G.W. Palmer & Co., Inc. v. Florida Fresh Produce Corp. et al

Filing 87

OPINION AND ORDER granting in part and denying in part 75 Motion for Default Judgment; dismissing without prejudice Counts V, VI, and VII of the 48 Amended Complaint. A default judgment is granted as to Counts I and II, as to Count III as to defendant Maria Rodriguez, and Count IV in part. The Clerk shall enter judgment as set forth in the Opinion and Order, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 2/7/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
G.W. PALMER & CO., INC.,
Plaintiff,
v.

Case No:

2:17-cv-657-FtM-29MRM

FLORIDA FRESH PRODUCE CORP.,
MARIA ELUDIS RODRIGUEZ, JOSE
LUIS
RODRIGUEZ,
SERAFIN
RODRIGUEZ, S&A ENTERPRISES
OF IMMOKALEE LLC, IMMOKALEE
PRODUCE
CENTER,
LLC,
IMMOKALEE
PRODUCE
CENTER
HOLDINGS,
LLC,
YOJAIRA
RODRIGUEZ,
and
GABRIEL
ALMONTE,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Default Judgment (Doc. #75) filed on October 3, 2018.

No responses

have been filed, and all parties in this case are now in default.
The Court issued an Opinion and Order (Doc. #31) granting a
preliminary injunction and directing that “Florida Fresh Produce
Corp.

shall

documents
received.”

have

an

affirmative

related

to

all

sales

(Doc. #31, p. 6.)

obligation
of

produce

to
and

maintain
all

all

payments

Florida Fresh was directed to

escrow all proceeds, and the Order remains in full force and
effect.

A. Prerequisites
A Clerk’s Entry of Default (Doc. #39) was issued as to Jose
Luis

Rodriguez

and

S&A

Enterprises

of

Immokalee,

LLC

before

plaintiff filed an Amended Complaint (Doc. #48) 1 on April 17, 2018.
A Clerk’s Entry of Default (Doc. #59) was entered as to Gabriel
Almonte on June 19, 2018.

On September 12, 2018, the Court issued

an Opinion and Order (Doc. #68) directing the Clerk to enter a
Clerk’s default against defendants Florida Fresh Produce, Corp.,
Maria Eludis Rodriguez, and Serafin Rodriguez.
Default (Doc. #69) was issued on the same day.

The Entry of
On October 30,

2018, an Entry of Default (Doc. #78) was entered as to defendants
Immokalee

Produce

Holdings, LLC.

Center,

LLC

and

Immokalee

Produce

Center

On November 1, 2018, an Entry of Default (Doc.

#84) was issued as to Yojaira Rodriguez.

Plaintiff has obtained

a default as to all defendants, and is therefore entitled to seek
a default judgment.

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

B. Applicable Law
When a defendant defaults, he, she, or it is “deemed to admit
the plaintiff’s well-pleaded allegations of fact, [but] is not
held

to

admit

facts

conclusions of law.”

that

are

not

well-pleaded

or

to

admit

Surtain v. Hamlin Terrace Foundation, 789

F.3d 1239, 1245 (11th Cir. 2015).

To warrant a default judgment,

1

The Complaint (Doc. #1) was amended to add two additional
parties, and not as to the substantive allegations. (Doc. #47.)

- 2 -

the facts alleged in the pleadings must provide a sufficient basis
for judgment.

Id. (quoting Nishimatsu Const. Co., Ltd. V. Houston

Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

The sufficiency

standard is that “necessary to survive a motion to dismiss for
failure to state a claim.”

Surtain, 789 F.3d at 1245 (citations

omitted).
C. Amended Complaint
Plaintiff

asserts

jurisdiction

under

the

Perishable

Agricultural Commodities Act (PACA), 7 U.S.C. § 499, et seq., and
supplemental jurisdiction over various state claims.

Plaintiff

sells wholesale quantities of perishable agricultural commodities
in interstate commerce.

Defendant Florida Fresh Produce, Corp.

(Florida Fresh) is a dealer and commission merchant, and defendant
Maria Eludis Rodriguez was its sole officer in control of the PACA
trust

assets.

