Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 1 of 8 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`AGRICULTURAL LOGISTICS LLC,
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`SURVIVAL TRANSPORTATION INC. and HECTOR
`WENCY SEGARRA RIVERA,
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`-against-
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`Plaintiff,
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`Defendants.
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`Case No.: 22-cv-873
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`COMPLAINT AND
`DEMAND FOR JURY
`TRIAL
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`
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`Plaintiff, Agricultural Logistics LLC (hereinafter “Plaintiff” or “Agricultural”), sues
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`defendants Survival Transportation Inc. (“Survival”), and Hector Wency Segarra Rivera (“Rivera”
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`and “Defendants” collectively) and alleges:
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`PARTIES
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`1.
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`Plaintiff is a broker authorized to arrange the transportation of property by motor
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`carriers in interstate commerce pursuant to authority granted by the Federal Motor Carrier Safety
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`Administration (US DOT No. 2860783).
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`2.
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`Plaintiff is a limited liability company in good standing organized under the laws
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`of the state of New York with its principal place of business located in Dunkirk, New York.
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`3.
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`Survival Transportation Inc. (hereinafter “Survival”) is a motor carrier authorized
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`to transport property in interstate commerce pursuant to authority granted by the Federal Motor
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`Carrier Safety Administration (US DOT 2482419; MC 859464).
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`4.
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`Survival is a corporation in good standing organized under the laws of the state of
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`Delaware with its principal place of business located in High Point, North Carolina. Survival
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`maintains an office located in Jamaica, New York.
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`AGRICULTURAL LOGISTICS LLC,
`
`
`
`
`
`SURVIVAL TRANSPORTATION INC. and HECTOR
`WENCY SEGARRA RIVERA,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendants.
`
`
`
`Case No.: 22-cv-873
`
`
`COMPLAINT AND
`DEMAND FOR JURY
`TRIAL
`
`
`
`Plaintiff, Agricultural Logistics LLC (hereinafter “Plaintiff” or “Agricultural”), sues
`
`defendants Survival Transportation Inc. (“Survival”), and Hector Wency Segarra Rivera (“Rivera”
`
`and “Defendants” collectively) and alleges:
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`PARTIES
`
`1.
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`Plaintiff is a broker authorized to arrange the transportation of property by motor
`
`carriers in interstate commerce pursuant to authority granted by the Federal Motor Carrier Safety
`
`Administration (US DOT No. 2860783).
`
`2.
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`Plaintiff is a limited liability company in good standing organized under the laws
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`of the state of New York with its principal place of business located in Dunkirk, New York.
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`3.
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`Survival Transportation Inc. (hereinafter “Survival”) is a motor carrier authorized
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`to transport property in interstate commerce pursuant to authority granted by the Federal Motor
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`Carrier Safety Administration (US DOT 2482419; MC 859464).
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`4.
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`Survival is a corporation in good standing organized under the laws of the state of
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`Delaware with its principal place of business located in High Point, North Carolina. Survival
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`maintains an office located in Jamaica, New York.
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`
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 2 of 8 PageID #: 2
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`5.
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`Rivera is an individual sui juris and, upon information and belief, a resident of the
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`state of Florida. Rivera is subject to the personal jurisdiction of the courts of New York pursuant
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`to CPLR § 302 because he transacts business in the State of New York.
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`JURISDICTION AND VENUE
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`1.
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`This is an action brought pursuant to 49 U.S.C. § 14706 (the “Carmack
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`Amendment”) and for breach of contract.
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`2.
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`This Court has original subject matter jurisdiction over the Carmack Amendment
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`claim pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1337(a) because the amount in controversy
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`exceeds $10,000.00, exclusive of interest and costs.
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`3.
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`Supplemental jurisdiction over the state law claim is invoked pursuant to 28 U.S.C.
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`§ 1367, because it arises from common operative facts with the Carmack Amendment claim.
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`4.
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`Venue is proper in this district pursuant to 49 U.S.C. § 14706(d), which provides
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`that “[a] civil action under this section may be brought against a delivering carrier in a district
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`court of the United States or in a State court.”
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`5.
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`Venue is also proper in this district pursuant to 28 U.S.C. § 1391(b)(1) and (c)(2)
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`because Survival is subject to the Court’s personal jurisdiction and maintains its a BOC-3 agent
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`for to accept service of process in New York and maintains a place of business in Jamaica, New
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`York. Survival also consented in Section 14 of the Broker-Carrier Agreement with Plaintiff that
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`the venue of any action for enforcement of the Broker-Carrier Agreement would lie exclusively in
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`the state or federal courts in New York and that all disputes would be governed by applicable
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`federal laws of the United States or the laws of the State of New York. See paragraphs 11-12,
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`below & Exhibit 1.
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`2
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 3 of 8 PageID #: 3
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`FACTS
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`1.
