Bits & Pieces


Court of Appeals of Wisconsin.




Appeal No. 2016AP1196


June 13, 2017

Cir. Ct. No. 2015CV4024

APPEAL from an order of the circuit court for Milwaukee County: GLENN H. YAMAHIRO, Judge. Affirmed.

Before Brennan, P.J., Kessler and Dugan, JJ.




*1 ¶1 Antrice Hart appeals from an order that granted summary judgment to Esvin Gomez and his insurer Artisan and Truckers Casualty Company (Artisan) and dismissed her complaint. This is a personal injury case that arises from a car accident Gomez caused on August 1, 2014, in which Hart was injured. The circuit court based its order on the full release of claims Hart signed on the day of the accident.


¶2 Hart argues that the full release of claims she signed is inadmissible evidence because WIS. STAT. § 904.12(1) (2015-16),1 by its plain language, prohibits the admission of any “statement made or writing signed by the injured person within 72 hours of the time the injury happened[.]” We disagree and affirm.




¶3 Gomez was driving on Fond du Lac Avenue at about 2:30 p.m. on August 1, 2014, and he rear-ended the car that was behind Hart’s vehicle and pushed it into her vehicle. Hart was injured in the accident.


¶4 At approximately 3:00 p.m., Hart called Artisan to report the claim. At about 3:45 p.m., an Artisan representative called Hart. Hart told the representative she could not take the call at that moment due to a flat tire on her car and asked for a call later. At about 4:30 p.m., an Artisan representative, Ashley Shusta, spoke with Hart by phone. This conversation was recorded, and a transcript of the call was made part of the record. Shusta informed Hart that Hart could take her vehicle to Artisan’s service center for repairs that same day, that Artisan could “set aside $1000 for the next fifteen days” to pay medical bills, and that Artisan could give Hart $500 for her pain and inconvenience. Shusta told Hart that she would need to “sign a release” and that a copy of the release would be ready for her at the service center when she came to drop off her car for repair.


¶5 On that day, the same day as the accident, Hart signed a release titled “Full Release of All Claims with Indemnity.” It expressly stated that the nature and extent of injury was doubtful and disputed, that recovery from any injuries was uncertain and indefinite, that it was not entered into in reliance upon any doctor’s diagnosis, and that Hart was relying wholly on her own judgment, belief and knowledge of the nature, extent, effect and duration of injuries. The release also stated in relevant part:

Antrice Hart, a single person, for and in consideration of the payment of Five Hundred and 00/100 Dollars ($500.00), the receipt and sufficiency of which is hereby acknowledged, does hereby for myself … release acquit and forever discharge Esvin Gomez and Artisan and Truckers Casualty Company … from any and all claims … which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of an accident which occurred on or about 08/01/2014, at or near Milwaukee, Wisconsin. In further consideration, the released parties agree to pay reasonable and necessary medical and/or dental expenses up to a maximum of One Thousand 00/100 Dollars ($1000.00) incurred by me within 15 days after the date of this release ….

*2 The undersigned has read the foregoing release and fully understands it.

(Some capitalization and formatting altered.)


¶6 On May 13, 2015, Hart filed this action. Artisan filed a summary judgment motion. The circuit court granted summary judgment on the grounds that the release of claims barred Hart’s action. This appeal follows.




WISCONSIN STAT. § 904.12(1) does not bar the admission into evidence of an injured person’s release of claims signed within seventy-two hours of the accident.

¶7 The narrow question before us is whether the release Hart signed is admissible evidence. Hart claimed that it was not admissible under WIS. STAT. § 904.12(1) and that therefore her claims survived Artisan’s summary judgment motion. The circuit court concluded that the statute did not bar admission of the release and granted Artisan’s motion.


¶8 We must decide whether in WIS. STAT. § 904.12(1) the legislature intended the rule on the admissibility of statements made or writings signed by an injured party within seventy-two hours of an accident to apply to releases. For the reasons set forth below, we conclude that our supreme court’s interpretation of the predecessor statute to § 904.12(1), which is in all relevant respects identical, is controlling. The supreme court, in Buckland v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 160 Wis. 484, 486, 152 N.W. 289 (1915), concluded that the legislature did not intend the prohibition on such writings to apply to a release of claims. Because we are bound by that holding and agree with the circuit court that the current statute does not prohibit the admission of Hart’s release, we affirm.



