Hernandez & Luna Produce v. Burbano et al

Filing 15

TEMPORARY RESTRAINING ORDER - Miscellaneous Deadline: any opposition papers must be filed by 5/15/2017. Preliminary Injunction Hearing set for 5/18/2017 10:00 AM in Miami Division before Judge Robert N. Scola Jr. Granting 9 EMERGENCY MOTION for Temporary Restraining Order without Notice filed by Hernandez & Luna Produce. Signed by Judge Robert N. Scola, Jr. on 5/8/2017. (jh)

United States District Court
for the
Southern District of Florida
)
Hernandez & Luna Produce and
Quality First Produce, Inc., Plaintiffs )
)
v.
) Civil Action No. 17-21682-Civ-Scola
)
Luis A. Burbano and others,
)
Defendants.
)
Temporary Restraining Order
This is an action brought under the Perishable Agricultural Commodities
Act (the “PACA”), 7 U.S.C. § 499a et seq., seeking to enforce the trust
provisions established in its section 5(c), 7 U.S.C. §499e(c). According to the
allegations in the First Amended Complaint, the Plaintiffs are duly licensed
sellers of perishable agricultural commodities under the PACA, and from
January of 2017 through April of 2017, sold to Defendant Luis A. Burbano,
doing business as Lua, perishable agricultural commodities in the collective
amount of $593,431.15, which remains past and owing, despite due demand.
This matter is before the Court on the Plaintiffs’ Emergency Motion for a
Temporary Restraining Order Without Notice (ECF No. 9). In support of the
motion, the Plaintiffs have submitted the Declarations of Francisco Hernandez,
Preston Johnson, and Robert E. Goldman, as well as a Memorandum in
Support and the Attorney’s Certification as to Why Notice Should Not Be
Required Pursuant to Fed.R.Civ.P. 65(b). (Id. at Attach.’s 1-7.)
The Declaration of Francisco Hernandez provides evidence that: (1) he is
the owner of Hernandez & Luna Produce (“H&L”); (2) H&L is owed $356,956.00
for perishable tomatoes sold to Defendant Burbano, doing business as Lua,
which amount is past due and owing; and (3) that Burbano has given 6 checks
in the name of “Lua” to H&L, which H&L’s bank returned with “Stop Payment”
written on them. (Decl. of Francisco Hernandez ¶¶ 3, 6-8, ECF No. 9-1).
The Declaration of Preston Johnson provides evidence that: (1) he is the
owner of Quality First Produce, Inc. (“Quality First”); (2) Quality First is owed
$236,475.15 for perishable produce sold to Burbano, doing business as “Lua”
and “Lua Farms” and “LUA ENTERPRISES CORP,” which amount is past due
and owing; (3) that Burbano has given 4 checks in the name of “Lua” alone to
Quality First, one of which was returned from the bank without payment, and

that Burbano has told Johnson not to cash the remaining three checks since
he closed the account; and (4) that there are other unpaid suppliers of produce.
(Decl. of Preston Johnson ¶¶ 3, 5-7, ECF No. 9-2.)
The Declaration of Robert E. Goldman provides evidence that Burbano
and the corporate Defendants do not have a license to distribute perishable
agricultural commodities with the U.S.D.A., and that Burbano has a history of
forming Florida companies whose names begins with “Lua,” and when that
company gets sued for non-payment he then forms another Florida company
whose name begins with the name “Lua.” (Decl. of Robert E. Goldman, ECF
No. 9-3.)
Having considered the allegations in the First Amended Complaint (ECF
No. 1), the Motion Requesting a Temporary Restraining Order (ECF No. 9), the
Memorandum of Law and the supporting documents, as well as the
requirements of Fed.R.Civ.P. 65(b), the Court hereby grants the Plaintiff’s
Motion for Temporary Restraining Order (ECF No. 9) upon finding: (1) it
appears that the Defendants owe the Plaintiffs the amount of $593,431.15; (2)
there is a statutory trust over said amount established pursuant to the
provisions of 7 U.S.C. § 499(c); and (3) the Defendants’ failure to pay the
Plaintiffs the amount they owe despite the existence of the statutory trust
demonstrates that said trust is threatened with dissipation causing irreparable
injury to plaintiff. In particular, the return of the checks that the Defendants
wrote to H&L and Burbano’s instruction to Quality First not to cash any of the
checks that he wrote to it establishes that immediate and irreparable injury,
loss, or damage will result to the Plaintiffs if notice is given to the Defendants.
Accordingly, it is ordered and adjudged as follows:
1. Defendants Luis A. Burbano, Lua Enterprises, Corp., Lua Produce
Corp., Lua Farms Corp., and Lua Farms Group, Corp., and their
officers, agents, servants, employees, assigns, financial institutions,
and factors, are restrained from dissipating, disbursing, or otherwise
encumbering any and all funds, monies, accounts receivables, and/or
unliquidated interests of any type whatsoever now in their possession
and/or under their control, as well as any and all funds and/or
monies hereinafter received, and their bank accounts are frozen,
except that: (a) the Defendants may pay the Plaintiffs amounts in
satisfaction of amounts owed to the Plaintiffs, and (b) the Defendants
may sell perishable produce and items in inventory at the time of
being served with this Order, but all such sales shall be written-up on
an invoice which shall indicate the commodity sold, the quantity, the

