United States District Court, S.D. Texas, Corpus Christi Division
Tagle Senior United States District Judge
REMEMBERED that on March 31, 2017 the Court
GRANTED Plaintiff Texas State Aquarium's
Motion for Default Judgment against Asiamerica Enterprise,
Inc., Dkt. No. 65; and GRANTED Third Party
Plaintiff Fishman Chemical of North Carolina, LLC's
Motion for Default Judgment against Asiamerica Enterprise,
Inc., Dkt. No. 66.
14, 2015 Plaintiff Texas State Aquarium Association D/B/A
Texas State Aquarium (“TSA”) filed a complaint
against Defendants Fishman Chemical of North Carolina, L.L.C.
(“Fishman Chemical”), David A. Fishman (“D.
Fishman”), and Michael Fishman (“M.
Fishman”) (collectively “Defendants”).
Compl., Dkt. No. 1. TSA filed its first amended complaint on
May 18, 2015, alleging, inter alia, a breach of
contract claim against Fishman Chemical. First Am. Compl.,
Dkt. No. 4. TSA alleged that on April 8, 2015 it purchased 1
kilogram of trichlorfon, a chemical used to treat parasites
in water systems, from Fishman Chemical, and subsequently
received a package labeled as 1 kilogram of tricholorfon.
Id., ¶ 3.6. TSA alleged that after
administering chemicals from this package to its 240,
000-gallon seawater system, the system immediately
experienced a 98% mortality rate, resulting in the almost
immediate loss of 389 specimens. Id., ¶¶
3.2, 3.10. TSA further alleged that the death of these
specimens resulted from Fishman Chemical's provision to
TSA, in violation of the parties' contract, “a
product that was not trichlorofon, ” but instead the
highly toxic chemical hydroquinone. Id., ¶ 4.4.
TSA filed a motion for summary judgment on its breach of
contract claim against Fishman Chemical on July 22, 2016.
Dkt. No. 49.
December 16, 2015, with leave of the Court, TSA filed its
third amended complaint adding Defendants A-FAM, LLC d/b/a
National Fish Pharmaceuticals, Asiaamerica Enterprise, Inc.
d/b/a 2A Pharmachem USA (“Asiamerica”), and AA
Tech Solution, Inc.. Third Am. Compl., Dkt. No. 32. In this
complaint TSA alleged, among other things, a breach of
contract claim against Fishman Chemical essentially identical
to the contract claim raised in TSA's initial filing.
See Dkts. No. 1 and 32. Fishman Chemical filed an
answer to this complaint on December 28, 2015. Dkt. No. 28.
Meanwhile, on December 22, 2015, with leave of the Court,
Fishman Chemical filed a third party complaint against
Asiamerica, alleging the company “is liable for all of
Plaintiff's claims against Defendant [TSA]” on the
basis that “the chemical it sold to Defendant, ”
which was “subsequently sold to TSA, ” was
“not trichlorfon as represented, but was
hydroquinone.” Third Party Compl., Dkt. No. 27
¶¶ 7, 9. Asiamerica, unrepresented by counsel,
responded to this complaint in letter form on April 11, 2016.
See Dkt. No. 38. TSA then filed a motion for default
judgment against Asiamerica on September 6, 2016. Dkt. No.
September 13, 2016 Order, the Court denied TSA's motion
for summary judgment against Fishman Chemical, on the basis
that it had failed to substantiate damages resulting from
Fishman Chemical's breach of contract. Dkt. No. 57. In
this same Order the Court also struck TSA's motion for
default judgment against Asiamerica, on the basis that TSA
had failed to service proper notice of its motion on
Asiamerica and filed its motion out of time. Id. On
September 22, 2016, TSA and Fishman Chemical filed an
unopposed motion and stipulation to enter final judgment
between these two parties, attaching affidavit and other
evidence from TSA attesting to its damages as a result of
Fishman Chemical's breach of contract. Dkt. No. 63. On
this same date, the Court heard argument from TSA and Fishman
Chemical on their joint motion in a hearing, and approved
their stipulated final judgment, ordering, among other
relief, “that plaintiff, TSA, recover the sum of $993,
311.44 and its court costs from defendant Fishman
Chemical.” Dkt. No. 64 at 1. In this hearing, the Court
also granted leave for TSA and Fishman Chemical to file
dispositive motions as to third-party defendant Asiamerica.