Defendant

Jose

Luis

Rodriguez

is

Maria

and

defendant Serafin Rodriguez’s son and also controlled the PACA
trust assets.

Defendant S&A Enterprises of Immokalee, LLC’s (S&A

Enterprises) sole members and managers were Maria and Serafin
Rodriguez.

Defendant Immokalee Produce Center, LLC’s (Immokalee

Produce) sole member is Immokalee Produce Center Holdings, LLC,
(Immokalee Holdings), and S&A Enterprises is the sole member of

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Immokalee Holdings.

Defendants Yojaira Rodriguez and Gabriel

Almonte are individuals added in the Amended Complaint.
Between

October

3

and

November

7,

2017,

plaintiff

sold

$341,324.25 in produce to Florida Fresh, which was accepted by
Florida Fresh.

Once the produce is received, plaintiff becomes

the beneficiary of the PACA trust consisting of the produce, all
assets derived from the sale of the produce, accounts receivable
and assets commingled with, purchased with, or otherwise acquired
from proceeds from the sale of produce.

Plaintiff delivered

invoices containing language entitled it to attorney’s fees and
costs.

Under PACA, Florida Fresh is required to tender full

payment to its unpaid suppliers.
Count One alleges a violation of PACA against Florida Fresh
for failure to maintain the PACA trust, and the failure to pay
PACA trust assets in the amount of $341,324.25, plus prejudgment
interest, costs and attorney’s fees.

Count Two alleges a breach

of contract for the failure to pay for produce that was accepted
and resulting in damages in the amount of $341,324.25.
Count Three alleges a breach of fiduciary duty against Maria
and Jose Rodriguez for the same amount, and for the failure to
maintain and preserve sufficient PACA trust assets.

Count Four

alleges conversion and unlawful retention of PACA trust assets
against

defendants

Maria,

Jose,

and

Serafin

Rodriguez,

S&A

Enterprises, Yojaira Rodriguez, and Gabriel Almonte based on the

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transfer of trust assets by Florida Fresh to defendants, which
plaintiff seeks to disgorge.

Count Five seeks damages for the

fraudulent transfer in violation of Florida’s Uniform Fraudulent
Transfer Act by Florida Fresh to defendants Maria, Jose, Serafin,
and Yojaira Rodriguez, Gabriel Almonte, S&A Enterprises, Immokalee
Produce, and Immokalee Holdings.

Count Six seeks to establish a

constructive trust on real property located at 1819 Tomaso Avenue,
Lehigh Acres, Florida because trust assets were used to maintain
and improve the property owned by Serafin and Maria Rodriguez.
Count Seven alleges a fraudulent transfer against Maria, Jose, and
Serafin Rodriguez because Maria and Serafin Rodriguez owned the
Tomaso property as constructive trustees of plaintiff.

Defendants

used PACA trust assets received from Florida Fresh to make payments
for the Tomaso property resulting in the property becoming a PACA
trust asset.
After suit was filed, Florida Fresh paid plaintiff $15,000,
thereby reducing the unpaid principal claim to $326,324.25.

(Doc.

#75, ¶ 2.)
D. Motion for Default Judgment
Plaintiff seeks a default judgment on Counts I through IV,
and on Count VI against all defendants.

As Counts V and VII under

the Uniform Fraudulent Transfer Act, Fla. Stat. § 726.101, et seq.
are not

being

prejudice.

pursued,

the

counts

will

be

dismissed

without

Attached to the motion are the Declarations of Alston

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Palmer (Doc. #75-2), President of plaintiff company, and Katy
Koestner Esquivel (Doc. #75-4), as well as the Affidavit of Bank
of America Bank Officer and/or Custodian of Records (Doc. #75-9)
regarding attached bank statements showing withdrawals of trust
assets.

See Doc. #75-6.

Also provided as evidence are summaries

of transfers made to other defendants, and a summary of payments
related to the individual defendants’ residential property.
#75-7,#75-8, #75-10 to #75-13, #75-21.)

(Doc.

Plaintiff also references

the previously filed Affidavit of Alston J. Palmer in Support of
Motions

for

Temporary

Restraining

Order

and

for

Preliminary

Injunction (Doc. #30-2).
Counts I and II (Florida Fresh)
Plaintiff is a dealer of perishable agricultural commodities,
and operates its business under a valid PACA license issued by the
United States Department of Agriculture.

