Scotlynn USA Division, Inc. v. Cold Ground Transport, LLC et al
ORDER granting in part and denying in part 20 Plaintiff's Motion for Entry of Default Judgment 20 is GRANTED in part as to Count I against Defendant Cold Ground Transport, LLC for $57,280.00, and is otherwise DENIED. Plaintiff' s request for costs is GRANTED in part and DENIED in part. Plaintiff shall be awarded $400.00 in filing fees and $114.50 in costs of service of process, totaling $514.50. The Clerk of the Court is DIRECTED to enter judgment in favor o f Plaintiff and against Defendant Cold Ground Transport, LLC as to Count I only for the actual loss amount. Counts II and III of the Complaint are dismissed. The Clerk of the Court is further DIRECTED to terminate all pending deadlines, issue the attached Bill of Costs, and close the file. Signed by Judge Sheri Polster Chappell on 10/14/2016. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOTLYNN USA DIVISION, INC.,
Case No: 2:15-cv-152-FtM-38CM
COLD GROUND TRANSPORT, LLC
and AMATHIM THIAM,
This matter comes before the Court on review of Plaintiff Scotlynn USA Division,
Inc.’s (“Scotlynn”) Motion for Default Judgment (Doc. #20) filed on July 22, 2016. In
support, Scotlynn filed the Affidavit of Katy Koestner Esquivel (Doc. #20-1), its counsel of
Defendants Cold Ground Transport, LLC, (“Cold Ground Transport”) and
Amathim Thiam (“Thiam”) (collectively, the “Defendants”) have not responded in
opposition, and the time to do so has expired. Thus, this matter is ripe for review.2
Scotlynn is a freight brokerage company that contracts with motor carriers to
transport goods throughout the United States. (Doc. #1 at ¶ 5). Cold Ground Transport
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The Court finds that an evidentiary hearing is not required and will render a decision based on the
is one such entity with whom Scotlynn contracts. Id. at ¶ 7. Plaintiff alleges that Thiam
is Cold Ground Transport’s sole officer and shareholder. Id. at ¶ 4(b). On November 13,
2013, Scotlynn and Cold Ground Transport entered into an agreement (the “Agreement”),
the terms of which were intended to govern the transport of various loads of cargo for
Scotlynn by Cold Ground Transport. Id. at ¶ 7.
Scotlynn then arranged for Cold Ground Transport to pick up 1,000 cases of frozen
chicken (the “Cargo”) from Live Oak, Florida on April 18, 2014, and to transport it to
Baltimore, Maryland. Id. at ¶ 9. That day, Cold Ground Transport picked up the Cargo,
and acknowledged its good condition. Id. Although the Bill of Lading required Cold
Ground Transport to maintain the Cargo at a temperature of 26 degrees Fahrenheit, it
was delivered three days late and, upon arrival, its temperature was 45 degrees
Fahrenheit. Id. at ¶¶ 11-13. Because of the Cargo’s temperature, it was rejected and
subsequently destroyed. Id. at ¶14. As a result, Scotlynn’s customer pursued a claim
against it for the entirety of the loss. Id. at ¶15. On June 25, 2014, Scotlynn formally
notified Cold Ground Transport of the claim, which Cold Ground Transport refused to pay,
arguing that it was not responsible for the claim. Id. at ¶16.
Scotlynn then filed this suit.
On multiple occasions, Scotlynn
unsuccessfully attempted service upon Defendants. (Doc. #11 at ¶¶ 3-10). After filing
two Motions to Enlarge Time for Service of Process (Docs. #9. #11), Scotlynn finally
served Defendants on January 5, 2016. (Docs. #13, #14). Despite service, neither
Defendant has made an appearance in this case. Pursuant to Scotlynn’s January 29,
2016, motion, (Doc. #15) a Clerk’s Default (Doc. #17) was entered against Defendants
on February 4, 2016. Scotlynn now seeks a default judgment against Defendants and an
award of costs and attorney’s fees. (Doc. #20).
