Andrew Smith Company v. Custom Cuts, Inc. et al

Filing 6

ORDER by Judge Jeremy Fogel Denying 2 Ex Parte Application For TRO Without Prejudice. (jflc2, COURT STAFF) (Filed on 10/18/2006)

Andrew Smith Company v. Custom Cuts, Inc. et al

Doc. 6

Case 5:06-cv-06478-JF

Document 6

Filed 10/18/2006

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 17, 2006, Plaintiff Andrew Smith Company filed the complaint in this action, alleging that Defendants Custom Cuts, Inc. and Bradley Beckman failed to pay approximately $150,000 due and owing for perishable agricultural commodities that Plaintiff had shipped to Defendants. The complaint alleges the following claims: (1) breach of contract; (2) enforcement of statutory trust provisions of the Perishable Agricultural Commodities Act ("PACA"); (3) failure to account and pay in violation of PACA; (4) injunctive relief; (5) unjust enrichment; (6) conversion; and (7) declaratory relief. Plaintiff also filed an ex parte application for temporary restraining order ("TRO") prohibiting Defendants from taking any action that would dissipate Plaintiff's beneficiary interest in Defendants' assets. A TRO may be granted without notice to the adverse party only if "(1) it
Case No. C 06-6478 JF (HRL) O R D E R DENYING EX PARTE APPLICATION FOR TRO WITHOUT PREJUDICE (JFLC2)

NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ANDREW SMITH COMPANY, Plaintiff, v. CUSTOM CUTS, INC., et al., Defendants.

Case Number C 06-6478 JF (HRL) ORDER DENYING EX PARTE APPLICATION FOR TRO WITHOUT PREJUDICE

[re: doc. no. 2]

Dockets.Justia.com

Case 5:06-cv-06478-JF

Document 6

Filed 10/18/2006

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clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." Fed. R. Civ. P. 65(b). Moreover, in this district an applicant for TRO must give notice to the adverse party "[u]nless relieved by order of a Judge for good cause shown." Civ. L.R. 65-1(b). Plaintiff has not provided an declaration of counsel explaining why no notice of the application for TRO was given to Defendants, and has not obtained an order from this Court relieving Plaintiff from the notice requirement. Accordingly, Plaintiff's application for TRO is DENIED WITHOUT PREJUDICE. IT IS SO ORDERED.

DATED: 10/18/06 __________________________________ JEREMY FOGEL Unit ed States District Judge

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C a s e No. C 06-6478 JF (HRL) O R D E R DENYING EX PARTE APPLICATION FOR TRO WITHOUT PREJUDICE (JFLC2)

Case 5:06-cv-06478-JF

Document 6

Filed 10/18/2006

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This Order was served on the following persons:

Counsel for Plaintiff: Paul W. Moncrief Jo hns on and Moncrief, PLC 295 Main Street, Suite 600 Salinas, CA 93901

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C a s e No. C 06-6478 JF (HRL) O R D E R DENYING EX PARTE APPLICATION FOR TRO WITHOUT PREJUDICE (JFLC2)