Kotecha Brothers LLC v. Alam Produce Corp. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
KOTECHA BROTHERS LLC,
Plaintiff,
v.
ALAM PRODUCE CORP. and ALAM
TAMZIMUL,
Defendants.
REPORT &
RECOMMENDATION
24-cv-7044 (NCM) (LKE)
X
LARA K. ESHKENAZI, United States Magistrate Judge:
Before the Court is the motion of Kotecha Brothers LLC (“Plaintiff” or “Kotecha”) for
default judgment against Defendants, Alam Produce Corp. (“Alam Produce”) and Alam Tamzimul
(“Tamzimul”) (collectively, “Defendants”). For the reasons set forth below, the Court respectfully
recommends granting the motion for default judgment and awarding damages in the amount set
forth below.
I. 	BACKGROUND
Plaintiff Kotecha is a produce wholesaler licensed as a dealer under the Perishable
Agricultural Commodities Act, 7 U.S.C. § 499e(c)(5) (“PACA”) under license number 20100413.
(Compl. ¶ 3, ECF 1.) Plaintiff alleges that Defendant Alam Produce is a produce wholesaler, and
that Defendant Tamzimul is “an officer, director and/or equity holder of [Alam Produce].” (Id. ¶¶
4, 6.) Plaintiff further alleges that Defendant Alam Produce purchased sufficient quantities of
produce per day to meet the 2,000-pound threshold required to be classified as a “dealer” under
PACA. (Id. ¶ 5); see 7 C.F.R. § 46.2(x). According to Plaintiff, Defendant Alam Produce
purchased and received $37,749.00 in produce, but failed to pay for the goods when payment was
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due. (Compl. ¶¶ 9, 15; Compl. Ex. A at 1, ECF 1-1.) Indeed, Plaintiff claims that Alam Produce
owes Plaintiff the entire $37,749.00 principal amount, which it has failed to pay despite repeated
demands. (Compl. ¶¶ 13, 15.)
Plaintiff commenced this suit with the filing of its Complaint on October 7, 2024, seeking
relief under the trust provisions of PACA. (See generally, ECF 1.) Specifically, the Complaint
alleges: (1) failure by Alam Produce to maintain PACA trust assets sufficient to make payment to
Plaintiff in violation of PACA and PACA regulations (id. ¶¶ 8-24); (2) the unlawful dissipation of
PACA trust assets by both Defendants (id. ¶¶ 25-28); (3) the failure to pay PACA trust funds by
Tamzimul (id. ¶¶ 29-33); (4) the breach of fiduciary duty by both Defendants (id. ¶¶ 34-38); and
(5) entitlement to damages, interest, and attorneys’ fees under PACA from all Defendants (id. ¶¶
39-41).
Plaintiff served both Defendant Alam Produce and Defendant Tamzimul with the
Summons and Complaint by delivering copies of both to Tamzimul in person on January 7, 2025.
(Decl. Timothy J. Fierst ¶ 9, ECF 23 (“Fierst Decl.”); Aff. of Serv., ECF 8.) Defendants failed to
answer or otherwise respond to the Complaint within the twenty-one day period provided by Fed.
R. Civ. P. 12(a), which expired on January 28, 2025. (Fierst Decl. ¶ 10; ECF 8 (noting in docket
text that Defendants’ Answers were due by January 28, 2025).)
Plaintiff received the Clerk’s Certificates of Default on May 15, 2025. (ECF 20, 21.)
Plaintiff filed a motion for default judgment on August 5, 2025, (ECF 22) and the Honorable
Natasha C. Merle referred the motion to the undersigned for a report and recommendation (August
6, 2025, Order).
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II. 	DISCUSSION
A. 	Jurisdiction and Venue
“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Here, Plaintiff asserts claims
under PACA, 7 U.S.C. § 499e(c)(5). (Compl. ¶ 1.) Given that this action arises under the laws of
the United States, the Court has subject matter jurisdiction over this action. See, e.g., Rocha v.
Bakhter Afghan Halal Kababs, Inc., 44 F. Supp. 3d 337, 345 (E.D.N.Y. 2014).
“For a federal court to exercise personal jurisdiction over a defendant, the plaintiff’s service
of process upon the defendant must have been procedurally proper.” Windward Bora LLC v.
