Castellini Company, LLC v. Haag Food Service, Inc. et al
Filing
55
ORDER: The Garcia Defendants' Motion to Dismiss Counts IV and VII of Castellini's First Amended Complaint (Doc. 31 ) is GRANTED. Count IV, to the extent that it requests a declaration that the alleged debt of Haag Food and the Garcia Defen dants is non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(4), is DISMISSED without prejudice, and Count VII is DISMISSED with prejudice. Midland's Motion to Dismiss Count VII of Freshway's First Amended Complaint in Interventio n (Doc. 48 ) is GRANTED. Count VII of Freshway's First Amended Complaint in Intervention is DISMISSED with prejudice. Freshway remains free to amend the allegations involving attorneys' fees as related to the remaining counts. Castellini 039;s Motion for Default Judgment (Doc. 43 ) is DENIED without prejudice and with leave to re-file. Finally, the Court has noticed that Freshway has failed to file a Corporate Disclosure Statement as required by Local Rule 7.1. The Court ALLOWS Freshway, up to and including January 24, 2017, to do so. (Action due by 1/24/2017). Signed by Judge Nancy J. Rosenstengel on 1/17/2017. (bak)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
and
)
FRESH UNLIMITED, INC. d/b/a Freshway )
)
Foods,
)
)
Intervenor Plaintiff,
)
)
vs.
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HAAG FOOD SERVICE, INC. a/k/a Haag )
)
Foods & Poultry, Inc., JACK E. GARCIA,
)
LOIS A. GARCIA, and MIDLAND
)
STATES BANK,
)
)
Defendants.
CASTELLINI COMPANY, LLC,
Case No. 16-CV-110-NJR-RJD
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court are various motions to dismiss the First Amended
Complaint and First Amended Complaint in Intervention (Docs. 31, 32, and 48), and a
Motion for Default Judgment (Doc. 43). Plaintiff Castellini Company, LLC (“Castellini”) and
Intervenor Plaintiff Fresh Unlimited, Inc. d/b/a Freshway Foods (“Freshway”) have
brought suit against Defendants Haag Food Service, Inc. a/k/a Haag Foods & Poultry, Inc.
(“Haag Food”), Jack E. Garcia and Lois A. Garcia, individually and in their corporate
capacities (“Garcia Defendants”), and Midland States Bank (“Midland”) (See Docs. 18 and
40), relating to their rights as beneficiaries to the statutory trust created under the Perishable
Agricultural Commodities Act (“PACA”), 7 U.S.C. § 499e, et seq.
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PACA was enacted to protect and promote fair trade in the fruit and vegetable
industry. See American Banana Co., Inc. v. Republic Nat. Bank of New York, N.A., 362 F.3d 33, 36
(2d Cir. 2004). It protects the interests of sellers of perishable agricultural commodities by
requiring purchasers to hold the proceeds of these products in trust for the benefit of unpaid
suppliers until full payment has been made. See 7 U.S.C. § 499e(c)(1)-(2); see also Patterson
Frozen Foods, Inc. v. Crown Foods Int’l, Inc., 307 F.3d 666, 669 (7th Cir. 2002). This trust
provision grants unpaid suppliers a priority position over other creditors, including secured
creditors. See Patterson, 307 F.3d at 669. PACA grants district courts jurisdiction to hear
“actions by trust beneficiaries to enforce payment from the trust.” 7 U.S.C. § 499e(c)(5)(i).
“When trust assets are held by a third party, resulting in the failure of the trustee to pay
unpaid sellers of perishable agricultural commodities, the third party may be required to
disgorge the trust assets unless the third party can establish that it has some defense, such as
having taken the assets as a bona fide purchaser without notice of the breach of trust.” Nickey
Gregory Co., LLC v. Agricap, LLC, 597 F.3d 591-595-96 (4th Cir. 2010).
