Federal Fruit & Produce Company v. Liborio Markets #9, Inc. et al

Filing 67

ORDER Plaintiffs Motion for Default Judgment against the Liborio Defendants ECF No. 38 is DENIED WITHOUT PREJUDICE; Plaintiffs Motion for Default Judgment against Banco ECF No. 65 is DENIED WITHOUT PREJUDICE; and Plaintiff may re-file these motions, if appropriate, after its claims against the Individual Defendants have been resolved, by Judge William J. Martinez on 2/22/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-1145-WJM-BNB
FEDERAL FRUIT & PRODUCE COMPANY, a Colorado corporation
Plaintiff,
v.
LIBORIO MARKETS #9, INC., a California corporation, in its corporate capacity d/b/a
RANCHO LIBORIO,
LIBORIO MARKETS #11, INC., a California corporation d/b/a RANCHO LIBORIO,
LIBORIO COLORADO HOLDING COMPANY, a California corporation in its corporate
capacity d/b/a RANCHO LIBORIO,
LIBORIO HOLDING COMPANY, a California corporation in its corporate capacity d/b/a
RANCHO LIBORIO,
TRIPLE A. GROCERS, INC., a California corporation in its corporate capacity d/b/a
LIBORIO MARKETS,
JOHN ALEJO, in his corporate and individual capacity,
RANDY ALEJO, in his corporate and individual capacity,
ENRIQUE M. ALEJO, in his corporate and individual capacity,
ENRIQUE J. ALEJO, in his corporate and individual capacity, and
BANCO POPULAR NORTH AMERICA, a New York corporation,
Defendants.

ORDER DENYING WITHOUT PREJUDICE
PLAINTIFFS’ MOTIONS FOR DEFAULT JUDGMENT

On May 2, 2012, Plaintiff Federal Fruit & Produce Company (“Plaintiff”) filed this
action alleging violations of various provisions of the Perishable Agricultural
Commodities Act (“PACA”), 7 U.S.C. §§ 499 et seq. (ECF No. 1.) Plaintiffs filed an
Amended Complaint realleging the same offenses and also naming Banco Popular
North America as a Defendant on November 7, 2012. (ECF No. 57.)
On Plaintiff’s Motion, on July 3, 2012, the Clerk entered default against Liborio

Colorado Holding Company, Liborio Holding Company, Liborio Markets #11, Inc.,
Liborio Markets #9, Inc., and Triple A Grocers, Inc. (collectively “Liborio Defendants”).
(ECF No. 34.) On July 12, 2012, Plaintiff filed a Motion for Default Judgment against
the Liborio Defendants seeking entry of judgment for $266,646.95 in unpaid principal
and $45,956.41 in unpaid interest for a total amount of $312,603.36. (ECF No. 38.)
On Plaintiff’s Motion, on January 4, 2013, the Clerk entered default against
Banco Popular North America (“Banco”). (ECF No. 64.) On January 18, 2013, Plaintiff
filed a Motion for Default Judgment seeking disgorgement of $266,646.95 in PACA trust
assets plus interest of $72,179.51 for a total amount of $338,826.46. (ECF No. 65.)
Although default has been entered against the Liborio Defendants and Banco,
this case is ongoing against Defendants John Alejo, Randy Alejo1, Enrique M. Alejo,
and Enrique J. Alejo (collectively “Individual Defendants”). Plaintiffs have recently filed
a Motion for Summary Judgment against the Individual Defendants in which it alleges
that they are liable for violating PACA and seek payment of $266,646.95 in unpaid
principal, plus $76,003.67 for unpaid interest. (ECF No. 66 at 16.)
Plaintiff’s Amended Complaint plainly alleges that the Liborio Defendants and
Banco are jointly liable with the Individual Defendants. (ECF No. 57 p. 13.) The
alleged joint liability of the parties is also evident from the fact that Plaintiff has sought
judgment in the same amount against the Liborio Defendants and Banco through its
Motions for Default Judgment and from the Individual Defendants in its Motion for
Summary Judgment. (ECF Nos. 38, 65 & 66.)

1

It appears that the case against Randy Alejo may be stayed due to his personal
bankruptcy filing. (See ECF No. 32.)

2

In a similar case, where some but not all parties were in default, the Tenth Circuit
held: “when one of several defendants who is alleged to be jointly liable defaults,
judgment should not be entered against him until the matter has been adjudicated with
regard to all defendants, or all defendants have defaulted.” Hunt v. Inter-Globe Energy,
Inc., 770 F.2d 145, 147 (10th Cir. 1985) (citing Frow v. DeLaVega, 82 U.S. 552 (1872)).
Because of the joint liability of all Defendants in this case, the fact that the case is
ongoing against the Individual Defendants precludes entry of judgment against either
the Liborio Defendants or Banco at this time. Id.
Accordingly, the Court hereby ORDERS as follows:
1.

Plaintiff’s Motion for Default Judgment against the Liborio Defendants (ECF No.
38) is DENIED WITHOUT PREJUDICE;

2.

Plaintiff’s Motion for Default Judgment against Banco (ECF No. 65) is DENIED
WITHOUT PREJUDICE; and

3.

Plaintiff may re-file these motions, if appropriate, after its claims against the
Individual Defendants have been resolved.
Dated this 22nd day of February, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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