Standard of review and principles of law.

¶9 WISCONSIN STAT. § 802.08 governs summary judgment methodology, and we apply that methodology in the same manner as the circuit court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). We examine the summary judgment submissions to determine whether a genuine issue of material fact exists or whether either party is entitled to judgment as a matter of law. See id.


¶10 Additionally, resolution of this appeal requires interpretation of a statute, for which we employ a de novo review. See Wilson v. Waukesha County, 157 Wis. 2d 790, 794, 460 N.W.2d 830 (Ct. App. 1990).


¶11 A settlement agreement is a contract by nature. American Nat’l Prop. and Cas. Co. v. Nersesian, 2004 WI App 215, ¶16, 277 Wis. 2d 430, 689 N.W.2d 922. “An authorized offer from an insurance company, if accepted (and assuming consideration), must be held to create a settlement contract.” Carey v. Dairyland Mut. Ins. Co., Inc., 41 Wis. 2d 107, 117, 163 N.W.2d 200 (1968).



The statute and related case law.

¶12 WISCONSIN STAT. § 904.12(1) states in relevant part:

In actions for damages caused by personal injury, no statement made or writing signed by the injured person within 72 hours of the time the injury happened or accident occurred, shall be received in evidence unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition[.]


*3 ¶13 This prohibition has existed in some form in Wisconsin law since 1911. An almost identical version of the statute was considered by our supreme court in 1915 in Buckland. At that time, the statute read as follows:

In civil actions for damages caused by personal injury no statement made or writing signed by the injured party within seventy-two hours of the time the injury happened or accident occurred, shall be used in evidence against the party making or signing the same unless such evidence would be admissible as part of the res gestae.

Id. at 486 (quoting Laws of 1911, ch. 123, § 4079m).


¶14 The court in Buckland was asked to answer the same question presented here. A party had signed a release of claims and then sought to bar the admission of the release based on the statutory prohibition on the use of writings signed by an injured party within seventy-two hours of the accident. Id. at 485. The court concluded that the Legislature did not intend such releases to be inadmissible: “[h]ad the Legislature intended to prevent settlements being made within seventy-two hours after an injury occurred, it would have said so unequivocally.” Id. at 486. It further reasoned that “[t]he law encourages settlements, and legal presumption favors their validity, and an agreement of settlement cannot be said to be a statement against the interest of either party to it, until it is impeached by the recognized legal methods.” Id. Therefore, it concluded, “[t]he statute was intended to apply to and cover … statements procured for purposes of defense” and not to settlements. Id.



Hart’s arguments.

¶15 Hart argues that the plain language of the statute prohibits a court from considering a written release of claims signed within seventy-two hours even if the statute does not mention releases. Hart argues that, under Kalal, statutory interpretation “begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Hart argues that the release in this case is a “writing signed by the injured person within seventy-two hours of the time the injury happened” and therefore under the statute’s plain meaning, the release cannot be admissible.


¶16 However, that argument ignores the fact that our supreme court has addressed the interpretation of a predecessor statute, and there is controlling authority that must be followed or distinguished. We cannot “stop the inquiry” when a statute or its predecessor has been the focus of previous supreme court interpretations, as is the case here. So we must consider whether WIS. STAT. § 904.12(1) should be interpreted the same way as its predecessor.


¶17 Hart argues that it should not. Hart argues that Buckland does not bind this court because the statute it was interpreting was “similar to but not the same as WIS. STAT. § 904.12(1).” The reason we should interpret it differently, Hart argues, is that the title of the 1911 act that created the statute was “[a]n act to create section 4079m of the statutes, relating to the admission in evidence of statements against interest.” (Emphasis added.) The title of the current statute is “Statement of injured; admissibility; copies.” See WIS. STAT. § 904.12. This, she argues, is a significant difference.


*4 ¶18 We do not agree. First, a title to a statute is not part of the statute. See WIS. STAT. § 990.001(6). “[A] title may not be used to alter the meaning of a statute or create an ambiguity where no ambiguity existed.” Noffke v. Bakke, 2009 WI 10, ¶25, 315 Wis. 2d 350, 760 N.W.2d 156.


