United States District Court

for the

Southern District of Florida

Produce Pay, Inc., Plaintiff,

v.

Agrosale, Inc. and others, 

Defendants.

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Civil Action No. 20-22585-Civ-Scola

Order Granting Motion to Dismiss and 

Granting in Part and Denying in Part Motion for Leave to Amend

Plaintiff Produce Pay, Inc., commenced the main litigation in this case to 

recover amounts it claims it is owed by Defendant Agrosale, Inc., and various 

Agrosale principals (collectively the “Agrosale Parties”), for shipments of 

malanga, a Caribbean root vegetable that Produce Pay says Agrosale failed to pay 

for. (Compl., ECF No. 1.) Produce Pay did not itself sell the malanga to Agrosale

but, instead, bought the account receivables from another company, 

Comercializadora Agropecuaria del Tropico, S.A. de C.V. (“Tropico”), which had 

previously contracted with Agrosale for the delivery and sale of the malanga. (Id. 

at ¶¶ 14–16.) Agrosale, in responding to the complaint, has also lodged a 

counterclaim and third-party complaint against Produce Pay and other parties, 

including Caribbean Produce Exchange, LLC, and its alleged principals, 

Gualberto Rodriguez Rodriguez and Gualberto Rodriguez Feliciano III

(collectively, the “Caribbean Produce Parties”). (Agrosale’s Compl., ECF No. 23, 

12–25.) Agrosale says it sold the malanga it ordered from Tropico to Caribbean 

Produce but that Caribbean Produce still owes Agrosale $141,233.61. (Agrosale 

Compl. ¶¶ 25–26.) The Caribbean Produce Parties now ask the Court to dismiss 

Agrosale’s claims against them because, among other reasons, they are not 

proper third-party defendants in this case. (Carib. Prod. Parties’ Mot. to Dismiss, 

ECF No. 42.) Agrosale opposes the Caribbean Produce Parties’ motion, insisting

it has properly asserted a third-party claim because its claims against the 

Caribbean Produce Parties are “related to and dependent on the claims asserted 

in the main action.” (Agrosale’s Resp., ECF No. 47, 2.) The Caribbean Produce 

Parties have timely replied. (Carib. Prod. Parties’ Reply, ECF No. 52.) At the same 

time, Agrosale seeks leave to amend its counterclaim and third-party complaint. 

(Agrosale’s Mot. to Am., ECF No. 58.) Produce Pay, as counterdefendant, and 

third-party defendant Drip Capital Inc., the only parties who have answered 

Agrosale’s claims, do not oppose the amended pleading. (Agrosale’s Mot. at 5.) 

The Caribbean Produce Parties, on the other hand, object to any amendment, as 

Case 1:20-cv-22585-RNS Document 73 Entered on FLSD Docket 04/08/2021 Page 1 of 7
to Agrosale’s claims against them, arguing futility. (Carib. Prod. Parties’ Resp., 

ECF No. 61, 3.) Agrosale has timely replied. (Agrosale’s Reply, ECF No. 63.) The 

Court has carefully considered the briefing and the record in this case and 

agrees Agrosale’s claims against the Caribbean Produce Parties should be 

dismissed and that Agrosale’s proposed amendment, with respect to the 

Caribbean Produce Parties is futile. Accordingly, the Court grants the Caribbean 

Produce Parties’ motion to dismiss (ECF No. 42) and denies Agrosale’s motion 

for leave to amend, in part, with respect to the claims against the Caribbean 

Produce Parties, but grants it, in part, as to the other changes (ECF No. 58).

1. Background

In its complaint, Produce Pay alleges Agrosale failed to pay at least 

$67,848.86 for malanga Tropico sold to Agrosale in early 2020. (Compl. ¶¶ 13, 

32.) Attached to Produce Pay’s complaint are four invoices, memorializing the 

parties’ transactions. (Ex. C., ECF No. 1-5.) In each invoice, Agrosale is identified 

as the buyer and Tropico as the seller (with payment due to Produce Pay). (Id.) 

None of these invoices mentions Caribbean Produce. (Id.) Produce Pay says 

Tropico delivered all the malanga Agrosale ordered but that Agrosale failed to pay 

various amounts there were invoiced. (Id. ¶¶ 88, 90.)

