G.W. Palmer & Co., Inc. v. Florida Fresh Produce Corp. et al

Filing 31

OPINION AND ORDER granting 12 Plaintiff's Motion for Preliminary Injunction. See Order for injunction details. Signed by Judge John E. Steele on 1/5/2018. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
G.W. PALMER & CO., INC.,
Plaintiff,
v.

Case No:

2:17-cv-657-FtM-29MRM

FLORIDA FRESH PRODUCE CORP.,
MARIA ELUDIS RODRIGUEZ, JOSE
LUIS
RODRIGUEZ,
SERAFIN
RODRIGUEZ, S&A ENTERPRISES
OF IMMOKALEE LLC, IMMOKALEE
PRODUCE CENTER, LLC, and
IMMOKALEE
PRODUCE
CENTER
HOLDINGS, LLC,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Preliminary Injunction (Doc. #12) and supporting memorandum (Doc.
#11), both filed on December 5, 2017, and Plaintiff’s Notice of
Expiration of Deadline for Defendants to Respond to Motion for
Preliminary Injunction (Doc. #30) filed on January 3, 2018.

For

the reasons set forth below, the Court grants Plaintiff’s Motion.
I.
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
constructive trust.

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.

(Doc.

#1, ¶ 10.)
On December 5, 2017, Plaintiff filed a Motion for Ex-Parte
Temporary Restraining Order (Motion for TRO) (Doc. #10), which
asked the Court to issue an order “enforcing the statutory trust
created by [PACA]” against Florida Fresh, defendant Maria Eludis
Rodriguez – Florida Fresh’s sole officer, and her son, defendant
Jose Luis Rodriguez, so as to prohibit them from moving any assets
associated with the PACA Trust.

As grounds for injunctive relief,

Plaintiff claimed that Defendants’ nonpayment demonstrated that
Florida Fresh was “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.” 1

(Doc. #11, p. 8.)

Such asset dissipation,

Plaintiff argued, was a clear violation of PACA and established
irreparable harm, entitling Plaintiff “to an immediate injunction
to prevent such dissipation.”

(Id. p. 9.)

Plaintiff sought

temporary injunctive relief ex parte, believing that providing

1

Plaintiff filed the Affidavit (the Palmer Affidavit) of Alston
J. Palmer (President Palmer), Owner and President of Plaintiff
G.W. Palmer & Co., Inc., with the Motion for TRO, which Affidavit
reiterated these allegations. (Doc. #10-2, p. 7.)

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Defendants notice and the chance to respond would “afford them the
opportunity to further dissipate PACA trust assets pending a
hearing.”

(Id. p. 10.)

On December 6, 2017, the Court entered an Order (Doc. #15)
denying Plaintiff’s Motion for TRO and taking under advisement the
Motion for Preliminary Injunction. 2

While the Court agreed with

Plaintiff

trust

that

irreparable

harm

“dissipation
justifying

of

injunctive

assets

relief,”

constitutes
Plaintiff

had

presented the Court with “no evidence of asset dissipation, apart
from the mere fact of nonpayment.”

(Id. p. 5.)

To the contrary,

the limited record before the Court indicated that Florida Fresh
was awaiting payment from its own customers and dealing with the
recent surgery and hospitalization of Jose Rodriguez.
Moreover,
necessary,

the

Court

since

failed

President

to

see

Palmer

how
had

ex

parte

already

(Id.)

relief

informed

was
Jose

Rodriguez that he was “getting prepared to involve [his] attorney
and the authorities.”
The
Defendants

Court
(and

(Id. p. 6 n.4 (quoting Doc. #10-6, p. 8).)

instructed
any

known

Plaintiff
counsel

for

to

immediately

Defendants)

serve

with

all

documents and gave Defendants fourteen (14) days from the date of
service to respond to the Motion for Preliminary Injunction.

2

On

The Court’s Order contains a brief overview of PACA’s history
and purpose and discusses the standard for obtaining injunctive
relief for PACA violations. (Doc. #15, pp. 2-3.)

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January 3, 2018, Plaintiff filed a Notice informing the Court that
five of the seven defendants (Florida Fresh, Jose Rodriguez,
Serafin

(or

Seraphin)

Rodriguez,

3

Maria

Rodriguez,

and

S&A

Enterprises of Immokalee, LLC) had not timely responded to the
Motion for Preliminary Injunction. 4

(Doc. #30, p. 1.)

Plaintiff

now requests “[i]mmediate entry of a Preliminary Injunction Order
restraining the transfer of any and all PACA trust assets held
[sic] Florida Fresh Produce, Corp. pending the final outcome of
this action.” 5

(Id p. 4.)
II.

