United States District Court, D. Massachusetts
MEREDITH SPRINGFIELD ASSOCIATES, INC. Plaintiff,
PUMA LOGISTICS, LLC, et al. Defendants.
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR DEFAULT JUDGMENT AGAINST DEFENDANT PUMA LOGISTICS, LLC
(DKT. NO. 21)
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE
matter, plaintiff Meredith Springfield Associates, Inc.
(“Plaintiff”) seeks a default judgment against
defendant Puma Logistics, LLC (“Puma”). Plaintiff
alleges that it suffered losses when its products were
damaged while being transported by Puma when the truck
carrying the products collided with a bridge. Plaintiff's
Application for Entry of Default Judgment (the
“Motion”) was referred to me for a report and
recommendation by presiding District Judge Mark G.
Mastroianni (Dkt. Nos. 24, 39). See 28 U.S.C. §
636(b)(1)(B). The court held a hearing on Plaintiff's
Motion on January 8, 2018 and set a deadline for a further
submission (Dkt. No. 28). Plaintiff having demonstrated that
Puma failed to appear or otherwise defend this suit and
having dismissed all of its claims against the other
defendants in the case, Plaintiff is entitled to a entry of a
final judgment on its complaint including a default judgment
under Federal Rule of Civil Procedure 55(b)(2) against Puma.
Having reviewed Plaintiff's submissions, the court
recommends that Plaintiff's Motion be GRANTED and that a
default judgment enter against Puma in Plaintiff's favor
in the amount of $21, 207, 66 with attorneys' fees and
costs in the amount of $8, 099.30.
Relevant Procedural and Factual Background
filed its complaint in this court on March 30, 2017 against
Puma, Sweeney Transportation, Inc. (“Sweeney
Transportation”) and J.P. Morgan Chase Bank, N.A
(“J.P. Morgan”) (Dkt. No. 1). Sweeney
Transportation and J.P. Morgan were timely served (Dkt. Nos.
6, 7). Shortly thereafter, Plaintiff filed stipulations of
dismissal as to Sweeney Transportation and J.P. Morgan (Dkt.
Nos. 16, 17). Despite diligent efforts, Plaintiff had
difficulty in serving Puma (Dkt. No. 22 at 1, ¶¶
2-4). In early September 2017, Plaintiff received
certification from the Texas Secretary of State that the
office could not serve Puma's registered agent because
the registered agent could not be found at the address Puma
had provided to the Texas Secretary of State (Dkt. No. 22-1).
Pursuant to Tex. Civ. Prac. & Rem. Code § 17.044 and
Tex. Bus. Org. Code §§ 5.251-252, a party has made
effective service if the party serves the Texas Secretary of
State and allows that office to either serve the complaint or
conclude that it cannot make service upon a registered agent
of a Texas corporation because the Texas corporation has not
maintained an agent in Texas. In the event the latter occurs,
service is deemed to have been made upon the Texas
corporation by means of service upon the Texas Secretary of
State. Here, the Texas Secretary of State has certified that
it was unable to serve Puma because of Puma's failure to
maintain an agent in Texas to accept service of process (Dkt.
No. 22-1). Under federal and Texas law, therefore, Puma is
deemed to have been properly served. See Fed. R.
Civ. P. 4(e)(1) and h(1)(A). In addition, there is evidence
that Puma was made aware of Plaintiff's claims against
it. See infra, page 4. The clerk entered default
against Puma on December 20, 2017 (Dkt. No. 25).
of Puma's s failure to appear, the facts alleged in the
complaint as to Puma are taken to be true. See, e.g.,
Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir.
2002); Int'l Union of Operating Engrs, Local 4 v.
Stanley Excavation, 243 F.R.D. 25, 27 (D. Me. 2007)
(quoting Katahdin Paper Co., LLC v. U & R Sys.,
Inc., 231 F.R.D. 110, 112 (D. Me. 2007)).
According to the complaint, Plaintiff is in the business of
manufacturing and selling plastics products. On or around
March 1, 2016, plaintiff called Sweeney Transportation to
request transportation of a load of products from
Plaintiff's factory to a customer in Pennsylvania. On or
around March 3, 2016, a truck arrived at Plaintiff's
factory and picked up the products. A non-negotiable bill of
lading was executed listing Sweeney Transportation as the
carrier. The bill of lading represented that when the
products were picked up they were properly packaged and in
proper condition for transportation (Dkt. No. 1 at 2,
¶¶ 7, 11-13).
in the day on March 3, 2016, the truck that had picked up the
products returned to Plaintiff's factory after having
collided with a bridge. The products had not been delivered
and were damaged in the accident. Plaintiff refused to unload
the products because of the dangerous condition of the
damaged truck. The driver proceeded to unload the products
onto Plaintiff's loading dock (id., ¶¶
14-17). Plaintiff promptly offered Sweeney Transportation the
opportunity to inspect the damaged products. Sweeney
Transportation declined to inspect the products and informed
Plaintiff that it had subcontracted transportation of the
products to a company called Landstar Ranger, Inc.