(Doc. #75-2, ¶ 9.)

Between October 3 and November 7, 2017, plaintiff and Florida Fresh
entered into contracts for the sale of produce to Florida Fresh
for payment in the amount of $326,324.25.

(Id., ¶ 10.)

Florida

Fresh accepted the produce, and plaintiff issued invoices for
payment with a notice of intent to preserve trust benefits to
Florida Fresh on the face of the invoices.

(Id., ¶¶ 11-13.)

Florida Fresh failed to pay despite repeated demands, and the
invoices

provide

for

recovery

of

reasonable

attorney

prejudgment interest at the rate of 18% per annum.

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fees,

(Id., ¶¶ 14-

15.)

The invoices are attached as an exhibit to the Declaration

of Alston Palmer.

(Doc. #75-3.)

Under PACA,
Perishable agricultural commodities received
by a commission merchant, dealer, or broker in
all transactions, and all inventories of food
or other products derived from perishable
agricultural commodities, and any receivables
or proceeds from the sale of such commodities
or products, shall be held by such commission
merchant, dealer, or broker in trust for the
benefit of all unpaid suppliers or sellers of
such commodities or agents involved in the
transaction, until full payment of the sums
owing in connection with such transactions has
been received by such unpaid suppliers,
sellers, or agents.
7 U.S.C. § 499e(c)(2).

“[A] licensee may use ordinary and usual

billing or invoice statements to provide notice of the licensee's
intent to preserve the trust.”

7 U.S.C. § 499e(c)(4).

In

facts

this

case,

the

well-pled

in

the

Complaint

and

the

Declaration of Alston Palmer establish that plaintiff provided
perishable

agricultural

commodities,

i.e.

fresh

produce,

to

Florida Fresh, and also provided PACA notice on each of the
invoices.

Florida Fresh failed to tender payment upon demand.

Therefore, plaintiff has established that it is a PACA trust
beneficiary for the amount of the invoices, $326,324.25, plus
attorney fees and interest accruing at a rate of 1.5% per month on
past due invoices.

(Doc. #75-3.)

granted as to Count I.

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Default judgment will be

As to Count II, plaintiff alleges a breach of contract for
Florida

Fresh’s

failure

to

pay

contracted for with plaintiff.

for

the

accepted

produce

as

Plaintiff seeks the outstanding

amount of the invoices, $326,324.25.

Plaintiff has established

the existence of a valid contract, that Florida Fresh breached the
contract by failing to pay for the produce, and that plaintiff
suffered damages as a consequence of non-payment.

Havens v. Coast

Florida, P.A., 117 So. 3d 1179, 1181 (Fla. 2d DCA 2013).

Default

judgment will be granted as to Count II.
Count III (Maria and Jose Rodriguez)
Plaintiff alleges that Maria Rodriguez and Jose Rodriguez
each owed a statutory fiduciary duty to plaintiff to ensure that
Florida

Fresh

maintained

and

preserved

sufficient

PACA

trust

assets to pay all trust beneficiaries, and that Maria and Jose
Rodriguez

breached

this

fiduciary

duty.

(Doc.

#48,

¶

21.)

Between February 2016 and December 2017, $375,966.68 in cash was
withdrawn from the accounts of Florida Fresh, $95,326.19 of which
was withdrawn in the last quarter of 2017 just before the suit was
filed.

(Doc. #75-4, ¶ 10a.)

Between February 9 and December 5,

2017, Florida Fresh transferred a total of $117,449 in PACA trust
assets to Jose Rodriguez.

(Id., ¶ 10b.)

Between February 2016

and June 2017, Florida Fresh transferred a total of $4,600 in PACA
trust assets to Maria Rodriguez.

(Id., ¶ 10c.)

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Maria Rodriguez

was the sole signatory on Florida Fresh’s bank account and signed
all the issued checks.

(Id., ¶ 11.)

