Neutral As of: July 25, 2021 6:29 PM Z
Mund & Fester GMBH & Co. KG v. Warsaw Transp., Inc.
United States District Court for the Southern District of Florida
July 15, 2021, Decided; July 16, 2021, Entered on Docket
Case No. 21-CV-20242-DLG

Reporter
2021 U.S. Dist. LEXIS 133017 *
MUND & FESTER GMBH & CO. KG a/s/o PI Berries S.p.A. and Berry Fresh LLC, Plaintiff, v. WARSAW TRANSPORT, INC., Defendant.
Subsequent History: Motion denied by, As moot Mund & Fester GmbH & Co. KG v. Logistics Dynamics, Inc., 2021 U.S. Dist. LEXIS 134361 (S.D. Fla., July 16, 2021)

ORDER
THIS CAUSE came before the Court upon Plaintiff’s Motion for Final Judgment in Default against Defendant Warsaw Transport, Inc. [D.E. 17].
THE COURT has considered the Motion, the pertinent portions of the record, and is otherwise fully advised in the premises.

I. BACKGROUND
On January 18, 2019, Plaintiff’s assured, Berry Fresh, LLC, contracted with Defendant, Warsaw Transport, Inc., for the shipment of 1,848 boxes of fresh organic blueberries from Miami to Compton, California. Defendant was required to transport the blueberries at +34°F. The bill of lading reflects a temperature of +36°F in Defendant’s trailer at the time of departure. Upon arrival at Berry Fresh, the blueberry shipment was rejected due to premature ripening caused by improper temperature control. The shipment, valued at $109,826.64, was resold in its overripened condition for $62,673.00. This resulted in a loss of $47,153.64, for which $36,170.98 [*2] was paid pursuant to Berry Fresh’s insurance policy with Plaintiff.
On January 20, 2021, Plaintiff filed the instant action against Defendants, Logistics Dynamics, Inc., and Logistics Dynamics LLC [D.E. 1]. On February 14, Plaintiff amended its complaint, adding Warsaw Transport, Inc. as a defendant [D.E. 4]. On March 10, Warsaw was served with the first amended complaint, which raised four causes of action: (a) a claim pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706; (b) breach of contract; (c) breach of bailment; and (d) negligence [D.E. 4]. On April 19, Plaintiff settled its claims against Defendants, Logistics Dynamics Inc. and Logistics Dynamics LLC, for $10,000 [D.E. 10]. On June 3, 2021, Plaintiff voluntarily dismissed Defendants Logistics Dynamics Inc. and Logistics Dynamics LLC, from this action [D.E. 19].
Defendant Warsaw Transport, Inc. failed to file an Answer or responsive pleading, and a Clerk’s Default was entered against the Defendant on April 22 [D.E. 14]. On April 30, Plaintiff filed the instant Motion for Final Default Judgment [D.E. 17]. Plaintiff seeks $37,593.64 in damages against Defendant Warsaw for the Defendant’s alleged improper handling of the blueberries. [*3] This amount includes a 19% deductible of the insured value of the cargo, along with filing and process server fees totaling $440.00.

II. LEGAL STANDARD
Rule 55 of the Federal Rules of Civil Procedure provides that, after entry of a clerk’s default, a court may enter a default judgment. “The effect of a default judgment is that the defendant admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.” Persiyantseva v. Saint Petersburg Mkt., LLC, No. 17-22177-CIV, 2018 U.S. Dist. LEXIS 75874, 2018 WL 3730400, at *1 (S.D. Fla. May 3, 2018), report and recommendation adopted, No. 17-22177, 2018 U.S. Dist. LEXIS 237756, 2018 WL 3730223 (S.D. Fla. May 25, 2018) (citing Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987)). Therefore, “[a] court must review the sufficiency of the complaint before determining whether a moving party is entitled to default judgment pursuant to Rule 55(b).” Persiyantseva, 2018 U.S. Dist. LEXIS 75874, 2018 WL 3730400, at *1 (citing Abreu v. Free Flow Constr., Inc., No. 18-20244-CIV, 2018 U.S. Dist. LEXIS 176052, 2018 WL 6492902, at *1 (S.D. Fla. Oct. 11, 2018), report and recommendation adopted, No. 18-20244-CIV, 2018 U.S. Dist. LEXIS 222549, 2018 WL 6492904 (S.D. Fla. Oct. 30, 2018)).

