Case 1:21-cv-00097-JRH-BKE Document 1 Filed 06/22/21 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF GEORGIA
`AUGUSTA DIVISION
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`
`BLACKDIRT FARM MANAGEMENT,
`LLC,
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`Plaintiff,
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`v.
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`CHRIS MARTIN AND OAK LAKE
`CATTLE COMPANY, INCORPORATED,
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`Defendants.
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`
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`CIVIL ACTION FILE NO.:
`_____________________
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`DEMAND FOR JURY TRIAL
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`COMPLAINT
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`Blackdirt Farm Management, LLC (“Blackdirt” or “Plaintiff”) submits this Complaint
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`against Chris Martin (“Martin”) and Oak Lake Cattle Company, Incorporated (“Oak Lake”)
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`seeking damages for violations of the Packers and Stockyards Act, for violations of regulations
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`promulgated under the Packers and Stockyards Act, for breach of contract, and other laws set
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`forth herein.
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`THE PARTIES
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`1.
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`Blackdirt is the operator of a farm located at 1999 Moxley Road, Bartow,
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`Georgia, which is located in Jefferson County (the “Bartow Farm”).
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`2.
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`Martin is an individual who resides at 38354 Drovers Trail Road, Alma, Kansas
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`66401.
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`3.
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`Martin is engaged in, among other things, the business of buying and selling in
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`cattle, either on his own account or as the employee or agent of cattle purchasers. Martin, for
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`example, buys cattle in Florida (or other areas of the country) through livestock auctions or from
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`cow-calf operators on his own account, or on behalf of others, and then resells the cattle, on his
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`own account or the account of others, for ultimate slaughter.
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`4.
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`Accordingly, Martin is a “dealer” (or otherwise subject to the PSA) as that term is
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`used under the Packers and Stockyards Act (“PSA”), 7 U.S.C. §§ 181–229c. See 7 U.S.C.
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`§ 201(d) (defining “dealer”).
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`5.
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`Oak Lake is a Florida corporation with its principal place of business at 1067
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`Hwy 98 North, Okeechobee, Florida 34972.
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`6.
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`Oak Lake is engaged in, among other things, the business of buying or selling in
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`cattle, either on its own account or as the employee or agent of cattle purchasers. Oak Lake, for
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`example, buys cattle in Florida through auctions or cow-calf operators on its own account, or on
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`behalf of others, and then resells the cattle, on its own account or the account of others, for
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`ultimate slaughter. To the extent Oak Lake buys cattle for others, Oak Lake is compensated for
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`these services on a percentage, per-head, or commission basis.
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`7.
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`Accordingly, Oak Lake is a “dealer” (or otherwise subject to the Act) as that term
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`is used under the PSA. See 7 U.S.C. § 201(d).
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`8.
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`Oak Lake is a bonded through the United States Department of Agriculture under
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`the PSA.
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`9.
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`On at least two prior occasions, Oak Lake incurred civil penalties based on USDA
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`enforcement proceedings for Oak Lake’s violations of the PSA.
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`10.
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`Oak Lake may be served through its registered agent, I.E. “Jim” Byrd, at 1067
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`Hwy. 98 North, Okeechobee, Florida 34972.
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`JURISDICTION AND VENUE
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`11.
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`The PSA, a federal statute, explicitly grants injured parties private rights of action
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`and vests the United States district courts with jurisdiction over such actions. 7 U.S.C. § 209.
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`And as discussed more below, Plaintiff asserts three claims through § 209.
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`12.
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`This Court therefore has subject-matter jurisdiction under 28 U.S.C. § 1331
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`because this matter involves a federal question.
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`13.
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`14.
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`Defendants are subject to personal jurisdiction in this Court.
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`Venue is proper in the Southern District of Georgia under 28 U.S.C. § 1391(b)
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`because, at minimum, a substantial part of the events giving rise to Plaintiff’s claims occurred in
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`the Southern District of Georgia.
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`15.