Rule 55 of the Federal Rules of Civil Procedure establishes a two-step procedure
for obtaining default judgment. See Fed. R. Civ. P. 55. First, when a defendant fails to
plead or otherwise defend a lawsuit, the clerk of the court must enter a clerk’s default
against the defendant. Cohan v. Rist Properties, LLC, No. 2:14-cv-439-FTM, 2015 WL
224640, at *1-2 (M.D. Fla. Jan. 15, 2015) (citing Fed. R. Civ. P. 55(a)). Second, after
receiving the clerk’s default, the court can enter a default judgment provided the
defendant is not an infant or incompetent. Id. (citing Fed. R. Civ. P. 55(b)(2)); see also
Solaroll Shade & Shutter Corp. v. Bio-Energy Sys. Inc., 803 F.2d 1130, 1134 (11th Cir.
1986) (stating a default judgment may be entered “against a defendant who never
appears or answers a complaint, for in such circumstances the case never has been
placed at issue.”).
An entry of a clerk’s default, however, does not per se warrant an entry of default
Rather, a court may enter a default judgment only if “the well-pleaded
allegations in the complaint, which are taken as true due to the default, actually state a
substantive cause of action and that there is a substantive, sufficient basis in the
pleadings for the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x
860, 863 (11th Cir. 2007); Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the judgment, and is barred
from contesting on appeal the facts thus established . . . A default judgment is
unassailable on the merits but only so far as it is supported by well-pleaded allegations,
assumed to be true.” (citations omitted)). “The defendant is not held to admit facts that
are not well-pleaded or to admit conclusions of law . . . [A] default is not treated as an
absolute confession of the defendant of his liability and of the plaintiff’s right to recover.”
Nishimatsu, 515 F.2d at 1206. In considering a motion for default judgment, courts must
“examine the sufficiency of plaintiff’s allegations to determine whether the plaintiff is
entitled to” relief. PNC Bank, N.A. v. Starlight Props. & Holdings, LLC, No. 6:13-cv-408,
2014 WL 2574040, at *1 (M.D. Fla. June 9, 2014) (citation omitted). With these principles
in mind, the Court will address Scotlynn’s Motion for Default Judgment.
In its Complaint, Scotlynn alleges that Cold Ground Transport’s delivery of the
Cargo in a damaged condition renders it liable both under the Carmack Amendment to
the Interstate Commerce Act, 49 U.S.C. § 14706 et seq., and for breach of contract.
Scotlynn also brings a claim against Thiam for piercing Cold Ground Transport’s
For the reasons stated below, the Court finds that Cold Ground Transport is liable
under the Carmack Amendment and thus awards Scotlynn damages commensurate with
the loss as pled. That said, because attorney’s fees cannot be recovered under the
Carmack Amendment, the Court denies Scotlynn’s request for same. See Fine Foliage
of Fla., Inc. v. Bowman Transp., Inc., 698 F. Supp. 1566, 1576 (M.D. Fla. 1988).
Concerning Scotlynn’s breach of contract claim against Cold Ground Transport
and its action to pierce the corporate veil against Thiam, the Court finds that both are
state law claims and thus preempted by the Carmack Amendment. As such, the Court
does not find that Scotlynn is entitled to an alternative award of damages or attorney’s
fees under either claim. Finally, the Court taxes the cost of filing and service of process
fees against Cold Ground Transport.
A. Count I – Carmack Amendment
Through its Complaint, Scotlynn alleges that Cold Ground Transport violated the
Carmack Amendment by delivering the Cargo at an unsafe temperature. (Doc. 1 at
¶¶ 18-21). “The Carmack Amendment creates a uniform rule for carrier liability when
goods are shipped in interstate commerce.” Smith v. UPS, 296 F.3d 1244, 1246 (11th
Cir. 2002). “To establish a prima facie case of liability, plaintiff must show that the goods
were delivered to defendant in good condition, that the goods arrived in damaged
condition, and that this resulted in a specific amount of damage.” Scotlynn USA Division,
Inc. v. Singh, No. 2:15-cv-381-FtM-29MRM, 2016 WL 4734396, at *2 (M.D. Fla. Sept. 9,
2016) (citing Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1014 (11th Cir.
“When a shipper shows delivery of goods to a carrier in good condition and
nondelivery or delivery in a damaged condition, there arises a prima facie presumption of
liability.” Id. (citing UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d
1282, 1285-86 (11th Cir. 2014)). Liability is imposed “for the actual loss or injury to the
property[.]” 49 U.S.C. § 14706(a)(1).
Scotlynn’s Complaint states that the Cargo was in good condition prior to shipment.
