United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIIFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Mevi Avocados,
Inc.'s (“Plaintiff”) Motion for Entry of
Default Judgment Against Maya Foods, LLC  (“Motion
for Default Judgment”).
June 16, 2014, and October 14, 2014, Plaintiff sold to
Defendant Maya Foods, LLC (“Defendant”), in
interstate commerce, wholesale quantities of produce worth
$115, 808.00. (Compl. ¶ 7). Defendant accepted the
produce from Plaintiff. (Compl. ¶ 8). At the time of
Defendant's receipt of the produce, Plaintiff became a
beneficiary in a statutory trust designed to assure payment
to produce suppliers (“PACA Trust”). The PACA
Trust consists of Defendant's produce or produce-related
assets, including all funds commingled with funds from other
sources and all assets procured by such funds, in the
possession of control of Defendant since the creation of the
trust. (Compl. ¶ 9). Plaintiff preserved its interest in
the PACA Trust in the amount of $110, 068.00 by sending
invoices to Defendant containing the statutory language
required to preserve trust benefits under 7 U.S.C.
§499e(c)(4). (Compl. ¶ 10).
failed to pay Plaintiff $110, 068.00 in PACA Trust funds.
(See Compl. ¶ 13; [9.2] at ¶ 7; Statement
of Account [9.5]; Invoices [9.6]).
October 26, 2016, Plaintiff filed this action against
Defendant and its director Doris E. Martinez, pursuant to the
trust provision of the Perishable Agricultural Commodities
Act (“PACA”), Section 5(c), 7 U.S.C. §
January 11, 2017, the Clerk of Court entered default with
respect to Defendant. On January 14, 2017, Plaintiff filed
its Motion for Default Judgment, requesting the Court to
enter default judgment against Defendant pursuant to Federal
Rules of Civil Procedure 55(b)(1) or 55(b)(2), and Section
5(c) of the PACA, 7 U.S.C. § 499e(c). Plaintiff seeks
$156, 315.63, which includes (1) the principal amount of
$110, 068.00, (2) interest through January 13, 2017, at the
rate of 18% per annum, in the amount of $38, 528.38, and (3)
attorneys' fees and costs in the amount of $7, 719.25.
55(b) of the Federal Rules of Civil Procedure provides that
default judgment may be entered against defaulting defendants
(1) By the Clerk. If the
plaintiff's claim is for a sum certain or a sum that can
be made certain by computation, the clerk-on the
plaintiff's request, with an affidavit showing the amount
due-must enter judgment for that amount and costs against a
defendant who has been defaulted for not appearing and who is
neither a minor nor an incompetent person.
(2) By the Court. In all other
cases, the party must apply to the court for a default
judgment. . . . If the party against whom a default judgment
is sought has appeared personally or by a representative,
that party or its representative must be served with written
notice of the application at least 7 days before the hearing.
The court may ...