In its third-party complaint, Agrosale acknowledges it agreed to purchase 

malanga from Tropico. (Agrosale’s Compl. ¶ 18.) Agrosale also alleges that 

Caribbean Produce, in turn, agreed to then buy that same malanga from 

Agrosale. (Id. ¶ 20.) The malanga was ultimately shipped directly from Tropico, 

in Mexico, to Caribbean Produce, in Puerto Rico. (Id. ¶ 21.) Agrosale maintains 

that, to date, Caribbean Produce paid Agrosale only $5,528.39 and still owes 

$141,233.61 for the malanga it purchased. (Id. ¶ 26.) 

2. Legal Standards

A. Motion to Dismiss for Failure to State a Claim

A court considering a motion to dismiss, filed under Federal Rule of Civil 

Procedure 12(b)(6), must accept all the complaint’s allegations as true, 

construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 

516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a 

short and plain statement of the claim showing that the pleader is entitled to 

relief, a plaintiff must nevertheless articulate “enough facts to state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). “But where the well-pleaded facts do not permit the court to infer more 

than the mere possibility of misconduct, the complaint has alleged—but it has 

not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 

Case 1:20-cv-22585-RNS Document 73 Entered on FLSD Docket 04/08/2021 Page 2 of 7
679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal punctuation omitted). A 

court must dismiss a plaintiff’s claims if it fails to nudge its “claims across the 

line from conceivable to plausible.” Twombly, 550 U.S. at 570.

B. Motion for Leave to Amend

In accordance with Federal Rule of Civil Procedure 15(a)(2), a party seeking 

to amend its complaint may do so only with the opposing party’s written consent 

or the court’s leave. According to the rule, leave should be freely given when 

justice so requires. Rule 15(a) reflects a policy of “liberally permitting 

amendments” and absent a “substantial reason to deny leave to amend” a 

plaintiff’s request should be granted. Espey v. Wainwright, 734 F.2d 748, 750 

(11th Cir. 1984). “Although leave to amend shall be freely given when justice so 

requires, a motion to amend may be denied on numerous grounds such as 

undue delay, undue prejudice to the defendants, and futility of the 

amendment.” Maynard v. Bd. of Regents of Div. of Universities of Florida Dep’t of 

Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1287 (11th Cir. 2003) (quotations 

omitted). “[L]eave to amend should not be denied on the ground of futility unless 

the proposed amendment is clearly insufficient or frivolous on its face.” Montes v. 

M & M Mgmt. Co., No. 15-80142-CIV, 2015 WL 11254703, at *1 (S.D. Fla. May 

12, 2015) (Marra, J.) (citing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th 

Cir.1980)). In order to deny leave to amend, the Court must identify a “justifying 

reason.” Foman v. Davis, 371 U.S. 178, 182 (1962).

3. Discussion

A. Agrosale has not stated a third-party claim against the Caribbean 

Produce Parties in its initial pleading.

Agrosale maintains its third-party claims against the Caribbean Produce 

Parties are sufficiently interrelated with Produce Pay’s claims against Agrosale 

“that requiring a separate lawsuit would be unnecessarily duplicative and a 

waste of judicial resources.” (Agrosale’s Resp. at 7.) The Caribbean Produce 

Parties, on the other hand, argue Agrosale’s claims against them must be 

dismissed because they do not comply with Federal Rule of Civil Procedure 14’s 

requirement that a third-party plaintiff must allege that a third-party defendant 

is in some way responsible for the liability of the third-party plaintiff, as 

defendant in the main action. (Carib. Prod. Parties’ Mot. at 6; Carib. Prod. 

Parties’ Reply at 3.) After careful review, the Court agrees with the Caribbean 

Produce Parties: Agrosale has failed to state a claim against the Caribbean 

Produce Parties as third-party defendants.

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Rule 14 authorizes only a narrow category of claims and parties that may 

be impleaded: the nonparty must be either liable or potentially liable for all or 

part of the claim against the defendant. Fed. R. Civ. P. 14(a)(1). In other words, 

the “claim against the third-party defendant must be based upon plaintiff's claim 

against defendant” in the main action.” 6 Fed. Prac. & Proc. Civ. § 1446, When a 

Third-Party Action Is Proper (3d ed.). It is not enough that the alleged third-party 

claim simply “arises from the same transaction or set of facts as the original 

claim.” Id.; U.S. v. Olavarrieta, 812 F.2d 640, 643 (11th Cir. 1987). That is, the 

nonparty’s liability on the third-party plaintiff’s claim must be “in some way 

dependent upon the outcome of the main claim.” Olavarrieta, 812 F.2d at 643.