(Doc. #1 at ¶¶ 11-12). The Complaint then states that the Cargo was delivered to the
receiver at an unsafe temperature, and because it was damaged, it was ultimately
destroyed. (Id. at ¶¶ 13-14). Importantly, the Agreement does not limit liability and,
instead, defines “full actual loss” as “the value of the cargo determined by” Scotlynn.
(Doc. #1-1 at ¶ 11). Thus, in the absence of any controverting evidence, that Scotlynn is
entitled to a default judgment against Cold Ground Transport for the actual loss of the
destroyed Cargo in the amount of $57,280.00.3
Turning to Scotlynn’s request for attorney’s fees pursuant to the Carmack
Federal Rule of Civil Procedure 54(d)(2)(A) states that “[a] claim for
attorney’s fees . . . must be made by motion unless the substantive law requires those
fees to be proved at trial as an element of damages.”
The Court, however, finds
Scotlynn’s request to be unwarranted, as “[t]here is no provision for attorneys’ fees under
the Carmack Amendment.” Fine Foliage of Fla., 698 F. Supp. at 1576. Instead, “[t]he
well-established rule is that ‘each party in a lawsuit ordinarily shall bear its own attorney’s
fees unless there is express statutory authorization to the contrary.’” Id. (citing Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983); Reeves v. Harrell, 791 F.2d 1481, 1483 (11th Cir.
1986)). Accordingly, Scotlynn’s request for attorney’s fees stemming from its Carmack
Amendment claim is denied. See Fine Foliage of Fla., Inc., 698 F. Supp. at 1576.
B. Count II – Breach of Contract
As to its breach of contract claim, Scotlynn alleges that Cold Ground Transport
breached the Agreement and Bill of Lading by delivering the Cargo in damaged condition,
and that it, therefore, suffered damages. (Doc. #1 at ¶ 23).
Under Florida law, there are three elements to a breach of contract claim: “(1) a
valid contract; (2) a material breach; and (3) damages.” Beck v. Lazard Freres & Co.,
Thiam is neither an infant or an incompetent person nor an active duty member of the military. (Doc. #201 at ¶¶ 9-10); see also Scotlynn USA Division, 2016 WL 4734396, at *2. Additionally, the loss of the Cargo
is sum certain. Id. (Id. at ¶ 11).
LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citation omitted). That said, “the Carmack
Amendment preempts state law claims arising from failures in the transportation and
delivery of goods.” Smith, 296 F.3d at 1246 (citations omitted). “In other words, separate
and distinct conduct rather than injury must exist for a claim to fall outside the preemptive
scope of the Carmack Amendment.” Id. at 1249.
Here, Scotlynn contracted defendants to ship the Cargo from Florida to Maryland
and, thus, the shipment would qualify as interstate commerce.
Scotlynn has pled separate and distinct conduct that would cause its breach of contract
claim to fall outside the scope of the Carmack Amendment, its breach of contract claim
will be preempted. Upon review of the Complaint, Scotlynn has not met this threshold.
Consequently, the Court finds Carmack Amendment preempts Scotlynn’s breach of
contract claim and that the claim must be dismissed without prejudice.
Scotlynn also requests attorney’s fees based on their breach of contract
allegations, but articulates no legal basis for its claim. (Doc. #1 at ¶¶ 23-24). Due to
preemption by the Carmack Amendment, this request must be denied. See Strickland
Transp. Co. v. Am. Distrib. Co., 198 F.2d 546, 547 (5th Cir. 1952) (citation omitted)
(holding that attorney’s fees are beyond the scope of the Carmack Amendment and
“cannot be considered for jurisdictional purposes where there is no legal basis for the
recovery of such fees”)); Mo. Pac. R. Co. v. Ctr. Plains Indus., Inc., 720 F.2d 818, 819
(5th Cir. 1983) (finding Strickland persuasive and holding that “recovery of attorney’s fees
in freight damage suits” is not permitted)); Accura Sys., Inc. v. Watkins Motor Lines, Inc.,
98 F.3d 874, 876 (5th Cir. 1996) (same).4
Decisions by the Fifth Circuit Court of Appeals made prior to October 1, 1981, are binding on this Court.
