Tetra Pak, Inc. v. Palos Garza Forwarding LLC et al
ORDER granting 8 Motion for Default Judgment.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
TETRA PAK, INC.,
PALOS GARZA FORWARDING, LLC, et al.,
CIVIL ACTION H-15-1125
Pending before the court is plaintiff Tetra Pak, Inc.’s (“Tetra Pak”) motion for default
judgment against all defendants. Dkt. 8. This action arises from a series of transactions that resulted
in alleged damage to one of Tetra Pak’s shipments of goods. Dkt. 1 at 3–4. According to Tetra Pak,
it delivered a shipment of laminated milk cartons to Palos Garza Forwarding, LLC (“Palos”) in
“good order and condition.” Dkt. 1 at 3. Then, Palos brokered the shipment to Set-Freight
International, LLC (“Set”), who then brokered the load to Lincoln Freight Company, LLC
(“Lincoln”) to transport the shipment from Texas to California. Id. Finally, Tetra Pak alleges,
Lincoln subcontracted the shipment of the cargo to BM Express, Inc. (“BM”). Id. BM allegedly
delivered the shipment in a “destroyed condition which rendered the cargo worthless and
unsalvageable as containers for food grade material.” Id. Tetra Pak claims that Lincoln and BM
violated their duties and obligations as common carriers because the cargo was delivered in an
unsalvageable and worthless condition. Dkt. 1 at 4. Tetra Pak also claims that Palos and Set failed
to uphold their legal duty to choose a proficient carrier to transport the shipment and establish that
the carrier had appropriate insurance that would cover loss of or damage to cargo during transit. Id.
Pursuant to Rule 55 of the Federal Rules of Civil Procedure, entry of default and default
judgment are appropriate “when a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise . . . .” Fed.
R. Civ. P. 55(a). In order to grant default, the court must assess the merits of plaintiff’s claims and
find a sufficient basis in the pleadings for the judgment. Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). By defaulting, a defendant “admits the plaintiff’s wellpleaded allegations of fact . . . and is barred from contesting on appeal the facts thus established.” Id.
However, even if a defendant is technically in default, a plaintiff is not entitled to a default judgment
as a matter of right. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). Further, under Rule 5.5 of
the Southern District of Texas Local Rules, a motion for default judgment must be served upon the
defendant via certified mail, return receipt requested. S.D. Tex. L.R. 5.5.
Tetra Pak filed its original complaint on April 29, 2015 against all defendants. Dkt. 8 at 1.
Defendants Palos, Lincoln and Set were served on April 30, 2015 through their Texas registered
agent, and their answer was due by May 20, 2015. Dkts. 4–6. These three defendants failed to
answer the lawsuit. BM was served on May 20, 2015 through its Federal Motor Carrier Safety
Administration registered agent, and its answer was due by June 10, 2015. Dkt. 7. BM also failed
to answer the lawsuit. Tetra Pak filed its motion for default judgment on June 15, 2015. Dkt. 8 at
3. Tetra Pak served all defendants with the motion via certified mail, return receipt requested. Id.
None of the defendants has responded. Tetra Pak has shown that there is a sufficient basis for the
pleadings by providing the court with records relating to the transactions and damage to the goods,
and the sworn affidavit testimony of a surveyor who confirmed the amount of damage sustained by
the cargo. Dkt. 8–1 at 2, 7, 11, 13, 20. Accordingly, Tetra Pak’s motion for default judgment as it
relates to all defendants is GRANTED.
It is so ORDERED.
Signed at Houston, Texas on July 31, 2015.
Gray H. Miller
United States District Judge
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