Opinion
Civil Action No. 20-22585-Civ-Scola
2021-04-08
PRODUCE PAY, INC., Plaintiff, v. AGROSALE, INC. and others, Defendants.
Jason R. Klinowski, Pro Hac Vice, Klinowski Damaino LLP, Katie E. Willoughby, Pro Hac Vice, Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, AL, Drew Michael Dillworth, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL, for Plaintiff. Susan Virginia Warner, Tiffany Natasha Compres, FisherBroyles, LLP, Miami, FL, for Defendants. Tim Henkel, Esq., Henkel & Cohen, P.A., Miami, FL, for Caribbean Third Party Defendants, Caribbean Produce Exchange, Gualberto Rodriguez Rodriguez and Gualberto Rodriguez Feliciano.
Jason R. Klinowski, Pro Hac Vice, Klinowski Damaino LLP, Katie E. Willoughby, Pro Hac Vice, Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, AL, Drew Michael Dillworth, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL, for Plaintiff.
Susan Virginia Warner, Tiffany Natasha Compres, FisherBroyles, LLP, Miami, FL, for Defendants.
Tim Henkel, Esq., Henkel & Cohen, P.A., Miami, FL, for Caribbean Third Party Defendants, Caribbean Produce Exchange, Gualberto Rodriguez Rodriguez and Gualberto Rodriguez Feliciano.
Order Granting Motion to Dismiss and Granting in Part and Denying in Part Motion for Leave to Amend
Robert N. Scola, Jr., United States District Judge
Plaintiff Produce Pay, Inc., commenced the main litigation in this case to recover amounts it claims it is owed by Defendant Agrosale, Inc., and various Agrosale principals (collectively the "Agrosale Parties"), for shipments of malanga, a Caribbean root vegetable that Produce Pay says Agrosale failed to pay for. (Compl., ECF No. 1.) Produce Pay did not itself sell the malanga to Agrosale but, instead, bought the account receivables from another company, Comercializadora Agropecuaria del Tropico, S.A. de C.V. ("Tropico"), which had previously contracted with Agrosale for the delivery and sale of the malanga. (Id. at ¶¶ 14–16.) Agrosale, in responding to the complaint, has also lodged a counterclaim and third-party complaint against Produce Pay and other parties, including Caribbean Produce Exchange, LLC, and its alleged principals, Gualberto Rodriguez Rodriguez and Gualberto Rodriguez Feliciano III (collectively, the "Caribbean Produce Parties"). (Agrosale's Compl., ECF No. 23, 12–25.) Agrosale says it sold the malanga it ordered from Tropico to Caribbean Produce but that Caribbean Produce still owes Agrosale $141,233.61. (Agrosale Compl. ¶¶ 25–26.) The Caribbean Produce Parties now ask the Court to dismiss Agrosale's claims against them because, among other reasons, they are not proper third-party defendants in this case. (Carib. Prod. Parties’ Mot. to Dismiss, ECF No. 42.) Agrosale opposes the Caribbean Produce Parties’ motion, insisting it has properly asserted a third-party claim because its claims against the Caribbean Produce Parties are "related to and dependent on the claims asserted in the main action." (Agrosale's Resp., ECF No. 47, 2.) The Caribbean Produce Parties have timely replied. (Carib. Prod. Parties’ Reply, ECF No. 52.) At the same time, Agrosale seeks leave to amend its counterclaim and third-party complaint. (Agrosale's Mot. to Am., ECF No. 58.) Produce Pay, as counterdefendant, and third-party defendant Drip Capital Inc., the only parties who have answered Agrosale's claims, do not oppose the amended pleading. (Agrosale's Mot. at 5.) The Caribbean Produce Parties, on the other hand, object to any amendment, as to Agrosale's claims against them, arguing futility. (Carib. Prod. Parties’ Resp., ECF No. 61, 3.) Agrosale has timely replied. (Agrosale's Reply, ECF No. 63.) The Court has carefully considered the briefing and the record in this case and agrees Agrosale's claims against the Caribbean Produce Parties should be dismissed and that Agrosale's proposed amendment, with respect to the Caribbean Produce Parties is futile. Accordingly, the Court grants the Caribbean Produce Parties’ motion to dismiss (ECF No. 42) and denies Agrosale's motion for leave to amend, in part, with respect to the claims against the Caribbean Produce Parties, but grants it, in part, as to the other changes (ECF No. 58).