See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
The Court notes that, although the Eleventh Circuit Court of Appeals in UPS
Supply found Strickland unpersuasive, it is distinguishable from the facts of this case. In
UPS Supply, the court found that attorneys’ fees were permitted in relation to the
enforcement of an indemnity clause in an ongoing contract that was separate from the
theft of goods that gave rise to that plaintiff’s Carmack Amendment claim. 750 F.3d at
1282. This is not the case here, as Scotlynn attempts to base their request for attorney’s
fees on the very instance that invokes liability under the Carmack Amendment. As a
result, Scotlynn’s breach of contract claim is preempted and their request for attorney’s
fees is denied.
C. Count III – Piercing the Corporate Veil
Finally, Scotlynn attempts to pierce the corporate veil of Cold Ground Transport by
arguing that, Thiam, acting as an alter ego, used Cold Ground Transport’s corporate form
for an improper purpose. (Doc. #1 at ¶¶ 25-30). Under Florida law, to pierce the corporate
veil a party must show:
(1) the shareholder dominated and controlled the corporation
to such an extent that the corporation’s independent
existence, was in fact non-existent and the shareholders were
in fact alter egos of the corporation; (2) the corporate form
must have been used fraudulently or for an improper purpose;
and (3) the fraudulent or improper use of the corporate form
caused injury to the claimant.
Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011)
Because Scotlynn’s action to pierce Cold Ground Transport’s corporate veil is a
state law claim, the Carmack Amendment preempts it. See Smith, 296 F.3d at 1246. As
such, Scotlynn’s claim must be dismissed without prejudice. Scotlynn also requests
attorney’s fees under this claim; but, as is explained more fully above, Scotlynn is not
entitled to such fees because of Carmack Amendment preemption. See Strickland
Transp. Co., 198 F.2d at 547; Mo. Pac. R. Co., Inc., 720 F.2d at 819; Accura Sys., 98
F.3d at 876; Scotlynn USA Division, 2016 WL 4734396, at *2.
In its Motion for Default Judgment, Scotlynn also seeks costs for $400.00 for the
filing fee and $229.00 in service of process expenses. (Doc. #20 at 12). Generally, a
prevailing party may be awarded costs. See Fed. R. Civ. P. 54(d)(1). Costs available to
be taxed are specifically enumerated in 28 U.S.C. § 1920, and include fees of the United
States Marshal. Pursuant to 28 U.S.C. § 1921, a United States Marshal is authorized to
serve process in any case or proceeding. And, despite that private service of process is
not explicitly provided for in either statute, the Court may authorize taxation of such costs
so long as they do not exceed the statutory fees authorized in 28 U.S.C. § 1921. U.S.
E.E.O.C. v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000). In this district, service of
process by a United States Marshal pursuant to 28 U.S.C. § 1921 amounts to $65.00 per
hour, as well as an allowance for mileage.
Turning to the matter at hand, the Court finds that Scotlynn did not prevail against
both parties, and thus that awarding costs for service of process on Thiam would be
improper. A review of the record does not yield an individual accounting of Scotlynn’s
costs of service of process on each Defendant, and thus the Court finds it reasonable to
halve any requested award from $229.00, to $114.50, thereby reflecting the cost of
service for only Cold Ground Transport,. This figure amounts to approximately 1.75 hours
of taxable time by a United States Marshall engaged in the act of serving process.
Because Scotlynn unsuccessfully attempted to serve the Defendants with process
on multiple occasions, and because it is reasonable to expect that any successful attempt
at service of process would amount to at least 1.75 hours, the Court finds $114.50 to be
a proper award for the costs of service of process. As such, the Court directs that $514.50
be taxed against Defendant Cold Ground Transport, LLC.
Accordingly, it is
(1) Plaintiff’s Motion for Entry of Default Judgment (Doc. #20) is GRANTED in part as
to Count I against Defendant Cold Ground Transport, LLC for $57,280.00, and is
(2) Plaintiff’s request for costs is GRANTED in part and DENIED in part. Plaintiff
shall be awarded $400.00 in filing fees and $114.50 in costs of service of process,
(3) The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff and
against Defendant Cold Ground Transport, LLC as to Count I only for the actual
loss amount. Counts II and III of the Complaint are dismissed.
(4) The Clerk of the Court is further DIRECTED to terminate all pending deadlines,
issue the attached Bill of Costs, and close the file.
DONE and ORDERED in Fort Myers, Florida, this 14th day of October, 2016.
Copies: All Parties of Record
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