United States District Court

for the

Southern District of Florida

Produce Pay, Inc., Plaintiff,

v.

Agrosale, Inc. and others, 

Defendants.

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)

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Civil Action No. 20-22585-Civ-Scola

Order Denying Motion for Reconsideration

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, “Agrosale”), 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, says it 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, at the same time lodged, 

among other things, a purported third-party complaint against Caribbean 

Produce Exchange, LLC, and its alleged principals, Gualberto Rodriguez 

Rodriguez and Gualberto Rodriguez Feliciano III (collectively, “Caribbean 

Produce”). (Agrosale’s Compl., ECF No. 23, 12–25.) Agrosale said it sold the 

malanga it ordered from Tropico to Caribbean Produce but that Caribbean 

Produce still owes Agrosale $141,233.61. (Id. ¶¶ 25–26.) Caribbean Produce, 

arguing that it is not a proper third-party defendant in this case, moved for 

dismissal of Agrosale’s complaint against it. (Carib. Prod.’s Mot. to Dismiss, ECF 

No. 42.) After careful review of the parties’ briefing and the relevant legal 

authorities, the Court granted the motion, dismissing the third-party complaint. 

(Order, ECF No. 73.) At the same time, Agrosale also sought leave to amend both 

its counterclaim and the third-party complaint. (Agrosale’s Mot. to Am., ECF No. 

58.) The Court denied that motion, in part, as to the third-party complaint, 

finding the amendment futile. (Order at 5–6.) Agrosale now asks the Court to 

reconsider the dismissal as well as the Court’s denial of Agrosale’s motion for 

leave to amend. (Agrosale’s Mot., ECF No. 75.) The motion has been fully briefed. 

(Carib. Prod.’s Resp., ECF No. 76; Agrosale’s Reply, ECF No. 77.) After review, 

the Court denies the motion (ECF No. 75).

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“[I]n the interests of finality and conservation of scarce judicial resources, 

reconsideration of an order is an extraordinary remedy that is employed 

sparingly.” Gipson v. Mattox, 511 F. Supp. 2d 1182, 1185 (S.D. Ala. 2007). A 

motion to reconsider is “appropriate where, for example, the Court has patently 

misunderstood a party, or has made a decision outside the adversarial issues 

presented to the Court by the parties, or has made an error not of reasoning but 

of apprehension.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 

(S.D. Fla. 1992) (Hoeveler, J.) (citation omitted). “Simply put, a party may move 

for reconsideration only when one of the following has occurred: an intervening 

change in controlling law, the availability of new evidence, or the need to correct 

clear error or prevent manifest injustice.” Longcrier v. HL-A Co., 595 F. Supp. 2d 

1218, 1247 (S.D. Ala. 2008) (quoting Vidinliev v. Carey Int’l, Inc., No. CIV.A. 

107CV762-TWT, 2008 WL 5459335, at *1 (N.D. Ga. Dec. 15, 2008)). However, 

“[s]uch problems rarely arise and the motion to reconsider should be equally 

rare.” Z.K. Marine Inc., 808 F. Supp. at 1563 (citation omitted). Certainly, if any 

of these situations arise, a court has broad discretion to reconsider a previously 

issued order. Absent any of these conditions, however, a motion to reconsider is 

not ordinarily warranted.

Here, Agrosale relies on the clear-error and manifest-injustice prongs of 

the reconsideration analysis. Agrosale’s argument centers on its concern that 

“the Court misunderstood the interrelation between the claims in this suit.” 

(Agrosale’s Mot. at 5.) As Agrosale explains it, “Agrosale’s defense against the 

Factoring Companies, Agrosale’s claims against Caribbean Produce, and

Caribbean Produce’s defense against Agrosale all depend largely on whether the 

malanga delivered was of proper quality.”1 (Id.) Agrosale continues, emphasizing 

that “Agrosale’s liability to the Factoring Companies is intertwined and 

dependent on Caribbean Produce’s liability to it.” (Id.) For the most part, the 

Court does not disagree with Agrosale’s depiction of the interrelatedness of the 

parties’ claims and issues in this case. Where the Court’s assessment diverges 

from Agrosale’s, however, is whether this interrelatedness satisfies the 

requirements of Rule 14(a)(1). The Court’s view remains that it does not.

By its plain terms, Rule 14 requires a third-party defendant to be either 

liable or potentially liable to the defendant in the main action “for all or part of 

the claim against it.” Fed. R. Civ. P. 14(a)(1). In its motion for reconsideration, 

Agrosale maintains that its third-party claim against Caribbean Produce “rests 

on breach of contract.” (Agrosale’s Mot. at 6.) The hurdle Agrosale fails to clear, 

however, is showing sufficient interrelatedness between the two contracts at 

1 The “Factoring Companies” refers to Produce Pay and other companies that may have 

purchased account receivables, related to Agrosale’s malanga purchase, from Tropico.

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issue in this case. Agrosale has not alleged, either in its initial thirty-party 

complaint or in its proposed amended complaint, any “allegations that either 

contract at issue was actually dependent on the performance of the other.” 