1. Background
In its complaint, Produce Pay alleges Agrosale failed to pay at least $67,848.86 for malanga Tropico sold to Agrosale in early 2020. (Compl. ¶¶ 13, 32.) Attached to Produce Pay's complaint are four invoices, memorializing the parties’ transactions. (Ex. C., ECF No. 1-5.) In each invoice, Agrosale is identified as the buyer and Tropico as the seller (with payment due to Produce Pay). (Id.) None of these invoices mentions Caribbean Produce. (Id.) Produce Pay says Tropico delivered all the malanga Agrosale ordered but that Agrosale failed to pay various amounts there were invoiced. (Id. ¶¶ 88, 90.)
In its third-party complaint, Agrosale acknowledges it agreed to purchase malanga from Tropico. (Agrosale's Compl. ¶ 18.) Agrosale also alleges that Caribbean Produce, in turn, agreed to then buy that same malanga from Agrosale. (Id. ¶ 20.) The malanga was ultimately shipped directly from Tropico, in Mexico, to Caribbean Produce, in Puerto Rico. (Id. ¶ 21.) Agrosale maintains that, to date, Caribbean Produce paid Agrosale only $5,528.39 and still owes $141,233.61 for the malanga it purchased. (Id. ¶ 26.)
2. Legal Standards
A. Motion to Dismiss for Failure to State a Claim
A court considering a motion to dismiss, filed under Federal Rule of Civil Procedure 12(b)(6), must accept all the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, a plaintiff must nevertheless articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Fed. R. Civ. P. 8(a)(2) ) (internal punctuation omitted). A court must dismiss a plaintiff's claims if it fails to nudge its "claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
B. Motion for Leave to Amend
1234 In accordance with Federal Rule of Civil Procedure 15(a)(2), a party seeking to amend its complaint may do so only with the opposing party's written consent or the court's leave. According to the rule, leave should be freely given when justice so requires. Rule 15(a) reflects a policy of "liberally permitting amendments" and absent a "substantial reason to deny leave to amend" a plaintiff's request should be granted. Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir. 1984). "Although leave to amend shall be freely given when justice so requires, a motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment." Maynard v. Bd. of Regents of Div. of Universities of Florida Dep't of Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1287 (11th Cir. 2003) (quotations omitted). "[L]eave to amend should not be denied on the ground of futility unless the proposed amendment is clearly insufficient or frivolous on its face." Montes v. M & M Mgmt. Co., No. 15-80142-CIV, 2015 WL 11254703, at *1 (S.D. Fla. May 12, 2015) (Marra, J.) (citing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980) ). In order to deny leave to amend, the Court must identify a "justifying reason." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
3. Discussion
A. Agrosale has not stated a third-party claim against the Caribbean Produce Parties in its initial pleading.
Agrosale maintains its third-party claims against the Caribbean Produce Parties are sufficiently interrelated with Produce Pay's claims against Agrosale "that requiring a separate lawsuit would be unnecessarily duplicative and a waste of judicial resources." (Agrosale's Resp. at 7.) The Caribbean Produce Parties, on the other hand, argue Agrosale's claims against them must be dismissed because they do not comply with Federal Rule of Civil Procedure 14 ’s requirement that a third-party plaintiff must allege that a third-party defendant is in some way responsible for the liability of the third-party plaintiff, as defendant in the main action. (Carib. Prod. Parties’ Mot. at 6; Carib. Prod. Parties’ Reply at 3.) After careful review, the Court agrees with the Caribbean Produce Parties: Agrosale has failed to state a claim against the Caribbean Produce Parties as third-party defendants.
5Rule 14 authorizes only a narrow category of claims and parties that may be impleaded: the nonparty must be either liable or potentially liable for all or part of the claim against the defendant. Fed. R. Civ. P. 14(a)(1). In other words, the "claim against the third-party defendant must be based upon plaintiff's claim against defendant" in the main action." 6 Fed. Prac. & Proc. Civ. § 1446, When a Third-Party Action Is Proper (3d ed.). It is not enough that the alleged third-party claim simply "arises from the same transaction or set of facts as the original claim." Id.; U.S. v. Olavarrieta, 812 F.2d 640, 643 (11th Cir. 1987). That is, the nonparty's liability on the third-party plaintiff's claim must be "in some way dependent upon the outcome of the main claim." Olavarrieta, 812 F.2d at 643.