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` Within the Southern District of Georgia, venue is proper in the Augusta Division
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`because a substantial part of the events giving rise to Plaintiff’s claims occurred in Jefferson
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`County, Georgia, which is in the Augusta Division of the Southern District of Georgia. See 28
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`U.S.C. § 90(c).
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`FACTUAL BACKGROUND
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`The Written Agreement
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`16.
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` Martin and Blackdirt entered into an agreement, dated September 30, 2020, under
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`which Blackdirt agreed to precondition cattle bought and owned by Martin (the “Agreement”).
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`17.
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`A true and accurate copy of the Agreement is attached hereto as Exhibit A and is
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`incorporated herein by reference.
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`18.
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`Under the terms of the Agreement, Blackdirt agreed to “precondition” the cattle at
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`the Bartow Farm for an estimated sixty (60) days (Agreement ¶ (f)) prior to the Cattle being
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`shipped to Martin in Kansas or other Midwestern locations where the cattle would ultimately be
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`resold and “finished” on grain-based diets prior to slaughter.
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`19.
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`“Preconditioning” is a cattle-management method that prepares recently weaned
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`calves to enter finishing feedlots, reducing stress and disease susceptibility once they are in the
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`finishing feedlot. The purpose of “preconditioning” is to spread out the stressors that calves
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`experience. For example, it mitigates the effects of being weaned, vaccinated, and transported
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`and with adjusting to unfamiliar animals and environments and dietary changes. This process
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`helps prevent the calves’ immune systems from being overwhelmed. During a typical
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`“preconditioning,” these recently weaned calves are fed primarily grain-based feedstuffs, and
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`they are rarely fed grass.
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`20. With respect to this Agreement, Oak Lake acquired approximately 1,479 head of
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`recently weaned calves (collectively, the “Cattle”) on behalf of Martin in or around Okeechobee,
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`Florida at livestock auctions, where cattle from numerous different herds were sold to the highest
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`bidder.
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`21.
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`Almost immediately before they were shipped from the Okeechobee, Florida area,
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`these Cattle were weaned from their mothers.
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`22.
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`Oak Lake, on behalf of Martin, was responsible for caring for the Cattle as soon
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`as they were purchased and until the Cattle arrived at the Bartow Farm. Oak Lake was
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`responsible for, among other things, arranging transportation.
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`23.
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`In accordance with the Agreement, Oak Lake, acting on behalf of Martin,
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`delivered (or caused to be delivered) the Cattle to the Bartow Farm between September 2020 and
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`December 2020.
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`24.
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`Okeechobee, Florida is generally warmer than Bartow, Georgia.
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`25.
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`It is understood in the cattle industry that transporting cattle, dietary changes, and
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`weather changes can stress cattle, especially recently weaned calves. Therefore, owners of
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`recently weaned calves must promptly provide care to those recently weaned calves, including
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`providing required feed, water, medicine, and acclimation times.
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`26.
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`27.
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`Under the terms of the Agreement, Martin maintained ownership of the Cattle.
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`Oak Lake (specifically, Dan Byrd) was Blackdirt’s primary point of contact
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`regarding the Cattle with respect to the terms of the Agreement and delivery and pick-up of the
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`Cattle.
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`28.
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`Upon information and belief, Oak Lake was paid based, at least in part, on the
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`number of calves it shipped to the Bartow Farm.
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`29.
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`Under the terms of the Agreement, Blackdirt was to be paid based on the amount
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`of weight the Cattle gained while at the Bartow Farm. The price per pound of gain was based on
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`two factors: (1) the weight of the Cattle at arrival; and (2) whether the Cattle had received the
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`first round of vaccinations prior to the Cattle arriving at the Bartow Farm.
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`30.
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`Contrary to the terms of Paragraph (m) of the Agreement, all Cattle were not
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`drenched (dewormed) or vaccinated prior to arrival at the Bartow Farm.
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`31.