Valencia, No. 19-cv-4147 (NGG) (RER), 2020 WL 6470293, at *2 (E.D.N.Y. Oct. 16, 2020), R.
& R. adopted, 2020 WL 6450286 (E.D.N.Y. Nov. 3, 2020). Federal Rule of Civil Procedure
4(h)(1)(A) provides that a corporate defendant must be served “in the manner prescribed by Rule
4(e)(1) for serving an individual[.]” Fed. R. Civ. P. 4(h)(1)(A). Moreover, under subsection (B),
the summons and complaint may be served by delivering a copy “to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to receive service of process
and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy
of each to the defendant.” Fed. R. Civ. P. 4(h)(1)(B). Rule 4(e)(1) states that an individual may be
served by “following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made[.]” Fed. R. Civ.
P. 4(e)(1). The New York Civil Practice Law and Rules (“NYCPLR”) permit that “[p]ersonal
service upon a corporation … shall be made by delivering the summons…to an officer, director,
managing or general agent.” N.Y. C.P.L.R. § 311(a)(1).
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Here, Plaintiff has properly served Defendants in this action. Alam Produce is a New York
corporation, so service of process of the Summons and Complaint upon Tamzimul, an “officer,
director and/or equity holder of” Alam Produce, constitutes proper service on Defendant Alam
Produce under the NYCPLR. (Compl. ¶¶ 4, 6.) On January 7, 2025, Lee Pakulsky delivered and
left a copy of the Summons and Complaint with Defendant Tamzimul in his capacity as “the owner
and President of ALAM PRODUCE CORP.” (Aff. of Serv., ECF 8.) Plaintiff subsequently filed
the proof of service with the Court on January 9, 2025. (Id.)
Also on January 7, 2025, Plaintiff properly served Defendant Tamzimul. (Id.) The
Affidavit of Service executed by Lee Pakulsky indicates that he completed personal service on
Defendant Tamzimul at his place of residence by depositing a copy of the Summons and Complaint
with Defendant Tamzimul personally. (Id.; N.Y. C.P.L.R. § 308(2) (describing service on a natural
person “by delivering the summons within the state to the person to be served”). On January 9,
2025, Plaintiff filed the proof of service, indicating that the Summons and Complaint had also been
mailed to Tamzimul’s last known address. (ECF 8.)
“[A] civil action may be brought in a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located.” 28 U.S.C. § 1391(b)(1). A
corporation is deemed to be a resident of “any district” in “a State which has more than one judicial
district and in which . . . [that] corporation is subject to personal jurisdiction at the time an action
is commenced.” Id. at § 1391(d). As alleged, Alam Produce is a New York corporation with a
principal place of business in Brooklyn, New York. (Compl. ¶ 4.) Defendant Tamzimul is also a
resident of Brooklyn, New York. (Aff. of Serv., ECF 8; Compl. ¶ 6.) Therefore, venue in the
Eastern District of New York is proper. See 28 U.S.C § 1391(b)(1).
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B. 	Default Judgment Standard
Under Rule 55 of the Federal Rules of Civil Procedure, there are two steps to entering a
default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the
Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party’s default on the
Clerk’s record of the case. Fed R. Civ. P. 55(a) (providing that “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s default.”). This first step is
nondiscretionary. See United States v. Conolly, 694 F. App’x 10, 12 (2d Cir. 2017). Second, after
the Clerk of the Court enters a defendant’s default, the court may enter a default judgment. See
Fed R. Civ. P. 55(b).
Whether or not a default judgment is issued is within the discretion of the court. When
evaluating a plaintiff’s application for a default judgment, “a court is required to accept all …
factual allegations as true and draw all reasonable inferences in [plaintiff’s] favor.” Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). “Nevertheless, it remains for the court to consider
whether the unchallenged facts constitute a legitimate cause of action, since a party in default does
not admit conclusions of law.” La Barbera v. ASTC Labs., Inc., 752 F. Supp. 2d 263, 270 (E.D.N.Y.