678 Fatal to its impleader attempts here, Agrosale has failed to allege facts showing that its claims against the Caribbean Produce Parties are dependent upon the outcome of the main claim. As Agrosale acknowledges, the main claim against it is premised on Agrosale's failure to pay for the malanga Agrosale ordered from Tropico. (Agrosale's Resp. at 7.) Agrosale further recognizes, in turn, that its third-party claim seeks to recover for the same malanga Agrosale then sold to the Caribbean Produce Parties, but as part of a separate agreement. (Id. at 4.) Thus, even though the very same shipments of produce appear to be involved in both branches of this litigation, the allegations show that the relationship between the parties to the main action is governed by the terms of one contract while the relationship between Agrosale and Caribbean Produce, conversely, is governed by an entirely independent contract. Simply put, a claim against a nonparty is not permissible as a third-party claim just because it arises out of the same general set of facts as the main claim. Olavarrieta, 812 F.2d at 643 ("Rule 14(a) does not allow the defendant to assert a separate and independent claim even though the claim arises out of the same general set of facts as the main claim."). Instead, a putative third-party plaintiff must show something more: that the putative third-party defendant is in some way actually responsible for the third-party plaintiff's liability in the main action. And Agrosale simply has not made that showing here. In other words, Agrosale has failed to set forth facts that would establish how its liability, or lack thereof, to Produce Pay will, in turn, dictate whether Agrosale is entitled to any relief from the Caribbean Produce Parties. See United States v. $343,726.60 in U.S. Currency, 05-20513-CIV, 2005 WL 8165387, at *1 (S.D. Fla. Oct. 11, 2005) (Jordan, J.) (dismissing a third-party claim where "[w]hether [the defendant] is entitled to any relief on [his third-party] claim is wholly independent of his liability to the [the plaintiff] for defaulting").
Agrosale, in support of impleader, argues that, if the Caribbean Produce Parties’ "assertion of defective quality [is] meritorious, that in turn will raise defenses for Agrosale as to the claims asserted" against it in the main action. (Agrosale's Resp. at 7.) But Agrosale's point misses the mark: nothing in this hypothetical scenario would lead to the Caribbean Produce Parties’ being liable themselves for any portion of Produce Pay's claim against Agrosale. To the extent Caribbean Produce maintains it did not pay Agrosale because the malanga was damaged, spoiled, or failed to arrive, that alone does not transform the Caribbean Produce Parties into indemnitors, subrogors, or joint tortfeasors of some kind, who would be required to reimburse Agrosale for any damages it is found liable for though Produce Pay's main action. See iBasis Glob., Inc. v. Diamond Phone Card, Inc., 278 F.R.D. 70, 77 (E.D.N.Y. 2011) (denying impleader under Rule 14(a)(1) where the defendant in the main action did not allege that the putative third-party defendant "would be liable to satisfy any portion of the judgment in favor of the [p]laintiff if successful.") The same is true of Agrosale's allegation that it was acting as an intermediary between Tropico and Caribbean Produce: there are no allegations that either contract at issue was actually dependent on the performance of the other—regardless of whether Agrosale purchased the malanga as an intermediary, at Caribbean Produce's direction, or not. In sum, while certain findings in the main action may ultimately impact or touch on the putative third-party claims, Agrosale has failed to allege facts showing that its recovery from the Caribbean Produce Parties is "in some way" actually "dependent upon the outcome of the main action." Olavarrieta, 812 F.2d at 643. Without any facts to support its conclusory claim that the putative third-party claims are "dependent on the claims asserted in the main action" (Agrosale's Resp. at 2), the Court finds Agrosale's third-party claims against the Caribbean Produce Parties claims subject to dismissal.
Because the Court finds Agrosale's third-party claims against the Caribbean Produce Parties subject to dismissal for this reason, it declines to address the other arguments raised in the Caribbean Produce Parties’ motion to dismiss.