III. DISCUSSION
a. Carmack Amendment to the Interstate Commerce Act
Plaintiff has pled sufficient facts to support a claim for damages pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. “A prima facie case is established under the Carmack Amendment upon proof by a preponderance of the evidence that (1) the goods were delivered to the carrier in good condition, (2) the goods arrived at the destination in damaged condition, and (3) a specified amount of damages resulted.” A.I.G. Uru. Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir. 2003)(citing Fine Foliage of Fla., Inc. v. Bowman Transp., Inc., 901 F.2d 1034, 1037 (11th Cir.1990)). As to the third [*4] criterion, damages are calculated based on the difference between the sound market value of the cargo in good condition and the sound market value of the damaged cargo. Federated Dept. Stores, Inc. v. Brinke, 316 F.Supp. 1402, 1405 (S.D. Fla. Aug. 22, 1970)(citing Weirton Steel Co. v. Isbrandtsen-Moller Co., 126 F.2d 593, 594 (2d Cir. 1942)).
Here, Plaintiff has established that the blueberry shipment was transloaded onto Defendant’s trailer in Miami without exceptions or notations of shortage and/or damage. Next, Plaintiff has established that the blueberries arrived prematurely ripened at Berry Fresh, LLC, as a result of improper temperature control while in transit. Finally, Plaintiff has established a net cargo loss of $47,153.64, of which $10,000.00 was paid through prior settlement, leaving $37,153.64 remaining in damages, which includes a 19% insurance deductible. This amount was calculated using the difference between the sound market value of an equivalent shipment of blueberries that arrived undamaged at or around the same time, and the value of the shipment at issue during the salvage sale. Accordingly, Plaintiff is entitled to an award of $37,153.64 in damages.
b. Breach of Contract, Breach of Bailment, and Negligence
As stated by the Eleventh Circuit, “the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery [*5] of goods.” Smith v. United Parcel Serv. 296 F.3d 1244, 1246 (11th Cir. 2002)(citing Adams Express Co. v. Croninger, 226 U.S. 491, 505-6, 33 S. Ct. 148, 152, 57 L. Ed. 314 (1913)). “The Carmack Amendment’s preemptive effect is broad. It ’embraces … all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation.'” Falcon v. Sunshine Delivering, Inc., No. 11-80028-CIV, 2011 U.S. Dist. LEXIS 166690, 2011 WL 13319578, at *2 (S.D. Fla. May 2, 2011), report and recommendation adopted, No. 11-80028-CIV, 2011 U.S. Dist. LEXIS 166695, 2011 WL 13319568 (S.D. Fla. June 7, 2011) (citing Smith, 296 F.3d at 1247). Accordingly, Plaintiff’s breach of contract, breach of bailment, and negligence claims based upon the loss stemming from the improper handling of the blueberries during transport are preempted by Plaintiff’s Carmack Amendment claim and final default judgment will not be entered as to those claims.
c. Costs
Plaintiff seeks an additional award of $440.00 in costs, including $400.00 in filing fees and $40.00 in process server fees. These costs are reasonable and recoverable under 28 U.S.C. § 1920. Accordingly, Plaintiff is entitled to $440.00 in costs.

IV. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Judgment in Default [D.E. 17] is GRANTED in part. Final default judgment is entered as to Plaintiff’s Carmack Amendment Claim as alleged in Count I of Plaintiff’s Amended Complaint. It is further
ORDERED AND ADJUDGED that Plaintiff is entitled to recover $37,153.64 in damages and $440.00 in costs.
DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of July, [*6] 2021.
/s/ Donald L. Graham
DONALD L. GRAHAM
UNITED STATES DISTRICT JUDGE