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`On July 7, 2021, Plaintiff entered into a Broker-Carrier Agreement with Survival, a
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`true and correct copy of which is attached as Exhibit 1.
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`2.
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`Pursuant to Section 9 of the Broker-Carrier Agreement, Survival agreed to be liable
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`for the full actual cost, for all loss, damage or liability resulting from their transportation of any
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`property arranged for by Plaintiff. Further, pursuant to Section 9 of the Broker-Carrier Agreement,
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`Survival agreed to pay Plaintiff the full value of any freight loss or damage that are not resolved
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`within ninety (90) days of the date of the claim.
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`3.
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`On or about July 8, 2021, Plaintiff, as a broker and pursuant to the Broker-Carrier
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`Agreement, attached as Exhibit 1, arranged to have Survival transport eight hundred (800) 8.5
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`inch bromeliad plants, one thousand two hundred (1,200) 6 inch bromeliad plants, one thousand
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`five hundred (1,500) 4 inch bromeliad plants, and two thousand (2,000) 2.5 inch bromeliad plants
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`(hereafter “plants” collectively) from the Plants in Design, Inc. in Miami, Florida to Angel Plants
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`in Dix Hills, New York.
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`4.
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`On or about July 7, 2021, Agricultural issued a Load Confirmation to Survival
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`confirming the order. See Exhibit 2.
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`5.
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`On or about July 8, 2021, Survival went to pick up the plants at Plants in Design,
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`Inc. in Miami, Florida and was issued a Bill of Lading from the shipper (Plants in Design). A copy
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`of the Bill of lading is attached as Exhibit 3.
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`6.
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`Survival received the plants in good condition as reflected by the clean bill of
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`lading. See Exhibit 3.
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`3
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 4 of 8 PageID #: 4
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`7.
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`Pursuant to the instructions on the bill of lading at the time of pick up, Plaintiff was
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`to transport the bromeliads between 60-70 degrees Fahrenheit.
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`See Exhibit 3.
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`8.
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`Pursuant to the instruction on the Load Confirmation, however, the load was to be
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`transported between 50 – 60 degrees Fahrenheit.
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`9.
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`When there is a discrepancy between the temperature listed on the Load
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`Confirmation and Bill of Lading, it is the motor carrier’s responsibility to confirm the temperature
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`requirements. See paragraph 1 of Exhibit 2, which states as follows:
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`10.
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`11.
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`At no time did Survival contact Agricultural to advise of the discrepancy.
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`Instead, Survival’s driver set the temperature to 50 degrees Fahrenheit and
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`proceeded on to destination.
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`12.
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`13.
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`The shipment was delivered to Angel Plants on or about July 10, 2021.
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`The plants were subsequently inspected and determined to be a total loss due to the
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`improper temperature.
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`14.
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`At or before the point that Survival’s employee began driving the plants to Angel
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`Plants, risk of loss of the plants passed to Angel Plants as the purchaser of the plants.
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`4
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 5 of 8 PageID #: 5
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`15.
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`Agricultural paid Angel Plants $30,530.00 for the damaged plants. A copy of the
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`Purchase Order and Invoice from Angel Plants is attached as Composite Exhibit 4.
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`16.
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`On or about July 12, 2021, Agricultural Logistics notified the owner of Survival
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`that the plants arrived frozen. See Exhibit 5.
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`17.
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`On or about July 22, 2021, in exchange for avoiding a lawsuit which would trigger
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`prevailing party attorney’s fees, Hector Rivera inherently accepted liability for the claim (i.e., the
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`damage to the plants) by agreeing to a payment plan to reimburse Plaintiff for the value of the
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`damaged plants. Mr. Rivera’s letter bears Survival’s letterhead and was signed electronically in
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`his capacity as the president of Survival. Mr. Rivera agreed to be personally liable for
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`reimbursement of the value of the damaged plants and forwarded a copy of his own driver’s license
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`in that regard, as requested by Agricultural Logistics. A copy of the July 22, 2021 correspondence
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`and corresponding email transmittal is attached as Exhibit 6.
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`18.
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`On or about August 2, 2021, Agricultural submitted a formal notice of claim. See
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`Composite Exhibit 7.
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`The insurer for Survival declined the claim on invalid grounds. See Exhibit 8.
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`Hector Rivera never issued payment to Agricultural as agreed in Exhibit 6.
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`Survival never issued payment to Agricultural as required by Exhibit 1 and federal
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`19.
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`20.
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`21.
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`regulation.
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`22.
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`Survival and Hector Rivera are jointly and severally liable for the full amount of
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`the cargo loss in the amount of $30,530.00.
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`23.
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`All conditions precedent to the bringing of this lawsuit, if any, have been performed
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`and satisfied.
