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Blue Ribbon Commodity Traders, Inc. v. Progreso Cash & Carry

August 4, 2010

BLUE RIBBON COMMODITY TRADERS, INC., PLAINTIFF
v.
PROGRESSO CASH & CARRY, DEFENDANT.



MEMORANDUM

Now before the court is defendant Progreso Cash & Carry's*fn1 ("Progreso") Motion for Summary Judgment.*fn2

I.

This is a breach of contract action stemming from a dispute between Blue Ribbon Commodity Traders, a purveyor of meat products, and Progreso Cash & Carry, a wholesale grocery business. The essence of the dispute is as follows: In order to stock its grocery stores, Progreso purchased meat products from wholesaler Blue Ribbon. Blue Ribbon alleges that Progreso has failed to pay for two orders of chicken and two orders of pastrami amounting to $175,746.73.*fn3 As alleged in the complaint, that amount consists of outstanding bills from the following purchases:

DateProductPurchase OrderBlue Ribbon Invoice NumberAmount April 6, 2005chickenT415726179$50,760 Feb. 13, 2006chicken01-1314428901$1081.39 Nov. 22, 2006pastrami08-14437H30841$14,155.34 Nov. 22, 2006pastrami07-1447030842$109,750    Total$175,746.73

In its defense Progreso maintains that: (1) it did not order the pastrami from Blue Ribbon and (2) it paid for all the chicken products that it ordered and received.

Blue Ribbon commenced this action against Progreso on October 1, 2007. On October 29, 2007 plaintiff Blue Ribbon filed a request for entry of default and default judgment pursuant to F.R.C.P. 55(b) in the amount of $175,746.73 plus costs. The court entered default judgment in favor of Blue Ribbon for that amount on October 30. On November 5, 2007, defendant Progreso filed a motion to set aside and vacate the order of default and default judgment, which the court granted on July 23, 2008. On August 6, 2007, Progreso filed their answer to the complaint. On October 23, 2009, Progreso filed this motion for summary judgment. Blue Ribbon responded on December 4, 2009. On December 18, 2009 Progreso filed a reply motion in support of summary judgment, and Blue Ribbon filed a sur-reply on December 23, 2009.

A. Chicken Purchase Orders T-4153, T-4157 and 03-11178

The parties have submitted evidence relating to three different orders of frozen, boneless, skinless chicken thigh meat identified as purchase orders T-4153, T-4157, and 03-11178. The first order of chicken, T-4153 is not at issue. The evidence shows, and the parties do not dispute, that Progreso ordered, received, and paid for that order of chicken.

The second order at issue in this case is another order of 1,350 units of frozen, boneless skinless chicken thighs known as purchase order T-4157. Def. Ex. 22. The record shows the following: (1) Progreso ordered the chicken from Blue Ribbon; (2) the chicken was picked up by a company called Whoops Transport which delivered the product to Florida, where it would then be shipped to Puerto Rico; (3) a company named Sea Star Line shipped the chicken to San Juan; and (4) a different company, Marroig Transport, delivered the chicken to Progreso once in Puerto Rico.*fn4

On April 6, 2005, after the chicken was delivered to Progreso, Blue Ribbon issued invoice number 26179, which billed Progreso $50,760 for purchase order T-4157. Def. Ex. 26. On April 15, Progreso issued a check (numbered 016902) to Blue Ribbon for $112,179.68. Def. Ex. 27. According to Progreso internal records, check number 016902 was used to pay for two Blue Ribbon invoices: number 25802, dated February 25, 2005, for $61,419.68, and number 26028, dated March 29, 2005, for $50,760. Def. Ex. 27.

The third order of chicken at issue in this case is purchase order number 03-11178, also for 1,350 units of frozen, boneless skinless chicken thigh meat. Sometime in March 2005, Blue Ribbon prepared an internal worksheet for that purchase order number showing that Progreso had ordered 1,350 units of frozen, boneless skinless chicken thighs and would be billed $50,760 for that order pursuant to invoice number 26028. Def. Ex. 28. The worksheet also showed that the product would be shipped on March 11 and delivered by March 21. Def. Ex. 28. On March 11, Whoops Transport issued an invoice to Blue Ribbon for transporting purchase order 03-11178 to the port from which it would then be shipped to Puerto Rico in container HRZU-580617. Def. Ex. 31. The Whoops Transport invoice for that order identified the consignee as "Jose Santiago, Inc" located in Bayamon, Puerto Rico. Def. Ex. 31. A bill of lading from HorizonLines LLC shows that purchase order 03-11178/container HRZU-580617-5 was shipped to Puerto Rico on a vessel named "Hawaii" for consignee "Jose Santiago/Road #5 KM 4.4/Industrial Zone Luchetti/Bayamon/PR." Def. Ex. 30. On March 21, Blue Ribbon issued invoice number 26028 to Progreso. Def. Ex. 29. That invoice--which is marked "PAID" and stamped with the date April 15, 2005--sought payment of $50,760 for 1,350 pieces of chicken delivered pursuant to purchase order 03-11178. Def. Ex. 29.

Blue Ribbon now argues that Progreso received three orders of chicken--under purchase orders T-4153, 03-11178 and T-4157 --but that it only paid for the first two. Progreso, on the other hand, submits that it never received the chicken identified purchase order 03-11178. It believes that purchase order 03-11178 was sold and delivered to Jose Santiago, an unrelated third party. Progreso maintains that it only ordered and received two orders of chicken, T-4153 and T-4157, which were billed, respectively, in invoices 26091 and 26179. However, Progreso concedes that it mistakenly referenced invoice number 26028 (which is in fact the bill for purchase order 03-11178) when it issued the check for $112,179.68, although it in fact intended to pay Blue Ribbon for purchase order T-4157/invoice 26179. For that reason, Progreso submits, Blue Ribbon claims that Progreso still owes it for purchase order T-4157/invoice 26179.

B. Pastrami Order 09-14470

Blue Ribbon also contends that Progreso has failed to pay for an order of 54,000 pounds of pastrami. The record shows that Blue Ribbon originally ordered the product, which consisted of 51,000 pounds of flat round pastrami and 3,000 pounds of sliced pastrami, from Beef International on or near September 7, 2006. Def. Ex. 2.n.; Def. Ex. 4.*fn5 A bill of lading from Whoops Transport reflects that purchase order 09-14470 was packaged in container CMCU-550116-6 and transported to Blue Ribbon on behalf of Beef International. Def. Ex. 4. Crowley Liner Services then received the container from Whoops Transport and shipped it from Pennsauken, New Jersey to San Juan, Puerto Rico. Def. Ex. 5. The Crowley Liner Services bill of lading identified the "consignee" as Blue Ribbon Commodity Traders, located in Juana Diaz, Puerto Rico. Def. Ex. 5. On ...


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