Opinion
Case No. 1:21-cv-21526-KMM
2022-07-21
SEVEN SEAS INTERNATIONAL, LLC, Plaintiff, v. FRIGOPESCA, C.A., Defendant.
Brian Jonathan Abergel, Weinkle Abergel Law Group, Miami Beach, FL, for Plaintiff.
Brian Jonathan Abergel, Weinkle Abergel Law Group, Miami Beach, FL, for Plaintiff.
ORDER
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Plaintiff Seven Seas International, LLC's ("Plaintiff") Request for Entry of Default Judgment. ("Mot.") (ECF No. 19). Defendant Frigopesca, C.A. ("Defendant") failed to file a response or otherwise appear in this action. The Motion is now ripe for review.
I. BACKGROUND
On April 21, 2021, Plaintiff Seven Seas International, LLC brought this action against Defendant Frigopesca, C.A., alleging that Defendant breached a Letter of Warranty guaranteeing that Defendant would reimburse Plaintiff for "any unforeseen setback with our product at destination port because of customs clearance" for the purchase of frozen shrimp in the amount of $102,121.60, to be delivered from Guayaquil, Ecuador to Qingdao, China. See generally ("Compl.") (ECF No. 1). The Complaint asserts claims for both breach of contract ("Count 1") and conversion ("Count 2"). See generally id. On November 17, 2021, Plaintiff served Defendant with process in Ecuador through the Inter-American Convention on Letters Rogatory. (ECF No. 14-3). Thus, the deadline for Defendant to respond to Plaintiff's Complaint has long since passed.
Plaintiff's Affidavit of Magaly Cobian for Status Report, which is attached as Exhibit B to both Plaintiff's affidavit of its registered agent and Plaintiff's affidavit of its counsel of record in support of its request for entry of a default judgment, states that service of process was accomplished through the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Manners ("Hague Service Convention"). However, a prior status report from Magaly Cobian stated that service of process was to be accomplished through the Inter-American Convention on Letters Rogatory. (ECF No. 11-1). Because Ecuador is not a signatory to the Hague Service Convention but is a signatory to the Inter-American Convention on Letters Rogatory, the Court construes the reference to the Hague Service Convention as a scrivener's error.
However, to date, Defendant has not responded to the Complaint, appeared in this action, or otherwise defended the suit. On May 6, 2022, the Clerk of Court entered a Default against Defendant. (ECF No. 16). On June 2, 2022, Plaintiff filed the instant Request for Entry of Default Judgment. See generally Mot. On July 6, the Court ordered Plaintiff to file a Supplemental Brief conducting a choice of law analysis and identifying the substantive law governing its breach of contract claim. (ECF No. 22). After granting Plaintiff an extension of time, Plaintiff filed its Supplemental Brief. (ECF Nos. 24, 25).
On June 2, 2022, upon a sua sponte examination of the record, the Court entered a Paperless Order divesting itself of jurisdiction to enforce any judgment against Defendant because Plaintiff failed to timely file a motion for default judgment. See (ECF No. 18). The same day, Plaintiff filed a motion for reconsideration, (ECF No. 20), which the Court granted on June 6, 2022, (ECF No. 21). The instant Motion follows.
Now, Plaintiff seeks the entry of a default judgment against Defendant in the amount of $103,921.60, plus interest. Mot. at 1; (ECF No. 193-3).
II. LEGAL STANDARD
Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, a court may enter default judgment following the Clerk of Court's entry of default. Fed. R. Civ. P. 55(b). "The entry of a default judgment is committed to the discretion of the district court[.]" Hamm v. DeKalb Cnty. , 774 F.2d 1567, 1576 (11th Cir. 1985). By defaulting, a defendant admits a plaintiff's well-pled allegations of fact in the Complaint. See Buchanan v. Bowman , 820 F.2d 359, 361 (11th Cir. 1987). However, "there must be a sufficient basis in the pleadings for the judgment entered." Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank , 515 F.2d 1200, 1206 (5th Cir. 1975).
Decisions of the Fifth Circuit issued before the close of business on September 30, 1981 are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981).
III. DISCUSSION
A. Liability
1. Allegations
The well-pled allegations of Plaintiff's Complaint are deemed to have been admitted by Defendant by virtue of its default. See Cotton v. Mass. Mut. Life Ins. Co. , 402 F.3d 1267, 1277–78 (11th Cir. 2005) (citations omitted).
As set forth in the Complaint, on September 13, 2019, Plaintiff confirmed the purchase of two cargo loads of frozen shrimp from Defendant, which were memorialized in two commercial invoices. Compl. ¶ 13. As relevant here, the second commercial invoice reflected a purchase by Plaintiff of $102,121.40 in frozen shrimp, plus costs and freight. Id. ¶ 15. The shrimp was to be loaded and shipped from Ecuador to Qingdao, China. Id. ¶ 16. Plaintiff paid Defendant via wire transfer at the time of shipment for both invoices. Id. ¶ 17.
