites to and relies upon

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Defendant’s Exhibit B in this motion. Doc. 169, Sun Pacific’s Brief, 11:22-25. For the week of

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8/14-8/20, this record shows 6,000 boxes of Medium Round 6x7 #1 grade tomatoes, 960 boxes

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of Medium Round 6x7 #2 grade tomatoes, and 1,840 boxes of Large Round 6x6 #2 grade

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tomatoes were delivered to DiMare. Defendant’s Exhibit B, page 1. These quantities delivered

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are greater than the quantities the pack record shows were available. For the week of 8/21-8/27,

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the pack records show 911 boxes of Medium Round 6x7 #2 grade tomatoes available while

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1,120 boxes were actually delivered to DiMare. Plaintiff’s Exhibit 29, page 14; Defendant’s

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Exhibit B, page 1. There is nothing in the record that suggests Sun Pacific obtained tomatoes

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from outside sources to supply DiMare during this period. These tomatoes which were available

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(and actually delivered) were not reflected in Sun Pacific’s pack record. Yet, Sun Pacific asserts

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that the pack record includes all of what it had available to ship. In fact, Sun Pacific asserts that

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the pack record included more tomatoes than the quantity available to ship: “Available to ship is

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a small subset of the quantity of tomatoes Sun Pacific Packed because it only includes tomatoes
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that will satisfy the contractual ripeness specifications and are packed by the specified pick-up

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date.” Doc. 175, Sun Pacific’s Reply, 3:14-17. Again, the court must find that “there is

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contradictory evidence that strongly suggests Sun Pacific had more boxes for sale in certain

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weeks than the number of boxes packed. Sun Pacific does not explain this discrepancy.” Doc.

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165, FOFCOL, 13:9-11. The pack record appears to be either insufficiently explained or

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unreliable. Sun Pacific has not provided sufficient evidence to establish a product shortage.

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Sun Pacific does point out a mistake in the FOFCOL. The court stated that “The order

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sheets for 8/21-8/27 and 8/28-9/3 only show what Mr. Licato requested; it does not show Mr.

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Gilardi’s response....The specific details of how Mr. Gilardi and Mr. Licato negotiated these

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shipments has not been presented. The parties have not provided Mr. Gilardi’s response to these

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weekly order sheets with pick-up numbers filled in.” Doc. 165, FOFCOL, 6:10-12. The order

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sheets are found at Joint Exhibit 2. While that document shows no response for 8/21-8/27, it

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does show a response (pick-up numbers) for 8/28-9/3. This mistake does not change the

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substance of the analysis. The purpose of pointing out the lack of response was to emphasize the

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fact that there was no explanation for how the parties arrived at the ultimate quantities shipped.

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B. Savings from Cover
In the FOFCOL, DiMare was awarded damages based on Cal. Com. Code § 2712(2),

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which states “The buyer may recover from the seller as damages the difference between the cost

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of cover and the contract price together with any incidental or consequential damages as

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hereinafter defined (Section 2715), but less expenses saved in consequence of the seller’s

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breach.” DiMare provided records of its cover purchases when the purchase price was greater

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than the Contract price. There were 16 transactions (out of 102) for which DiMare procured

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tomatoes at or below the Contract prices. Doc. 165, FOFCOL, 19:7-10. In the absence of any

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evidence as to the amount saved, the court cut DiMare’s recovery by 20%.

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DiMare now asks the court to measure the savings using Cal. Com. Code §2713(1),

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which states “the measure of damages for nondelivery or repudiation by the seller is the

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difference between the market price at the time when the buyer learned of the breach and the
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contract price together with any incidental and consequential damages provided in this division

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(Section 2715), but less expenses saved in consequence of the seller’s breach.” In the bench trial,

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the parties did provide some evidence of market prices for various categories of tomatoes. Joint

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Exhibits 14, 15, and 16. Of the 16 transactions the court found problematic, DiMare has broken

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them out into 28 (as some of the 16 constituted purchases of more than one category of tomato),

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accounting for 25,600 boxes of tomatoes. DiMare uses the market price numbers to derive a

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savings of only $16,000. Doc. 166, Part 1, DiMare Brief, 5:7-25. This figure accounts for all

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instances when the relevant market price was less than Contract price in September and October

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2006.