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`Blackdirt completed the first vaccinations of the Cattle within five to ten days of
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`the Cattle arriving on the Bartow Farm.
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`32.
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`At least 13 calves died at the Bartow Farm prior to this first working,1 where the
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`Cattle were retagged and vaccinated.
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`1 “Working” cattle generally involves herding cattle into pens and ultimately through a
`chute, so that each calf can receive individualized treatment or care.
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`33.
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`Because Blackdirt vaccinated the Cattle, it was entitled to payment for pounds
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`gained on the following schedule based on the weight of the calf at arrival:
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`Class A: 225 lbs.—325 lbs.: $1.50 per pound of gain.
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`Class B: 325 lbs.—425 lbs.: $0.95 per pound of gain.
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`(Agreement ¶ (b).)
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`Defendants’ Delivery of Sick Cattle
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`34.
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`Under Paragraph (g) of the Agreement, Martin expressly agreed not to deliver to
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`Blackdirt for preconditioning any single head of cattle or group of cattle known to be diseased
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`and/or injured or exhibiting symptoms of injury or disease.
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`35.
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`Communicable livestock diseases can be spread through many means, including
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`physical contact between animals, contact with bodily secretions, and respiration.
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`36.
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`The causative agents of communicable livestock diseases can be spread both by
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`animals that are infected with the disease as well as by exposed animals showing no clinical
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`signs of disease. These exposed animals may either be incubating disease or may be carriers of
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`disease (the animal carries in its system the causative agent of a disease to which the animal is
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`immune).
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`37.
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`Upon information and belief, Defendants failed to conduct a working or any
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`testing of the Cattle prior to shipment to Georgia to determine whether any individualized calf
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`was diseased and/or injured.
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`38.
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`Upon information and belief, Defendants did not undertake to determine whether
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`the Cattle originated from herds that were known to be diseased, whether the Cattle had been
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`exposed to diseased animals at the auction, or otherwise exercise any diligence to ascertain
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`whether any individualized calf was affected with any contagious, infectious, or communicable
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`disease, or had been exposed to the contagion or infection of any such disease by contact with
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`other animals so diseased.
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`39.
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`The Cattle arrived at the Bartow Farm without USDA-approved metal ear tags,
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`registry brands, or registry tattoos as required by Georgia law.
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`40.
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`41.
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` A significant number of Cattle became sick while at the Bartow Farm.
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`Approximately 94 of the 386 Class A Cattle (weight 225 lbs. to 325 lbs.) died
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`while at the Bartow Farm.
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`42.
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`Approximately 142 of the 1093 Class B Cattle (weight 325 lbs. to 425 lbs.) died
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`while at the Bartow Farm.
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`43.
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`Compared to other cattle Blackdirt preconditioned (including historical numbers),
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`Blackdirt experienced a higher-than-expected rate of sickness and loss because of death with the
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`Cattle, especially with the Class A Cattle (weight 225 lbs. to 325 lbs.).
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`44.
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`Dan Byrd, one of the primary contacts of Oak Lake, admitted to the President of
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`Blackdirt that Defendants should not have shipped the Class A Cattle to the Bartow Farm
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`because such Cattle did not perform well and died at a higher than expected rate.
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`45.
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`Considering this high death-loss and Defendants’ failure to work, test, vaccinate
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`and deworm the Cattle before arrival at the Bartow Farm, Defendants (a) knew, or should have
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`known based on their duty under 9 C.F.R. § 71.3(f) or other applicable law, that a portion of the
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`Cattle were diseased or injured prior to arrival at the Bartow Farm, or (b) failed to exercise
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`reasonable and prompt care of the Cattle from the date of weaning until the Cattle’s arrival at the
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`Bartow Farm by, for example, not properly handling, feeding, working, or vaccinating the Cattle
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`before arrival at the Bartow Farm. This is especially problematic because Defendants knew, or
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`should have known, of the stresses young calves born in Florida being shipped to Georgia for
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`preconditioning would experience due to transportation time and weather and other changes.
