Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 1 of 7
`
`UNITED STATES DISTRICT COURT FOR
`THE NORTHERN DISTRICT OF NEW YORK
`
`PERDUE FARMS INC.
`
`3:20-CV-552[MAD/ML]
`Civil Action No. ________________
`
`Plaintiff,
`
`COMPLAINT
`
`-against-
`
`MAINES PAPER & FOOD SERVICES,
`INC.,
`
`Defendant.
`
`Plaintiff Perdue Farms Inc. (“Perdue” or “Plaintiff”), by and through its undersigned
`
`counsel, Cole Schotz P.C., as and for its Complaint against Maines Paper & Food Services, Inc.
`
`(“Maines” or “Defendant”), alleges and states as follows:
`
`THE PARTIES
`
`1.
`
`Perdue is a corporation organized under the laws of the State of Maryland, with
`
`its principal place of business located at 31149 Old Ocean City Road, Salisbury, Maryland
`
`21804.
`
`2.
`
`Upon information and belief, Maines is a corporation organized under the laws of
`
`the State of New York, with its principal place of business located at 101 Broome Corporate
`
`Parkway, Conklin, New York 13748.
`
`JURISDICTION AND VENUE
`
`3.
`
`The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. §
`
`1332(a)(1), as Plaintiff and Defendant are citizens of different states and the amount in
`
`controversy exceeds the $75,000 threshold.
`
`4.
`
`Venue is proper before this Court pursuant to 28 U.S.C. § 1391(b)(1), as
`
`Defendant’s principal place of business is located in the Court’s judicial district.
`
`61073/0001-20419735v5
`
`
`
`UNITED STATES DISTRICT COURT FOR
`THE NORTHERN DISTRICT OF NEW YORK
`
`PERDUE FARMS INC.
`
`3:20-CV-552[MAD/ML]
`Civil Action No. ________________
`
`Plaintiff,
`
`COMPLAINT
`
`-against-
`
`MAINES PAPER & FOOD SERVICES,
`INC.,
`
`Defendant.
`
`Plaintiff Perdue Farms Inc. (“Perdue” or “Plaintiff”), by and through its undersigned
`
`counsel, Cole Schotz P.C., as and for its Complaint against Maines Paper & Food Services, Inc.
`
`(“Maines” or “Defendant”), alleges and states as follows:
`
`THE PARTIES
`
`1.
`
`Perdue is a corporation organized under the laws of the State of Maryland, with
`
`its principal place of business located at 31149 Old Ocean City Road, Salisbury, Maryland
`
`21804.
`
`2.
`
`Upon information and belief, Maines is a corporation organized under the laws of
`
`the State of New York, with its principal place of business located at 101 Broome Corporate
`
`Parkway, Conklin, New York 13748.
`
`JURISDICTION AND VENUE
`
`3.
`
`The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. §
`
`1332(a)(1), as Plaintiff and Defendant are citizens of different states and the amount in
`
`controversy exceeds the $75,000 threshold.
`
`4.
`
`Venue is proper before this Court pursuant to 28 U.S.C. § 1391(b)(1), as
`
`Defendant’s principal place of business is located in the Court’s judicial district.
`
`61073/0001-20419735v5
`
`
`
`Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 2 of 7
`
`FACTUAL BACKGROUND
`
`5.
`
`Perdue is a family-owned company that was founded in 1920 and has operated in
`
`the agriculture and food-supply industries ever since. One aspect, among many others, of
`
`Perdue’s business includes raising, processing, and selling poultry and other products from its
`
`many locations across the eastern United States to certain grocery and restaurant chains.
`
`6.
`
`For more than ten (10) years, Perdue has provided certain poultry products to
`
`Maines, for ultimate delivery to Burger King and Wendy’s restaurants. As part of this process,
`
`Maines purchased the required poultry products directly from Perdue, before delivering them to
`
`Burger King or Wendy’s pursuant to Maines’ respective agreements with each restaurant.
`
`7.
`
`Under this arrangement, Maines submitted purchase orders to Perdue, specifying
`
`the type and quantity of poultry products requested, and Perdue generated and submitted to
`
`Maines an invoice for each purchase order. Each invoice provided to Maines is substantially
`
`identical to the sample invoice attached hereto as Exhibit A, except for the amounts owed,
`
`which varies by order.