2010) (internal quotations and citations omitted); see TAGC Mgmt., LLC v. Lehman, Lee & Xu
Ltd., 536 F. App’x 45, 46 (2d Cir. 2013) (“[P]rior to entering default judgment, a district court is
required to determine whether the plaintiff’s allegations establish the defendant’s liability as a
matter of law.” (internal quotations and citations omitted)).
“Default judgments are generally disfavored and are reserved for rare occasions.” City of
New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (quoting Enron Oil Corp.,
10 F.3d at 96) (internal quotation marks omitted). While the Second Circuit has recognized the
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“push on a trial court to dispose of cases that, in disregard of the rules, are not processed
expeditiously [and] ... delay and clog its calendar,” it has held that a district court must balance
that interest with its responsibility to “afford[] litigants a reasonable chance to be heard.” Enron
Oil Corp., 10 F.3d at 96. Thus, considering the “oft-stated preference for resolving disputes on the
merits,” doubts should be resolved in favor of the defaulting party. See id. at 95-96. Accordingly,
a plaintiff is not entitled to a default judgment as a matter of right simply because defendants are
in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993)
(noting that courts must “supervise default judgments with extreme care to avoid miscarriages of
justice”).
“In determining whether to enter a default judgment, the Court is guided by the same
factors that apply to a motion to set aside entry of a default.” Double Green Produce, Inc. v. Forum
Supermarket Inc., No. 18-cv-2660 (MKB) (SJB), 2019 WL 1387538, at *2 (E.D.N.Y. Jan. 29,
2019) (citing Enron Oil Corp., 10 F.3d at 96; Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167,
170-71 (2d Cir. 2001)). “These factors are 1) whether the defendant’s default was willful; 2)
whether the defendant has a meritorious defense to plaintiff’s claims; and 3) the level of prejudice
the non-defaulting party would suffer as a result of the denial of the motion for default judgment.”
Id. at *2 (quoting Mason Tenders Dist. Council v. Duce Constr. Corp., No. 02-cv-9044, 2003 WL
1960584, at *2 (S.D.N.Y. Apr. 25, 2003)) (internal quotation marks omitted).
As to the first factor, “a defendant’s nonappearance and failure to respond sufficiently
demonstrates willfulness.” Luna v. Gon Way Constr., Inc., No. 16-cv-1411 (ARR) (VMS), 2017
WL 835321, at *4 (E.D.N.Y. Feb. 14, 2017) (collecting cases), R. & R. adopted, 2017 WL 835174
(E.D.N.Y. Mar. 2, 2017). Here, neither Defendant has filed an answer nor otherwise responded to
the Complaint. Accordingly, Defendants’ willful non-engagement and failure to answer or
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otherwise participate sufficiently demonstrates willfulness. See Traffic Sports USA v. Modelos
Restaurante, Inc., No. 11-cv-1454 (ADS) (AKT), 2012 WL 3637585, at *2 (E.D.N.Y. Aug. 1,
2012), R. & R. adopted, 2012 WL 3626824 (E.D.N.Y. Aug. 22, 2012) (finding the defendant’s
failure to respond “in any way” to the Complaint, combined with the affidavits demonstrating
proper service, confirmed beyond “any doubt” that the defendant’s failure to respond was willful).
Turning to the second factor, Defendants’ failure to appear sufficiently in this action has
left the Court unable to assess whether they have a meritorious defense. “Where a defendant fails
to answer the complaint, courts are unable to make a determination whether the defendant has a
meritorious defense to the plaintiff’s allegations[.]” See Joseph v. HDMJ Rest., Inc., 970 F. Supp.
2d 131, 143 (E.D.N.Y. 2013). This factor therefore weighs in favor of granting a default judgment
against Defendants.
Finally, with respect to the third factor, Plaintiff will be prejudiced if the motion for default
judgment is denied because “[w]ithout the entry of a default judgment, [Plaintiff] would be unable
to recover for the claims adequately set forth in the Complaint.” Korzeniewski v. Sapa Pho
Vietnamese Rest. Inc., No. 17-cv-5721 (MKB) (SJB), 2019 WL 312149, at *4 (E.D.N.Y. Jan. 3,
2019) (quoting Sola Franchise Corp. v. Solo Salon Studios Inc., No. 14-cv-946 (JS) (AKT), 2015
WL 1299259, at *15 (E.D.N.Y. Mar. 23, 2015)). Accordingly, the Court recommends finding that
Defendants’ failure to sufficiently appear in this matter constitutes an admission of the factual
allegations therein.