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`Defendants therefore had a duty to only ship Cattle that were suitable for such preconditioning
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`on the Bartow Farm.
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`46.
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`Because Oak Lake, acting through its President Jim Byrd and Vice President Dan
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`Byrd and on behalf of Martin, went to the Bartow Farm on no less than three occasions, and
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`because both Defendants talked to Blackdirt’s management, Defendants knew the conditions the
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`Cattle would experience upon arrival at the Bartow Farm.
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`47.
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`Although Blackdirt had to the treat the sick Cattle, Martin was required to cover
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`the costs—which total no less than $31,896.18—of treatment under Paragraph (m) of the
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`Agreement. Martin, however, has refused to pay this amount.
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`Holding Over of Cattle
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`48.
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`During the relevant timeframe, the Bartow Farm only had capacity to provide
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`traditional “preconditioning” services for 300-400 calves at a time.
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`49.
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`Oak Lake and/or Martin failed to have a large number of the Cattle picked up
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`from the Bartow Farm within (or even close to within) the estimated 60-day window found in
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`Paragraph (f) of the Agreement (“Held-over Cattle”).
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`50.
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`Oak Lake, acting on behalf of Martin, claimed that the Held-over Cattle (or at
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`least a portion thereof) needed to stay at the Bartow Farm because of inclement weather in the
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`Midwestern location(s) that Martin had intended to ship the Cattle.
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`51.
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`Yet Defendants continued to deliver, or caused to be delivered, Cattle to the
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`Bartow Farm without Blackdirt's consent, pushing the Bartow Farm above its capacity to provide
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`preconditioning services as Blackdirt anticipated when it entered into the Agreement.
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`52.
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`In an effort to be a good service provider, avoid a dispute with its customer, and
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`accommodate these materially different circumstances, Blackdirt discussed with Oak Lake
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`and/or Martin the terms upon which Blackdirt would agree to keep the Held-over Cattle at the
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`Bartow Farm for a period time materially greater than the 60-day preconditioning window found
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`in Paragraph (f) of the Agreement.
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`53. When these discussions initially took place, because of the unavailability of
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`grazing between November and January, Oak Lake and Martin understood Blackdirt would need
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`to purchase hay, silage, and additional feedstuffs to maintain and feed the Held-over Cattle in
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`order to accommodate the Held-over Cattle for periods longer than the originally estimated 60-
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`day preconditioning window (the “Holdover Period”).
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`54.
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`Blackdirt understood it would be fairly compensated for its costs and efforts to
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`accommodate the Held-over Cattle where it was going to have to purchase feed to care for these
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`Held-over Cattle.
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`55.
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`As spring grazing became available, at the urging of Defendants, Blackdirt
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`expressed a willingness to keep the Held-over Cattle on grass during the remaining portions of
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`the Holdover Period. Oak Lake proposed that Blackdirt would be paid $0.65 per pound of gain
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`for that portion of Holdover Period where the Held-over Cattle was on grass. In return, Blackdirt
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`proposed Martin eliminate the five percent (5%) death-loss maximum set forth in Paragraph (k)
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`of the Agreement.
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`56.
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`Blackdirt and Martin never put these terms arising out of the discussion about
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`Held-over Cattle in writing. But Martin and/or Oak Lake failed to pick up the Held-over Cattle
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`within the 60-day preconditioning window.
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`57.
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`Blackdirt was entitled to no less than $314,373 for the preconditioning and related
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`services Blackdirt provided at the Bartow Farm. But to date, Martin has paid only $138,676.
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`Under Paragraph (j) of the Agreement, the amount owed was due upon the delivery of the Cattle
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`to Martin. And Martin owes Blackdirt at least $175,697 in principal, plus, among other things,
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`damages related to Blackdirt feeding and caring for sick and dying Cattle.
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`58.
