Natural Selection Foods, LLC v. Premium Fresh Farms, LLC et al

Filing 8

ORDER by Judge James Ware Granting 5 Ex Parte Motion for Temporary Restraining Order and Denying 4 Motion to Consolidate Motion for Preliminary Injunction with Trial(rmwlc1, COURT STAFF) (Filed on 1/11/2007)

Natural Selection Foods, LLC v. Premium Fresh Farms, LLC et al

Doc. 8

Case 5:07-cv-00197-RMW

Document 8

Filed 01/11/2007

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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 NATURAL SELECTION FOODS, LLC, a limited liability company, Plaintiff, v. PREMIUM FRESH FARMS, LLC; a California limited liability company; SALVADORE PAUL TARANTINO; an individual; EMMITT L. PFOST; an individual; PAUL E. DUNHAM; an individual; PDP ASSOCIATES, LLC; a California limited liability company; and AG HARVESTING & TECHNOLOGIES, LLC, a California limited liability company, Defendants. No. C-07-00197 RMW ORDER GRANTING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER; DENYING PLAINTIFF'S MOTION TO CONSOLIDATE MOTION FOR PRELIMINARY INJUNCTION WITH TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION E-FILED on 1/11/07

TO DEFENDANTS PREMIUM FRESH FARMS, LLC; SALVADORE PAUL TARANTINO; EMMITT L. PFOST; PAUL E. DUNHAM; PDP ASSOCIATES, LLC; AG HARVESTING & TECHNOLOGIES, LLC, AND THEIR ATTORNEYS OF RECORD: TEMPORARY RESTRAINING ORDER This matter is before the court upon Ex Parte Motion for Temporary Restraining Order by Natural Selection Foods, LLC ("Plaintiff") pursuant to Federal Rule of Civil Procedure 65(b). Under Rule 65(b), a temporary restraining order may be granted without notice to the adverse party only if: (1) it clearly appears from specific facts shown by affidavit or verified complaint that
ORDER GRANTING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER--C-07-00197 RMW SPT

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immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition, and (2) the applicant's attorney certifies the reasons that notice should not be required. It appears to the court (1) that defendants Premium Fresh Farms, LLC; Salvadore Paul Tarantino; Emmitt L. Pfost; Paul E. Dunham; PDP Associates, LLC; and AG Harvesting & Technologies, LLC ("Defendants") have engaged in transactions requiring the establishment of a statutory trust to the benefit of Plaintiff pursuant to the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e; (2) that Defendants are presently engaged in dissipating the assets it is required to keep in trust under PACA; (3) that they will continue to do so unless restrained by order of this court; (4) that notice of this TRO would cause further dissipation in advance of a court order; and (5) that immediate and irreparable injury, loss, and damage will result to Plaintiff if Defendants are not restrained from distributing claimed proceeds of the PACA trust pending a hearing and determination of Plaintiff's motion for preliminary injunction. Accordingly, IT IS HEREBY ORDERED: 1. That Defendants, their counsel, agents, officers, assigns, or representatives be and hereby are restrained and enjoined pending the hearing and determination of Plaintiff's motion for preliminary injunction from: a. Removing, withdrawing, transferring, assigning, or selling to any other person or entity, the proceeds from the sales of any or all existing or future inventories of food or other products derived from perishable agricultural commodities as defined in PACA, 7 U.S.C. § 499a(b), or receipts of payment for such agricultural commodities sold prior to the date of this order, provided, however that Defendants may sell perishable agricultural commodities or products derived from perishable agricultural commodities for fair compensation without right of set-off, on the condition that Fresh Farms maintains the proceeds of such sale subject to this order. b. Taking any other action which causes dissipation of Plaintiff's beneficiary interest in PACA trust assets; or c. Taking any action that violates the provisions of 7 U.S.C. § 499b(4).

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2.

This Order shall be binding upon the parties to this action and all other persons or entities who receive actual notice of this Order by personal service or otherwise.

3.

The $176,186.75 in PACA trust assets belonging to Plaintiff and in the possession of Defendants will serve as Plaintiff's security for this injunction as required by Federal Rule of Civil Procedure 65(c).

4.

Plaintiff shall forthwith serve Defendants, or their resident agent, or their counsel, with a copy of this Order. ORDER Plaintiff's motion to consolidate the trial on the merits with the hearing on preliminary

injunction is denied without prejudice. Although Plaintiff may be correct that consolidation would result in considerable economy, given that Plaintiff's complaint, filed concurrently with its ex parte application for temporary restraining order on January 10, 2007, has not been served upon Defendants, Defendants will have had no notice of trial and could be unfairly prejudiced. ORDER TO SHOW CAUSE IT IS FURTHER ORDERED that Plaintiff shall serve the complaint, motion for preliminary injunction, and any supporting documentation previously filed with the court on Defendants within two (2) days; that Defendants shall file an opposition brief to Plaintiff's motion no later than Wednesday, January 17, 2007; that Plaintiff shall file a reply thereto no later than Monday, January 22, 2007; and that Defendants shall appear before the Honorable Ronald M. Whyte in courtroom 6, 4th floor, United States District Courthouse, located at 280 South First Street, San Jose, CA 95113, on Friday, January 26, 2007, at 9:00 a.m., or as soon thereafter as this matter may be heard, to show cause why they should not be enjoined and restrained from distributing PACA trust assets as set forth in the temporary restraining order pending the final hearing and determination of this action.

ISSUED ON: January 11, 2007 at 9:55 a.m.

/s/ James Ware JAMES WARE United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER--C-07-00197 RMW SPT 3

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Notice of this document has been electronically sent to: Counsel for Plaintiff: Lawrence Henry Meuers Counsel for Defendants: (No appearance) Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. [e-mail]

Dated:

1/11/07

SPT Chambers of Judge Whyte

ORDER GRANTING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER--C-07-00197 RMW SPT 4