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The evidence presented is problematic. Of the 28 purchases DiMare identified, using the

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market price showed a savings in only 11 instances. That is, the market price was below the

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Contract price 11 times. It was equal to the Contract price 3 times. The market price was above

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the Contract price 14 times out of 28. In those circumstances, the price DiMare paid should have

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been above the Contract price, giving rise to damages. Yet, DiMare admits it was able to source

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these tomatoes at or below the Contract prices those 14 times. For example, on October 23,

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2006, for Jumbo Round 5x5 tomatoes, the Contract price was $7.95 while the market price was

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$9.45. Yet, DiMare admits that it was able to source the tomatoes at or below the Contract price

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notwithstanding the fact that the market price was $1.50 higher. The market price information

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provided does not accurately reflect the prices DiMare paid; DiMare clearly paid less. While

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using the market price is an valid means of measuring damages under Cal. Com. Code § 2713,

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the court is hesitant to use that measure when existing evidence demonstrates that the market

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price is an inaccurate measurement in this case. Further, the inaccuracies clearly favor the party

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who has the burden of proof. However, the original estimate of 20% savings was close to a pure

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guess. DiMare’s analysis of the evidence suggests another method.

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DiMare identified $16,000 of savings from 25,600 boxes of tomatoes. In order to better

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estimate the actual savings from this cover, the court will assume an additional savings of

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$3.00/box. That comes to $76,800. Thus, the court finds an estimate of the savings to total

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$92,800. DiMare is awarded $1,132,562 ($1,225,362 minus $92,800) in damages.
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C. Prejudgment Interest Rate
In the FOFCOL, the court awarded a prejudgment interest rate of 2.18%. This was the

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rate applied by Judge Jenson and requested by DiMare. Doc. 157, DiMare’s Proposed FOFCOL,

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20:23-28. Sun Pacific sought an interest rate of 10% under Cal. Civ. Code §3289(b). Doc. 158,

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Sun Pacific’s Proposed FOFCOL, 35:2-3. DiMare now seeks an interest rate of 10%.

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In the FOFCOL, the court concluded that “The substantive law applied is California

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commercial law; PACA provides for the forum and procedure.” Doc. 165, FOFCOL, 10:26-27.

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The court admits that this case is a hybrid of sorts, taking from both California and federal law.

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The court substantively applied California commercial law since that was the main point of

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contention between the parties. The parties did not dispute that PACA applied. Thus, the

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question that had to be resolved was who breached the contract. PACA statutory language and

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jurisprudence would not resolve that issue so the court relied upon California contract law.

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Ultimately, this court agreed with Judge Jenson’s ruling and awarded damages under PACA. As

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Judge Jenson found, “[Sun Pacific’s] failure to perform under its Contract with [DiMare] is a

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violation of Section 2 of [PACA]. Section 5(a) of [PACA] requires that we award to the person

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or persons injured by a violation of Section 2 of [PACA] ‘the full amount of damages’ sustained

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in consequence of such violations. Such damages include interest.” Joint Exhibit 13, Judge

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Jenson’s Ruling, 23. Judge Jenson relied upon UCC precedent to determine that Sun Pacific

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breached the Contract. California had adopted all the relevant UCC provisions without change.

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This court relied upon California case law and law from other states that had identical UCC

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language to resolve the issue. Further, as Sun Pacific points out, DiMare is seeking attorney’s

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fees and costs under PACA, further supporting the conclusion that this is a PACA case at heart.

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In a PACA suit, federal law applies to the awarding of interest. See Endico Potatoes, Inc.

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v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1072 (2nd Cir. 1995); Country Best v. Christopher

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Ranch, 361 F.3d 629, 633 (11th Cir. 2004) (interest to be awarded as with “sums owing in

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connection with” the transactions). The Ninth Circuit has found that “a district court may award

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reasonable prejudgment interest to PACA claimants if such an award is necessary to protect the

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interests of PACA claimants, and that such an award absent contract is discretionary.” Middle
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Mountain Land and Produce Inc. v. Sound Commodities Inc., 307 F.3d 1220, 1226 (9th Cir.

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2002). In this case, the 2.18% prescribed by Judge Jenson is reasonable to protect the interests of

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PACA complainant DiMare. Postjudgment interest must be determined in accord with 28 U.S.C.

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§ 1961.

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D. Attorney’s Fees and Costs

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Sun Pacific does not dispute that DiMare is entitled to attorney’s fees, but disputes the

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amount requested ($282,766) on two points. First, Sun Pacific points out the DiMare has not

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provided evidence of the prevailing hourly rates charged by practitioners of comparable

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experience in Fresno. Second, Sun Pacific opposes the request for attorney’s fees for time spent

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on the motion for attorney’s fees and costs itself.