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`Therefore, as detailed more below, Blackdirt seeks from Defendants the principle
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`amount of no less than $175,697 under the terms of the Agreement, plus all of its attorneys’ fees,
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`costs of litigation, prejudgment interest, and other compensatory damages, including for the
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`amount owed due to the losses arising out of the dead and sick Cattle.
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`COUNT I
`VIOLATION OF 9 C.F.R. § 201.82(a)
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`Plaintiff hereby alleges and incorporates all the preceding paragraphs as though
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`59.
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`fully stated herein.
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`60.
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`The PSA grants injured parties private rights of action:
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`
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`If any person subject to this chapter violates any of the provisions of this
`chapter, or of any order of the Secretary under this chapter, relating to the
`purchase, sale, or handling of livestock, the purchase or sale of poultry, or
`relating to any poultry growing arrangement or swine production contract,
`he shall be liable to the person or persons injured thereby for the full
`amount of damages sustained in consequence of such violation.
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` 7
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` U.S.C. § 209(a).
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`61.
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`And notably, “dealers” must, among other things, provide reasonable care to
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`livestock they are transporting or otherwise handling:
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`Each stockyard owner, market agency, dealer, packer, swine contractor
`and live poultry dealer must exercise reasonable care and promptness with
`respect to loading, transporting, holding, yarding, feeding, watering,
`weighing, or otherwise handling livestock, or live poultry to prevent waste
`of feed, shrinkage, injury, death or other avoidable loss.
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`9 C.F.R. § 201.82(a). See also 7 U.S.C. § 228.
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`62.
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`Defendants failed to exercise reasonable and prompt care with respect to the
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`Cattle from the point of the Cattle being purchased at the auction barn in or near Okeechobee,
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`Florida until the Cattle arrived at the Bartow Farm by, without limitation:
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`a. Failing to vaccinate, drench, or otherwise provide appropriate veterinary testing
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`and care with respect to the recently weaned Cattle prior to shipment to Georgia.
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`b. Failing to take appropriate steps to mitigate or avoid adverse stresses and impact
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`on the Cattle (especially the small, Class A Cattle) once arriving in the cooler
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`environment in Georgia.
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`c. Shipping Cattle to Georgia that were weaned prematurely based on age and size.
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`d. Failing to take appropriate steps to determine and investigate whether the Cattle
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`were diseased and/or injured, or had been exposed to diseased animal, prior to
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`shipment to Georgia, including, without limitation, as required by 9 C.F.R. §
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`71.3(f) and Ga. Comp. R. & Regs. 40-13-2-.04.
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`63.
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`Defendants failed to exercise reasonable and prompt care with respect to the
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`Cattle during the Holdover Period by, without limitation:
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`a. Failing to promptly ship, or caused to be shipped, the Held-over Cattle from the
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`Bartow Farm.
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`b. Continuing to deliver, or causing to be delivered, additional Cattle to the Bartow
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`Farm without Blackdirt's consent despite knowing the Bartow Farm’s capacity
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`with respect to preconditioning services.
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`c. Failing to provide any feed or other basic necessities for the Held-over Cattle for
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`the Holdover Period or, in the alternative, failing to fairly and timely compensate
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`Blackdirt for the feeding and handling of the Held-over Cattle during the
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`Holdover Period.
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`64.
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`These violations of 9 C.F.R. § 201.82(a) by Defendants injured Blackdirt, without
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`limitation, in the following ways:
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`a. Blackdirt suffered excessive sickness and death loss while the Cattle were at the
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`Bartow Farm, which resulted in Cattle becoming sick and/or dying after Blackdirt
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`had spent considerable amounts of money adding pounds to the ultimately dead
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`Cattle.
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`b. Sickness of the Cattle impacted the efficiency by which Blackdirt could operate
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`and the Cattle could gain weight.
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`c. With respect to the Held-over Cattle, Blackdirt incurred yet-to-be compensated
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`costs for its care of Martin’s Cattle because of Defendants’ failure to promptly
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`ship the Cattle from the Bartow Farm.