“The extension of liability to those in control of the trust
assets is reasonable and necessary in order to enforce the goals
of Congress in establishing the statutory trust. If liability were
limited to corporate dealers, the intent of the federal statute to
protect

consumers

frustrated.”

and

sellers

of

produce

would

be

easily

Red's Mkt. v. Cape Canaveral Cruise Line, Inc., 181

F. Supp. 2d 1339, 1343 (M.D. Fla.), aff'd sub nom. Red's Mkt. v.
Caps Canaveral, 48 F. App'x 328 (11th Cir. 2002).
Plaintiff asserts a legal conclusion that Jose Rodriguez was
in a position to control the PACA trust assets and breached the
fiduciary duty that was owed to maintain the assets, but these are
not facts.

Plaintiff does not allege what position he held, or

the factual basis to prove that Jose Rodriguez was in a position
to owe the duty.
sole

officer

Maria Rodriguez, however, is alleged to a be the

and

sole

transferred trust assets.

signatory

on

the

bank

account

that

The motion for default judgment against

Maria and Jose Rodriguez will be granted as to Maria Rodriguez
only as to Count III.
Count
IV
(Maria,
Jose,
and
Serafin
Rodriguez,
S&A
Enterprises, Immokalee Produce, Immokalee Holdings, Yojaira
Rodriguez and Gabriel Almonte)
Plaintiff alleges conversion and the unlawful retention of
PACA trust assets based on defendants’ receipt of trust assets

- 9 -

from Florida Fresh.

Plaintiff seeks to disgorge any PACA trust

assets in possession or control of any of these defendants.

As

previously noted, a total of $375,966.68 in cash was withdrawn
from the accounts of Florida Fresh.

(Doc. #75-4, ¶ 10a.)

Between

February and December 2017, Florida Fresh transferred trust assets
in the amount of $117,449 to Jose Rodriguez, issued checks totaling
$16,578 to Yojaira Rodriguez, the wife of Jose Rodriguez, and trust
assets totaling $84,135 to a family friend, Gabriel Almonte.
(Id., ¶ 10 b, d, e.)

Between February 2016 and June 2017, Florida

Fresh transferred trust assets in the amount of $4,600 to Maria
Rodriguez.

(Id., ¶ 10c.)

Between March and December 2017,

Florida Fresh transferred $11,296 in trust assets to Serafin
Rodriguez.

(Id., ¶ 10f.)

Between August 2016 and November 2018,

Florida Fresh transferred $79,730 to Immokalee Produce.
10g.)

The identified transfers total $313,788.00.

(Id., ¶
It is on

information and belief that the transferred assets were otherwise
used to “subsidize the lifestyles of Defendants Maria, Serafin and
Jose Rodriguez to pay the mortgage and other expenses related to
the real property. . . .”

(Id., ¶ 10a.)

The remaining withdrawals

are summarized as cash withdrawals resulting in the total of
$375,966.68.

(Doc. #75-7.)

Conversion is an unauthorized act that deprives another of
his or her property “permanently or for an indefinite time.”
Senfeld v. Bank of Nova Scotia Tr. Co. (Cayman) Ltd., 450 So. 2d

- 10 -

1157, 1161 (Fla. 3d DCA 1984).

PACA “permits a PACA trust to

exist as a nonsegregated floating trust that permitted commingling
of assets.”

Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 159

(11th Cir. 1990).

“[T]he trust beneficiary need not prove that

it, and not another produce supplier, was the source of the produce
or produce-related assets.”

Sanzone-Palmisano Co. v. M. Seaman

Enters., Inc., 986 F.2d 1010, 1012 (6th Cir. 1993).

However, the

trust exists “for the benefit of all unpaid produce suppliers.”
Frio Ice, at 159.

“[T]he burden is on the PACA debtor [ ] to show

that the disputed payment is from a non-trust source.”

Six L's

Packing Co. v. W. Des Moines State Bank, 967 F.2d 256, 258 (8th
Cir. 1992).
In

this

case,

defendants

do

not

dispute

receipt

of

the

qualifying produce, or that trust assets were transferred to them
rather

than

Declaration

paid
of

to

Katy

PACA

beneficiaries

Koestner

Esquivel

like

plaintiff.

establishes

that

The
Maria

Rodriguez, Jose Rodriguez, Serafin Rodriguez, Yojaira Rodriguez
and Gabriel Almonte received funds from the commingled account of
Florida Fresh.