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C. 	Liability
1. 	Alam Produce’s Liability under PACA
Plaintiff argues that it is entitled to relief under PACA because Defendants violated
PACA’s trust provision. (Mem. L. at 3-5, ECF 25.) The Court agrees. For a plaintiff to succeed on
a claim for violation of the PACA trust, it must show the following:
First, a plaintiff must have sold defendant perishable agricultural
commodities. Second, plaintiff must show that the purchaser of the
perishable 	agricultural 	commodities, 	the 	defendant, 	was 	a
“commission merchant, dealer, or broker,” pursuant to Section
499(a) of PACA…Third, the transaction must have occurred in
interstate commerce. Fourth, the seller of the perishable agricultural
commodities has not received full payment from defendants on the
transaction. Finally, the seller must have preserved its interest in the
PACA trust by giving written notice.
A&B Alt. Mktg. Inc. v. Int’l Quality Fruit Inc., 521 F. Supp. 3d 170, 173 (E.D.N.Y. 2021) (quoting
Associated Produce, Inc. v. LaSejita Produce, Inc., No. 19-cv-5894, 2020 WL 2476036, at *4
(E.D.N.Y. Apr. 22, 2020), R. & R. adopted, 2020 WL 2475620 (E.D.N.Y. May 13, 2020)).
First, PACA defines “perishable agricultural commodities” as “[f]resh fruits and fresh
vegetables of every kind and character,” including frozen fruits and vegetables or fruits and
vegetables packed in ice. 7 U.S.C. § 499a(b)(4). The United States Department of Agriculture
defines “fresh fruits and fresh vegetables” as including “all produce in fresh form generally
considered as perishable fruits and vegetables.” 7 C.F.R. § 46.2(u). The Complaint alleges that
Plaintiff is “engaged in the business of buying and selling wholesale quantities of perishable
agricultural commodities,” and that Plaintiff “sold and delivered to [Alam Produce] at their request,
in interstate commerce, perishable agricultural commodities.” (Compl. ¶¶ 3, 9.) In addition,
Plaintiff’s invoices to Defendants indicate that Plaintiff sold Defendant Alam Produce a wide
variety of fresh fruits and vegetables, including green papayas, guavas, mangos, and red Thai
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chillis, among others. (Decl. Lee Pakulsky ¶ 10, ECF 24 (“Pakulsky Decl.”); Pakulsky Decl. Ex.
A.)
As to the second element, this Court finds that Defendant Alam Produce is a “dealer” as
defined by PACA. Indeed, Alam Produce is currently licensed under PACA license number
20240109. (Compl. ¶ 4.)
Next, the transactions identified in the invoices submitted by Plaintiff reflect produce
involved in interstate transport. (See Pakulsky Decl. Ex. A.) PACA provides that the term
“interstate or foreign commerce” reflects commerce “between any State or Territory, or the District
of Columbia and any place outside thereof,” and involves trade in a commodity that “is part of that
current of commerce usual in the trade in that commodity whereby such commodity and/or the
products of such commodity are sent from one State with the expectation that they will end their
transit, after purchase, in another.” 7 U.S.C. §§ 499a(b)(3), 499a(b)(8). This expansive definition
includes Plaintiff’s shipments to Alam Produce; as sworn to by Mr. Pakulsky, “[t]he produce that
is described on the invoices annexed as Exhibit ‘A’ was shipped to the Defendants in
contemplation of foreign and/or interstate commerce between the State of New York …, among
others[.]” (Pakulsky Decl. ¶ 13.)
Finally, there is little dispute that Defendants have failed to pay the amount due under the
invoices submitted by the Plaintiff. A produce purchaser violates PACA merely by failing to make
prompt payment for the produce received. Pac. Int’l Mktg., Inc. v. A & B Produce, Inc., 462 F.3d
279, 282 (3d Cir. 2006) (“A buyer’s failure to tender prompt payment triggers civil liability”).