¶19 Secondly, the plain language of each version expresses an evidentiary rule. Each version begins with identical language defining the type of statement covered by the statute: “no statement made or writing signed by the injured person within seventy-two [72] hours of the time the injury happened or accident occurred, shall be used in evidence….” Then each addresses the admissibility of such statements in terms of hearsay rules. The older version addresses admissibility in the context of the hearsay exception for a statement against interest, and the newer one expands that to other established hearsay exceptions: “… unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition[.]” WIS. STAT. § 904.12(1).


¶20 The plain language of both versions shows that they are identical in purpose and meaning, and thus Hart’s attempt to distinguish Buckland fails. Buckland expressly held that the legislature intended to encourage settlement and did not intend to exclude settlement releases or it would have said so. Buckland, 160 Wis. at 486. Because the statute is, in essence, the same statute interpreted by the supreme court in Buckland, we are compelled to follow its interpretation. “[W]e are bound by supreme court precedent, even if it is over a century old.” Walberg v. St. Francis Home, Inc., 2004 WI App 120, ¶7 n.4, 274 Wis. 2d 414, 683 N.W.2d 518.


¶21 Additionally, to construe the current statute as Hart argues would conflict with contract law. Hart in effect argues that any release signed by an injured party within seventy two hours must be excluded. But it is well established that a release is a contract, see American Nat’l Prop. and Cas. Co., 277 Wis. 2d 430, ¶16, and when faced with a question about a contract, our supreme court has stated, a court is to be “mindful that the freedom to contract has long been protected in this state.” See Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 148, 539 N.W.2d 883 (1995).


¶22 The absurdity of Hart’s argument is further shown in the plain language of the current statute permitting the admission of a statement by an injured person, as long as it fits within the established hearsay exceptions for present sense impression, or excited utterance or then existing condition. None of these hearsay exceptions have applicability in the contract context because a release provision does not state an injured person’s contemporaneous statement of then-existing startling or traumatic events. See WIS. STAT. § 908.03. Thus, if we were to follow Hart’s interpretation, there is no way to give meaning to those words of the statute––which we are obligated to do. See Kalal, 271 Wis. 2d 633, ¶46 (“Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.”). Additionally, we note that the location of the current statute, in a chapter governing evidentiary rules, is further evidence that it was not intended to apply to the kind of contract entered here, a release agreement.


*5 ¶23 Finally, we note that the legislature’s approval of the Buckland court’s interpretation of the predecessor statute can be inferred from the fact that in a hundred years, it has never expressed its disapproval by amending the statute to specify that releases signed within seventy-two hours are prohibited as evidence. See State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990) (“Further support for our conclusion that [the statute in question] was intended to grant broader rights than [another statute] is found in the fact that the legislature has not acted in response to the broader construction given the former statute in [prior opinions].”). It is presumed that the legislature has full knowledge of existing law. Peters v. Menard, Inc., 224 Wis. 2d 174, 187, 589 N.W.2d 395 (1999). “Legislative inaction following judicial construction of a statute, while not conclusive, evinces legislative approval of the interpretation.” Eichman, 155 Wis. 2d at 566.


¶24 Therefore, because the statute does not bar the admission into evidence of the release Hart signed, and because the release bars her action, the circuit court properly granted summary judgment.


By the Court.—Order affirmed


All Citations

Slip Copy, 2017 WL 2558872





All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.


United States District Court,

M.D. Florida.




Case No: 2:16-cv-606-FtM-99CM


Filed 06/13/2017








*1 This matter comes before the Court on Plaintiff Scotlynn USA Division, Inc.’s (Scotlynn) Motion for Default Judgment (Doc. 25) filed on May 22, 2017. Defendant Z Top Logistics, Inc. (Z Top) has not filed a response and the time to do so has expired. For the reasons set forth below, the motion is granted in part.2




Scotlynn is a freight brokerage company that contracts with motor carriers to transport goods throughout the United States. (Doc. 1 at ¶ 5). Z Top is one such entity with whom Scotlynn contracts. Id. at ¶ 6. On November 12, 2014, Scotlynn and Z Top entered into a Property Broker/Carrier Agreement (the “Agreement”), the terms of which were intended to govern the transport of various loads of cargo for Scotlynn by Z Top. Id. at ¶ 7.