FACTUAL & PROCEDURAL BACKGROUND
On January 29, 2016, Castellini, a seller of perishable agricultural commodities (i.e.
produce), filed a Complaint, and subsequently amended that complaint on March 8, 2016
(See Docs. 1, 18). In the Amended Complaint, Castellini alleges that, between May 3, 2015
and January 19, 2016, it sold and delivered $150,651.16 worth of produce to Haag Food and
the Garcia Defendants, but has not been paid for the produce that was delivered (Doc. 18,
p. 4). Haag Food was a dealer and commission merchant of wholesale quantities of
perishable agricultural commodities (Doc. 18, p. 3). The Garcia Defendants were owners,
officers and/or directors of Haag Food during that time (Id.). Castellini alleges that it
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included on each of its invoices the requisite statutory language notifying these Defendants
that Castellini was preserving its rights as a beneficiary to the statutory trust which was
created under PACA when Defendants accepted delivery of the produce (Id. at p. 4).
Castellini also contends that Haag Food and the Garcia Defendants have failed to maintain
the trust assets in order to pay Castellini and thus have violated their statutory duties as
trustees (Id. at p. 6-8). Castellini also brings a claim for priority/disgorgement of trust assets
against Midland (Id. at p. 9).
On February 26, 2016, Freshway sought to intervene as a matter of right in the action,
asserting claims that mirrored Castellini’s claims (Doc. 14). On May 11, 2016, the Court
granted Freshway’s Motion to Intervene (Doc. 37). On May 19, 2016, Freshway filed its
Complaint in Intervention (Doc. 39), and subsequently amended it on May 20, 2016 (Doc.
40). Freshway alleges in the First Amended Complaint in Intervention that, between October
30, 2015 and December 2, 2015, Freshway sold $86,925.73 of produce to Haag Food and the
Garcia Defendants on account for which it has not been paid (Doc. 40, p. 3). Freshway
alleges that it included on each of its invoices the requisite statutory language necessary to
preserve its claim as a beneficiary to the statutory trust created under PACA. See 7 U.S.C. §
499e(c)(3) and (4) (Id. at p. 4). Thus, Freshway argues that it is also a beneficiary of
Defendants’ PACA statutory trust. Freshway also brings a claim for priority/disgorgement
of trust assets against Midland (Doc. 40, p. 8).
On April 13, 2016, Castellini moved for a Clerk’s Entry of Default against Haag Food,
on the basis that no answer or responsive pleading had been filed within the requisite time
by this defendant (Doc. 29). On April 14, 2016, the Clerk entered a Rule 55(a) default against
Haag Food (Doc. 30). On May 31, 2016, Castellini followed up with a Motion for Default
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Judgment pursuant to Rule 55(b), along with various affidavits in support (Docs. 43, 44, and
45). The Garcia Defendants have filed a Response in Opposition to the Motion for Default
Judgment, to which Castellini filed a Reply (See Docs. 50 and 51).
On April 25, 2016, the Garcia Defendants filed a Motion to Dismiss as to Counts IV
and VII of Castellini’s First Amended Complaint (Doc. 31). On May 2, 2016, Midland filed a
Motion to Dismiss as to Count VII of Castellini’s First Amended Complaint. Both motions
have been fully briefed (See Docs. 38, 42, and 46). On June 9, 2016, Midland filed a Motion to
Dismiss Count VII of Freshway’s First Amended Complaint in Intervention (Doc. 48). That
motion has also been fully briefed (See Doc. 52).
Thus, there are currently four motions pending before the Court. The Court will
address each motion separately.
RELEVANT LEGAL STANDARDS
I.
Federal Rule of Civil Procedure 12(b)(1)
“When ruling on a motion to dismiss for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), the district court must accept as true all
well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.”
Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). District courts may, however, “properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Evers
v. Astrue, 536 F.3d 651, 656-657 (7th Cir. 2008). “In all cases, the party asserting federal
jurisdiction has the burden of proof to show that jurisdiction is proper.” Travelers Prop. Cas.
v. Good, 689 F.3d 714, 722 (7th Cir. 2012) (citing McNutt v. Gen. Motors Acceptance Corp., 289
U.S. 178, 189 (1936)).
II.
Federal Rule of Civil Procedure 12(b)(6)
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In deciding a motion to dismiss for failure to state a claim on which relief can be
granted under Rule 12(b)(6), the district court’s task is to determine whether the complaint
includes “enough facts to state a claim to relief that is plausible on its face.” Khorrami v.