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DiMare seeks recompense for Stephen McCarron’s work at the rate of $350/hour. He has

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been specializing in PACA law for thirty years and spent two years as a staff attorney with the

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Office of General Counsel in the USDA’s PACA division. DiMare seeks recompense for Louis

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Diess’s work at $300/hour. He has also been specializing in PACA law for the past twenty years.

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DiMare seeks recompense for Maria Simon’s work at the rate of $265/hour. She has been

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working on PACA cases for the past five years. DiMare has provided no affidavits from local

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attorneys attesting that these rates are acceptable for the Fresno legal market. PACA law is a

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specialized field with relatively few practitioners. In researching other PACA cases in Fresno,

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Sun Pacific’s and DiMare’s attorneys were sometimes involved though they are based on the

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East Coast. In 2007, Mr. McCarron and Mr. Diess worked on a PACA case heard by Judge

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Lawrence O’Neill; they charged $350/hour and $300/hour while an associate with three years of

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PACA experience charged $250/hour. Chiquita Fresh v. Pandol Associates Marketing, Civ. Case

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No. 07-1305, Doc 38, Part 1. Judge O’Neill approved those attorney’s fees as part of a

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settlement between the parties, though he technically did not analyze them for reasonableness

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under the standard lodestar framework. Doc. 40. In 2008, Sun Pacific’s attorney, Lawrence

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Meuers, who had eighteen years of PACA experience at the time, requested compensation at

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$350/hour; Judge Oliver Wanger approved of that rate. Grimmway Enters. v. PIC Fresh Global,
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Inc., 548 F. Supp. 2d 840, 851 (E.D. Cal. 2008); Civ. Case No. 07-0109, Doc. 42, Part 1. Based

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on these cases and the court’s own experience, the billing rates requested are found to be

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reasonable.

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DiMare seeks $9,626 for the time spent preparing the attorney’s fees and cost motion.

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Sun Pacific argues that this category of attorney’s fees is not recoverable under PACA. Whether

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such fees are allowed depends upon the specific attorney’s fees statute. See Identity Arts v. Best

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Buy Enterprise Services Inc., 2008 WL 820674, *8 (N.D. Cal. 2008) (“While other federal

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statutes-e.g., 42 U.S.C. § 1988, 28 U.S.C. § 2412-have been construed to permit the recovery of

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fees upon fees, defendants have not submitted any controlling authority regarding the availability

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of fees upon fees vis-a-vis the Copyright Act specifically. Accordingly, the court declines to

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award such fees”). In this case, DiMare seeks attorney’s fees under 7 U.S.C. § 499g(c): “if

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appellee prevails he shall be allowed a reasonable attorney’s fee to be taxed and collected as a

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part of this costs.” The Ninth Circuit has stated generally that “Courts have awarded attorneys

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compensation in statutory fee award cases for time spent in preparing the fee application as well

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as in actually litigating the amount of the fee....We recognize that there are certain fee award

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cases in which federal courts have held that attorneys are not entitled to receive compensation for

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time spent in fee litigation. Those are primarily, if not exclusively, cases in which attorneys’ fees

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are not authorized by statute but an attorney has benefited an entire class of litigants....it is clear

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that the principal concerns that have prompted courts to refuse to award compensation for time

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devoted to fee litigation in common fund cases are inapplicable to cases in which fees are

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authorized by statute.” In re Nucorp Energy, Inc., 764 F.2d 655, 661 (9th Cir. 1985). Thus,

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contrary to the language of Identity Arts, the default rule for statutory attorney’s fees appears to

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be to allow this category of recovery unless there is contrary case law. The court can find no case

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denying attorney’s fees for fee motions under PACA.

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Sun Pacific objects to a number of costs claimed by DiMare, arguing they go beyond that

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which is permitted under 28 U.S.C. § 1920. Doc. 171, Sun Pacific’s Opposition, 4:8-9. DiMare

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argues that the cost award provisions under PACA supercede the limitations of 28 U.S.C. § 1920.

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Specifically, DiMare cites to Rank v. Balshy, 590 F. Supp. 787, 803 (M.D. Pa. 1984), which
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states “When a statute shifts the typical burden of attorney fees and costs, the traditional

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limitations of 28 U.S.C. § 1920 do not necessarily apply, particularly in civil rights cases.”

