G.W. Palmer & Co., Inc. v. Florida Fresh Produce Corp. et al
OPINION AND ORDER DENYING 10 Plaintiff's Motion for Ex-Parte Temporary Restraining Order and taking under advisement 12 Plaintiff's Motion for Preliminary Injunction. Plaintiff shall immediately serve Defendants and any known counse l for Defendants with the following: this Opinion and Order; 1 the Complaint; 10 the Motion for Ex-Parte Temporary Restraining Order and 11 the supporting memorandum; 12 the Motion for Preliminary Injunction; and all exhibits. Defendants have fourteen (14) days from the date on which they are served to file a response to 12 the Motion for Preliminary Injunction. If necessary, a hearing on 12 the Motion for Preliminary Injunction will be scheduled by separate order. The Clerk is directed to UNSEAL 10 Plaintiff's Motion for Ex-Parte Temporary Restraining Order and its exhibits. Signed by Judge John E. Steele on 12/6/2017. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
G.W. PALMER & CO., INC.,
FLORIDA FRESH PRODUCE CORP.,
MARIA ELUDIS RODRIGUEZ, JOSE
RODRIGUEZ, S&A ENTERPRISES
OF IMMOKALEE LLC, IMMOKALEE
PRODUCE CENTER, LLC, and
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion for
Ex-Parte Temporary Restraining Order (Doc. #10) and supporting
memorandum (Doc. #11), both filed on December 5, 2017.
reasons set forth below, the Court denies Plaintiff’s Motion.
On December 1, 2017, G.W. Palmer & Co., Inc. (Plaintiff) filed
a seven-count complaint (Doc. #1) against Florida Fresh Produce
Corp. (Florida Fresh) and a number of other defendants alleging a
violation of the Perishable Agricultural Commodities Act (PACA),
7 U.S.C. § 499 et seq., as well as claims for breach of contract,
breach of fiduciary duty, fraudulent transfer, conversion, and
Each claim arises out of Florida Fresh’s
failure to pay for the $341,324.25 worth of produce it purchased
from Plaintiff between October 3, 2017 and November 7, 2017.
#1, ¶ 10.)
Plaintiff now requests an ex parte temporary restraining
Rodriguez – Florida Fresh’s sole officer (id. ¶ 4), and her son,
defendant Jose Luis Rodriguez. 1
Specifically, Plaintiff asks the
Court to issue an order “enforcing the statutory trust created by
[PACA],” without first providing notice of the same to Defendants.
(Doc. #10, p. 3.)
Such an order would essentially prohibit
Defendants from moving any assets associated with the $341,324.25
worth of produce received from Plaintiff.
agricultural commodities,” like produce, often involve at least
three parties: the seller, the middle-man buyer (the dealer), and
the end purchaser (the consumer).
In 1984, Congress - concerned
over “the practice by which produce dealers granted their lenders
security interests in the produce on which they had accepted
delivery [but for which they had] not yet paid” - amended PACA to
include a provision creating “a nonsegregated statutory trust . .
. . [that] automatically arises in favor of a produce seller upon
delivery of produce.”
Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d
Plaintiff has also filed a separate Motion for Preliminary
Injunction (Doc. #12), which relies on the same supporting
memorandum of law (Doc. #11) as the Motion for TRO.
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154, 156 (11th Cir. 1990) (citing 7 U.S.C. § 499e(c)(2)).
to the “terms” of this trust, “a produce dealer holds its producerelated assets as a fiduciary until full payment is made to the
As a result, not only is a produce seller
protected in the instance of nonpayment, the seller is “placed
first in line among creditors for all produce-related assets if
the produce dealer declares bankruptcy.” 2
Where nonpayment has occurred, the seller may file a civil
action, including an injunctive action, in an appropriate district
Id. at 158 (holding that under Section 499e(c)(4), a
“district court has jurisdiction to entertain injunctive actions
by private parties”).
To obtain injunctive relief, the litigant
must meet the “normal standards for such relief.”
Specifically, the litigant bears the heavy burden of establishing
that: (1) it is substantially likely to succeed on the merits of
its underlying claims; (2) it will suffer imminent, irreparable
injury without injunctive relief; (3) such injury outweighs the
harm an injunction poses to the opposing party; and (4) injunctive
relief will serve the public interest.
Schiavo ex rel. Schindler
v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
To maintain the benefits of the trust, however, the seller must
also “file written notice of its intent to preserve its rights
with the United States Department of Agriculture and the produce
dealer” in accordance with the timeline set forth in 7 U.S.C. §
499e(c)(3). Frio Ice, 918 F.2d at 156.
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Temporary injunctive relief may be granted ex parte – that
is, without notice to the opposing party or its legal counsel.
obtain such relief, however, the movant must make a “clear
show[ing] that immediate and irreparable injury, loss, or damage
will result . . . before the adverse party can be heard in
Fed. R. Civ. P. 65(b).
Under the Local Rules of
this District, an ex parte order “will be entered only in emergency
cases to maintain the status quo until the requisite notice may be
given and an opportunity is afforded to opposing parties to respond
to the application for a preliminary injunction.”