Rolince, 539 F.3d 782, 788 (7th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). The Court of Appeals for the Seventh Circuit has clarified that, “[e]ven after
Twombly, courts must still approach motions under Rule 12(b)(6) by ‘constru[ing] the
complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts
alleged, and drawing all possible inferences in her favor.’” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009), cert. denied, ––– U.S. ––––, 130 S. Ct. 1141 (2010) (quoting Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)).
ANALYSIS
I.
The Garcia Defendants’ Motion to Dismiss Counts IV and VII of
Castellini’s First Amended Complaint (Doc. 31)
The Garcia Defendants argue that Count IV should be dismissed under Rule 12(b)(1)
and Rule 12(b)(6) of the Federal Rules of Civil Procedure because there is no “case or
controversy” with respect to that count, the matters alleged are not ripe for determination,
said count seeks an advisory opinion, and the Court lacks jurisdiction as to this count. The
Garcia Defendants also argue that Count VII must be dismissed because there is no
independent cause of action for attorneys’ fees under PACA.
A. Count IV
Count IV of Castellini’s First Amended Complaint alleges Breach of Fiduciary
Duty/Non-Dischargeability pursuant to 11 U.S.C. § 523(a)(4) of the Bankruptcy Code
against Defendant Haag Food and the Garcia Defendants. Specifically, Castellini alleges that
Defendants, in breach of their fiduciary obligations arising under PACA, directed the
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disbursement of trust funds for purposes other than making full and prompt payment to
Castellini as required by PACA, 7 U.S.C. § 499b(4), “thereby heightening liability herein to a
state of non-dischargeability pursuant to 11 U.S.C. § 523(a)(4).” (Doc. 18, p. 8).
The jurisdiction of federal courts is limited by the “case or controversy” requirement
of the United States Constitution. U.S. CONST. art III, § 2; Myers v. Nicolet Restaurant of De
Pere, LLC, No. 16-2075, 2016 WL 7217581, at *2 (7th Cir. Dec. 13, 2016) (“The Supreme Court
has consistently recognized that ‘[n]o principle is more fundamental to the judiciary’s
proper role in our system of government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.’”). This precludes federal courts from rendering
advisory opinions as to a possible future controversy.
Castellini requests a declaration that the alleged debt of Haag Food and the Garcia
Defendants is non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(4). Section 523(a)(4)
provides that a debtor will not receive a discharge under Bankruptcy Code Section 727 for a
debt that is the result of the debtor’s fraud or defalcation while acting in a fiduciary capacity.
Here, the First Amended Complaint does not allege that Haag Food and the Garcia
Defendants are involved in a pending bankruptcy proceeding. As such, the Court lacks
jurisdiction to determine whether certain debts would be dischargeable in bankruptcy. See In
re Zois, 201 B.R. 501, 510 (N.D. Ill. 1996) (“Original jurisdiction to determine dischargeability
under the Bankruptcy Code arises in the District Court only when a bankruptcy proceeding
is filed.”); see also In re Gibbs, 107 B.R. 492, 497 (D.N.J. 1989) (“There is no provision in title 28,
title 11 or elsewhere in the law which authorizes any federal court to exercise jurisdiction
over any proceeding arising under title 11, or over any other bankruptcy issue, until a
bankruptcy case is commenced by the filing of a petition.”). Accordingly, the Court finds it
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appropriate to dismiss Count IV without prejudice, to the extent that it requests a
declaration that the alleged debt of Haag Food and the Garcia Defendants is
non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(4).1
B. Count VII
In Count VII of the First Amended Complaint, Castellini asserts a claim against all
defendants for interest and attorneys’ fees based upon the terms of sale on each invoice
(Doc. 18, p. 10). In addition to doing so, Castellini alleges within the PACA counts that Haag
Food and the Garcia Defendants violated PACA and breached the contracts which provided
the statutory language notifying the buyer that the seller/supplier was preserving its rights
as a beneficiary to the PACA statutory trust, plus interest and attorneys’ fees.