`
`8.
`
`Additionally, each invoice expressly incorporates in conspicuous type the terms
`
`and conditions located at www.perduefoodsterms.com, a true and accurate copy of which is
`
`attached hereto as Exhibit B.
`
`9.
`
`The terms and conditions require Maines to give written notice to Perdue of a
`
`dispute concerning the accuracy of any invoice within five (5) days of the date of receipt.
`
`Exhibit B, ⁋ 5. However, Maines never provided such notice or otherwise disputed any invoices
`
`and has therefore waived its right to do so.
`
`10.
`
`Pursuant to the terms and conditions, Maines is also required to pay any charges,
`
`including attorneys’ fees, incurred by Perdue in enforcing its right to payment. Id., ⁋⁋ 7 and 19.
`
`61073/0001-20419735v5
`
`2
`
`
`
`Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 3 of 7
`
`Furthermore, Perdue is entitled to recover the maximum interest allowable by law on all non-
`
`conforming (i.e., late) payments made by Maines. Id., ⁋ 4.
`
`11.
`
`As to the payment terms, each invoice provided to Maines includes the following
`
`information, to which Maines has historically adhered:
`
`Invoice terms:
`Net 26 Days EFT1
`Funds Transfer By xx/xx/xxxx
`
`12.
`
`Unfortunately, however, Maines has failed to remit payment to Perdue in
`
`exchange for most of the poultry products delivered to Maines since late February 2020, with 29
`
`outstanding and past-due invoices totaling $1,462,936.95 as of the date of this filing. The
`
`outstanding and past-due invoices are detailed on a spreadsheet attached hereto as Exhibit C.
`
`13.
`
`Perdue has fulfilled all of its obligations under the purchase orders placed by
`
`Maines and the invoices generated therefor, including timely delivery to Maines of the goods in
`
`question. Maines accepted delivery of the goods in question, but has failed to remit full, or even
`
`partial, payment for them.
`
`14.
`
`On May 4, 2020, counsel for Perdue sent a formal demand letter to Maines,
`
`demanding payment of the amounts past due, and providing seven (7) days from the date of the
`
`letter to either provide payment in full, or to provide certain requested financial information
`
`along with a reasonable payment plan. The demand letter further warned that Perdue would be
`
`forced to pursue its legal remedies if Maines did not comply. A true and accurate copy of the
`
`demand letter is attached hereto as Exhibit D.
`
`
`1 “Net 26” provides Maines with 26 days from the date of the invoice to remit payment to Perdue. “EFT”
`stands for “Electronic Funds Transfer.”
`
`61073/0001-20419735v5
`
`3
`
`
`
`Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 4 of 7
`
`15.
`
`As of the date of this filing, Maines has neither remitted payment for the past due
`
`amounts, nor provided the requested financial information or any proposal for a reasonable
`
`payment plan.
`
`16.
`
`Instead, upon information and belief, Maines has decided to cease operating the
`
`portion of its business relevant to this Complaint. However, as of the date of this filing, Maines
`
`has not notified Perdue of this decision or addressed the past-due amounts or any ongoing
`
`business between Maines and Perdue.
`
`17.
`
`Accordingly, Perdue has filed this Complaint to pursue its legal remedies.
`
`FIRST CAUSE OF ACTION
`(Breach of Contract—Amounts Past Due)
`
`18.
`
`Perdue repeats, realleges, and restates all allegations contained in the paragraphs
`
`numbered “1” through “17” above, as though fully set forth here.
`
`19.
`
`Each unpaid purchase order and corresponding invoice discussed above
`
`constitutes a valid, enforceable contract for the sale of goods, properly consisting of an offer and
`
`acceptance (the purchase order and invoice) and agreed-upon consideration (the invoice price),
`
`the terms of which are expressly identified at the bottom of each invoice, reproduced here as
`
`Exhibit B.
`
`20.
`
`Perdue has performed all actions required by these contracts and has fulfilled all
`
`of its obligations thereunder, including timely delivery to Maines of the goods in question.