Scotlynn then arranged for Z Top to transport 41,580 pounds of frozen chicken (the “Cargo”) from Missouri to Virginia. Id. at ¶ 9. On October 14, 2015, Z Top picked up the Cargo, and acknowledged its good condition. Id. at ¶ 10. During transit, Z Top was in a rollover accident and the poultry was exposed to outside temperatures for over 14 hours, and rendered unfit for human consumption. Id. at ¶ 12. Because of the Cargo’s temperature, it was rejected. Id. As a result, Scotlynn’s customer pursued a claim against it for the entirety of the loss, which is $39,354.62. Id. at ¶ 13. On December 11, 2015, Scotlynn formally notified Z Top of the claim, which Z Top refused to pay. Id. at ¶ 14.


Scotlynn then filed this suit.3 (Doc. 1). Despite service, Z Top has made an appearance in this case; therefore, a Clerk’s Default (Doc. 17) was entered on April 11, 2017. (Doc. 22). Scotlynn now seeks a default judgment against Defendants and an award of costs and attorney’s fees. (Doc. 25).




Rule 55 of the Federal Rules of Civil Procedure establishes a two-step procedure for obtaining default judgment. See Fed. R. Civ. P. 55. First, when a defendant fails to plead or otherwise defend a lawsuit, the clerk of the court must enter a clerk’s default against the defendant. Cohan v. Rist Properties, LLC, No. 2:14-cv-439-FTM, 2015 WL 224640, at *1-2 (M.D. Fla. Jan. 15, 2015) (citing Fed. R. Civ. P. 55(a)). Second, after receiving the clerk’s default, the court can enter a default judgment provided the defendant is not an infant or incompetent. Id. (citing Fed. R. Civ. P. 55(b)(2)); see also Solaroll Shade & Shutter Corp. v. Bio-Energy Sys. Inc., 803 F.2d 1130, 1134 (11th Cir. 1986) (stating a default judgment may be entered “against a defendant who never appears or answers a complaint, for in such circumstances the case never has been placed at issue.”).


An entry of a clerk’s default, however, does not per se warrant an entry of default judgment. Rather, a court may enter a default judgment only if “the well-pleaded allegations in the complaint, which are taken as true due to the default, actually state a substantive cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007); Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established … A default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.” (citations omitted)). “The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law … [A] default is not treated as an absolute confession of the defendant of his liability and of the plaintiff’s right to recover.” Nishimatsu, 515 F.2d at 1206. In considering a motion for default judgment, courts must “examine the sufficiency of plaintiff’s allegations to determine whether the plaintiff is entitled to” relief. PNC Bank, N.A. v. Starlight Props. & Holdings, LLC, No. 6:13-cv-408, 2014 WL 2574040, at *1 (M.D. Fla. June 9, 2014) (citation omitted). With these principles in mind, the Court will address Scotlynn’s Motion for Default Judgment.




*2 In its Complaint, Scotlynn alleges that Z Top’s delivery of the Cargo in a damaged condition renders it liable both under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq., and for breach of contract. Scotlynn also brings a claim to enforce a lost instrument.


For the reasons stated below, the Court finds that Z Top is liable under the Carmack Amendment and thus awards Scotlynn damages commensurate with the loss as pled. That said, because attorney’s fees cannot be recovered under the Carmack Amendment, the Court denies Scotlynn’s request for same. See Fine Foliage of Fla., Inc. v. Bowman Transp., Inc., 698 F. Supp. 1566, 1576 (M.D. Fla. 1988).


Concerning Scotlynn’s breach of contract claim against Z Top, the Court finds that both are state law claims and thus preempted by the Carmack Amendment. As such, the Court does not find that Scotlynn is entitled to an alternative award of damages or attorney’s fees under that claim. Finally, the Court taxes the cost of filing and service of process fees against Z Top.



  1. Count I – Carmack Amendment

Through its Complaint, Scotlynn alleges that Z Top violated the Carmack Amendment by delivering the Cargo in a damaged condition. (Doc. 1 at ¶¶ 18). “The Carmack Amendment creates a uniform rule for carrier liability when goods are shipped in interstate commerce.” Smith v. UPS, 296 F.3d 1244, 1246 (11th Cir. 2002). “To establish a prima facie case of liability, plaintiff must show that the goods were delivered to defendant in good condition, that the goods arrived in damaged condition, and that this resulted in a specific amount of damage.” Scotlynn USA Division, Inc. v. Singh, No. 2:15-cv-381-FtM-29MRM, 2016 WL 4734396, at *2 (M.D. Fla. Sept. 9, 2016) (citing Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1014 (11th Cir. 1987)).