Fatal to its impleader attempts here, Agrosale has failed to allege facts 

showing that its claims against the Caribbean Produce Parties are dependent 

upon the outcome of the main claim. As Agrosale acknowledges, the main claim 

against it is premised on Agrosale’s failure to pay for the malanga Agrosale

ordered from Tropico. (Agrosale’s Resp. at 7.) Agrosale further recognizes, in 

turn, that its third-party claim seeks to recover for the same malanga Agrosale 

then sold to the Caribbean Produce Parties, but as part of a separate agreement. 

(Id. at 4.) Thus, even though the very same shipments of produce appear to be 

involved in both branches of this litigation, the allegations show that the

relationship between the parties to the main action is governed by the terms of 

one contract while the relationship between Agrosale and Caribbean Produce, 

conversely, is governed by an entirely independent contract. Simply put, a claim 

against a nonparty is not permissible as a third-party claim just because it 

arises out of the same general set of facts as the main claim. Olavarrieta, 812 

F.2d at 643 (“Rule 14(a) does not allow the defendant to assert a separate and 

independent claim even though the claim arises out of the same general set of 

facts as the main claim.”). Instead, a putative third-party plaintiff must show 

something more: that the putative third-party defendant is in some way actually 

responsible for the third-party plaintiff’s liability in the main action. And 

Agrosale simply has not made that showing here. In other words, Agrosale has 

failed to set forth facts that would establish how its liability, or lack thereof, to 

Produce Pay will, in turn, dictate whether Agrosale is entitled to any relief from 

the Caribbean Produce Parties. See United States v. $343,726.60 in U.S. 

Currency, 05-20513-CIV, 2005 WL 8165387, at *1 (S.D. Fla. Oct. 11, 2005)

(Jordan, J.) (dismissing a third-party claim where “[w]hether [the defendant] is 

entitled to any relief on [his third-party] claim is wholly independent of his 

liability to the [the plaintiff] for defaulting”).

Agrosale, in support of impleader, argues that, if the Caribbean Produce 

Parties’ “assertion of defective quality [is] meritorious, that in turn will raise 

defenses for Agrosale as to the claims asserted” against it in the main action. 

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(Agrosale’s Resp. at 7.) But Agrosale’s point misses the mark: nothing in this 

hypothetical scenario would lead to the Caribbean Produce Parties’ being liable 

themselves for any portion of Produce Pay’s claim against Agrosale. To the extent 

Caribbean Produce maintains it did not pay Agrosale because the malanga was 

damaged, spoiled, or failed to arrive, that alone does not transform the 

Caribbean Produce Parties into indemnitors, subrogors, or joint tortfeasors of 

some kind, who would be required to reimburse Agrosale for any damages it is 

found liable for though Produce Pay’s main action. See iBasis Glob., Inc. v. 

Diamond Phone Card, Inc., 278 F.R.D. 70, 77 (E.D.N.Y. 2011) (denying impleader 

under Rule 14(a)(1) where the defendant in the main action did not allege that 

the putative third-party defendant “would be liable to satisfy any portion of the 

judgment in favor of the [p]laintiff if successful.”) The same is true of Agrosale’s 

allegation that it was acting as an intermediary between Tropico and Caribbean 

Produce: there are no allegations that either contract at issue was actually 

dependent on the performance of the other—regardless of whether Agrosale 

purchased the malanga as an intermediary, at Caribbean Produce’s direction, or 

not. In sum, while certain findings in the main action may ultimately impact or 

touch on the putative third-party claims, Agrosale has failed to allege facts 

showing that its recovery from the Caribbean Produce Parties is “in some way” 

actually “dependent upon the outcome of the main action.” Olavarrieta, 812 F.2d 

at 643. Without any facts to support its conclusory claim that the putative thirdparty claims are “dependent on the claims asserted in the main action” 

(Agrosale’s Resp. at 2), the Court finds Agrosale’s third-party claims against the 

Caribbean Produce Parties claims subject to dismissal.1

B. Agrosale’s proposed amendment to its third-party claims is futile as 

to the Caribbean Produce Parties. 

Agrosale seeks to file an amended counterclaim and third-party complaint. 

