Pittman v. Aswan Restaurant Group, LLC et al

Filing 5

ORDER Granting Temporary Restraining Order (Doc. Nos. 3 , 4 ). A hearing on Plaintiff's application for preliminary injunction is set for October 12, 2011 at 9:00 a.m. Signed by Judge Roger T. Benitez on 9/29/2011. (knb)(jrd)

•

FILED

1

SEP 29 2011

2

CLERK. U.S, DISTRICT COURT

SOUTHERN OISTRICT OF CALIFORNIA

BY
OEPUTY

3
4

5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ROD PITTMAN,

12

CASE NO. l1-CV-2259 BEN (JMA)
Plaintiff,

ORDER GRANTING
TEMPORARY RESTRAINING
ORDER

vs.

13
14

ASWAN RESTAURANT GROUP, LLC and
FADI KALASHO,

15

[Docket Nos. 3,4]

Defendants.

16
17

On September 29, 2011, Plaintiff Rod Pittman initiated this action against Defendants Aswan

18

Restaurant Group, LLC, and Fadi Kalasho for alleged violation of the Perishable Agricultural

19

Commodities Act ("PACA"), 7 U.S.C. § 49ge. (Docket No. 1.) At the same time, Plaintiff filed an

20

Ex Parte Application for Temporary Restraining Order to enjoin Defendants from transferring all

21

PACA assets until Defendants pay Plaintiff$20,921.0 1, plus interest, attorney fees, and costs, as well

22

as a Supplement to the Ex Parte Application for Temporary Restraining Order. (Docket Nos. 3,4.)

23

Pursuant to Federal Rule of Civil Procedure 65(b), a temporary restraining order may be

24

granted without notice to the adverse party only if: (1) it clearly appears from specific facts shown by

25

affidavit or verified complaint that immediate and irreparable injury, loss or damage will result before

26

the adverse party can be heard in opposition; and (2) the applicant's attorney certifies the reasons that

27

notice should not be required.

28

In this case, it appears that Plaintiff is a produce creditor of Defendants under Section S(c) of

- 1-

llcv2259

•

1 PACA, and has not been paid for produce in the amount of $20,921.01 supplied to Defendants, as
2

required by PACA. It also appears that Defendants are in financial jeopardy in that they tendered

3

seven checks to Plaintiff which were returned by the bank due to insufficient funds. In addition,

4

Defendants have failed to appear and pay past due invoices as promised or to return any ofPlaintiffs

5

telephone calls. Moreover, Fadi Kalasho has told Plaintiff that he did not have any money, and

6

Plaintiff should "come bum down" his restaurant. (Pittman Decl. ~ 17.) As a result, the record before

7

the Court suggests that the PACA trust assets are threatened with dissipation. Tanimura & Antle, Inc.

8

v. Packed Fresh Produce, Inc., 222 F.3d 132 (3d Cir. 2000); Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d

9

154 (lIth Cir. 1990).

10

If notice is given to Defendants of the pendency of this motion, trust assets may be further

11

dissipated before the motion is heard. Once dissipation has occurred, recovery oftrust assets is all but

12

impossible. H.R. Rep. No. 543, 98th Cong., 2d Sess. 4 (1983), reprinted in 1984 U.S. Code & Admin.

13

News 405, 411; see also Tanimura, supra; JR. Brooks & Son, Inc. v. Norman's Country Mkt., Inc.,

14

98 B.R. 47 (Bankr. N.D. Fla. 1989). Entry of this Order without notice assures retention ofthe trust

15

assets under the control of the Court, which is specifically vested with jurisdiction over the trust. 7

16

U.S.C. §49ge(c)(5). In accord with Rule 65(b)(2), the applicant's attorney has certified why notice

17

should not be required.

18

On the basis of the foregoing, the Court finds that Plaintiff will suffer immediate irreparable

19

injury in the form of a loss of trust assets unless this order is granted without notice. Therefore, the

20

Ex Parte Application is GRANTED. It is hereby ordered that Defendants, their customers, agents,

21

escrow agents, officers, subsidiaries, assigns, banking institutions and related entities, shall not

22

alienate, dissipate, pay over or assign any assets of Aswan Restaurant Group, LLC, dba the Vine

23

Cottage, Fadi Kalasho, or their subsidiaries or related companies until further order of this Court or

24

until Defendants pay Plaintiff the sum of $20,921.01 by cashiers' check or certified check, at which

25

time this Order is dissolved.

26
27
28

Plaintiff shall post a cash or corporate surety bond with the Clerk of the Southern District of
California no later than 4:30 p.m. on October 4,2011, in the sum of $7,000.
This Temporary Restraining Order is entered on September 29,2011, at ~ A hearing on
- 2-

llcv2259

•

1

Plaintiff's application for preliminary injunction is set for October 12,2011, at 9:00 a.m. Plaintiff

2

shall serve Defendants with a copy of this Order no later than 5:00 p.m. on October 4.2011, and

3

immediately file a proof of service with the Court. If Plaintiff does not post bond and serve

4

Defendants, a preliminary injunction will not be issued.

5
6

IT IS SO ORDERED.

7
8

DATED: SePtemberki, 2011

9
10

11
12

13
14
15
16
17
18
19
20
21
22
23
24
25

26

27
28
-3-

Ilcv2259