M.D. Fla. R.
To constitute a true “emergency,” the injury alleged
must be “so imminent that notice and a hearing on the application
for preliminary injunction is impractical if not impossible.”
Plaintiff avers that Florida Fresh “appears to have failed to
maintain sufficient PACA trust assets to pay [Plaintiff], and is
likely unlawfully dissipating PACA trust assets by transferring
those assets from Florida Fresh Produce to Ms. Rodriguez, to her
son, and the other businesses that they are affiliated with.”
(Doc. #11, p. 8.) 3
Plaintiff argues that such asset dissipation
is a clear violation of PACA and constitutes irreparable harm,
The Affidavit of Alston J. Palmer (the Palmer Affidavit), Owner
and President of G.W. Palmer & Co., Inc., reiterates these
allegations. (Doc. #10-2, p. 7.)
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entitling Plaintiff “to an immediate injunction to prevent such
(Id. p. 9.)
Moreover, Plaintiff believes this
injunctive relief should be granted ex parte, since providing
Defendants notice and the chance to respond “will afford them the
opportunity to further dissipate PACA trust assets pending a
(Id. p. 10.)
Finally, Plaintiff contends that “it is
Restraining Orders to be issued without notice to enjoin the
dissipation of PACA trust assets.”
(Id. p. 6.)
The Court agrees that dissipation of trust assets constitutes
circumstances, on an ex parte basis.
See Frio Ice, 918 F.2d at
159 (“[O]nce the trust is dissipated it is almost impossible for
a beneficiary to obtain recover.”).
But there is one glaring
problem: Plaintiff has presented no evidence of asset dissipation,
apart from the mere fact of nonpayment.
In fact, the limited
evidentiary record before the Court (consisting of text messages
exchanged between President Palmer and Defendant Jose Rodriguez
and referenced in the Palmer Affidavit (Doc. #10-6)) tends to show
that Florida Fresh is awaiting payment from its own customers and
Rodriguez, not funneling assets to the Rodriguezes and their other
The Eleventh Circuit has made clear that although injunctive
relief in PACA cases can be warranted, it is appropriately granted
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only where the trust beneficiary (the unpaid seller) demonstrates
“the actual dissipation or the threat of dissipation of the PACA
Frio Ice, 918 F.2d at 159 & n.8.
Plaintiff has not made
that showing here, and thus no injunctive relief is proper at this
time - let alone on an ex parte basis. 4
See e.g., All Am. Farms,
Inc. v. Lanes Consulting Firm, LLC, No. 14-80730-CIV, 2014 WL
11512218, at *2 (S.D. Fla. June 3, 2014) (noting that “without
specific evidence of an imminent threat to the trust assets, the
Court cannot find that [plaintiff] will sustain immediate and
irreparable harm before a preliminary-injunction hearing can be
held” and thus denying plaintiff’s ex parte motion for TRO); Dimare
Ruskin, Inc. v. Del Campo Fresh, Inc., No. 810-cv-1332-T-23AEP,
2010 WL 2465158, at *2 (M.D. Fla. June 15, 2010) (holding that
“plaintiffs’ conclusory allegation that the defendants [would]
further dissipate the trust assets fail[ed] to justify enjoining
the defendants before the benefit of a hearing” on plaintiffs’
PACA claims); see also Tropical Fruit Trading, Inc. v. AgroFarms,
LLC, No. 16-CV-21735, 2016 WL 4376747, at *3 (S.D. Fla. Aug. 17,
2016) (“In the PACA context, a plaintiff's failure to submit any
evidence of irreparable harm other than a defendant's nonpayment
On November 21, 2017, President Palmer informed Jose Rodriguez
that he was “getting prepared to involve [his] attorney and the
(Doc. #10-6, p. 8.)
As such, the Court highly
doubts that mere notice of Plaintiff’s request for injunctive
relief will be the match that ignites Defendants’ dissipative
efforts, as Plaintiff contends.
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Accordingly, it is hereby
Plaintiff's Motion for Ex-Parte Temporary Restraining
Order (Doc. #10) is DENIED.
The Court will take Plaintiff’s Motion for Preliminary
Injunction (Doc. #12) under advisement until Defendants have been
Order, as well as the Complaint (Doc. #1), the Motion for Ex-Parte
Temporary Restraining Order (Doc. #10) and supporting memorandum
(Doc. #11), the Motion for Preliminary Injunction (Doc. #12), and
all exhibits on Defendants and on any known counsel for Defendants.
Defendants have fourteen (14) days from the date on which
they are served to file a response to the Motion for Preliminary
Injunction (Doc. #12).
If necessary, a hearing on the Motion will
be scheduled by separate order.
The Clerk is directed to UNSEAL Plaintiff's Motion for
Ex-Parte Temporary Restraining Order (Doc. #10) and its exhibits.
DONE and ORDERED at Fort Myers, Florida, this 6th day of
Copies: Parties and Counsel of Record
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