The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ON MOTION FOR SUMMARY JUDGMENT (Docs. 21)
On October 31, 2011, Plaintiff Pandol Associates Marketing, Inc. ("Pandol") brought this action for violation of the Perishable Agricultural Commodities Act of 1930 ("PACA"), 7 U.S.C. § 499 against Defendant Robinson Company d/b/a C.H. Robinson Worldwide, Inc. ("CHR"). Before the Court is Pandol's motion for summary adjudication as to its sole cause of action under PACA. Having considered the parties' arguments and the entire record, the Court GRANTS Pandol's motion for summary adjudication.
On February 27, 2010, an earthquake with a magnitude of 8.8 occurred near the coast of Chile and triggered aftershocks as well as a tsunami that struck the Chilean coast.
On March 17, 2010, Pandol and CHR entered into an agreement for Pandol to supply two loads of grapes for shipment from Chile to Brazil to CHR's co-signees, LPD Import and Export ("LPD") and Hetros Import and Export ("Hetros"). CHR, through Viviane Schappo ("Schappo"), sent Loading Order #1065 on March 17, 2010 and Loading Order #1062 on March 18, 2010 to Pandol for the two loads of grapes. Pandol then generated Invoice #51984 in relation to Loading Order #1065 and Invoice #51985 in relation to Loading Order #1062. Each loading order and its related invoice specify the price per unit of the produce agreed upon by Pandol and CHR. Each loading order also states the amount of produce CHR ordered and the corresponding invoice states the amount of produce with which Pandol filled the order. Both loading orders state the "Payment Terms" as "after good arrival" and the produce as "FOB CHILE." Loading Order #1065 states the "Cut off" as Tuesday, March 23, and the estimated time of arrival in Brazil as March 24. Loading Order #1062 states the "Cut off" as Wednesday, March 24, and the estimated time of arrival in Brazil as April 2. Nonetheless, CHR alleges that, when it sent the Loading Orders to Pandol, CHR "did not have a specific timeframe in which the fumigation process or pick-up would transpire."
Shortly after March 18, 2010, Pandol instructed its suppliers to fumigate the two loads of grapes and prepare them for shipping.
On March 20, 2010, Pandol notified CHR that the grapes for Loading Orders #1065 and #1062 were available for pick-up. However, LPD and Hetros informed CHR that they could not locate available trucks.
On April 6, 2010, Jim Pandol sent an email to CHR stating that CHR repeatedly told Pandol that trucks would come to load within one to two days, but, after three weeks, CHR still had not picked up the loads of grapes. He also stated that, "[b]ased on firm orders from CHR the product was fumigated," and that, "[f]umigation is hard on the product and required timely movement after fumigation." Jim Pandol emphasized the perishable nature of the produce and stated that some of the grapes have become "tired" and showed discoloration. He stated that Pandol can load the product according to CHR's wishes, "but at this point the terms would have to be FOB acceptance final."
On April 7, 2010, CHR responded by informing Pandol that its co-signees still could not locate available trucks due to the effects of the February 27, 2010 earthquake and refusing to modify the terms of the agreement to FOB final acceptance.
Jim Pandol responded that he "[u]nderstood" and that Pandol would work to mitigate damages.
On April 12, 2010, Jim Pandol sent an email to CHR stating that the situation had not changed and that CHR may send its own inspector. On April, 12, 2010, CHR responded by asking whether the cargo was ready.
On April 14, 2010, LPD picked up the load of grapes for Loading Order #1065. On April 16, 2010, Hetros picked up the load of grapes for Loading Order #1062. Neither the co-signees nor CHR inspected the produce prior to loading.
After the loads arrived in Brazil, a third party inspector surveyed the produce on April 27, 2010. The inspector found some of the grapes in ...