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`65.
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`66.
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`Under 7 U.S.C. § 223, Defendants are liable for acts or omissions of the other.
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`Plaintiff is entitled to damage arising out of Defendants’ breaches of 9 C.F.R. §
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`201.82(a) as described herein, including without limitation, loss of anticipated profits,
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`compensatory damages, costs for the feeding and caring for the sick Cattle and the Held-over
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`Cattle, prejudgment interest, attorneys’ fees and costs of litigation as contemplated by 7 USC §
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`209, and other compensatory and special damages.
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`COUNT II
`VIOLATION OF 9 C.F.R. § 201.55
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`67.
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`Plaintiff hereby alleges and incorporates all the preceding paragraphs as though
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`fully stated herein.
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`68.
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`As noted, the PSA grants injured parties private rights of action:
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`If any person subject to this chapter violates any of the provisions of this
`chapter, or of any order of the Secretary under this chapter, relating to the
`purchase, sale, or handling of livestock, the purchase or sale of poultry, or
`relating to any poultry growing arrangement or swine production contract,
`he shall be liable to the person or persons injured thereby for the full
`amount of damages sustained in consequence of such violation.
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`7 U.S.C. § 209.
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`69.
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`And under 9 C.F.R. § 201.55(a):
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`Except as provided in paragraph (b) of this section, whenever livestock or
`live poultry is bought, sold, acquired, paid, or settled on a weight basis, or
`whenever the weight of feed is a factor in determining payment or
`settlement to a livestock grower or poultry grower by a stockyard owner,
`market agency, dealer, packer, or live poultry dealer when livestock or
`poultry is produced under a growing arrangement, payment or settlement
`shall be on the basis of the actual weight of the livestock, live poultry,
`and/or feed shown on the scale ticket. If the actual weight used is not
`obtained on the date and at the place of transfer of possession, this
`information shall be disclosed with the date and location of the weighing
`on the accountings, bills, or statements issued. Any adjustment to the
`actual weight shall be fully and accurately explained on the accountings,
`bills, or statements issued, and records shall be maintained to support such
`adjustment.
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` 9
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` C.F.R. § 201.55(a). See also 7 U.S.C. § 228.
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`70.
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`Under the Agreement, Blackdirt’s pay, prior to any adjustments, is determined by
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`subtracting the beginning actual weight of Cattle from the ending actual weight of the Cattle.
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`71.
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`In violation of 9 C.F.R. § 201.55(a), Defendants have refused to provide the
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`actual weight tickets related to the purchase of the Cattle which would show the beginning actual
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`weight of the Cattle for purposes of determining Blackdirt’s pay, prior to adjustments.
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`72.
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`Rather, Defendants, in objecting to payment of Blackdirt’ s invoices, have only
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`sent a summary of purchase weights and then deducted from the summary, a two percent (2%)
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`shrinkage.
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`73.
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`Defendants’ actions and their refusal to base payments on actual accurate weights
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`violate 9 C.F.R. § 201.55(a), other USDA regulations and applicable law.
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`74.
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`75.
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` Under 7 U.S.C. § 223, Defendants are liable for acts or omissions of the other.
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`Plaintiff is entitled to damage from Defendants arising out of these breaches,
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`including without limitation, loss of anticipated profits, compensatory damages, prejudgment
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`interest, attorneys’ fees and costs of litigation as contemplated by 7 USC § 209, and other
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`compensatory and special damages.
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`COUNT III
`VIOLATION OF 7 U.S.C. § 213
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`Plaintiff hereby alleges and incorporates all the preceding paragraphs as though
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`76.
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`fully stated herein.
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`77.
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`Under 7 U.S.C. § 213(a),
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`It shall be unlawful for any stockyard owner, market agency, or dealer to
`engage in or use any unfair, unjustly discriminatory, or deceptive practice
`or device in connection with determining whether persons should be
`authorized to operate at the stockyards, or with the receiving, marketing,
`buying, or selling on a commission basis or otherwise, feeding, watering,
`holding, delivery, shipment, weighing, or handling of livestock.