PACA does not itself create a right to attorneys’ fees or interest, but where the parties’
contracts include such terms, courts have found that they may be awarded. See Country Best
v. Christopher Ranch, LLC, 361 F.3d 629, 631 (11th Cir. 2004) (holding that attorneys’ fees and
interest that buyers and sellers have bargained for in their contracts can be awarded as
“sums owing in connection with” perishable commodities transactions under the PACA
statute); see also Middle Mountain Land and Produce Inc. v. Sound Commodities Inc., 307 F.3d
1220, 1224 (9th Cir. 2002) (“it cannot be contended seriously that interpreting PACA claims
to include contractual rights to attorneys’ fees and interest under the “in connection with”
language of the statute is contrary to the statute’s purpose, absurd, or ‘demonstrably at odds
with the intentions of the drafters.’”); see also C.H. Robinson Worldwide, Inc. v. Auster
Acquisitions, LLC, No. 11 C 105, 2011 WL 4808174, at *2 (N.D. Ill. Oct. 11, 2011); see also Brutyn,
N.V. v. Anthony Gagliano Co. Inc., No. 04-C-527, 2007 WL 1959178, at *20 (E.D. Wisc. July 2,
1
Moreover, the Court notes that an action to determine the dischargeability of a debt is normally referred to a
bankruptcy judge pursuant to 28 U.S.C. § 157 and Local Rule BR1001.1.
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2007).
Here, Count VII does not set forth a separate cause of action. Instead, Castellini seeks
within Count VII to enforce remedies to which it is entitled under the contracts and PACA.
Thus, the Court finds that Count VII fails to state a claim. See, e.g. Coastal Sunbelt Produce, LLC
v. Saldivar and Associates, Inc., Civil Action No. 1:16cv449, 2016 WL 5661558, at *N 6 (E.D. Va.
Sept. 1, 2016) (dismissing for failure to state a claim Count 7, which sought interest and
attorneys’ fees, but noting that the court would address the relief requested therein as
remedies available under the remaining Counts 1-6). The relief requested should be
addressed as remedies available under the relevant counts already alleged, and Castellini is
free to amend the allegations relating to attorneys’ fees within these counts should it feel
necessary. The Court notes that Castellini has already appropriately requested attorneys’
fees and interest as part of the prayer for relief (Doc. 18, p. 11). Accordingly, Count VII is
dismissed with prejudice.
II.
Defendant Midland’s Motion to Dismiss Count VII of Castellini’s First
Amended Complaint (Doc. 32)
Midland argues that Count VII of Castellini’s First Amended Complaint should be
dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure because Count VII of
the First Amended Complaint fails to state a claim against Midland for the recovery of
interest or its attorneys’ fees. Specifically, Midland argues that Castellini cannot recover
interest and attorneys’ fees because there is no privity of contract between itself and
Castellini.
For the reasons explained in section I above, Count VII has already been dismissed
because PACA does not itself provide for a separate cause of action for attorneys’ fees or
interest. To the extent Midland argues that Castellini may not request attorneys’ fees from
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Midland at all, that argument fails for the following reasons.
In Count VI of Castellini’s First Amended Complaint, Castellini alleges to be the
beneficiary of a PACA trust, the assets of which were conveyed to Midland, and therefore
Castellini seeks disgorgement from Midland of those assets in amounts sufficient to pay it as
an unpaid seller of perishable agricultural commodities. Because Midland allegedly received
trust assets held for the benefit of commodities sellers such as Castellini, Castellini alleges
that Midland wrongfully holds these assets in breach of the trust, incurring liability to
Castellini in the amount owed to it by Haag Food and the Garcia Defendants—$150,651.16,
plus interest and attorneys’ fees. Castellini alleges that, on all outstanding invoices sent by
Castellini to Haag Food and the Garcia Defendants, Castellini placed the statutorily
prescribed language notifying Haag Food and the Garcia Defendants that it was preserving
its rights as a beneficiary to the PACA statutory trust, plus interest and attorneys’ fees (Doc.
18, p. 5; Doc. 18-1, p. 3). As stated previously, produce suppliers with the requisite attorneys’
fees and interest language on their invoices can collect reasonable attorneys’ fees and
interest as “sums owing in connection with such transactions,” under 7 U.S.C. § 499e(c)(2).
See Country Best, 361 F.3d at 632; see also Middle Mountain, 307 F.3d at 1224.