B. Agrosale's proposed amendment to its third-party claims is futile as to the Caribbean Produce Parties.
9 Agrosale seeks to file an amended counterclaim and third-party complaint. As Agrosale explains it, its new pleading "eliminates Third-Party Defendant Gualberto Rodriguez Rodriguez from the suit, adds additional factual allegations, and adds additional counts against Third-Party Defendants Plus 58 Investment, LLC, [Tropico], and Caribbean Produce." (Agrosale's Mot. at 2.) Continuing, Agrosale says the changes "reflect additional information that has been discovered since the original pleading was filed, as well as correct several scrivener's errors." (Id.) Among the parties who have been served, only the Caribbean Produce Parties object to the amendment. They contend that the amendment Agrosale proposes, with respect to the third-party claims against them, would be futile. (Carib. Prod.’s Resp. at 3.) In support, they point to the same objections they raise in their motion to dismiss, arguing that the new pleading "cures none of the fatal defects in its original [claims] against the Caribbean [Produce] Parties." (Id.) The Court agrees with the Caribbean Produce Parties.
Among the changes to Agrosale's pleading is the added allegation that Agrosale was specifically acting "as an intermediary broker for Caribbean Produce to purchase malanga from Tropico." (Agrosale's Prop. Am. Compl. ¶ 19, ECF No. 58-1, 18 (emphasis added).) Apart from this conclusory allegation, however, Agrosale has not alleged any actual facts that would support a finding that Agrosale's role in the malanga transactions was as a broker. Instead, all the facts Agrosale alleges in its proposed amended pleading show that Agrosale (1) purchased malanga from Tropico and, then, (2) resold that same malanga to Caribbean Produce. Agrosale proffers no facts showing there was any kind of a broker relationship between any of the parties. And, ultimately, even Agrosale itself acknowledges, in its reply, that "Agrosale does not allege or claim that it had a commission brokerage agreement with Caribbean and Tropico for the sale of the malanga that is at issue in this suit." (Agrosale's Reply at 3 (emphasis in original).) By way of explanation Agrosale says, rather, it simply used the term "intermediary broker" "to illustrate that transactions with Tropico and Caribbean Produce were not wholly divorced from each other." (Id.) Continuing, Agrosale clarifies that "the two sales transactions were fixed price sales and not consignments or a commission brokerage as that transaction is commonly understood under [the Perishable Agricultural Commodities Act]." (Id. at 3–4.)
Aside from the brokerage issue, Agrosale also acknowledges its amended pleading, as to the Caribbean Produce Parties, "does not change the core claims and factual allegations asserted in the third-party complaint." (Id. at 4.) Since the Court has already found these claims subject to dismissal, for the reasons set forth in the preceding section, it agrees with the Caribbean Produce Parties that Agrosale's amended pleading, as to the claims against them, is futile: the proposed amendment is insufficient on its face. Agrosale's argument that its claims against the Caribbean Produce Parties "are sufficiently interrelated with Produce Pay's claims that requiring a separate lawsuit would be unnecessarily duplicative and a waste of judicial resources" (id. at 5) is unavailing. That is, whether the Court should exercise its discretion to allow a third-party to proceed with the main action comes into play only if the claims are actually within the scope of impleader established by Rule 14(a) to begin with. See 6 Fed. Prac. & Proc. Civ. § 1443, Discretion of the Court (3d ed.) ("[T]he court's discretion may be exercised only when the claim is within the scope of impleader established by Rule 14(a).")
4. Conclusion
As set forth above, the Court grants the Caribbean Produce Parties’ motion to dismiss Agrosale's third-party claims against them. (ECF No. 42.) The dismissal is without prejudice as to Agrosale's refiling its claims against the Caribbean Produce Parties in a separate action and in the appropriate forum. On the other hand, the Court denies Agrosale's renewed motion for leave to amend, in part, as to the Caribbean Produce Parties, but grants it, in part, in all other respects. (ECF No. 58.) The Court directs Agrosale to amend its proposed amended pleading to eliminate the claims, set forth in counts one through five, against any of the Caribbean Produce Parties. This amended pleading must then be refiled as a separate docket entry, on or before April 14, 2021.
Done and ordered, in Miami, Florida, on April 8, 2021.
