Tijuanas Produce, Inc. v. Shorty's Produce, Inc et al

Filing 16

ORDER by Judge Philip A. Brimmer on 03/29/2018, re: 2 plaintiff's Memorandum in Support of Plaintiff's Motion for Temporary Restraining Order & Preliminary Injunction is DENIED in part insofar as it requests issuance of a temporary res training order. ORDERED that a hearing is set for May 24, 2018 at 1:30 p.m. in Courtroom A701 before Judge Philip A Brimmer on that portion of plaintiff's Memorandum in Support of Plaintiff's Motion for Temporary Restraining Order & Preliminary Injunction [Docket No. 2] seeking a preliminary injunction. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 18-cv-00587-PAB
TIJUANAS PRODUCE, INC.,
Plaintiff,
v.
SHORTY’S PRODUCE, INC., a corporation, and
ELENO CARDENAS, an individual,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on that portion of plaintiff’s Memorandum in
Support of Plaintiff’s Motion for Temporary Restraining Order & Preliminary Injunction
[Docket No. 2] that requests issuance of a temporary restraining order (“TRO”). Plaintiff
Tijuanas Produce, Inc. seeks a TRO enjoining defendants, in part, from “spending,
transferring, hypothecating, assigning or in any way disposing of or encumbering the
proceeds or income from the sale of fresh fruits or vegetables of every kind and
character until further order of this Court, or until the defendants pay” plaintiff the
amounts due under an October 6, 2017 order issued by the United States Department
of Agriculture pursuant to the Perishable Agricultural Commodities Act, 7 U.S.C. § 499a
et seq. (“PACA”). Docket No. 2-5 at 3; see also Docket No. 2-3.
To succeed on a motion for temporary restraining order, the moving party must
show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips

in the movant’s favor; and (4) that the injunction is in the public interest. RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008)); see Little v. Jones, 607 F.3d 1245, 1251
(10th Cir. 2010)). “[B]ecause a preliminary injunction is an extraordinary remedy, the
right to relief must be clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory
Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quoting Greater Yellowstone
Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal quotation marks
omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi
Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th
Cir. 1989), “is the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676,
678 (10th Cir. 1984).
Plaintiff’s only stated basis for exigency or possible irreparable harm relevant to
plaintiff’s request for a TRO is that the defendants may “dissipate PACA trust assets
pending a hearing.” Docket No. 2 at 4. According to the allegations in the complaint,
defendant Shorty’s Produce, Inc. had notice of and participated in the proceedings
resulting in the October 6, 2017 order. Docket No. 1 at 2, ¶ 14. Plaintif f does not allege
or argue any facts showing that circumstances have changed since the order was
entered or that would otherwise support a conclusion that defendants may dissipate
PACA trust assets prior to a preliminary injunction hearing. Instead, plaintiff attaches
an affidavit stating in conclusory fashion that, “[u]nless the trust assets are frozen, it is
likely that the trust assets will be dissipated.” Docket No. 2-1 at 3, ¶ 16. The Court
finds that plaintiff has failed to show that it will suffer irreparable harm if a TRO does not

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issue before a preliminary injunction hearing is held. Therefore, the Court will deny
plaintiff’s motion insofar as it requests a TRO.
Wherefore, it is
ORDERED that plaintiff’s Memorandum in Support of Plaintiff’s Motion for
Temporary Restraining Order & Preliminary Injunction [Docket No. 2] is DENIED in part
insofar as it requests issuance of a temporary restraining order. It is further
ORDERED that a hearing is set for May 24, 2018 at 1:30 p.m. in Courtroom
A701 before Judge Philip A Brimmer on that portion of plaintiff’s Memorandum in
Support of Plaintiff’s Motion for Temporary Restraining Order & Preliminary Injunction
[Docket No. 2] seeking a preliminary injunction.

DATED March 29, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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