Midland has pointed to nothing indicating that Castellini cannot recover its interest
and attorneys’ fees as “sums owing in connection with” the transaction that is the subject of
the PACA trust claim against a third party, such as Midland, who is alleged to have assumed
the trust assets. Instead, case law suggests that interest and fees are payable from the PACA
trust (or are included in the full amount of the PACA claim), regardless of who subsequently
assumes the trust assets. See, e.g. E. Armata, Inc. v. Platinum Funding, 887 F. Supp. 590. 595
(E.D.N.Y. 1995) (interest and fees constituted “sums owing in connection with such
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transaction” and were payable from the PACA trust and against the financial institution).
III.
Defendant Midland’s Motion to Dismiss Freshway’s First Amended
Complaint in Intervention (Doc. 48)
Midland argues that Count VII of Freshway’s First Amended Complaint in
Intervention should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure
because Count VII fails to state a claim against Midland for the recovery of interest or its
attorneys’ fees. Specifically, Midland argues, as it did in its Motion to Dismiss Castellini’s
First Amended Complaint, that Freshway cannot recover interest and attorney’s fees
because there is no privity of contract between itself and Freshway.
The First Amended Complaint in Intervention alleges that Freshway is the
beneficiary of a PACA trust, the assets of which were conveyed to Midland, and therefore
Freshway seeks disgorgement from Midland of those assets in amounts sufficient to pay it as
an unpaid seller of perishable agricultural commodities. Freshway alleges that Midland
wrongfully holds assets in breach of the trust, incurring liability to Freshway in the amount
owed to it by Haag Food and the Garcia Defendants—$86,925.73. Freshway also alleges that,
on all outstanding invoices sent by Freshway to Haag Food and the Garcia Defendants,
Freshway placed the statutorily prescribed language notifying Haag Food and the Garcia
Defendants that it was preserving its rights as a beneficiary to the PACA statutory trust
(Doc. 40, p. 4).
Freshway does not allege, however, that it bargained for attorneys’ fees and interest
in their contacts, or that it placed attorneys’ fees and interest language on all of its invoices.
Because the First Amended Complaint in Intervention does not allege that Freshway
bargained for attorneys’ fees and interest in its contracts or placed the language on all of its
invoices, Freshway cannot collect reasonable attorneys’ fees and interest as “sums owing in
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connection with such transactions,” under 7 U.S.C. § 499e(c)(2).2
Because PACA does not create a separate cause of action for attorneys’ fees or
interest, Count VII is dismissed with prejudice. Additionally, based on the allegations within
the First Amended Complaint in Intervention, Freshway is not entitled to seek attorneys’
fees in connection with its PACA claim. Nonetheless, Freshway remains free to amend its
allegations involving attorneys’ fees as related to the remaining counts.
IV.
Motion for Default Judgment as to Defendant Haag Food (Doc. 43)
Castellini has filed a Motion for Default Judgment as to Haag Food, seeking
$150,651.16 in PACA trust assets plus interest and attorneys’ fees. Although the Clerk has
entered default against Haag Food pursuant to Federal Rule of Civil Procedure 55(a), the
case is ongoing as to the Garcia Defendants and Midland. The Garcia Defendants have filed
a response contesting a default judgment at this stage of the case (Doc. 50).
Pursuant to Federal Rule of Civil Procedure 55, a default judgment may be entered
against a party if that party has failed to plead or otherwise defend the action. FED. R. CIV. P.
55(b). A district court may enter a default judgment together with a final judgment in a case.
See Marshall & Isley Trust Co. v. Pate, 819 F.2d 806, 811 (7th Cir. 1987) A default judgment is
2
The Court acknowledges that Freshway, in its Response to Midland’s Motion to Dismiss, states that
“Intervening Plaintiff asserts an express contractual claim for attorneys’ fees based on the following bargained
term and condition of sale appearing on the face of each invoice issued to Haag.” (Doc. 52, p. 4). In support of
this argument, Freshway attaches one of fourteen unpaid invoices between Freshway and Haag Food (See Doc.