Order Denying Motion for Reconsideration
Plaintiff Produce Pay, Inc., commenced the main litigation in this case to recover amounts it claims it is owed by Defendant Agrosale, Inc., and various Agrosale principals (collectively, "Agrosale"), for shipments of malanga, a Caribbean root vegetable that Produce Pay says Agrosale failed to pay for. (Compl., ECF No. 1.) Produce Pay did not itself sell the malanga to Agrosale but, instead, says it bought the account receivables from another company, Comercializadora Agropecuaria del Tropico, S.A. de C.V. ("Tropico"), which had previously contracted with Agrosale for the delivery and sale of the malanga. (Id . at ¶¶ 14–16.) Agrosale, in responding to the complaint, at the same time lodged, among other things, a purported third-party complaint against Caribbean Produce Exchange, LLC, and its alleged principals, Gualberto Rodriguez Rodriguez and Gualberto Rodriguez Feliciano III (collectively, "Caribbean Produce"). (Agrosale's Compl., ECF No. 23, 12–25.) Agrosale said it sold the malanga it ordered from Tropico to Caribbean Produce but that Caribbean Produce still owes Agrosale $141,233.61. (Id . ¶¶ 25–26.) Caribbean Produce, arguing that it is not a proper third-party defendant in this case, moved for dismissal of Agrosale's complaint against it. (Carib. Prod.’s Mot. to Dismiss, ECF No. 42.) After careful review of the parties’ briefing and the relevant legal authorities, the Court granted the motion, dismissing the third-party complaint. (Order, ECF No. 73.) At the same time, Agrosale also sought leave to amend both its counterclaim and the third-party complaint. (Agrosale's Mot. to Am., ECF No. 58.) The Court denied that motion, in part, as to the third-party complaint, finding the amendment futile. (Order at 5–6.) Agrosale now asks the Court to reconsider the dismissal as well as the Court's denial of Agrosale's motion for leave to amend. (Agrosale's Mot., ECF No. 75.) The motion has been fully briefed. (Carib. Prod.’s Resp., ECF No. 76; Agrosale's Reply, ECF No. 77.) After review, the Court denies the motion (ECF No. 75 ).
"[I]n the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy that is employed sparingly." Gipson v. Mattox , 511 F. Supp. 2d 1182, 1185 (S.D. Ala. 2007). A motion to reconsider is "appropriate where, for example, the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Z.K. Marine Inc. v. M/V Archigetis , 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (Hoeveler, J.) (citation omitted). "Simply put, a party may move for reconsideration only when one of the following has occurred: an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice." Longcrier v. HL-A Co. , 595 F. Supp. 2d 1218, 1247 (S.D. Ala. 2008) (quoting Vidinliev v. Carey Int'l, Inc. , No. CIV.A. 107CV762-TWT, 2008 WL 5459335, at *1 (N.D. Ga. Dec. 15, 2008 )). However, "[s]uch problems rarely arise and the motion to reconsider should be equally rare." Z.K. Marine Inc. , 808 F. Supp. at 1563 (citation omitted). Certainly, if any of these situations arise, a court has broad discretion to reconsider a previously issued order. Absent any of these conditions, however, a motion to reconsider is not ordinarily warranted.
Here, Agrosale relies on the clear-error and manifest-injustice prongs of the reconsideration analysis. Agrosale's argument centers on its concern that "the Court misunderstood the interrelation between the claims in this suit." (Agrosale's Mot. at 5.) As Agrosale explains it, "Agrosale's defense against the Factoring Companies, Agrosale's claims against Caribbean Produce, and Caribbean Produce's defense against Agrosale all depend largely on whether the malanga delivered was of proper quality."1 (Id .) Agrosale continues, emphasizing that "Agrosale's liability to the Factoring Companies is intertwined and dependent on Caribbean Produce's liability to it." (Id .) For the most part, the Court does not disagree with Agrosale's depiction of the interrelatedness of the parties’ claims and issues in this case. Where the Court's assessment diverges from Agrosale's, however, is whether this interrelatedness satisfies the requirements of Rule 14(a)(1). The Court's view remains that it does not.
