62 Agric. Dec. 342

completely prevailed. A substantial time was spent on these issues at the hearing. With respect to Complainant's claim of Respondent's alleged overcharges for supplies and services, Complainant was awarded its entire claim of $27,516.65, but no time was devoted to this issue at the hearing. Therefore, the total awarded Complainant as a result of evidence presented at the hearing was $159,454.75 out of the $497,298.07 remaining at issue after deducting Complainant's claim for alleged overcharges ($524,814.72 less $27,516.65), or

32%.

As Respondent prevailed on two of the three issues presented at the hearing, and limited Complainant's recovery to 32% of the amount actually litigated at the hearing, we conclude, as we did in the February 7, 2001, Decision and Order, that Respondent is the prevailing party. Therefore, we will restate our conclusions made in the Decision and Order with respect to Respondent's recovery of fees and expenses, with certain changes.

Respondent filed a claim for fees and expenses in the amount of $73,463.63. Complainant objected to the amount paid by Respondent's attorney for roundtrip airfare between Washington, D.C. to Bakersfield, California, for depositions on September 29, 1998, and October 26, 1998, in the amounts of $1,775.87 and $1,876.00, respectively, and for the hearing on September 16, 1999, in the amount of $1,972.00. Complainant claimed Respondent's attorney could have obtained less expensive flights if he had left from Baltimore rather than Washington, D.C. or purchased tickets earlier. Respondent replied that purchasing tickets earlier would not have saved any money, as Respondent's attorney was not staying over a Saturday night. Complainant's objections are not well taken. Respondent's attorney, whose office is located in Washington, D.C., was entitled to use an airport in the Washington, D.C. area. Complainant offered no evidence that Respondent's attorney could have obtained a less expensive flight if he had purchased tickets earlier.

Complainant also objected to charges for charter flights from Coachella, California, to Bakersfield, California, taken by Respondent's officers Michael Aiton and David Marguleas. The flights were on October 29, 1998, to take depositions, in the amount of $1,637.72, and on September 24, 1999, to testify at the hearing, in the amount of $1,463.84. A search on the American Airlines website made at approximately the time the Decision and Order was issued, revealed that a round-trip unrestricted fare to Bakersfield from Palm Springs, California, which is the closest large airport to Coachella, was $337.00. Respondent never provided any justification for the use of charter flights rather

16(...continued)

auditors.

than the readily available commercial flights. Therefore, we allow $337.00 for each person for each trip, resulting in a total of $1,348.00 for both persons on both trips. This reduces Respondent's eligible fees and expenses by $1,753.56, from $73,463.63 to $71,710.07.

As stated, Complainant's efforts at the hearing resulted in a recovery of about 32% of the amount claimed as damages and litigated at the hearing. All of the issues litigated at the hearing were hotly contested. As a result of Complainant's partial recovery, we will reduce Respondent's $71,710.07 claim by 32%, or $22,947.22, which leaves $48,762.85 to be awarded Respondent as fees and expenses.

Order

The reparation awarded in the November 28, 2001, Ruling on Reconsideration, $186,971.40, with interest thereon at the rate of 10% per annum from September 1, 1996, until paid, plus the amount of $300.00, shall be paid by Respondent to Complainant within 30 days from the date of this Order.

Within 30 days from the date of this Order, Complainant shall pay to Respondent, as reparation for fees and expenses, $48,762.85, with interest thereon at the rate of 10% per annum from the date of this Order, until paid. Copies of this Order shall be served upon the parties.

C. H. ROBINSON COMPANY v. BUDDY'S PRODUCE, INC.

PACA Docket No. R-02-021.

Order of Dismissal.

Filed August 21, 2003.

, for Complainant.

, for Respondent.

Patricia Harps, Presiding Officer.

Decision and Order filed by William G. Jenson, Judicial Officer.

PACA-R Election of Remedies Trust action in federal district court as affecting Res judicata Effect of voluntary dismissal with prejudice on parallel litigation before the Secretary.

Where Complainant filed a trust action in federal district court involving the same parties and subject matter as in a reparation action before the Secretary, and the trust action was opposed by

62 Agric. Dec. 358

Respondent, there was no election of remedies under section 5(b) of the Act. A voluntary dismissal with prejudice in the trust action by order of the District Court upon stipulation of the parties was res judicata of all the issues before the Secretary, and precluded maintenance of the claim before the Secretary. The complaint was dismissed.

This is a reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. § 499a et seq.). On January 16, 2001, Complainant filed a formal complaint alleging the sale and shipment to Respondent of various lots of perishable produce between January 31, 2000, and July 10, 2000.1 In addition Complainant alleged Respondent's acceptance of the produce, and that Respondent failed to pay the contract prices totaling $26,510.00.

