CONSUMERS PRODUCE COMPANY, INC. et al v. GEORGIANA PRODUCE, INC et al
Filing
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ORDER granting 20 Plaintiffs' Motion for Summary Judgment. Plaintiffs Consumers Produce and Coosemans shall submit their motion for attorneys' fees by December 16, 2011. Signed by Judge Donetta W. Ambrose on 11/22/11. (laf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CONSUMERS PRODUCE CO., INC.,
Plaintiffs,
vs.
GEORGIANA PRODUCE, INC., et al.,
Defendants.
AMBROSE, Senior District Judge
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Civil Action No. 10-1068
OPINION AND ORDER
Preliminary Statement
Plaintiffs Consumers Produce Co, Inc. (“Consumers”), J.E. Corcoran (“Corcoran”) and
Coosemans Pittsburgh, Inc. (“Coosemans) move for summary judgment against Defendants
Georgiana Produce, Inc., Deserae Hair Georgiana and Christopher J. Georgiana seeking
$153,887.10, plus prejudgment interest and attorneys’ fees, relating to Defendants’ failure to pay
for wholesale quantities of agricultural commodities sold and delivered by Plaintiffs. Defendants
Georgiana Produce, Inc. and Deserae Hair Georgiana do not oppose the motion. None of the
Defendants contest the amount of the judgment sought or Plaintiffs’ entitlement to attorneys’
fees and prejudgment interest. The only issue before me is whether Christopher Georgiana is
liable under the trust provisions of the Section 499e(c) of the Perishable Agricultural
Commodities Act (“PACA”), 7 U.S.C. §499a et seq. For the reasons set forth below, I find that
he is personally liable and grant summary judgment on behalf of Plaintiffs against all
Defendants.
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I. Legal Standard
In order to prevail on a motion for summary judgment, the moving party must
demonstrate that Athere is no genuine issue of material fact and. . .the moving party is entitled to
judgment as a matter of law.@ Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 2007 WL
2153278, at *1 (3d Cir. July 27, 2007) (quoting Fed. R. Civ. P. 56(c)). A[W]here the party
opposing a motion for summary judgment bears the ultimate burden of proof, the moving party
may discharge its initial burden of showing that there is no genuine of material fact by showing that is, pointing out to the district court - that there is an absence of evidence to support the
nonmoving party=s case.@ Player v. Motiva Enter., LLC, 2007 WL 2020086, at *9 n.4 (3d Cir.
July 13, 2007). AIf the moving party has satisfied its initial burden, the nonmoving party must, in
their opposition to the motion, identify evidence of record that creates a genuine issue of material
fact.@ Id. Moreover, A[t]o defeat a motion for summary judgment, the non-moving party must
>do more than simply show that there is some metaphysical doubt as to the material facts. In the
language of the Rule, the non-moving party must come forward with specific facts showing that
there is a genuine issue for trial.= @ Jurimex Kommerz Transit G.M.B.H., 2007 WL 2153278, at
*1 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
II. Statement of Undisputed Facts1
Plaintiffs are engaged in the business of buying and selling wholesale quantities of
produce and are licensed as dealers under the PACA. Consumers sold and delivered to
Defendants various wholesale lots of produce worth $30,544.94, for which it has not been paid.
Corcoran sold and delivered to Defendants various wholesale lots of produce worth $47,478.91,
for which it has not been paid. Coosemans sold and delivered to Defendants various wholesale
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All of the facts submitted by Plaintiffs in support of their motion for summary judgment, and recited herein, have
been admitted by Defendants. [See Docket No. 27.]
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lots of produce worth $75,863.25, for which it has not been paid. The invoices submitted by
Consumers and Coosemans contained the contract terms requiring Plaintiffs to pay interest on all
outstanding invoices and attorneys’ fees incurred in the collection of debts.