PACA regulations define “prompt payment” for goods delivered by truck as within “10 days after
the day on which the produce is accepted.” 7 C.F.R. § 46.2(aa)(5). Delivery was completed on the
transactions at issue between May 17, 2023, and June 24, 2023. (Compl. ¶ 9.) By the time the
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instant action was initiated on October 7, 2024, Defendants had “failed and refused to pay for the
commodities despite repeated demands” and “[t]he amount due is thirty-seven thousand seven
hundred forty-nine and 00/100 ($37,749.00) dollars.” (Id. ¶¶ 13, 15 (emphasis omitted).) The
Complaint was filed more than 10 days after the last transaction. Finally, Plaintiff preserved its
PACA trust rights by including the statutory trust language on the face of its invoices to Defendants.
(See Mem. L. at 3; Pakulsky Decl. Ex. A.) As such, Plaintiff has demonstrated that Defendant
Alam Produce is liable for violating its obligations under PACA to pay its debt owed to Plaintiff,
a PACA beneficiary. See, e.g., S. Katzman Produce, Inc. v. Won, No. 08-cv-2403 (KAM) (VVP),
2009 WL 2448408, at *4 (E.D.N.Y. Aug. 7, 2009); Maspeth Trading, Inc. v. Ou Jiang Supermarket,
Inc., No. 12-cv-1997 (NGG) (VMS), 2014 WL 3548507, at *4-5 (E.D.N.Y. July 17, 2014).
2. 	Tamzimul’s Liability under PACA
An individual in a position to oversee the proper application of PACA trust assets and who
does not preserve trust assets for the beneficiaries has breached a fiduciary duty and is personally
liable, regardless of the reason for the breach. S. Katzman Produce Inc. v. Yadid, 999 F.3d 867,
875-76 (2d Cir. 2021); Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705-06 (2d Cir.
2007). “‘[A]ny act or omission which is inconsistent with this responsibility, including dissipation
of trust assets, is unlawful.’” Coosemans Specialties, 485 F.3d at 706 (quoting 7 C.F.R. §
46.46(d)(1)). “Dissipation” is “any act or failure to act which could result in the diversion of trust
assets or which could prejudice or impair the ability of unpaid suppliers, sellers, or agents to
recover money owed in connection with produce transactions.” 7 C.F.R. § 46.46(a)(2). Where an
individual is alleged to have been in control of PACA trust assets and is responsible for the
dissipation, he can be personally liable and jointly and severally liable with the corporate dealer-
buyer. See Giumarra Agricom Int’l, LLC v. Fresh Growers Direct, Inc., No. 17-cv-2222 (CBA)
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(PK), 2018 WL 1136037, at *5 (E.D.N.Y. Jan. 30, 2018), R. & R. adopted, 2018 WL 1136085
(E.D.N.Y. Feb. 28, 2018); Maspeth Trading, 2014 WL 3762694, at *6; Brigiotta’s Farmland
Produce & Garden Ctr., Inc. v. Przykuta, Inc., No. 05-cv-273S, 2006 WL 3240729, at *4
(W.D.N.Y. July 13, 2006).
Plaintiff identifies Defendant Tamzimul as “the principal of Alam [Produce]” who “is in
control of the day-to-day operations of Alam [Produce].” (Mem. L. at 5; see also Compl. ¶ 6
(“Tamzimul … is and was an officer, director, and/or equity holder of Alam [Produce] during the
period of time in question who controlled the operations of Alam [Produce] and is and was in [a]
position of control over, and participated in the dissipation of, the PACA trust assets[.]” (emphasis
omitted)).) Plaintiff notes that Tamzimul “ordered Produce from Plaintiff on behalf of Alam
[Produce].” (Mem. L. at 5.) Tamzimul failed to turn over the PACA trust assets at issue when
payment was due. (Id.; Compl. ¶¶ 6, 29-33.) As someone in a “position of control” over the PACA
trust assets, Defendant Tamzimul was personally responsible for ensuring that the PACA trust
assets were not dissipated and were freely available to pay Plaintiff. See Coosemans Specialties,
485 F.3d at 706 (an officer or director of a produce company in a “position of control” over PACA
trust assets is personally liable for a breach of the PACA trust regardless of whether or not he
personally dissipated the assets.)
