HB Fresh Inc. v. Dahua Wholesale Inc.

MEMORANDUM AND ORDER   Plaintiff HB Fresh Inc. brings the instant action against Defendants Dahua Wholesale Inc. (“Dahua”) and Linfei Pan asserting claims for failure to pay trust funds, failure to make prompt payment, and unlawful dissipation of trust assets pursuant to the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. §499a, et seq. and state law claims for breach of contract and failure to pay for goods sold.¹ Plaintiff moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all claims. UNDISPUTED FACTS² Plaintiff is a wholesaler of produce sold in interstate commerce and is licensed under PACA. (Defs.’ Counterstatement of Material Facts Pursuant to Local Civ. R. 56.1 (“Defs.’ Counter 56.1″) 1, ECF No. 33.) Dahua is not licensed under PACA. (Jan. 10, 2020 Decl. Linfei Pan (“Pan Decl.”) 6, ECF No. 34.) Plaintiff maintains, and Defendants dispute, that between June 2, 2018, and June 26, 2018, Plaintiff sold and shipped mangoes to Dahua, valued collectively at $100,404.50.³ (See Pl.’s Statement of Material Facts Pursuant to Local Civ. R. 56.1 (“Pl.’s 56.1″) 3, ECF No. 27; Defs.’ Counter 56.1 3.) According to Plaintiff, it shipped these mangoes from Mexico to New York. (See Dec. 29, 2019 Decl. Eric Hurtado (“Hurtado Decl.”) 13, ECF No. 28; id., Ex. D, ECF No. 27-4.) Defendants do not dispute that they received shipments of mangoes from Plaintiff. (See Defs.’ Counter 56.1

4-5; Jan. 10, 2020 Decl. Mandy Shi (“Shi Decl.”) 3, ECF No. 35.) Rather, according to Defendants, they accepted 4,109 of the 4,326 cases of mangoes shipped on June 2; 2,351 of the 4,200 cases of mangoes shipped on June 7; 3,061 of the 4,196 cases of mangoes shipped on June 19; and 3,753 of the 3,990 cases of mangoes shipped on June 26. (See Defs.’ Counter 56.1 6; Hurtado Decl., Ex. E at 3, ECF No. 27-5.) Defendants maintain, however, that they did not order the mangoes but instead accepted them pursuant to a consignment agreement with Jian Thomas Qi, a buying agent for Wah Teng Produce, a nonparty to this action. (See Defs.’ Counter 56.1 3; Shi Decl.,