Not for Publication in West's Federal Reporter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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