Alphas Company, Inc. v. Empacadora, GAB, Inc. , 519 F. App'x 692 ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1962
THE ALPHAS COMPANY, INC.,
Plaintiff, Appellant,
v.
EMPACADORA, GAB, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Howard, Selya and Lipez,
Circuit Judges.
Noah B. Goodman and Law Offices of Noah B. Goodman on brief
for appellant.
Theodore M. Hess-Mahan and Hutchings, Barsamian, Mandelcorn &
Zeytoonian, LLP on brief for appellee.
March 19, 2013
SELYA, Circuit Judge. Appellee Empacadora, GAB, Inc.
(Empacadora) brought an administrative proceeding against appellant
The Alphas Company, Inc. (Alphas) pursuant to the Perishable
Agricultural Commodities Act (PACA), 7 U.S.C. §§ 499a-499t,
alleging that Alphas had failed to pay the full purchase price due
on ten truckloads of produce. On August 11, 2011, the Secretary of
Agriculture (the Secretary) issued a reparation order awarding
Empacadora $65,357.94, plus interest and costs. On October 25,
2011, the Secretary denied Alphas' petition for reconsideration.
On November 23, 2011, Alphas purposed to appeal the
reparation order by filing a petition and notice in the United
States District Court for the District of Massachusetts. See 7
U.S.C. § 499g(c). On December 1, 2011, Alphas submitted a $100,000
"Business Service Bond," backdated to November 23, 2011.
When Empacadora did not timely respond, Alphas sought and
received an entry of default. See Fed. R. Civ. P. 55(a).
Empacadora countered by moving to dismiss Alphas' appeal, asserting
that the district court lacked subject matter jurisdiction because
Alphas had failed to comply with the PACA's bond requirements.
Alphas opposed the motion, and the parties consented to have the
case decided by a magistrate judge. See 28 U.S.C. § 636(c).
In due course, the magistrate judge granted the motion to
dismiss, concluding that Alphas' failure to file a bond that met
the requirements of 7 U.S.C. § 499g(c) rendered its appeal
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ineffective. Alphas Co. v. Empacadora, GAB, Inc., No. 11-12076,
2012 WL 2862103, at *6 (D. Mass. July 10, 2012). This timely
second-tier appeal followed. We need not tarry. Alphas' appeal is
foreclosed by our recent decision in Alphas Co. v. William H.
Kopke, Jr., Inc., No. 12-1581, 2013 WL 518718 (1st Cir. Feb. 13,
2013), in which we held "that the bond requirements of the PACA are
mandatory and jurisdictional, and that the timely filing of a
proper bond is a prerequisite for judicial review of a reparation
order." Id. at *4.
Here, as in Kopke, the appellant failed to comply
strictly with the statutory bond requirements. Specifically, the
bond was not filed within the prescribed thirty-day period; it was
in an amount less than the amount statutorily required; and it did
not contain appropriate indemnification covenants. See 7 U.S.C.
§ 499g(c). Given these patent deficiencies, the magistrate judge
properly concluded that the district court lacked subject matter
jurisdiction to entertain the attempted appeal of the reparation
order.
The entry of a default, later vacated, does not affect
this conclusion. After all, it is settled beyond hope of
contradiction that a party cannot confer subject matter
jurisdiction, otherwise absent, by waiver, consent, or indolence.
See United States v. Horn, 29 F.3d 754, 768 (1st Cir. 1994); see
also Kopke, 2013 WL 518718, at *4 (stating that "if an appellant
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fails to comply with the statutory bond requirements, a federal
court cannot exercise subject matter jurisdiction").
We need go no further. For the reasons elucidated above,
the judgment in this case is summarily affirmed. See 1st Cir. R.
27.0(c).
Affirmed.
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