Prior to shipment, on September 25, 2019, Defendant prepared a Letter of Warranty, which states as follows:
In the event of any unforeseen setback with our product at destination port because of customs clearance, our company
understands and assumes that must be responsible for reimbursing 7 Seas International the value that have been previously cancelled by you to Frigopesca for the purchase of the product.
Ex. C to Compl. ("Letter of Warranty") (ECF No. 1) at 14.
The first shipment of frozen shrimp was shipped from Guayaquil, Ecuador on October 29, 2019, and was delivered on December 4, 2019 and accepted by customs authorities in Qingdao, China. Compl. ¶ 19. The second shipment of frozen shrimp was shipped on November 14, 2019. Id. ¶ 20. Upon arrival in Qingdao, China, customs authorities conducted a screening and inspection of the shipment and determined that the shipment was infected by a virus. Id. Accordingly, customs officials in China provided Plaintiff with a letter stating that the shrimp shipment had been rejected and could not enter the country. Id.
Plaintiff notified Defendant "via multiple emails and calls" that the second shipment of frozen shrimp had not been accepted by customs in China, and that Plaintiff would need to be reimbursed $103,921.60 pursuant to the Letter of Warranty provided by Defendant. Id. ¶ 21. According to Plaintiff, Defendant agreed via email and phone call that Plaintiff would be reimbursed, and provided a second Letter of Warranty specifically detailing the amount of the second invoice for which Plaintiff would be reimbursed. Id. ¶ 22.
However, to date, Plaintiff has not been reimbursed. Id. ¶ 23. Accordingly, Plaintiff brought this action against Defendant, asserting claims for breach of contract ("Count I") and conversion ("Count II"). See generally id.
2. Breach of Contract.
The Court begins with Count 1, which asserts a claim for breach of contract.
a. Choice of Law
The Court must first identify and apply the substantive law governing Plaintiff's claims. The Court observes that Plaintiff's Request for Entry of Default Judgment fails to identify the substantive law governing its breach of contract claim, and therefore, what law the Court should apply to determine whether the facts pled in the Complaint sufficiently establish Defendant's liability as to that claim. Consequently, the Court ordered Plaintiff to file a Supplemental Brief conducting a choice of law analysis and to identify the law governing its breach of contract claim. (ECF No. 22). On July 20, 2022, Plaintiff filed its Supplemental Brief. ("Supp. Br.") (ECF No. 25). Plaintiff's Supplemental Brief argues that this Court has personal jurisdiction over Defendant. See generally id. To the extent Plaintiff's Supplemental Brief addresses the issue of governing law, it merely twice asserts that "United States law should apply in governance of this dispute[.]" Supp. Br. at 4, 8. But the Supplemental Brief does not clarify whether Plaintiff advocates for the application of state or federal law, notwithstanding which particular U.S. jurisdiction's law applies to and governs the claims asserted in the Complaint. And rather than conduct a choice of law analysis, Plaintiff engaged in a forum non conveniens analysis, advocating against dismissal of this action to be refiled in a more convenient forum. Id. at 8–9.
The Court also observes that the instant Request for Entry of Default Judgment does not comply with this Court's Paperless Notice of Court Practice Upon Entry of Default. (ECF No. 17). There, the Court instructed Plaintiff to file a motion for a default judgment pursuant to Federal Rule of Civil Procedure 55(b), which was to "include what Counts from the Complaint that Plaintiff alleges against the defaulting Defendant." Id. Instead, Plaintiff's Request for Entry of Default Judgment does not identify whether Plaintiff requests the entry of a default judgment on its breach of contract claim in Count 1, its conversion claim in Count 2, or both.
In any event, as the Court previously noted, "[t]his case involves allegations of breach of contract for the purchase of frozen shrimp from an Ecuadorian company by a New York company with its principal place of business in Florida, with the shrimp to be delivered from Ecuador to Qingdao, China by sea." (ECF No. 22). Here, Plaintiff has invoked this Court's diversity jurisdiction. Compl. ¶ 3. Because Plaintiff invokes this Court's diversity jurisdiction and erroneously references the Florida Rules of Civil Procedure, which are inapplicable in this forum, see id. at 1, the Court assumes that Plaintiff's breach of contract and conversion claims are asserted as state law causes of action, and that Plaintiff does not intend to invoke the United Nations Convention on Contracts for the International Sale of Goods, to which the United States of America, Ecuador, and China are signatories. See Insituform Techs., Inc. v. AMerik Supplies, Inc. , 850 F. Supp. 2d 1336, 1355 (N.D. Ga. 2012) (noting that the preemptive effect of international law is an affirmative defense to state law claims and must be pled under Fed. R. Civ. P. 8(c) ).
