Scotlynn USA Division, Inc. v. Parvinder Singh

Filing 18

OPINION AND ORDER granting 14 Motion for Default Judgment as to Count I in the amount of $44,880.56, and otherwise denying. The Clerk shall enter judgment accordingly in favor of plaintiff and against defendant as to Count I for the actual loss amount, and dismissing Count II without prejudice. The Clerk is further directed to issue the attached Bill of Costs and to close the file. Signed by Judge John E. Steele on 9/9/2016. (Attachments: # 1 Bill of Costs) (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOTLYNN USA DIVISION, INC.,
Plaintiff,
v.

Case No: 2:15-cv-381-FtM-29MRM

PARVINDER
individual,

SINGH,

an

Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Entry of Default Judgment (Doc. #14) filed on July 20, 2016.

No

response has been filed and the time to respond has expired.

In

support of the request for damages and attorney’s fees, plaintiff
filed the Affidavit of Katy Koestner Esquivel in Support (Doc.
#14-1), counsel of record for plaintiff.

The Court finds that an

evidentiary hearing is not required and will render a decision
based on the documents submitted.
“A 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. [
] A default defendant may, on appeal, challenge the sufficiency of

the complaint, even if he may not challenge the sufficiency of the
proof.”

Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561

F.3d 1298, 1307 (11th Cir. 2009) (internal quotations and citations
omitted).
1. Procedural History
On June 25, 2015, plaintiff Scotlynn USA Division, Inc. filed
a Civil Action Complaint Against Motor Carrier Under 49 U.S.C. §
14706 and for Other Relief (Doc. #1) against Parvinder Singh doing
business as Doberman Trucking Corp. alleging a violation of the
Carmack Amendment to the Interstate Commerce Act and a Breach of
a Property Broker/Carrier Agreement seeking damages in the amount
of

$44,880.56,

plus

interest,

costs,

and

attorney’s

fees.

Defendant was personally served with process, but failed to enter
an appearance.

(Doc. #9.)

Plaintiff sought and obtained a

Clerk’s Default, and the Entry of Default (Doc. #12) issued on
September 15, 2015.

(Docs. ## 10-11.)

Therefore, plaintiff has

met the necessary prerequisite for a default judgment against
defendant.

Fed. R. Civ. P. 55(a).

2. Factual Basis
Deeming the well pled facts in the Complaint (Doc. #1) as
admitted:

Plaintiff

is

a

motor

freight

brokerage

company,

licensed by the Federal Motor Carrier Safety Administration, to
contract with common carriers to transport freight throughout the

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country.

Defendant

has

operating

authority

to

transportation service of shipments for plaintiff.

provide

On or about

December 7, 2013, plaintiff entered into a Property Broker/Carrier
Agreement (Doc. #1-1) (the Agreement) with defendant to govern the
transportation of loads of cargo for plaintiff’s clients.

On or

about December 19, 2014, defendant was hired to transport 2076
units of frozen pizzas from Kansas to Washington.

The goods were

picked up the next day, acknowledged to be in good condition, and
defendant

assumed

responsibility

accordance with the Bill of Lading.

to

deliver

the

goods

in

Defendant was instructed to

maintain a continuous temperature of -10°F during transit, however
the load was delivered on December 22, 2014 with a temperature of
15°F.

As a result, the recipient rejected the load of pizza and

the load was destroyed because of the unsafe temperature of the
pizzas.

On or about March 5, 2015, plaintiff provided defendant

with formal notification of the claim for the entirety of the loss,
$44,880.56.

Plaintiff states that all conditions precedent have

been met or waived. 1

1

“The period for bringing a civil action is computed from
the date the carrier gives a person written notice that the carrier
has disallowed any part of the claim specified in the notice.” 49
U.S.C. § 14706(e)(1).

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3. Count I – Carmack Amendment
To establish a prima facie case of liability, plaintiff must
show that the goods were delivered to defendant in good condition,
that the good arrived in damaged condition, and that this resulted
in a specific amount of damage.

Offshore Aviation v. Transcon

Lines, Inc., 831 F.2d 1013, 1014 (11th Cir. 1987).

“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.”

UPS Supply Chain Sols., Inc. v.

Megatrux Transp., Inc., 750 F.3d 1282, 1285–86 (11th Cir. 2014).
The

Complaint

defendant
condition.

and

establishes
that

the

that

goods

the
were

goods

were

acknowledged

delivered
as

in

to

good

The Complaint also establishes that the goods were

inspected and found to be at the wrong temperature and that the
load had to be destroyed in its entirety.
The bill of lading was not attached to the Complaint, and was
not submitted in support of the request for a default judgment but
the good were opened and inspected and the “bill of lading, by
itself, is never sufficient to establish a prima facie case.”
A.I.G. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp.,
334 F.3d 997, 1004 (11th Cir. 2003) (citing Offshore Aviation, 831
F.2d at 1014–15).