52, p. 10). Although the Court is generally confined to the four corners of a complaint when considering a
motion to dismiss, documents attached to a plaintiff’s response to a motion to dismiss can become part of the
complaint pursuant to Federal Rule of Civil Procedure 10(c) if the documents are referred to in the plaintiff’s
complaint and are central to the plaintiff’s claim. Wright v. Assoc. Ins. Cos., Inc., 29 F.3d 1244, 1248 (7th Cir. 1994);
see also Geinosky v. City of Chi., 675 F.3d 743, 745 n. 1 (7th Cir. 2012); see also Rosenblum v. Travelbyus.com Ltd., 299
F.3d 657, 661 (7th Cir. 2002). The attached invoice is referenced in Freshway’s First Amended Complaint in
Intervention and is central to the claims alleged. Thus, the Court will consider it in deciding the Motion to
Dismiss. Nonetheless, this single invoice does not establish that Freshway bargained for attorneys’ fees on each
of the invoices (and Freshway indicates there are thirteen more), nor does it say anything about interest (See
Doc. 52, p. 10). Although Freshway mentions that, under state law, it would be entitled to recover a statutory
rate of interest for any unpaid invoices under its breach of contract claim, this argument is largely undeveloped,
Freshway cites to no authority for this proposition, and the argument is vaguely raised within a footnote.
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not appropriate, however, if it would result in inconsistency among judgments of multiple
defendants. See Frow v. De La Vega, 82 U.S. 552, 554 (1872). The Seventh Circuit has narrowly
construed this notion and applied it only where the “theory of recovery is one of joint
liability or when the nature of the relief is such that [it] is necessary that judgments against
the defendants be consistent.” State Farm Mut. Auto. Ins. Co. v. Jackson, 736 F.Supp. 958, 961
(S.D. Ind. 1990); see also Home Ins. Co. of Il. v. ADCO Oil Co., 154 F.3d 739, 741 (7th Cir. 1998).
Even when defendants are not jointly liable, they may be similarly situated such that a
default judgment against some of them can produce an inconsistent, unfair outcome if the
remaining defendants prevail on the merits. Douglas v. Metro Rental Servs., Inc., 827 F.2d 252,
255 (7th Cir. 1987) (citing Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1512
(11th Cir. 1984)); see also Genova v. Kellogg, 12 C 3105, 2015 WL 3930351, at *8 (N.D. Ill. Jun. 25,
2015). As an example, defendants who are parties to the same contract are similarly situated.
Douglas, 827 F.2d at 255.
Although Castellini’s First Amended Complaint alleges joint and severable liability,
allegations of failure to maintain trust and dissipation of trust assets (Counts I and II) are
identical as to the Garcia Defendants and Haag Food. Additionally, Castellini seeks
judgment in the same amount against all defendants. In order to avoid the risk of
inconsistent judgments, the Court denies the Motion for Default Judgment without
prejudice. See, e.g. Federal Fruit & Produce Company v. Liborio Markets, Civil Action No.
12-cv-1145-WJM-BNB, 2013 WL 673252, at *1 (D. Co. Feb. 22, 2013) (denying the plaintiff’s
motion for default judgment without prejudice on similar grounds). Castellini is free to raise
the issue again after the case against the non-defaulting defendants has been resolved.
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CONCLUSION
For the reasons explained above, the Garcia Defendants’ Motion to Dismiss Counts
IV and VII of Castellini’s First Amended Complaint (Doc. 31) is GRANTED. Count IV, to the
extent that it requests a declaration that the alleged debt of Haag Food and the Garcia
Defendants is non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(4), is DISMISSED
without prejudice, and Count VII is DISMISSED with prejudice.
Midland’s Motion to Dismiss Count VII of Castellini’s First Amended Complaint
(Doc. 32) is GRANTED in part and DENIED in part. The motion is granted to the extent
that it seeks to dismiss Count VII, but denied to the extent that Castellini may still request
attorneys’ fees and interest from Midland.
Midland’s Motion to Dismiss Count VII of Freshway’s First Amended Complaint in
Intervention (Doc. 48) is GRANTED. Count VII of Freshway’s First Amended Complaint is
DISMISSED with prejudice. Freshway remains free to amend the allegations involving
attorneys’ fees as related to the remaining counts.
Castellini’s Motion for Default Judgment (Doc. 43) is DENIED without prejudice
and with leave to re-file.
Finally, the Court has noticed that Freshway has failed to file a Corporate Disclosure
Statement as required by Local Rule 7.1. The Court ALLOWS Freshway, up to and including
January 24, 2017, to do so.
IT IS SO ORDERED.
DATED: January 17, 2017
s/ Nancy J. Rosenstengel____________
NANCY J. ROSENSTENGEL
United States District Judge
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