United Nations Convention on Contracts for the International Sale of Goods, opened for signature April 11, 1980, S. Treaty Doc. No. 9, 98th Cong., 1st Sess. 22 (1983), 19 I.L.M. 671, reprinted at , 15 U.S.C. app. 52 (1997); see also Status: United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) , United Nations (last visited July 20, 2022), https://uncitral.un.org/en/texts/salegoods/conventions/sale_of_goods/cisg/status.
Because "a federal district court sitting in diversity must apply the choice of law rules of the forum state," the Court must determine which jurisdiction's law applies to Plaintiff's claims to determine if the Complaint establishes Defendant's liability to Plaintiff as pled. Arndt v. Twenty-One Eighty-five, LLC , 448 F. Supp. 3d 1310, 1315 (S.D. Fla. 2020) (quoting Clanton v. Inter.Net Glob., L.L.C. , 435 F.3d 1319, 1323 (11th Cir. 2006) ). This Court must apply Florida's choice of law rules.
The Court begins with Plaintiff's breach of contract claim in Count 1 of the Complaint. Ordinarily, Florida courts give effect to contractual provisions specifying the governing law. See Innovak Int'l, Inc. v. Hanover Ins. Co. , 280 F. Supp. 3d 1340, 1345 (M.D. Fla. 2017). However, the invoices and the Letter of Warranty attached to the Complaint do not identify any governing law. The Complaint, the Request for Entry of Default Judgment, and the Supplemental Brief do not address this issue. Florida has "long adhered to the rule of lex loci contractus." State Farm Mut. Auto. Ins. Co. v. Roach , 945 So. 2d 1160, 1163 (Fla. 2006). "Under the doctrine of lex loci contractus , ‘in the absence of a contractual provision specifying governing law, a contract, other than one for performance of services, is governed by law of the state in which the contract was made.’ " Sims v. New Falls Corp. , 37 So. 3d 358, 360 n.3 (Fla. Dist. Ct. App. 2010) (quoting Shaps v. Provident Life & Accident Ins. Co. , 826 So. 2d 250, 254 n.3 (Fla. 2002) ). "A contract is made at the place where the last act necessary to complete the contract is done." Nat'l Fire & Marine Ins. Co. v. Adoreable Promotions, Inc. , 451 F. Supp. 2d 1301, 1306 (M.D. Fla. 2006) (alteration incorporated). The rule of lex loci contractus governs questions of "interpretation, validity, and obligations." Higgins v. W. Bend Mut. Ins. Co. , 85 So. 3d 1156, 1158 (Fla. Dist. Ct. App. 2012). "[Q]uestions related to the manner or method of performance under a contract are determined by the law of the place of performance." Id.
Although Plaintiff's Supplemental Brief is directed to a personal jurisdiction and a forum non conveniens analysis, the facts argued therein support a finding that Florida law governs Plaintiff's breach of contract claim. The Supplemental Brief states that the contract at issue was negotiated out of Miami, Florida. Supp. Br. at 2, 7. Plaintiff further notes that the Parties’ agreement "was invoiced out of Florida." Id. at 5. The Letters of Warranty, under which Plaintiff claims it is owed funds, were provided to Plaintiff at its Miami headquarters. Id. at 2–3. And the Supplemental Brief suggests that reimbursement under the Letters of Warranty was to be paid to Plaintiff in Florida. See id. at 7. Thus, performance under the Letters of Warranty is directed at Florida. With no facts to the contrary, the Court finds that Florida law governs Count 1.
b. Analysis
The Court finds that Plaintiff's Complaint, as summarized above, sufficiently alleges facts establishing a claim for breach of contract against Defendant under Florida law. "To assert a claim for breach of contract, Plaintiff must show ‘(1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach.’ " Rollins, Inc. v. Butland , 951 So. 2d 860, 876 (Fla. Dist. Ct. App. 2006). Here, Plaintiff alleges that Plaintiff and Defendant entered into an agreement for the delivery of $102,121.60 worth of frozen shrimp, plus shipping costs, from Ecuador to China, as evidenced by the invoices attached to the Complaint. Compl. ¶¶ 15, 27; Ex. A to Compl. Moreover, Defendant issued Plaintiff a Letter of Warranty in which it assumed responsibility for reimbursing Plaintiff "in the event of any unforeseen setback with [Defendant's] product at [the] destination port because of customs clearance." Compl. ¶¶ 18, 28; Ex. C to Compl. Plaintiff paid Defendant. Compl. ¶ 17; Ex. B to Compl. Customs officials in China rejected the shipment of frozen shrimp, Plaintiff notified Defendant of that rejection, and Defendant issued a second Letter of Warranty; however, Defendant nonetheless has still failed to reimburse Plaintiff consistent with the Letter of Warranty. Compl. ¶¶ 20–23. Accordingly, Defendant's liability to Plaintiff for breach of contract is established by the well-pled allegations in the Complaint.