(Doc. #75-4, ¶ 10.)

It is believed that Immokalee

Holdings and S&A Enterprises also received a cash withdrawal, but
an amount is not specified and could not be verified.
10a.)

(Id., ¶

The Court finds that the defendants converted PACA trust

assets for their own use.

Default Judgment will be granted as to

Count IV but only as to the defendants who specifically received

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amounts from the trust assets:

Jose Rodriguez, Yojaira Rodriguez,

Gabriel Almonte, Maria Rodriguez, Serafin Rodriguez, and Immokalee
Produce.

Florida Fresh is not named as a defendant in Count IV,

and the Court will deny the motion as to S&A Enterprises and
Immokalee Holdings.
Count VI (Maria, Jose, and Serafin Rodriguez)
Plaintiff
residential

seeks

property

to

establish

owned

by

a

constructive

defendants

Serafin

trust

on

and

Maria

Rodriguez located at 1819 Tomaso Avenue, Lehigh Acres.

Jose

Rodriguez also lived at the property with his family.
4, ¶ 12.)

(Doc. #75-

The financial records of Florida Fresh indicate at

least $9,414 in PACA trust assets was used for improvement on the
property.

(Doc. #75-21.)

The amount of the debt as of September

5, 2017, was $101,455.15, owed to the creditor Ham Real Estate
Investments, Inc.

(Doc. #75-18.)

On March 28, 2018, a Final

Judgment of Foreclosure was entered against defendants Maria and
Serafin Rodriguez in the amount of $107,314.58.

(Id., ¶ 14.)

It

is believed that that Maria Rodriguez and Serafin Rodriguez were
able to satisfy the Final Judgment by using PACA trust assets.
The Satisfaction and Release of Judgment and Lis Pendens (Doc.
#75-20) reflects full payment and satisfaction of the judgment and
a release of the lis pendens recorded in the official records.
“Under Florida law, a constructive trust ‘arises through
operation of law.

Where one through fraud, abuse of confidence,

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or other questionable means gains property which in equity or good
conscience he should not be permitted to retain, equity will raise
a constructive trust.’”

In re Royal W. Props., Inc., 441 B.R.

158,

Fla.

170

(Bankr.

confidential

S.D.

relationship

2010)

must

constructive trust will be raised.”

(citation

be

omitted).

established

before

“A
a

Claycomb v. Combs, 676 So.

2d 523, 524 (Fla. 2d DCA 1996) (citing Quinn v. Phipps, 93 Fla.
805, 113 So. 419, 422 (1927)).
Mere breach of contract or other wrongdoing
does not entitle a plaintiff to a constructive
trust on a defendant's general assets to be
used to satisfy a plaintiff's claim. Indeed,
it is well settled that Florida courts will
impress property with a constructive trust
only
if
the
trust
res
is
specific,
identifiable property or if it can be clearly
traced in assets of the defendant which are
claimed by the party seeking such relief.
Finkelstein v. Se. Bank, N.A., 490 So. 2d 976, 983 (Fla. 4th DCA
1986).
Plaintiff identifies $9,414.32 in payments related to the
real property, but this is but a small portion of the value of the
property, and there is no indication of anything fraudulent with
the foreclosure process or the resulting satisfaction of the
mortgage.

The Court finds that plaintiff is not entitled to a

constructive trust on the property.
denied as to this Count.

- 13 -

A default judgment will be

E. Attorney Fees, Pre-Judgment Interest, and Costs
Plaintiff requests an award of contractual attorneys’ fees
and costs in the amount of $94,548.37.
24.)

(Doc. #75-4, ¶¶ 21-22,

Plaintiff also seeks prejudgment interest for the past due

invoices at issue in this matter in the amount of $53,556.13
through October 3, 2018, the date of filing the motion for a
default judgment, at a rate of 18% per annum.
Absent
recovery

statutory

of

attorney

authority
fees

by

or
even

an
a

(Doc. #75-4, ¶ 23.)

enforceable
“prevailing

ordinarily not permitted under the “American Rule.”

contract,
party”

is

Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975);
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 602 (2001).
contained

the

following

In this case, each invoice

language:

“If

overdue

accounts

are

referred to an attorney, you agree to pay our attorney’s fees plus
the costs of all legal action as an additional charge under the
contract of sale covered by this invoice.