Defendant Deserae Hair Georgiana admits that she was the President and a shareholder of
Georgiana Produce, and was in a position to control PACA trust assets, evidenced by the check
signing authority she maintained on the Georgiana Produce bank account at Parkvale Bank. She
also maintained a corporate credit card on the Georgiana Produce American Express Business
Gold Card Account.
Defendant Christopher Georgiana maintained check signing authority on the Georgiana
Produce Bank account at Parkvale Bank, where he attested to being an Officer of Georgiana
Produce and is identified as the Operations Manager on the Parkvale Bank signature card. He
was the signatory on frequent checks made payable to Plaintiffs for the sale of produce. He
tendered and signed repeated payroll payments to himself and Deserae Hair Georgiana for their
benefit. He also maintained a corporate credit card on the Georgiana Produce American Express
Business Gold Card Account. Finally, he is the President of Georgiana Transport, Inc., which
maintained a Capital One Visa Business Card which was paid from the Georgiana Produce
Parkvale Bank Account with checks signed by Christopher Georgiana.
III. Plaintiffs’ Motion for Summary Judgment
As previously stated, Defendants Georgiana Produce, Inc. and Deserae Hair Georgiana
do not oppose the motion for summary judgment in any respect. Accordingly, I grant summary
judgment on behalf of Plaintiffs against these Defendants.
The only issue before the Court is whether Defendant Christopher J. Georgiana can be
held individually liable under PACA based on the undisputed facts in the record. Notably,
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Christopher Georgiana has submitted no evidence in connection with his opposition to the
motion.
Section 499e of PACA imposes a statutory trust on all produce-related assets, including
the produce itself, other products derived therefrom, and any receivables or proceeds from the
sale thereof, held by agricultural merchants, dealers and brokers which must be maintained for
the benefit of all unpaid suppliers and sellers of the produce until full payment has been made. 7
U.S.C. §499e(c)(2). “[A]n individual who is in the position to control the PACA trust assets and
who does not preserve them for the beneficiaries has breached a fiduciary duty, and is personally
liable for that tortious act.” Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F.2d 163, 16768 (3d Cir. 2010)(internal quotations omitted).
The Third Circuit has established a two-part test
to determine whether an individual faces liability under PACA: (1) whether the “individual
holds a position that suggests a possible fiduciary duty to preserve the PACA trust assets (e.g.
officer, director, and/or controlling shareholder); and 2) whether that individual’s involvement
with the corporation establishes that [he or] she was actually able to control the PACA trust
assets at issue.” Id. at 172 (emphasis in original).
Christopher Georgiana argues that, pursuant to Bear Mountain Orchards, there is a
question of fact as to whether he can be held individually liable for monies owed to Plaintiffs
under PACA. In Bear Mountain Orchards, the Third Circuit affirmed the District Court’s finding
that an officer and shareholder in the Defendant corporation was not secondarily liable to trust
creditors under PACA because she was not actively involved in running the corporation. 623
F.3d at 166. In so affirming, the Third Circuit noted that, notwithstanding Mrs. Fleisher’s title
as Vice President on the corporation’s bank signature cards and other documents listing her as
Secretary and Treasurer, and her status as a 50% shareholder in the corporation, the evidence
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presented at trial established that she did not possess the power to manage plaintiffs’ PACA
assets and that she had limited responsibilities and authority within the corporation and was at all
times subordinate to her husband and his office manager. Id. at 169-70.
Christopher Georgiana states that he “never had any ownership or management authority
at Georgiana Produce, Inc. Any involvement he had was simply as a convenience to the
company and his wife and was as an employee.” (Docket No. 28, at 5.) He further states that,
like the defendant in Bear Mountain Orchards, “[h]e did not make business decision (sic) and
any signed checks were merely a convenience to his wife who was running the business and
raising young children.” (Id. at 6.)