By virtue of Defendants’ default, the Court may deem admitted Plaintiff’s allegations that
Tamzimul was in a position to prevent the dissipation and/or conversion of the trust assets, but
failed to do so. See Won, 2009 WL 2448408, at *4. Accordingly, the Court respectfully
recommends finding that Plaintiff has made a sufficient showing that Defendant Tamzimul
breached his fiduciary duty as PACA trustee and is personally liable for his failure to preserve
PACA trust assets for Plaintiff’s benefit.
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D. 	Damages
Federal Rule of Civil Procedure 55(b)(2) provides courts discretion to determine whether
an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary
evidence. Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991). “The court may
determine damages without an in-person hearing based on the plaintiff’s affidavits so long as it
can ensure a basis for the damages specified in the default judgment.” Zabrodin v. Silk 222, Inc.,
702 F. Supp. 3d 102, 113 (E.D.N.Y. 2023) (internal citation omitted). The moving party is “entitled
to all reasonable inferences from the evidence offered.” Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 61, 65 (2d Cir. 1981).
Under PACA Section 499e(a), a dealer found to be in violation “shall be liable to the person
or persons injured thereby for the full amount of damages … sustained in consequence of such
violation.” Here, the Declarations of Timothy Fierst and Lee Pakulsky, along with the attached
exhibits, are sufficient to establish Plaintiff’s damages. Plaintiff asserts that it is entitled to a
principal amount of $37,749.00, which is a sum certain predicated on Plaintiff’s unpaid invoices.
(Fierst Decl. ¶¶ 5-6; Pakulsky Decl. ¶ 10, Ex. A.) Defendants have not responded to Plaintiff’s
motion, and therefore have not opposed this amount or the validity of the invoices. As such,
Plaintiff’s unopposed evidence is sufficient to establish that Plaintiff is owed $37,749.00 in
damages for Defendants’ failure to timely remit PACA trust funds to Plaintiff. See, e.g., G & P
Warehouse, Inc. v. Cho’s Church Ave. Fruit Mkt., No. 15-cv-6174 (NG) (CLP), 2016 WL 5802747,
at *6 (E.D.N.Y. Aug. 12, 2016), R. & R. adopted, 2016 WL 5716819 (E.D.N.Y. Sept. 30, 2016)
(awarding damages based on invoices in a motion for default judgment); Mikey’s Choice LLC v.
Fagos LLC, No. 08-cv-4492 (RMM), 2010 WL 935550, at *3 (E.D.N.Y. Feb. 19, 2010), R. & R.
adopted, 2010 WL 934260 (E.D.N.Y. Mar. 12, 2010) (same).
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E. 	Prejudgment Interest
Plaintiff alleges that it is entitled to prejudgment interest at the rate of 9% per annum.
(Mem., Inc., No. 04-cv-2666, 2005 WL 1149774, at *2 (S.D.N.Y. May 16, 2005), R. L. at 4.)
“PACA itself does not create a right to attorneys’ fees or interest[.]” Top Banana, L.L.C. v. Dom’s
Wholesale and Retail Center & R. adopted, 2005 WL 1529736 (June 28, 2005). “[B]ut where the
parties’ contracts include such terms, they can be awarded (and are subject to the PACA trust) as
‘sums owing in connection with’ perishable commodities transactions under PACA.” Id. (citing 7
U.S.C. § 499e(c)(2)).
While the invoices submitted by Plaintiff do not reference interest, the Court may in its
discretion award prejudgment interest. See Rodgers v. United States, 332 U.S. 371, 373 (1947)
(“[T]he failure to mention interest in statutes which create obligations has not been interpreted by
this Court as manifesting an unequivocal congressional purpose that the obligation shall not bear
interest.”). Indeed, courts have awarded prejudgment interest under PACA based on Congress’s
intent in creating PACA to protect agricultural suppliers. See In re W.L. Bradley Co., Inc., 78 B.R.