On February 26, 2001, Complainant filed a trust action under section 5(c) of the Act against Respondent, and Respondent's principals, in the United States District Court for the Western District of Oklahoma alleging failure to maintain the statutory trust as to the same transactions that are covered by the complaint herein, and, inter alia, breach of contract by failure to pay for the produce. Respondent filed an answer in the reparation proceeding before the Secretary on March 30, 2001, alleging that the produce shipped was distressed, and that the transactions were adjusted between the parties. On April 4, 2001, Respondent filed an answer in the trust action denying any liability to Complainant. On July 27, 2001, the parties were notified in the reparation action that the submission of evidence had been completed, and that the record was closed. On October 2, 2001, the parties to the reparation proceeding were notified that the time for the filing of briefs had expired, and that the matter was being assigned to a Presiding Officer for the preparation of a decision.

On January 25, 2002, the parties to the District Court action filed with the Court a "STIPULATION AND ORDER FOR DISMISSAL." This document was signed by the attorneys for each party. The body of the document consisted of one sentence as follows: "The undersigned counsel for Plaintiff and Defendants hereby stipulate and agree that the within civil action may be dismissed with prejudice and without costs to any party, pursuant to Federal Rule of Civil Procedure 41(a)." On January 28, 2002, the court entered the following order:

ORDER

'A timely informal complaint covering the same transactions was filed on October 26, 2000.

27 U.S.C. 499(e)(c).

Now, on this 28th day of January, 2002, this matter comes before this Court upon the stipulation of the parties that the civil matter designated as CIV-01-349(R) should be dismissed with prejudice and without costs to any party, pursuant to Federal Rule of Civil Procedure 41(a), and this Court, being advised in the premises and for good cause shown, finds that this Order should be granted.

IT IS THEREFORE

ORDERED,

ADJUDGED, AND

DECREED that the civil matter CIV-01-349(R) is hereby dismissed with prejudice and without costs to any party, pursuant to Federal Rule of Civil Procedure 41(a).

On January 31, 2002, Respondent's counsel filed a motion with this Department to dismiss the reparation action on the basis of lack of jurisdiction resulting form Complainant's having made an election of remedies by the filing of the trust action, and on the basis of claim preclusion resulting from the voluntary dismissal in the District Court. On April 15, 2002, Complainant filed a response to this motion.

The District Court action was an action for the enforcement of the statutory trust, and, in and of itself, would not normally involve an election of remedies. In the event that a trust claim is contested on the merits it is our policy to stay reparation actions pending the outcome of the district court action, and to treat the final judgment in the district court as res judicata of the issues in the reparation case. Furthermore, it is also our policy to not treat the filing of a separate civil court action as an election of remedies under section 5(b) when there is a voluntary dismissal by the party instituting the action.3 We conclude that Respondent has not shown that an election of remedies pursuant to section 5(b) took place.

In this case the voluntary dismissal in the District Court was with prejudice. A dismissal with prejudice implies an adjudication on the merits, which bars the right to bring or maintain an action on the same claim. Normally such a dismissal is res judicata as to every matter in issue. Complainant, however, in

'See Han Yang Trade Co., Inc. v. A.F. & Sons Produce, Inc., 52 Agric. Dec. 765 (1993); Spring Acres Sales Company, Inc., v. Freshville Produce Distributors, Inc., 45 Agric. Dec. 2181 (1986); and Gilliland & Co. v. San Antonio Commission Co., 2 Agric. Dec. 492, at 495 (1943).

*See Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995); Brooks v. Barbour Energy Corp., 804 F.2d 1144, 1146 (10th Cir.1986); Clark v. Haas Group, Inc., 953 F.2d 1235, 1238 (10th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 58 (1992).

62 Agric. Dec. 358

its response to the motion to dismiss, alleges that the intent of the parties was that the dismissal not preclude the continuance of this reparation case, and that the purpose of the dismissal was to avoid duplicate litigation and conform with the election of remedies requirement of section 5(b). Complainant's counsel attached an affidavit to the response to the motion to dismiss. This affidavit was given by Mark A. Amendola, Esq., an Ohio attorney who was retained by Complainant to handle the trust litigation, and who negotiated and signed the dismissal stipulation. Mr. Amendola stated in part:

There was no settlement or compromise of the District Court case. Moreover, there was no value and no consideration for the dismissal of the District Court case. Prior to executing the Stipulation for Dismissal, I discussed with Buddy's counsel the possibility of Robinson agreeing to also dismiss its pending reparation claim in exchange for an appropriate settlement payment. Buddy's did not accept that proposal and it was my understanding that both parties preferred to obtain a final adjudication on Robinson's claim from the Secretary of Agriculture.

Complainant asserts that in "determining the preclusive effect of a stipulation. of dismissal, the courts... routinely look to the intent of the parties," and urges that, in accord with the affidavit of the Ohio attorney quoted above, the intent of the parties was that the dismissal not have preclusive effect. In 1975 the United States Supreme Court stated that:

Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree . . .5

The Court was interpreting an elaborate consent decree issued in a Federal Trade Commission case that prohibited the "acquiring" of certain assets. It was undisputed that the decree had been violated, but for purposes of assessment of penalty it was questioned whether daily penalties could be assessed for the violation of a decree that prohibited only acquisition, allegedly a one time event.

"United States v. ITT Continental Baking Co., 420 U.S. 223 at 238 (1975).