Defendant Christopher Georgiana’s argument fails to raise a question of fact requiring
trial of this matter. First, as discussed in Part I above, Christopher Georgiana’s burden in
opposing summary judgment is to “identify evidence of record that creates a genuine issue of
material fact.” Christopher Georgiana failed to identify any evidence of record that supports his
purported factual assertions that he did not exercise control of PACA trust assets. The only
evidence in the record before me was submitted by Plaintiffs, and it demonstrates that Defendant
Christopher Georgiana maintained check signing authority on the Georgiana Produce Bank
account at Parkvale Bank, where he attested to being an Officer of Georgiana Produce and is
identified as the Operations Manager on the Parkvale Bank signature card. He was the signatory
on frequent checks made payable to Plaintiffs for the sale of produce. He also tendered and
signed repeated payroll payments to himself and Deserae Hair Georgiana for their benefit. He
also maintained a corporate credit card on the Georgiana Produce American Express Business
Gold Card Account. Finally, he is the President of Georgiana Transport, Inc., which maintained
a Capital One Visa Business Card which was paid from the Georgiana Produce Parkvale Bank
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Account with checks signed by Christopher Georgiana. Indeed, Christopher Georgiana admitted
the truth of these assertions.
Given this evidence, I find that Christopher Georgiana’s involvement with Georgiana
Produce meets the two-prong test of individual liability under Bear Mountain Orchards. Under
the first prong, Christopher Georgiana admits to having attested to being an officer of Georgiana
produce and its Operations Manager. With respect to the second prong, Christopher Georgiana
exercised actual control of PACA trust assets through his use of the Georgiana Produce checking
accounts to pay its vendors, meet payroll and pay the credit card invoices of his own company,
Georgiana Transport. He further held a corporate credit card on the Georgiana Produce
American Express Business Gold Card Account. Given these undisputed facts, I find that
Christopher Georgiana was in a position to control the PACA trust assets and is individually
liable to the Plaintiffs herein.
Plaintiffs also seek prejudgment interest and attorneys’ fees in connection with this
action. Because it is undisputed that the terms of Coosemans and Consumers agreements with
Georgiana Produce entitled them to interest on unpaid invoices at the rate of eighteen (18%) per
year as well as collection costs, including attorneys’ fees, I grant summary judgment awarding
interest at the contract rate and reasonable attorneys’ fees incurred in connection with the
collection of the debts to these Plaintiffs.
Corcoran did not have an agreement providing for an award of interest or collection costs
and fees. Federal courts have found that an award of prejudgment interest is consistent with the
purposes of PACA. See, e.g., In re W.L. Bradley Co., Inc., 78 B.R. 92, 94 (Bankr. E.D. Pa.
1987). Accordingly, Corcoran is entitled to prejudgment interest at a rate of six percent per
annum under Pennsylvania law. 41 P.S. §202. Again, this is not disputed by Defendants.
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Therefore, I grant summary judgment on behalf of Corcoran in the amount of $47,478.91 plus
interest.
ORDER
Having carefully considered Plaintiffs’ motion for summary judgment [Docket Nos. 2025], Defendants’ response thereto [Docket Nos. 27-28], and Plaintiffs’ reply [Docket No. 29], it
is hereby ORDERED that:
(1) Plaintiffs’ motion for summary judgment is GRANTED;
(2) Plaintiff Consumers Produce Co., Inc. is awarded the sum of $30,544.94, plus
prejudgment interest at the rate of 18% per year and reasonable attorneys’ fees incurred in
connection with the collection of this debt;
(3) Plaintiff Coosemans Pittsburgh, Inc. is awarded the sum of $75,863.25, plus
prejudgment interest at the rate of 18% per year and reasonable attorneys’ fees incurred in
connection with the collection of this debt;
(4) Plaintiff J.E. Corcoran is awarded the sum of $47,478.91 plus prejudgment interest at
the rate of 6% per year; and
(5) Plaintiffs Consumers Produce and Coosemans shall submit their motion for attorneys’
fees by December 16, 2011.
Dated: November 22, 2011
BY THE COURT:
/s/Donetta W. Ambrose
Donetta W. Ambrose
Senior U.S. District Judge
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