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`7 U.S.C. § 213(a).
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`78.
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`Defendants violated 7 U.S.C. § 213 by violating 9 C.F.R. § 201.82(a) and 9
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`C.F.R. § 201.55, as described in more detail in Count I and Count II, which Plaintiff incorporates
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`by reference. The practices and devices that establish Count I and Count II were unfair and
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`deceptive and in connection with the receiving, marketing, buying, selling, feeding, watering,
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`holding, delivery, shipment, weighing, and handling of livestock.
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`79.
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`Defendants also violated 7 U.S.C. § 213 by engaging in the following unfair and
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`deceptive practices and devices:
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`Case 1:21-cv-00097-JRH-BKE Document 1 Filed 06/22/21 Page 15 of 25
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`a. Failing to promptly pay for the services, care, and feed provided for the benefit of
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`the Cattle and Defendants.
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`b. Knowingly delivering (or failing to exercise diligence in determining the health of
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`the Cattle) diseased Cattle, or Cattle exposed to disease, to Blackdirt and then
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`seeking to rely on an unreasonable interpretation of Paragraph (k) of the
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`Agreement to avoid paying Blackdirt in full.
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`c. Knowingly delivering (or failing to exercise diligence in determining the health of
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`the Cattle) diseased Cattle, or Cattle exposed to disease, to Blackdirt with the
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`expectation that Blackdirt would feed and care for the Cattle that would not
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`survive or would be highly inefficient in weight gain.
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`d. Continuing to deliver, or causing to be delivered, additional Cattle to the Bartow
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`Farm without Blackdirt's consent despite knowing the Bartow Farm’s capacity
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`with respect to preconditioning services.
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`e. Refusing to ship the Held-over Cattle during the Holdover Period and subsequent
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`refusal to pay for Blackdirt’ s feeding and handling of the Held-over Cattle.
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`Under 7 U.S.C. § 223, Defendants are liable for acts or omissions of the other.
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`The unfair and deceptive trade practices and devices described above have a
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`80.
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`81.
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`reasonable likelihood of harming competition for preconditioning services of cattle in the
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`geographic region in which Blackdirt could reasonably expect to draw cattle for purposes of
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`providing such services.
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`82.
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`In accordance with 7 U.S.C. § 209, Plaintiff is entitled to damages arising out of
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`Defendants’ breaches of 7 U.S.C. § 213 as described herein, including without limitation, loss of
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`Case 1:21-cv-00097-JRH-BKE Document 1 Filed 06/22/21 Page 16 of 25
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`anticipated profits, compensatory damages, prejudgment intertest, attorneys’ fees and costs of
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`litigation, and other compensatory and special damages.
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`COUNT IV
`BREACH OF CONTRACT
`(WRITTEN AGREEMENT BY MARTIN)
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`Plaintiff hereby alleges and incorporates all the preceding paragraphs as though
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`83.
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`fully stated herein.
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`84.
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`Under Paragraph (r) of the Agreement and applicable law, including without
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`limitation 9 C.F.R. § 201.3, the PSA, Ga. Comp. R. & Regs. 40-13-2-.04, O.C.G.A. § 4-4-76,
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`and the applicable USDA regulations, including those described above, were made part of the
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`Agreement.
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`85. Martin breached the Agreement by:
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`a. Failing to promptly pay Plaintiff for the “preconditioning” services in accordance
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`with the terms of the Agreement, including with respect to the Held-over Cattle
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`for the Holdover Period.
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`b. Failing to comply with the PSA and USDA regulations as described in Counts I
`
`through III.
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`c. Shipping the Cattle to the Bartow Farm that were known, actually or
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`constructively, to be injured or diseased, including without limitation the implied
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`duty to ship only Cattle that were suitable for “preconditioning” under all the
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`circumstances.