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`5
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 6 of 8 PageID #: 6
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`COUNT I – CARMACK AMENDMENT
`(BROUGHT AGAINST SURVIVAL)
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`Plaintiff realleges and incorporates by reference paragraphs 1 through 33 above as
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`1.
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`if fully set forth herein.
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`2.
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`Motor carriers like Survival are, pursuant to federal law, liable for the actual loss
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`or injury to property they undertake to transport occurring while in the motor carrier’s care, custody
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`or control. 49 U.S.C. § 14706 (the Carmack Amendment).
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`3.
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`At origin, the shipment of bromeliads was tendered to Survival in good condition
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`as evidenced by the clean bill of lading.
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`4.
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`Survival damaged the goods during transport as the driver did not set the
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`temperature of the truck refrigeration unit correctly as instructed in the bill of lading.
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`5.
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`As a result of the damage, Plaintiff sustained actual monetary loss in the amount of
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`$30,530.00.
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`6.
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`Plaintiff has standing to pursue this claim pursuant to the broker-carrier agreement
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`between Plaintiff and Survival.
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`7.
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`Plaintiff is entitled to judgment against Survival for the $30,530.00, exclusive of
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`costs, prejudgment interest and post-judgment interest.
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`WHEREFORE, Plaintiff respectfully demands judgment against Survival in the amount of
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`$30,530.00, including all reasonable and foreseeable consequential damages arising from the
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`damaged shipment, together with pre- and post-judgment interest and costs.
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`COUNT II - BREACH OF CONTRACT
`(BROUGHT AGAINST SURVIVAL)
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`Plaintiff realleges and incorporates by reference paragraphs 1 through 40 above as
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`1.
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`if fully set forth herein.
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`6
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 7 of 8 PageID #: 7
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`2.
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`The Broker-Carrier Agreement is a valid and enforceable contract between Plaintiff
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`and Survival.
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`3.
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`Survival breached the Broker-Carrier Agreement by, inter alia: (i) failing to pay
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`Plaintiff the full amount of the loss associated with the totaled goods ($30,530.00) within ninety
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`(90) days of notice of claim pursuant to Section 9 of the Broker-Carrier Agreement.
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`4.
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`As a result of Survival’s actions in failing to transport the bromeliads safely to
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`destination, Plaintiff has suffered loss of goodwill with Plants in Design, which is one of Plaintiff’s
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`largest customers, lost profits, and caused Plaintiff to incur attorney’s fees and costs in the
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`initiation and maintenance of this action.
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`COUNT III - BREACH OF ORAL CONTRACT
`(BROUGHT AGAINST HECTOR)
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`Plaintiff realleges and incorporates by reference paragraphs 1 through 44 above as
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`1.
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`if fully set forth herein.
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`2.
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`An oral contract existed between Plaintiff and Hector Rivera, in which the parties
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`agreed, inter alia, that Plaintiff would be reimbursed in full for the damaged plants and established
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`a payment schedule for same.
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`3.
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`Mr. Rivera, in his capacity as President of Survival Transportation and personally,
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`agreed to the aforementioned payment plan to reimburse the full value of the damaged plants in
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`order to avoid the cost and expense of litigation, and exposure to prevailing party attorney fees.
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`See Exhibit 4.
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`4.
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`Thereafter, Defendants failed to remit payment to Plaintiff, breaching the oral
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`contract. Plaintiff made numerous phone calls and sent several correspondences to Defendants
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`about the payments, but received no response.
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`7
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`Case 2:22-cv-00873-MKB-JMW Document 1 Filed 02/16/22 Page 8 of 8 PageID #: 8
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`5.
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`By reason of the facts and circumstances stated above, Plaintiff has been damaged
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`by the Defendants in the sum of $30,530.00.
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`WHEREFORE, Plaintiff demands judgment against Survival for damages for its breach
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`of contract, attorney's fees pursuant to Section 7 of the Broker-Carrier Agreement, costs, and for
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`and any and all further relief that this Court determines to be just and proper.
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`DEMAND FOR JURY TRIAL
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`Plaintiff demands trial by jury with respect to all claims so triable.
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`Dated: Islandia, New York
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`February 16, 2022
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`LEWIS JOHS AVALLONE AVILES LLP
`Attorneys for Plaintiff
` Agricultural Logistics LLC
` 1377 Motor Parkway, Suite 400
` Islandia, New York 11749
`631.755.0101
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`By: ________________________________
`Jennifer Hurley McGay, Esq.
`E-mail: jhmcgay@lewisjohs.com
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`Of counsel:
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`Bridgette M. Blitch, Esq.
`BLITCH WESTLEY BARRETTE, S.C.
`9100 Conroy Windermere Rd. Suite 200
`Windermere, Florida 34786
`407.574.2835
`E-mail: bblitch@bwesq.com
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`8
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