Based on defendant’s default and the absence

of anything to the contrary, the Court will assume liability has

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not been limited, and that the shipper has not agreed to limit the
carrier’s liability to a declared value less than the actual loss
or injury.

See 49 U.S.C. § 14706(a)(1) (Generally, liability is

for the actual loss or injury to the property caused); 49 U.S.C.
§ 14706(c)(1)(A) (a carrier may limit its liability to a value
established by the shipper or by written agreement).
Supply, 750 F.3d at 1286.

See also UPS

The Court notes that the parties’

Agreement defines “full actual loss” as something to be determined
by the shipper.

(Doc. #1-1, ¶ 11.)

In support of the request for damages and attorney’s fees,
plaintiff filed the Affidavit of Katy Koestner Esquivel in Support
(Doc. #14-1).

Counsel indicates that defendant is not an infant

or incompetent person, and is not an active duty member of the
military.
certain.

Counsel indicates that the loss of cargo is for a sum
The Court finds that plaintiff is entitled to a default

judgment for the value of the destroyed cargo, or actual loss, in
the amount of $44,880.56.

(Doc. #14-1, ¶ 11.)

4. Count II – Breach of Contract
State law claims like a breach of the contract between the
broker and carrier for “failures in the transportation and delivery
goods”, are generally preempted by the Carmack Amendment.
v. UPS, 296 F.3d 1244, 1246 (11th Cir. 2002).

Smith

“In other words,

separate and distinct conduct rather than injury must exist for a

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claim

to

fall

Amendment.”

outside

the

Id. at 1249.

preemptive

scope

of

the

Carmack

Count II is therefore preempted as to

damages and will be dismissed without prejudice. 2
Plaintiff also seeks attorney’s fees pursuant to paragraph 22
of the Agreement and based on defendant’s breach of the Agreement.
Plaintiff articulates no legal basis for the claim of attorney’s
fees.

The Court finds that the request falls under the broad

preemption of the Carmack Amendment, and that the attorney’s fees
request must be denied.

See Strickland Transp. Co. v. Am. Distrib.

Co., 198 F.2d 546, 547 (5th Cir. 1952) (in reviewing the amount in
controversy, the Fifth Circuit noted that attorney’s fees were
beyond the actual damages allowed by Congress, and therefore could
not be considered); Missouri Pac. R. Co. v. Ctr. Plains Indus.,
Inc.,

720

F.2d

818,

819

(5th

Cir.

1983)

(finding

Strickland

persuasive); Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98
F.3d 874, 876 (5th Cir. 1996) (same).

The Court finds that UPS

Supply, which found that Strickland made no precedential ruling on

2

Count II will also be dismissed because it incorporates the
paragraphs of Count I making the Complaint a shotgun pleading.
See Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313,
1321 (11th Cir. 2015) (A common type of shotgun pleading “is a
complaint containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count
to carry all that came before and the last count to be a combination
of the entire complaint.”)

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the scope of Carmack’s preemption, is distinguishable because it
found that attorney’s fees were permitted in relation to the
enforcement of an indemnity clause in an ongoing contract separate
from the theft of goods.

UPS Supply, 750 F.3d at 1282.

The

request for fees will be denied.
5. Costs
As part of the request for attorney’s fees, plaintiff also
seeks costs in the amount of $400.00 for the filing fee and $80.00
for personal service on Defendant.

(Doc. #14-1, ¶ 13.)

“Unless

a federal statute, [the federal] rules, or a court order provides
otherwise, costs--other than attorney’s fees--should be allowed to
the prevailing party. . . .

Fed. R. Civ. P. 54(d)(1).

As these

costs are otherwise taxable costs under 28 U.S.C. § 1920, the Court
will direct that $480.00 be taxed against defendant.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion for Entry of Default Judgment (Doc. #14)
is GRANTED as to Count I in the amount of $44,880.56, and
is otherwise DENIED.
2. The Clerk shall enter judgment accordingly in favor of
plaintiff and against defendant as to Count I for the
actual

loss

amount,

and

prejudice.

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dismissing

Count

II

without

3. The Clerk is further directed to terminate all pending
deadlines, issue the attached Bill of Costs, and close the
file.
DONE and ORDERED at Fort Myers, Florida, this
September, 2016.

Copies:
Counsel of Record

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9th

day of