“When a shipper shows delivery of goods to a carrier in good condition and nondelivery or delivery in a damaged condition, there arises a prima facie presumption of liability.” Id. (citing UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1285-86 (11th Cir. 2014)). Liability is imposed “for the actual loss or injury to the property[.]” 49 U.S.C. § 14706(a)(1).


Scotlynn’s Complaint states that the Cargo was in good condition prior to shipment. (Doc. 1 at ¶¶ 11). The Complaint then states that the Cargo was delivered to the receiver at an unsafe temperature, and because it was damaged, it was ultimately rejected. (Id. at ¶¶ 12). Importantly, the Agreement does not limit liability and, instead, defines “full actual loss” as “the value of the cargo determined by” Scotlynn.4 (Doc. 1-1 at ¶ 11). Thus, in the absence of any controverting evidence, Scotlynn is entitled to a default judgment against Z Top for the actual loss of the destroyed Cargo in the amount of $39,354.62.


*3 Turning to Scotlynn’s request for attorney’s fees pursuant to the Carmack Amendment, Federal Rule of Civil Procedure 54(d)(2)(A) states that “[a] claim for attorney’s fees … must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” The Court, however, finds Scotlynn’s request to be unwarranted, as “[t]here is no provision for attorneys’ fees under the Carmack Amendment.” Fine Foliage of Fla., 698 F. Supp. at 1576. Instead, “[t]he well-established rule is that ‘each party in a lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary.’ ” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Reeves v. Harrell, 791 F.2d 1481, 1483 (11th Cir. 1986)). Accordingly, Scotlynn’s request for attorney’s fees stemming from its Carmack Amendment claim is denied. See Fine Foliage of Fla., Inc., 698 F. Supp. at 1576.



  1. Count II – Breach of Contract

As to its breach of contract claim, Scotlynn alleges that Z Top breached the Agreement and Bill of Lading by delivering the Cargo in damaged condition, and that it, therefore, suffered damages. (Doc. 1 at ¶ 21-22). Scotlynn pleads this claim in the alternative. (Doc. 25 at 7).


Under Florida law, there are three elements to a breach of contract claim: “(1) a valid contract; (2) a material breach; and (3) damages.” Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citation omitted). That said, “the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods.” Smith, 296 F.3d at 1246 (citations omitted). “In other words, separate and distinct conduct rather than injury must exist for a claim to fall outside the preemptive scope of the Carmack Amendment.” Id. at 1249.


Here, Scotlynn contracted defendants to ship the Cargo from Missouri to Virginia and, thus, the shipment would qualify as interstate commerce. Therefore, unless Scotlynn has pled separate and distinct conduct that would cause its breach of contract claim to fall outside the scope of the Carmack Amendment, its breach of contract claim will be preempted. Upon review of the Complaint, Scotlynn has not met this threshold. Consequently, the Court finds the Carmack Amendment preempts Scotlynn’s breach of contract claim and that the claim must be dismissed without prejudice.



  1. Attorney’s Fees

Plaintiff also seeks attorney’s fees pursuant to paragraph 22 of the Agreement and based on Z Top’s breach of the Agreement. In support of the request for damages and attorney’s fees, plaintiff filed the Affidavit of Katy Koestner Esquivel in Support (Doc. 25-1). Scotlynn also requests attorney’s fees based on their breach of contract allegations, but articulates no legal basis for its claim. Due to preemption by the Carmack Amendment, this request must be denied. See Strickland Transp. Co. v. Am. Distrib. Co., 198 F.2d 546, 547 (5th Cir. 1952) (citation omitted) (holding that attorney’s fees are beyond the scope of the Carmack Amendment and “cannot be considered for jurisdictional purposes where there is no legal basis for the recovery of such fees”)); Mo. Pac. R. Co. v. Ctr. Plains Indus., Inc., 720 F.2d 818, 819 (5th Cir. 1983) (finding Strickland persuasive and holding that “recovery of attorney’s fees in freight damage suits” is not permitted)); Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir. 1996) (same).5