Asiamerica did not appear at this hearing.
September 23, 2016, TSA filed a Motion for Default Judgment
against Asiamerica. Dkt. No. 65. On October 17, 2016, Fishman
Chemical followed suit. Dkt. No. 66. Asiamerica's
deadlines to respond to these motions lapsed on October 14,
2016 and November 7, 2016, respectively, and the company has
yet to file any response to either motion. On November 16,
2016, Asiamerica filed an Involuntary Petition under Chapter
7 of the United States Bankruptcy Code, and this case was
automatically stayed pursuant to 11 U.S.C. § 362.
See Dkt. No. 68. This stay was lifted on February
10, 2017. See Dkt. No. 70. As Asiamerica's
deadlines to respond to TSA and Fishman Chemical's
motions for default judgment lapsed before Asiamerica entered
Chapter 7 proceedings, the Court ordered that it would not
extend any deadlines or reschedule any trial settings prior
to its resolution of these pending motions. See Dkt.
Rule of Civil Procedure 55 authorizes a court to enter a
default judgment when a defendant fails to appear in an
action after service of process. Fed.R.Civ.P. 55(b)(2).
Nonetheless, a plaintiff is not entitled to default judgment
as of right. Lewis v. Lynn, 236 F.3d 766, 767 (5th
Cir. 2001). Instead, the court must consider the pleadings
and find sufficient basis therein. Nishimatsu Constr. Co.
v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975). A defendant “admits the plaintiff's
well-pleaded allegations of fact.” Id. That
is, “[u]nlike questions of actual damage, which must be
proved in a default situation, conduct on which liability is
based may be taken as true as a consequence of the
default.” J & J Sports Prods., Inc. v.
Gamez, No. 7:12-CV-333, 2013 WL 1790129, at *1 (S.D.
Tex. Apr. 26, 2013) (quoting Frame v. S-H, Inc., 967
F.2d 194, 205 (5th Cir. 1992) (citations omitted)).
TSA's Motion for Default Judgment against
Motion for Default Judgment, TSA states that pursuant to
Federal Rule of Civil Procedure 12, Asiamerica was required
to file a responsive pleading or otherwise defend the action
against it. Dkt. No. 65 at 3. Asiamerica did file a response
to TSA's third amended complaint adding Asiamerica as a
defendant, but in letter format and unrepresented by counsel.
See Dkt. No. 38. TSA's motion for default argues
that because this communication was not an “appropriate
federal court answer” and because Asiamerica has not
appeared before the Court with licensed counsel, Asiamerica
has “failed to properly appear.” Dkt. No. 65 at
3. TSA further states that Asiamerica is “not in the
military service.” Id. Finally, TSA states
that it sent a copy of its motion by certified mail to
Asiamerica, in compliance with Local Rule 5.5. Id.
Finally, TSA requests a default judgment against Asiamerica
under Federal Rule of Civil Procedure 55(a). Id.
alleges it is entitled to relief against Asiamerica because
Asiamerica “manufactured, designed, tested, and/or
distributed” a chemical distributed to Fishman
Chemical, which then became the “producing and
proximate cause of the death of fish and mammals owned and
cared by [sic] TSA.” Id. TSA requests
that the Court enter default judgment against Asiamerica
awarding “unliquidated damages in the amount of $993,
311.44.” Dkt. No. 65 at 4. Its allegations and
calculation of damages are supported by affidavit and other
evidence that were reviewed by the Court in its September 22,
Court finds that TSA has demonstrated it is entitled to
default judgment against Asiamerica, and ...