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However, the Third Circuit subsequently found that “unless the statute under which expert

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witness fees are awarded expressly repeals the limits of sections 1920 and 1821(b), we must

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defer to legislative fiat,” repudiating the relevant holding of Rank. West Virginia Univ. Hosps. v.

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Casey, 885 F.2d 11, 34 (3rd Cir.1989). In further support, DiMare points out that in PACA

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cases, witness travel expenses have been awarded to the prevailing party. DiMare states that

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“although these costs are not specifically enumerated under 28 U.S.C. § 1920 and Rule 54, the

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award of such travel expenses is supported by the fee shifting provision under § 499g(c). Doc.

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174, DIMare’s Reply, 3:20-22. DiMare misinterprets 28 U.S.C. § 1920(3) which specifically

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allows for taxation of costs associated with witnesses. Local Rule 292(f)(8) states that “per

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diem, mileage and subsistence for witnesses” under 28 U.S.C. § 1821 are allowable taxable

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costs. DiMare has provided no basis for PACA to supercede 28 U.S.C. § 1920.

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DiMare seeks recovery for transcription fees and online legal research totaling $3,082.87.

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Transcription fees are an accepted taxable cost that Sun Pacific does not contest. Online legal

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research can be considered a valid taxable cost. See Hartless v. Clorox Co., 273 F.R.D. 630, 646

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(S.D. Cal. 2011); Alvarado v. FedEx Corp., 2011 U.S. Dist. LEXIS 112997, *111 (N.D. Cal.

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Sept. 30, 2011). In the alternative, it can be considered properly part of attorney’s fees. See

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Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 369 F.3d 91, 98 (2nd

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Cir. 2004) (consensus among D.C., 7th, and 10th Circuits is that online legal research

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compensable as part of attorney’s fees).

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For witness costs, DiMare has set out amounts for airfare, lodgings, meals, rental car,

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tolls, and mileage. These are all categories of costs that are permitted under 28 U.S.C. § 1821.

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DiMare has provided a receipt for Eric Janke’s airline ticket at $561.40. Doc. 167, Part 6, pages

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12-13. The rate appears to be a normal commercial fare and is therefore a taxable cost. 28 U.S.C.

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§ 1821(c)(1). After flying into Fresno, Eric Janke used a rental car to get around the Fresno area

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during the trial. While rental car costs may be permitted in some circumstances, “the use of a

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rental car for the witness’ convenience during his attendance is not within the contemplation of §
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1821.” Pan Am. Grain Mfg. Co. v. Puerto Rico Ports Auth., 193 F.R.D. 26, 35 (D.P.R. 2000).

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The $299.35 request is denied. Actual toll charges ($9 in this case) are also taxable costs. 28

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U.S.C. § 1821(c)(3). Sam Licato traveled from Los Angeles to Fresno and back in his own

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vehicle. DiMare seeks reimbursement for 777 miles at $.50/mile for $388.50. However, that

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appears to account for travel within Fresno as well. The distance between Los Angeles and

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Fresno is no more than 250 miles. Title 28 U.S.C. § 1821(c)(2), 5 U.S.C. §5704(a)(1), and the

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U.S. General Services Administration regulations allow for reimbursement at $.50/mile. DiMare

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is awarded $250 in mileage. Sam Licato stayed in Fresno for three days, requesting $585.27 for

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lodging and $75.75 for meals. Erik Janke stayed in Fresno for three days, requesting $596.56 for

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lodging and $299.35 for meals. The amount permitted under 28 U.S.C. § 1821(d), 5 U.S.C.

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§5702(a)(1), and U.S. General Services Administration regulations is $152/day. Thus, each can

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only recover $456 for subsistence. However, each is also entitled an attendance fee of $40/day.

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28 U.S.C. § 1821(b). So, for lodging and meals, DiMare may recover $576 for each of the two

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witnesses. The total for witness costs is $1,972.40.

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IV. Order

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The Findings of Fact and Conclusions of law are amended as follows.

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For contract damages, Sun Pacific shall pay DiMare $1,132,562 with prejudgment

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interest of 2.18% per annum from November 1, 2006. For attorney’s fees and costs before the

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PACA Hearing, Sun Pacific shall pay DiMare $43,930.97 with prejudgment interest of 2.18%

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per annum from September 23, 2008. For attorney’s fees associated with the bench trial, Sun

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Pacific shall pay DiMare $282,766. For costs associated with the bench trial, Sun Pacific shall

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pay DiMare $5,055.27.

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IT IS SO ORDERED.

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Dated:
0m8i78

September 27, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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