(Order at 5.) That is, Agrosale does not allege, in any of the versions of its 

complaint against Caribbean Produce, any facts showing that its breach of its 

contract with Tropico, or Produce Pay, was caused by or the result of Caribbean 

Produce’s actions or breach of its agreement with or duties to Agrosale. Because 

of this deficiency, the Court finds Agrosale has failed to state a proper thirdparty claim. Cf. Campen v. Greenamyer, 940 F.2d 1533 (9th Cir. 1991) (finding 

jurisdiction over third-party claims where the defendant alleged facts 

establishing the plaintiffs’ harm resulted not from the defendant’s actions, but 

rather from the third-party’s breach of a subcontract with the main defendant); 

Am. Fid. & Cas. Co. v. Greyhound Corp., 232 F.2d 89, 92 (5th Cir. 1956) (finding 

a third-party claim proper where the defendant’s Rule 14 claim rested on 

allegations that the third-party defendant failed, either negligently or in bad 

faith, to provide the defendant in the main action with the information it needed 

to comply with its contract with the main plaintiff); Int’l Paving Sys., Inc. v. VanTulco, Inc., 866 F. Supp. 682, 686 (E.D.N.Y. 1994) (finding impleader proper 

where the third-party complaint alleged that the main-defendant general 

contractor’s performance of its subcontract with the main-plaintiff subcontractor 

was dependent on the third-party defendant city’s paying the general contractor 

for the subcontractor’s work).

Agrosale insists both Produce Pay’s claims against it and Agrosale’s claims 

against Caribbean Produce “both rest upon the exact same set of necessary 

factual determinations.” (Agrosale’s Mot. at 9.) These determinations, as Agrosale 

frames it in its motion are: “what was the quality of the malanga delivered to 

Caribbean Produce and did Caribbean Produce properly assert[] its objections as 

to the malanga’s quality so as to relieve it from being liable to Agrosale for the 

full sum of the sale.” (Id.) The closest Agrosale comes to actually alleging facts 

establishing this dependency, however, is where it explains, in its proposed 

amended complaint, that “when malanga arrived in bad condition or of poor 

quality, Tropico would replace the quantity of defective malanga in a future 

shipment” and that “in order to effectuate the replacement credit, both Agrosale 

and Tropico had to receive timely and adequate notice of an issue with the 

shipment in order to address the issue.” (Prop. Am. Compl. ¶ 24, ECF No. 58-1, 

18.) But that is not enough. Absent from Agrosale’s complaint are any specific, 

factual allegations that, contractually or otherwise, Caribbean Produce was

required to provide notice to Agrosale before Agrosale’s obligations to Produce 

Pay would be triggered. In other words, Agrosale never alleges that Caribbean 

Produce’s failures actually prevented or relieved Agrosale from complying with its 

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own obligations to Produce Pay. Indeed, among the five counts Agrosale alleges 

against Caribbean Produce, not one asserts that Caribbean Produce’s alleged 

unlawful activity in any way interfered with Agrosale’s obligations to Produce 

Pay. (E.g., Prop. Am. Compl. ¶¶ 108 (“The failure of Caribbean Produce to make 

prompt payment in full for the Product it purchased caused Agrosale to incur 

compensatory damages plus prejudgment interest on late partial payments.”); 

113 (“Agrosale has incurred compensatory damages as a direct and natural 

result of the Caribbean Produce Defendants’ failure to preserve and to dissipate 

the PACA Trust assets of Caribbean Produce.”); 121 (“As a direct and proximate 

result of Caribbean Produce’s unfair and unlawful activity, Agrosale has been 

damaged.”); 136 (“Agrosale has incurred compensatory damages of $177,583.11 

as a direct and natural cause and result of Caribbean Produce’s failure to timely 

pay for its purchases of the Product.”); 143 (“[I]t would be inequitable for 

Caribbean Produce to retain the benefit of the Product without paying the value 

of such produce.”) As such, Agrosale has failed meet Rule 14’s “clear” 

requirement, in either its initial complaint or its proposed amended complaint,

“that the liability of the third party be dependent upon the outcome of the main 

claim.” United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 752 (5th Cir. 

1967).

Accordingly, the Court denies Agrosale’s motion for reconsideration of the 

Court’s order dismissing Agrosale’s complaint and denying its motion for leave to 

amend its third-party complaint (ECF No. 75): Agrosale has failed to persuade 

that a clear error has been made or that manifest injustice will result from the 

Court’s decision. To the extent Agrosale has filed what it considers a renewed

motion for leave to amend, that too is denied (id. at 12). The request is both 

procedurally and substantively defective. Lastly, the Court also denies, without 

prejudice, Agrosale’s further request for an extension of time to file its amended 

pleading: Agrosale’s Local Rule 7.1(a)(3) certificate of conferral fails to indicate 

the position of any of the other parties to this litigation.

Done and ordered, in Miami, Florida, on June 10, 2021.

_______________________________

Robert N. Scola, Jr.

United States District Judge

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