As Agrosale explains it, its new pleading “eliminates Third-Party Defendant 

Gualberto Rodriguez Rodriguez from the suit, adds additional factual allegations, 

and adds additional counts against Third-Party Defendants Plus 58 Investment, 

LLC, [Tropico], and Caribbean Produce.” (Agrosale’s Mot. at 2.) Continuing, 

Agrosale says the changes “reflect additional information that has been 

discovered since the original pleading was filed, as well as correct several 

scrivener’s errors.” (Id.) Among the parties who have been served, only the 

Caribbean Produce Parties object to the amendment. They contend that the 

amendment Agrosale proposes, with respect to the third-party claims against 

1 Because the Court finds Agrosale’s third-party claims against the Caribbean Produce Parties 

subject to dismissal for this reason, it declines to address the other arguments raised in the 

Caribbean Produce Parties’ motion to dismiss.

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them, would be futile. (Carib. Prod.’s Resp. at 3.) In support, they point to the 

same objections they raise in their motion to dismiss, arguing that the new 

pleading “cures none of the fatal defects in its original [claims] against the 

Caribbean [Produce] Parties.” (Id.) The Court agrees with the Caribbean Produce 

Parties. 

Among the changes to Agrosale’s pleading is the added allegation that 

Agrosale was specifically acting “as an intermediary broker for Caribbean 

Produce to purchase malanga from Tropico.” (Agrosale’s Prop. Am. Compl. ¶ 19, 

ECF No. 58-1, 18 (emphasis added).) Apart from this conclusory allegation, 

however, Agrosale has not alleged any actual facts that would support a finding 

that Agrosale’s role in the malanga transactions was as a broker. Instead, all the 

facts Agrosale alleges in its proposed amended pleading show that Agrosale (1) 

purchased malanga from Tropico and, then, (2) resold that same malanga to 

Caribbean Produce. Agrosale proffers no facts showing there was any kind of a

broker relationship between any of the parties. And, ultimately, even Agrosale 

itself acknowledges, in its reply, that “Agrosale does not allege or claim that it 

had a commission brokerage agreement with Caribbean and Tropico for the 

sale of the malanga that is at issue in this suit.” (Agrosale’s Reply at 3 (emphasis 

in original).) By way of explanation Agrosale says, rather, it simply used the term 

“intermediary broker” “to illustrate that transactions with Tropico and Caribbean 

Produce were not wholly divorced from each other.” (Id.) Continuing, Agrosale 

clarifies that “the two sales transactions were fixed price sales and not 

consignments or a commission brokerage as that transaction is commonly 

understood under [the Perishable Agricultural Commodities Act].” (Id. at 3–4.)

Aside from the brokerage issue, Agrosale also acknowledges its amended 

pleading, as to the Caribbean Produce Parties, “does not change the core claims 

and factual allegations asserted in the third-party complaint.” (Id. at 4.) Since 

the Court has already found these claims subject to dismissal, for the reasons 

set forth in the preceding section, it agrees with the Caribbean Produce Parties

that Agrosale’s amended pleading, as to the claims against them, is futile: the 

proposed amendment is insufficient on its face. Agrosale’s argument that its 

claims against the Caribbean Produce Parties “are sufficiently interrelated with 

Produce Pay’s claims that requiring a separate lawsuit would be unnecessarily 

duplicative and a waste of judicial resources” (id. at 5) is unavailing. That is, 

whether the Court should exercise its discretion to allow a third-party to proceed 

with the main action comes into play only if the claims are actually within the 

scope of impleader established by Rule 14(a) to begin with. See 6 Fed. Prac. & 

Proc. Civ. § 1443, Discretion of the Court (3d ed.) (“[T]he court's discretion may be 

exercised only when the claim is within the scope of impleader established by 

Rule 14(a).”)

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4. Conclusion

As set forth above, the Court grants the Caribbean Produce Parties’ 

motion to dismiss Agrosale’s third-party claims against them. (ECF No. 42.) The 

dismissal is without prejudice as to Agrosale’s refiling its claims against the 

Caribbean Produce Parties in a separate action and in the appropriate forum. On 

the other hand, the Court denies Agrosale’s renewed motion for leave to amend, 

in part, as to the Caribbean Produce Parties, but grants it, in part, in all other 

respects. (ECF No. 58.) The Court directs Agrosale to amend its proposed 

amended pleading to eliminate the claims, set forth in counts one through five, 

against any of the Caribbean Produce Parties. This amended pleading must then 

be refiled as a separate docket entry, on or before April 14, 2021.

Done and ordered, in Miami, Florida, on April 8, 2021.

_______________________________

Robert N. Scola, Jr.

United States District Judge

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