`
`21. Maines accepted delivery of such goods, but has not remitted payment for them.
`
`22.
`
`Pursuant to the contracts’ terms, Maines owes Perdue $1,462,936.95 in
`
`connection with the 29 outstanding and past-due invoices documented on Exhibit C.
`
`23.
`
`Perdue has demanded payment in full of all amounts past due by the demand
`
`letter dated May 4, 2020 sent to Maines by counsel for Perdue, attached hereto as Exhibit D.
`
`61073/0001-20419735v5
`
`4
`
`
`
`Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 5 of 7
`
`24. Maines has failed or refused to pay Perdue the amounts outstanding and past due
`
`under each of the aforementioned contracts, which constitutes a material breach of each such
`
`contract.
`
`25.
`
`As a direct and proximate result of Maines’ breach of contract, Perdue has
`
`suffered damages in an amount not less than $1,462,936.95, plus interest, attorneys’ fees and
`
`costs incurred by Perdue in pursuing collection of the amounts owed.
`
`SECOND CAUSE OF ACTION
`(Unjust Enrichment)
`
`26.
`
`Perdue repeats, realleges, and restates all allegations contained in the paragraphs
`
`numbered “1” through “25” above, as though fully set forth here.
`
`27. Maines placed orders for the purchase of goods from Perdue.
`
`28.
`
`Perdue delivered to Maines the goods in question.
`
`29. Maines knew that the goods delivered by Perdue had reasonable value.
`
`30. Maines knew that Perdue expected to be paid for the goods provided.
`
`31.
`
`Despite Perdue’s demands for payment, Maines has failed or refused to pay
`
`Perdue for the valuable goods provided.
`
`32.
`
`By virtue of its failure to pay for the goods provided by Perdue, Maines has been
`
`unjustly enriched in the amount of $1,462,936.95.
`
`33.
`
`As a direct and proximate result of Maines’ actions, Perdue has suffered damages
`
`in an amount not less than $1,462,936.95, plus interest, attorneys’ fees and costs incurred by
`
`Perdue in pursuing collection of the amounts owed.
`
`61073/0001-20419735v5
`
`5
`
`
`
`Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 6 of 7
`
`THIRD CAUSE OF ACTION
`(Account Stated)
`
`34.
`
`Perdue repeats, realleges, and restates all allegations contained in the paragraphs
`
`numbered “1” through “33” above, as though fully set forth here.
`
`35.
`
`Perdue regularly presented its invoices to Maines, which Maines retained without
`
`objection.
`
`36.
`
`As a result of Maines’ retention of Perdue’s invoices without ever objecting to the
`
`same, an account stated exists between Perdue and Maines.
`
`37.
`
`Despite due demand, Maines has failed and refused to pay any part of the account
`
`stated.
`
`38.
`
`As a direct and proximate result of Maines’ failure to pay the account stated,
`
`Perdue has been damaged in an amount not less than $1,462,936.95, plus interest, attorneys’ fees
`
`and costs incurred by Perdue in pursuing collection of the amounts owed.
`
`61073/0001-20419735v5
`
`6
`
`
`
`Case 3:20-cv-00552-MAD-ML Document 1 Filed 05/15/20 Page 7 of 7
`
`WHEREFORE, Perdue demands judgment against Maines as follows:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`in the amount of $1,462,936.95 for amounts owed, plus interest, attorneys’
`fees and costs incurred by Perdue in pursuing collection of the amounts
`owed for the first cause of action;
`
`in the amount of $1,462,936.95, plus interest, attorneys’ fees and costs
`incurred by Perdue in pursuing collection of the amounts owed for the
`second cause of action;
`
`in the amount of $1,462,936.95, plus interest, attorneys’ fees and costs
`incurred by Perdue in pursuing collection of the amounts owed for the
`third cause of action;
`
`granting all such other and further relief as this Court deems just,
`necessary, and proper.
`
`Dated: May 15, 2020
`
`COLE SCHOTZ P.C.
`
`By: /s/ Krista L. Kulp
`Krista L. Kulp
`1325 Avenue of the Americas
`19th Floor
`New York, New York 10019
`(212) 752-8000
`
`61073/0001-20419735v5
`
`7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