By its plain terms, Rule 14 requires a third-party defendant to be either liable or potentially liable to the defendant in the main action "for all or part of the claim against it." Fed. R. Civ. P. 14(a)(1). In its motion for reconsideration, Agrosale maintains that its third-party claim against Caribbean Produce "rests on breach of contract." (Agrosale's Mot. at 6.) The hurdle Agrosale fails to clear, however, is showing sufficient interrelatedness between the two contracts at issue in this case. Agrosale has not alleged, either in its initial thirty-party complaint or in its proposed amended complaint, any "allegations that either contract at issue was actually dependent on the performance of the other." (Order at 5.) That is, Agrosale does not allege, in any of the versions of its complaint against Caribbean Produce, any facts showing that its breach of its contract with Tropico, or Produce Pay, was caused by or the result of Caribbean Produce's actions or breach of its agreement with or duties to Agrosale. Because of this deficiency, the Court finds Agrosale has failed to state a proper third-party claim. Cf . Campen v. Greenamyer , 940 F.2d 1533 (9th Cir. 1991) (finding jurisdiction over third-party claims where the defendant alleged facts establishing the plaintiffs’ harm resulted not from the defendant's actions, but rather from the third-party's breach of a subcontract with the main defendant); Am. Fid. & Cas. Co. v. Greyhound Corp. , 232 F.2d 89, 92 (5th Cir. 1956) (finding a third-party claim proper where the defendant's Rule 14 claim rested on allegations that the third-party defendant failed, either negligently or in bad faith, to provide the defendant in the main action with the information it needed to comply with its contract with the main plaintiff); Int'l Paving Sys., Inc. v. Van-Tulco, Inc. , 866 F. Supp. 682, 686 (E.D.N.Y. 1994) (finding impleader proper where the third-party complaint alleged that the main-defendant general contractor's performance of its subcontract with the main-plaintiff subcontractor was dependent on the third-party defendant city's paying the general contractor for the subcontractor's work).
Agrosale insists both Produce Pay's claims against it and Agrosale's claims against Caribbean Produce "both rest upon the exact same set of necessary factual determinations." (Agrosale's Mot. at 9.) These determinations, as Agrosale frames it in its motion are: "what was the quality of the malanga delivered to Caribbean Produce and did Caribbean Produce properly assert[ ] its objections as to the malanga's quality so as to relieve it from being liable to Agrosale for the full sum of the sale." (Id .) The closest Agrosale comes to actually alleging facts establishing this dependency, however, is where it explains, in its proposed amended complaint, that "when malanga arrived in bad condition or of poor quality, Tropico would replace the quantity of defective malanga in a future shipment" and that "in order to effectuate the replacement credit, both Agrosale and Tropico had to receive timely and adequate notice of an issue with the shipment in order to address the issue." (Prop. Am. Compl. ¶ 24, ECF No. 58-1, 18.) But that is not enough. Absent from Agrosale's complaint are any specific, factual allegations that, contractually or otherwise, Caribbean Produce was required to provide notice to Agrosale before Agrosale's obligations to Produce Pay would be triggered. In other words, Agrosale never alleges that Caribbean Produce's failures actually prevented or relieved Agrosale from complying with its own obligations to Produce Pay. Indeed, among the five counts Agrosale alleges against Caribbean Produce, not one asserts that Caribbean Produce's alleged unlawful activity in any way interfered with Agrosale's obligations to Produce Pay. (E.g. , Prop. Am. Compl. ¶¶ 108 ("The failure of Caribbean Produce to make prompt payment in full for the Product it purchased caused Agrosale to incur compensatory damages plus prejudgment interest on late partial payments."); 113 ("Agrosale has incurred compensatory damages as a direct and natural result of the Caribbean Produce Defendants’ failure to preserve and to dissipate the PACA Trust assets of Caribbean Produce."); 121 ("As a direct and proximate result of Caribbean Produce's unfair and unlawful activity, Agrosale has been damaged."); 136 ("Agrosale has incurred compensatory damages of $177,583.11 as a direct and natural cause and result of Caribbean Produce's failure to timely pay for its purchases of the Product."); 143 ("[I]t would be inequitable for Caribbean Produce to retain the benefit of the Product without paying the value of such produce.") As such, Agrosale has failed meet Rule 14 ’s "clear" requirement, in either its initial complaint or its proposed amended complaint, "that the liability of the third party be dependent upon the outcome of the main claim." United States v. Joe Grasso & Son, Inc. , 380 F.2d 749, 752 (5th Cir. 1967).
Accordingly, the Court denies Agrosale's motion for reconsideration of the Court's order dismissing Agrosale's complaint and denying its motion for leave to amend its third-party complaint (ECF No. 75 ): Agrosale has failed to persuade that a clear error has been made or that manifest injustice will result from the Court's decision. To the extent Agrosale has filed what it considers a renewed motion for leave to amend, that too is denied (id. at 12). The request is both procedurally and substantively defective. Lastly, the Court also denies, without prejudice, Agrosale's further request for an extension of time to file its amended pleading: Agrosale's Local Rule 7.1(a)(3) certificate of conferral fails to indicate the position of any of the other parties to this litigation.
Done and ordered , in Miami, Florida, on June 10, 2021.