Additionally, all

interest and attorney’s fees are sums owing in connection with the
produce transaction.”

(Doc. #75-3.)

The Eleventh Circuit has

determined,
Had Congress intended to limit PACA claims
solely to the price of the commodities, it
could have inserted language reflecting that
limitation in 7 U.S.C. § 499e(c)(2). Instead,
it chose to allow “full payment of the sums
owing
in
connection
with
[commodities]
transactions.” This unambiguously encompasses

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not only the price of commodities but also
additional related expenses. Such related
expenses include attorney fees and interest
that buyers and sellers have bargained for in
their contracts.
Country Best v. Christopher Ranch, LLC, 361 F.3d 629, 632 (11th
Cir. 2004) (emphasis in original).

Therefore, plaintiff has a

contractual basis for the claim that is supported by a statutory
authority under PACA.

The Court finds that plaintiff is entitled

to fees, costs, and prejudgment interest.
Counsel billed at an hourly rate of $350.00 per hour, and the
“legal assistant” billed at her normal hourly rate of $100.00.
The Court finds that both rates are reasonable.

Counsel asserts

that 342.90 hours were spent on the case, and the assistant spent
11.80 hours on the case.

(Doc. #75-4, ¶¶ 19-21.)

The hours

include travel time, and clerical tasks not normally permitted to
a prevailing party, however PACA’s coverage is broader and the
hours are otherwise reasonable.

(Doc. #75-15.)

The Court will

permit the requested attorney’s fees.
Plaintiff has calculated the accrued interest based on the
number of days the invoice balance is overdue.

(Doc. #75-16.)

The Court will permit the $53,556.13 in prejudgment interest on
top of the principal amount.

The Court will also allow post-

judgment interest.
The requested costs include the filing fee, service of process
expenses, mediation fee, witness fees, court reporter fees, and

- 15 -

mileage.

All costs and expenses will be permitted under PACA and

the contract for the $8,325.35.

(Doc. #75-17.)

Accordingly, it is hereby
ORDERED:
1. Counts V, VI, and VII of the Amended Complaint (Doc. #48)
are dismissed without prejudice.
2. Plaintiff's Motion for Default

Judgment (Doc. #75) is

GRANTED as to Counts I and II, as to Count III as to
defendant Maria Rodriguez only, and Count IV in part.

The

motion is otherwise denied.
3. The Clerk shall enter judgment in favor of plaintiff as
follows:
A. As to Counts I and II against Florida Fresh Produce
for

the

principal

amount

of

$326,324.25,

and

prejudgment interest in the amount of $53,556.13, for
a total amount of $474,400.73, plus taxable costs in
the amount of $8,325.35, and attorneys’ fees in the
amount of $86,195.00;
B. As to Count III against Maria Rodriguez only, for the
principal

amount

of

$326,324.25,

and

prejudgment

interest in the amount of $53,556.13, for a total
amount of $474,400.73, plus taxable costs in the
amount of $8,325.35, and attorneys’ fees in the amount
of $86,195.00;

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C. As to Count IV as to Jose Rodriguez in the amount of
$117,449; as to Yojaira Rodriguez in the amount of
$16,578;

as

to

Gabriel

Almonte

in

the

amount

of

$84,135;

as

to

Maria

Rodriguez

in

the

amount

of

$4,600; as to Serafin Rodriguez in the amount of
$11,296; as to Immokalee Produce Center, LLC in the
amount of $79,730;
D. Post-judgment interest shall continue to accrue on
all damages at the applicable federal rate on all
damages until paid; and
E. Dismissing
dismissing

Count

III

as

to

Jose

Counts

V,

VI,

and

VII

Rodriguez,
of

the

and

Amended

Complaint without prejudice.
4. The Clerk shall terminate all deadlines and close the file.
Plaintiff shall serve a copy of this Opinion and Order on
defendants.
DONE and ORDERED at Fort Myers, Florida, this
February, 2019.

Copies:
Counsel of Record

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7th

day of