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`d. Shipping the Cattle to the Bartow Farm without exercising reasonable diligence to
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`determine whether the Cattle originated from herds free of any contagious,
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`Case 1:21-cv-00097-JRH-BKE Document 1 Filed 06/22/21 Page 17 of 25
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`communicable, or infectious disease or had been exposed to any contagious,
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`communicable, or infectious disease before or during shipment.
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`e. Failing to work, test, or vaccinate and drench (deworm) the Cattle prior to the
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`shipment of Cattle to the Bartow Farm.
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`f. Failing to promptly remove the Held-over Cattle during the Holdover Period.
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`g. Continuing to deliver, or causing to be delivered, additional Cattle to the Bartow
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`Farm without Blackdirt's consent despite knowing the Bartow Farm’s capacity
`
`with respect to preconditioning services.
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`h. Failing to pursue the above-described duties consistent with his implied duty of
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`good faith and fair dealing.
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`86.
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`Because of these material breaches of the Agreement by Martin, Plaintiff was
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`excused from the five percent (5%) death-loss maximum set forth in the Agreement and is
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`otherwise entitled to damages for Martin’s breaches, including without limitation damages
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`arising out of Blackdirt receiving, feeding, and handling sick and dying Cattle.
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`87.
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`In addition to the amount owing pursuant to the written Agreement, Plaintiff is
`
`entitled to damages arising out of Martin’s breaches of the Agreement, including, without
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`limitation, loss of anticipated profits, attorneys’ fees and costs of litigation, other compensatory
`
`and special damages and the twelve percent (12%) damages pursuant to Fla. Stat. 534.54, as
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`incorporated into the Agreement pursuant to Paragraph (r).
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`COUNT V
`BREACH OF CONTRACT
`(WRITTEN AGREEMENT, AS AMENDED AGAINST DEFENDANTS)
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`Subject to the immediately subsequent Paragraph, Plaintiff hereby alleges and
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`88.
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`incorporates all the preceding paragraphs as though fully stated herein.
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`89.
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`Count V is pleaded in the alternative to Count IV, Count VI, Count VII, and
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`Count VIII.
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`90.
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`To avoid a dispute over the Held-over Cattle during the Holdover Period, and as
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`an accommodation to Defendants, Plaintiff made various offers related to terms upon which it
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`would agree to care for Held-over Cattle during the Holdover Period, including a per-head
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`yardage fee for the portion of the Holdover Period the Held-over Cattle were on hay or silage
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`and the pay of $0.65 per pound of gain during the portion of the Holdover Period the Held-over
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`Cattle were on grass. All these changes were contingent on the elimination of the five percent
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`(5%) death loss maximum set forth in the Agreement.
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`91.
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`Although no modification of the Agreement to accommodate the Held-over Cattle
`
`for the Holdover Period was ever reduced to writing, Martin and/or Oak Lake nevertheless failed
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`to pick up the Cattle within the originally estimated 60-day preconditioning window.
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`92.
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`The words and/or acts or course of conduct of the parties resulted in a
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`modification of the Agreement in the way described above.
`
`93.
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`Therefore, Plaintiff is entitled to damages from Martin for the unpaid amounts
`
`due under the Agreement, as amended, and damages arising out of Martin’s breaches (as
`
`described in Count IV and as further described in Count V) of the Agreement, as amended
`
`including without limitation, loss of anticipated profits, attorneys’ fees and costs of litigation,
`
`and other compensatory and special damages.
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`94.
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`Additionally, to extent that Martin claims Oak Lake exceeded the scope of its
`
`authority to modify the terms of the Agreement in the way described in Count V, Plaintiff is
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`entitled to damages from Oak Lake for the unpaid amounts due under the Agreement related to
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`the modification and damages arising out of Defendants’ breaches (as described in Count IV and
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`Case 1:21-cv-00097-JRH-BKE Document 1 Filed 06/22/21 Page 19 of 25
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`as further described in Count V) of the Agreement, including without limitat