“A preliminary injunction is an extraordinary remedy never
awarded as of right.”
U.S. 7, 24 (2008).

Winter v. Nat. Res. Def. Council, Inc., 555

In determining whether Plaintiff is entitled

to that “extraordinary remedy” here, the key question is whether
the Court now possesses what was previously missing: evidence of
asset dissipation.

The Court finds that it does.

Shortly after

3

According to the Complaint, Seraphin (or Serafin) Rodriguez is
“the husband of Maria Rodriguez and the father of Jose Rodriguez.”
(Doc. #1, ¶ 4(d).)
4

Counsel for the remaining two defendants (Immokalee Produce
Center, LLC and Immokalee Produce Center Holdings, LLC) apparently
told Plaintiff’s counsel that his clients do not object to the
injunctive relief sought. (Doc. #30, p. 1.) No defense counsel
has formally entered an appearance in this case.
5

No defendant has yet filed an answer to the Complaint. Plaintiff
has moved for entry of clerk’s default against those defendants
whose window to timely respond has passed. (Docs. ## 28, 29.)

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the Court entered its Order denying the Motion for TRO on December
6, 2017, Plaintiff filed the Affidavit of Landon Gaw (the Gaw
Affidavit) (Doc. #16), one of Plaintiff’s salesmen, who claimed
that “no one has been seen at Defendant Florida Fresh’s location”
and that, the previous weekend, defendant Seraphim Rodriguez had
been

“removed

Center.”

by

law

(Id. ¶ 9.)

enforcement

from

the

Immokalee

Produce

More significantly, President Palmer has

submitted a Supplemental Affidavit (Doc. #30-2) with the Notice
which avers, among other things, that the Rodriguezes are believed
to have recently purchased real property in LaBelle, Florida (id.
¶ 19), and to have misappropriated certain corporate assets for
personal use and financial gain, including a GMC truck (which
Seraphim Rodriguez has been seen driving around town) and various
produce-related

equipment

and

materials.

(Id.

¶¶

16-18.)

Additionally, Jose Rodriguez has stopped responding to President
Palmer’s text messages altogether.

(Id. ¶ 6.)

These sworn allegations permit the Court to conclude that
there

is

an

imminent

dissipation

threat

to

the

PACA

Preliminary injunctive relief is, therefore, warranted.

Trust.

See Frio

Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 160 (11th Cir. 1990)
(holding that where a court determines that a PACA trust is being
dissipated or threatened with dissipation, the court must order
the defendant “to escrow its proceeds from produce sales, identify
its receivables, and inventory its assets,” which “assets should

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then be segregated into a court-supervised trust account on a pro
rata basis to all unpaid sellers having bona fide claims”).
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Motion for Preliminary Injunction (Doc. #12)

is GRANTED.
2.

Defendant Florida Fresh Produce Corp., its respective

officers, agents, employees, and servants (including Maria Eludis
Rodriguez,

Serafin

(or

Seraphin)

Rodriguez,

and

Jose

Luis

Rodriguez) subsidiaries, related companies, agents, attorneys,
assigns, and all other persons acting in concert or participation
with Defendant Florida Fresh Produce Corp., who receive notice of
this Preliminary Injunction by actual service or otherwise, shall
not use, alienate, dissipate, pay over, withdraw, sell, or assign
the Assets of the PACA Trust to any creditor, person, or entity or
otherwise dispose of these trust assets without order of this
Court.

“The Assets of the PACA Trust” are defined as, and shall

include, all

proceeds

and

receivables

from

the

sale

of

such

produce, and all assets paid for in whole or in part by proceeds
derived directly or indirectly from the sale of such produce.
3.

Until

further

order

from

this

Court,

Florida

Fresh

Produce Corp. shall have an affirmative obligation to maintain all
documents

related

to

all

sales

of

received.

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produce

and

all

payments

4.

Florida Fresh is directed to escrow all proceeds from

its produce sales, identify its receivables, and inventory its
assets.

Any proceeds of receivables shall be held in Court-

supervised trust pending further Order of this Court.
5.

Within seven (7) days of receipt of this Order, Florida

Fresh Produce Corp. shall serve a copy of the same upon all
financial institutions and third parties that may be holding assets
of the PACA Trust and file certificates of service with this Court.
6.

This Order continues in full force and effect, except

upon further Order of this Court.
7.

This Court shall retain jurisdiction of this action to

ensure complete compliance with the terms of this Order.
8.

Plaintiff is not required to post a bond.

DONE and ORDERED at Fort Myers, Florida, this 5th day of
January, 2018.

Copies:
Counsel of Record

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