(“Landstar”) (id. at 3, ¶¶
18-20). Plaintiff reached out to Landstar and offered the
company the opportunity to inspect the damaged products.
Landstar declined to inspect, but asked Plaintiff to take
photographs of the damaged goods, which Plaintiff did.
Plaintiff then discarded its damaged products (id.,
later learned that Landstar had in turn subcontracted
transportation of its products to Puma. On or around July 6,
2016, Puma's insurer, Great American Insurance Group,
issued a check, made out jointly to Plaintiff and Puma,
intended to compensate Plaintiff for a portion of its loss
arising from the damage to its products (id. at 3-4,
¶¶ 26, 28-29). Puma proceeded to deposit the check
into its J.P. Morgan account without Plaintiff's
endorsement. Plaintiff did not authorize or consent to Puma
depositing the check (id. at 4, ¶¶ 30-33).
has submitted additional evidence through its attorney's
affidavit that Puma was on notice of Plaintiff's claims
and the basis of those claims. Plaintiff's attorney had
multiple communications with Puma's insurance company
about Plaintiff's claims against Puma. Plaintiff also had
such communications with Puma's insurer before the
complaint was filed in this court (Dkt. No. 22 at 2,
¶¶ 6-7). Plaintiff reached a settlement with
Puma's insurer, Great American Insurance Group
(“Great American”) in the amount of $11, 599.33,
of which $10, 599.33 was to be paid to Plaintiff by the
insurer with Puma paying a $1, 000 deductible to Plaintiff.
Plaintiff submitted as evidence a copy of a letter Great
American wrote to Puma to notify Puma about the settlement
and the basis for that settlement (Dkt. No. 30-2 at 1-2).
Subsequently, Great American sent the settlement check to
Puma. Plaintiff submitted a copy of the check as evidence.
Despite the fact that the check was made out jointly to Puma
and Plaintiff, Puma deposited the check in its J.P. Morgan
account without any endorsement by Plaintiff (Dkt. No. 30-1).
Puma has not compensated Plaintiff for any part of the value
of its damaged products. Plaintiff's complaint asserts
claims against Puma for unfair and deceptive business
practices in violation of Mass. Gen. Laws ch. 93A
(“Chapter 93A”) (Count II) and conversion (Count
III) based on Puma's misappropriation of the Great
American check intended to reimburse Plaintiff for part of
its March 3, 2016 loss (Dkt. No. 1 at 5, ¶¶ 38-43).
Standard of Review
court should accept as true the well-pleaded factual
allegations in the complaint when considering a motion for
entry of default judgment, the court “need not accept
the moving party's legal conclusions or factual
allegations relating to the amount of damages.”
Virgin Records Am., Inc. v. Bagan, Civ. No. 08-4694
(WHW), 2009 WL 2170153, at *2 (D.N.J. July 21, 2009) (citing
Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d
Cir. 1990)). A court should conduct its own inquiry to
ascertain the amount of damages with reasonable certainty.
See Id. (quoting Int'l Assoc. of Heat &
Frost Insulators v. S. Jersey Insulation Servs., No.
05-3143, 2007 WL 276137, at *1 (D.N.J. Jan. 26, 2007)).
hearing on Plaintiff's application for entry of a default
judgment, Plaintiff's counsel stated that Plaintiff seeks
a judgment in the amount of $10, 603.83 - the amount of the
check misappropriated by Puma - trebled pursuant to Chapter
93A and attorneys' fees and costs totaling $8, 099.30.
Plaintiff contends that the facts establish that Puma
committed the common law tort of conversion when it deposited
the Great American check and that this conversion of funds
provides a basis for liability under Chapter 93A. “The
elements of conversion require that a defendant be proved to
have ‘intentionally or wrongfully exercise[d] acts of
ownership, control or dominion over personal property to
which he has no right of possession at the time.'”
Grand Pac. Fin. Corp. v. Brauer, 783 N.E.2d 849, 857
(Mass. App. Ct. 2003) (quoting Abington Nat'l Bank v.
Ashwood Homes, Inc., 475 N.E.2d 1230, 1233 (Mass. App.
Ct. 1985)). Accepting as true the allegations in the
complaint, supplemented by the evidence submitted by
Plaintiff (the letter from Great American to Puma and the