92, 93-94 (Bankr. E.D. Pa. 1987) (awarding prejudgment interest from the date of default aligns
with the “Congressional concern for prompt payment of PACA trust obligations”); Morris Okun,
Inc. v. Harry Zimmerman, Inc., 814 F. Supp. 346, 351 (S.D.N.Y. 1993) (noting that “the award of
prejudgment interest … is within the discretion of the Court”); Tray-Wrap, Inc. v. Meyer, No. 90-
cv-7688, 1994 WL 710804, at *7 (S.D.N.Y. Dec. 20, 1994) (awarding prejudgment interest in
PACA litigation where “prejudgment interest is committed to the sound discretion of the court”
under federal law). As such, this Court respectfully recommends that Plaintiff be awarded
prejudgment interest on the amount due at a rate of 9% per annum from the date of default.
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F. 	Attorneys’ Fees and Costs
Lastly, Plaintiff claims that it is entitled to $3,200.00 in attorneys’ fees and costs. (Fierst
Decl. ¶¶ 16-21; Mem. L at 5-6.) The Second Circuit has confirmed that, “where the parties’
contracts include a right to [reasonable] attorneys’ fees, they can be awarded as ‘sums owing in
connection with’ perishable commodities transactions under PACA.” Coosemans Specialties, 485
F.3d at 709 (citations omitted). Indeed, “PACA explicitly provides for an award of attorneys’ fees
when the parties’ contract so provides, as the fees become subject to the PACA trust together with
the principal debt.” Higueral Produce, Inc. v. CKF Produce Corp., No. 18-cv-6760 (NGG) (SJB),
2019 WL 5694079, at *11 (E.D.N.Y. Aug. 16, 2019) (quoting G & P Warehouse, Inc., 2016 WL
5802747, at *9). Unlike the award of prejudgment interest, the Court does not have the discretion
to award attorneys’ fees and costs in the absence of such contractual language. See E. Armata, Inc.
v. Platinum Funding Corp., 887 F. Supp 590, 594-95 (S.D.N.Y. 1995) (“Attorneys[’] fees are not
available under the PACA statute where a contractual basis for the fees is lacking,” but are
available if the parties’ contract calls for attorneys’ fees).
As mentioned above, supra II.E, standard form provisions included on invoices are
considered terms of a contract between two parties under PACA. Plaintiff’s invoices contain the
following language, which does not include any reference to attorneys’ fees:
The perishable agricultural commodities listed on this invoice are
sold subject to the statutory trust authorized by section 5(c) of the
Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)).
The seller of these commodities retains a trust claim over these
commodities, all inventories of food or other products derived from
these commodities, and any receivables or proceeds from the sale of
these commodities until full payment is received.
(Pakulsky Decl. Ex. A.) Due to the silence of the invoices on the issue of attorneys’ fees, this Court
cannot consider attorneys’ fees part of a contract created by the invoices and therefore respectfully
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recommends that Plaintiff be denied attorneys’ fees and costs. See Harry Zimmerman, Inc., 814 F.
Supp. at 351 (denying attorneys’ fees in PACA litigation for plaintiff whose invoices were silent
on the subject).
III. 	CONCLUSION
Based on the foregoing, this Court respectfully recommends that (1) Plaintiff’s motion for
default judgment be granted as to liability; (2) Plaintiff be awarded prejudgment interest on the
amount due be awarded at a rate of 9% per annum from the date of default; (3) Plaintiff be awarded
$37,749.00 for unpaid invoice amounts past due; and (4) Plaintiff be denied attorneys’ fees and
costs.
A copy of this Report and Recommendation is being served on Plaintiff via ECF. The Clerk
of Court is respectfully directed to mail a copy of this Report and Recommendation to Defendant
Alam Produce Corporation at the following address forthwith: 230 Ocean Parkway, Apt. 4F,
Brooklyn, NY 11218; and to mail a copy to Defendant Alam Tamzimul at the same address
forthwith. Plaintiff is also directed to mail a copy of this Report and Recommendation to
Defendants and to file proof of service of mailing by February 13, 2026.
Within 14 days of service, any party may serve and file specific written objections to this
Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests for
an extension of time to file objections shall be directed to Judge Merle. If a party fails to object
timely to this Report and Recommendation, it waives any right to further judicial review of this
decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).
SO ORDERED.
Brooklyn, New York
February 10, 2026
______________________________
LARA K. ESHKENAZI
United States Magistrate Judge
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