The Court notes that, although the Eleventh Circuit Court of Appeals in UPS Supply found Strickland unpersuasive, it is distinguishable from the facts of this case. In UPS Supply, the court found that attorneys’ fees were permitted in relation to the enforcement of an indemnity clause in an ongoing contract that was separate from the theft of goods that gave rise to that plaintiff’s Carmack Amendment claim. 750 F.3d at 1282. This is not the case here, as Scotlynn attempts to base their request for attorney’s fees on the very instance that invokes liability under the Carmack Amendment. As a result, Scotlynn’s breach of contract claim is preempted and their request for attorney’s fees is denied.



  1. Costs

*4 In its Motion for Default Judgment, Scotlynn also seeks costs for $400.00 for the filing fee and $195.00 in service of process expenses. (Doc. 25 at 12). Generally, a prevailing party may be awarded costs. See Fed. R. Civ. P. 54(d)(1). Costs available to be taxed are specifically enumerated in 28 U.S.C. § 1920, and include fees of the United States Marshal. Pursuant to 28 U.S.C. § 1921, a United States Marshal is authorized to serve process in any case or proceeding. And, despite that private service of process is not explicitly provided for in either statute, the Court may authorize taxation of such costs so long as they do not exceed the statutory fees authorized in 28 U.S.C. § 1921. U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000). In this district, service of process by a United States Marshal pursuant to 28 U.S.C. § 1921 amounts to $65.00 per hour, as well as an allowance for mileage.


Turning to the matter at hand, the Court finds that Scotlynn did not prevail against both parties, and thus that awarding costs for service of process on Marynova would be improper. A review of the record does not yield an individual accounting of Scotlynn’s costs of service of process on each Defendant, and thus the Court finds it reasonable to halve any requested award from $195.00, to $97.50, thereby reflecting the cost of service for only Z Top. This figure amounts to approximately 1.5 hours of taxable time by a United States Marshall engaged in the act of serving process. As such, the Court directs that $497.50 be taxed against Defendant Z Top.


Accordingly, it is now



(1) Plaintiff’s Motion for Default Judgment (Doc. 25) is GRANTED in part as to Counts I and III against Z Top Logistics, Inc. in the amount of $39,354.62, and is otherwise DENIED.

(2) Plaintiff’s request for costs is GRANTED in part and DENIED in part. Plaintiff shall be awarded $400.00 in filing fees and $97.50 in costs of service of process, totaling $497.50.

(3) The Clerk shall enter judgment accordingly in favor of Plaintiff and against Defendant Z Top Logistics, Inc. as to Count I for the actual loss amount, and dismissing Count II without prejudice.

(4) The Clerk is further DIRECTED to terminate all pending deadlines, issue the attached proposed Bill of Costs, and close the file.


DONE and ORDERED in Fort Myers, Florida this 12th day of June, 2017.


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All Citations

Slip Copy, 2017 WL 2560925





Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.


The Court finds that an evidentiary hearing is not required and will render a decision based on the documents submitted.


The suit originally named Lyubov Marynova, the sole officer and shareholder of Z Top, as a Defendant. Because Plaintiff was unable to serve Marynova, she was dismissed without prejudice. (Doc. 23).


Although Plaintiff has not filed an executed copy of the Agreement with the Court, alleging that the original instrument is lost under Count III, the Court accepts the allegations that the parties entered into the Agreement as admitted for purposes of default judgment and the Court will otherwise enforce the lost instrument pursuant to Fla. Stat. § 673.3091. Based on Defendant’s default and the absence of anything to the contrary, the Court will assume liability has not been limited, and that the shipper has not agreed to limit the carrier’s liability to a declared value less than the actual loss or injury. See 49 U.S.C. § 14706(a)(1) (Generally, liability is for the actual loss or injury to the property caused); 49 U.S.C. § 14706(c) (1) (A) (a carrier may limit its liability to a value established by the shipper or by written agreement). See also UPS Supply, 750 F.3d at 1286.


Decisions by the Fifth Circuit Court of Appeals made prior to October 1, 1981, are binding on this Court. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).

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