Tom Ver LLC v. Organic Alliance, Inc et al

Filing 18

ORDER granting preliminary injunction as to Organic Alliance. Signed by Judge Whyte on 8/26/2013. (rmwlc2, COURT STAFF) (Filed on 8/26/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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TOM VER LLC d/b/a MEXFRESH
PRODUCE,

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Case No. C-13-03506-LHK

Plaintiff,

ORDER GRANTING PRELIMINARY
INJUNCTION

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v.

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ORGANIC ALLIANCE, INC., PARKER R.
BOOTH, MARK Y. KLEIN, MICHAEL
ROSENTHAL, CHRISTOPHER WHITE, and
BARRY M. BROOKSTEIN, each invidually,

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Defendants.

Plaintiffs filed an ex parte motion for a temporary restraining order under Rule 65 for
violations of the Perishable Agricultural Commodities Act ("PACA"). See 7 U.S.C. 499a et seq.
On August 8, 2013, the court granted plaintiff's motion for a temporary restraining order and
ordered a hearing on a preliminary injunction be held on August 16, 2013. The court then
continued the hearing until August 19, 2013, to allow Tom Ver more time to serve the defendants.
At the hearing only Tom Ver appeared.
The court finds that a preliminary injunction is warranted. See generally, Winter v. Natural
Resources Defense Council, Inc. 555 US 7, 20 (2008). The court finds that Tom Ver is likely to
succeed on the merits in establishing that it is a beneficiary of a trust under PACA in the amount of
$50,679.44 and that defendants have either dissipated the trust or are likely to dissipate the trust in
ORDER GRANTING PI
Case No. C-12-02646-RMW
SW

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violation of PACA. See 7 U.S.C. § 499e(c). Tom Ver is likely to suffer irreparable injury due to

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the dissipation of the trust. The balance of equities tips in Tom Ver's favor and Congress has found

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that the public interest is served by the enforcement of these trusts. See 7 U.S.C. § 499e(c)(1).

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The court issues the following preliminary injunction with respect to Organic Alliance. The

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court will not issue a preliminary injunction with respect to the other defendants, at this time,

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because service is not adequate.

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Therefore, it is hereby ordered that:

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1. Pending further orders of this court or until defendants pay Tom Ver, no agents, officers,

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subsidiaries, assigns, banking institutions, or other entity holding funds for Organic

United States District Court
For the Northern District of California

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Alliance shall pay, transfer or permit assignment or withdrawal of any assets of Organic

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Alliance or its subsidiaries or related companies except as set forth in this order;

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2. Within three business days of the entry of this order, Organic Alliance shall pay Tom

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Ver $50,679.44 or deposit $50,679.44 into the registry of this court;
3. If Organic Alliance fails to deposit or pay the $50,679.44 within 3 business days,

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Organic Alliance must file with this court an accounting which identifies all of Organic

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Alliance's assets and liabilities, and each account receivable, signed under penalty of

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perjury;

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4. Because Organic Alliance possesses $50,679.44 of PACA trust assets, which are Tom
Ver's property, the bond is set at $0.00;
5. This preliminary injunction shall remain in effect until the conclusion of this proceeding
or further order of this court, whichever occurs first;
6. Tom Ver is ordered to promptly serve a true and correct copy of this order on all of the
defendants including their respective counsel, if known.

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Dated: August 26, 2013

_________________________________
Ronald M. Whyte
United States District Judge

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ORDER GRANTING PI
Case No. C-12-02646-RMW
SW

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