3. Conversion.
Because the Complaint establishes Defendant's liability to Plaintiff for breach of contract, the Court will deny the Request for Entry of Default Judgment as to Plaintiff's conversion claim in Count 2 of the Complaint. "Florida law defines the tort of conversion as ‘the wrongful exercise of dominion or control over property to the detriment of the rights of one entitled to possession.’ " Longhi v. AMG Fin. Grp., Inc. , No. 19-23047-CIV, 2020 WL 7481167, at *2 (S.D. Fla. Jan. 24, 2020), report and recommendation adopted , No. 19-23047-CIV, 2020 WL 7481169 (S.D. Fla. Feb. 27, 2020). Generally, a failure to honor contractual obligations does not give rise to a claim for conversion unless there is a specific obligation to keep intact or deliver the specific money in question. See id. at *3 (quoting Gasparini v. Pordomingo , 972 So. 2d 1053, 1055–56 (Fla. Dist. Ct. App. 2008) ("[T]he civil theft or conversion must go beyond, and be independent from, a failure with comply with the terms of a contract.")). Here, Plaintiff's claim for conversion is predicated on Defendant's failure to reimburse Plaintiff consistent with the Letters of Warranty. See Compl. ¶¶ 32–36. Accordingly, the Court finds that the Complaint does not establish Defendant's liability for conversion where liability is established for breach of contract, as discussed above.
B. Damages
Having found a sufficient basis for Defendants’ liability, the Court must determine damages and enter final judgment in that amount. See Nishimatsu Constr. Co. v. Houston Nat'l Bank , 515 F.2d 1200, 1206 (5th Cir. 1975) ; see also PetMed Express, Inc. v. MedPets.com, Inc. , 336 F. Supp. 2d 1213, 1216 (S.D. Fla. 2004). In issuing a default judgment, a court may award damages "without a hearing [if the] amount claimed is a liquidated sum or one capable of mathematical calculation," as long as "all essential evidence is already of record." S.E.C. v. Smyth , 420 F.3d 1225, 1231, 1232 n.13 (11th Cir. 2005) (quoting Adolph Coors Co. v. Movement Against Racism & the Klan , 777 F.2d 1538, 1544 (11th Cir. 1985) ). Otherwise, the court may award damages "only if the record adequately reflects the basis for award via ‘a hearing or a demonstration by detailed affidavits establishing the necessary facts.’ " Coors , 777 F.2d at 1543–44 (quoting United Artists Corp. v. Freeman , 605 F.2d 854, 857 (5th Cir. 1979) ).
Plaintiff seeks entry of a default final judgment in the amount of $103,921.60, plus interest from the date of judgment as provided by law, together with the costs of this action. See (ECF No. 19-2) at 1 ¶ 4.
The Court accepts Plaintiff's representation in its Affidavit of Maurice Senior in Support of Motion for Entry of Default Judgment ("Senior Affidavit") that the principal balance owed under the Letter of Warranty is $103,921.60, consisting of $102,121.60 for the second shipment of frozen shrimp plus $1,800.00 in freight costs. ("Senior Aff.") (ECF No. 19-2) at 1 ¶ 4; id. at 8; Ex. A to Compl. Therefore, the Court finds that Plaintiff is entitled to default final judgment against Defendant for damages in the principal amount of $103,921.60, plus post-judgment interest. To the extent Plaintiff requests an award of costs, Plaintiff must file a motion separately on the docket consistent with Local Rule 7.3.
IV. CONCLUSION
UPON CONSIDERATION of the Complaint, the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff Seven Seas International, LLC's Request for Entry of Default Judgment (ECF No. 19) is GRANTED IN PART and DENIED IN PART. Accordingly, it is further ORDERED AND ADJUDGED as follows:
1. Pursuant to Federal Rule of Civil Procedure 58, Final Default Judgment will be entered by separate order.
2. The Court reserves jurisdiction to assess Plaintiff's request for costs. No later than fourteen (14) days from the date of this Order, Plaintiff may file a motion for costs separately on the docket. In doing so, Plaintiff shall provide all required materials and otherwise strictly comply with Local Rule 7.3(a).
3. The Clerk of Court is INSTRUCTED to CLOSE this case.
4. All pending motions, if any, DENIED AS MOOT.
5. The Court retains jurisdiction to enforce the terms of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of July, 2022.