price, and whether the sale was for cash or on credit, and such
invoice shall be delivered at the end of each day to Counsel for
Plaintiffs, Robert E. Goldman, Esq. by fax at [phone], or by
email at [e-mail], or by personal delivery at the Law
Office of Robert E. Goldman, 1 East Broward Blvd., Ste. 700, Ft.
Lauderdale, FL 33301, and the money received from such sales shall
promptly be deposited into the Court’s registry or the trust account of
Plaintiffs’ Counsel where it shall remain until further order of the
Court. Defendants shall promptly provide their financial institutions
and factors with a copy of this Order.
2. Within twenty-four (24) hours of receiving notice of this Order, each
Defendant shall deliver to Plaintiffs’ Counsel, Robert E. Goldman, Esq.
by fax at [phone], or by email at [e-mail], or
by personal delivery at the Law Office of Robert E. Goldman, 1 East
Broward Blvd., Ste. 700, Ft. Lauderdale, FL 33301, a full accounting
of all perishable agricultural commodities sold or other disposed of by
each Defendant since January 11, 2017, and all receivables and
proceeds from the distribution of such perishable agricultural
commodities, which accounting shall include the following: (1) a
current accounts receivable report showing the amount of money that
each customer owes to each Defendant for produce sold, which report
shall include the full name, telephone number, and address of each
customer, and (2) the names of banks and factors used since January
11, 2017, and account numbers at those banks in which money from
the sale of produce was deposited.
3. Within five (5) days of receiving notice of this Order, each Defendant
shall deliver to Plaintiffs’ Counsel, Robert E. Goldman, by fax at (954)
745-7460, or by email at [e-mail], or by personal
delivery at the Law Office of Robert E. Goldman, 1 East Broward
Blvd., Ste. 700, Ft. Lauderdale, FL 33301, the following: (1) a current
accounts payables reports showing amounts owed by each Defendant
to each supplier of produce, which report shall include the full name,
telephone number, (2) all customer invoices for produce sold or
otherwise distributed since January 11, 2017, (3) bank statements for
all accounts since January 11, 2017, (4) check registers for all
accounts for all Defendants showing checks written since January 11,

2017, and (5) checks (front and back) for all accounts written since
January 1, 2017.
4. Defendants shall be relieved of the above requirements after they pay
Hernandez & Luna Produce good funds in the amount of
$356,956.00, and Quality First Produce, Inc. good funds in the
amount of $236,475.15.
5. The Plaintiffs shall not be required to post a bond in view of the fact
that the Defendants appear to hold $593,431.15 of PACA trust assets
which belong to the Plaintiffs and this Order merely requires the
Defendants to obey the requirements of the PACA.
6. A hearing on the Plaintiffs’ Motion for a Preliminary Injunction (ECF
No. 12) is set at 10:00 a.m. on May 18, 2017, at Wilkie D. Ferguson,
Jr. United States Courthouse, 400 North Miami Avenue Room 12-3
Miami, Florida 33128. Any opposition papers must be filed by, and
personally served, or served by fax or email, no later than May 15,
2017.
7. Plaintiff shall forthwith serve upon all Defendants a copy of the First
Amended Complaint, of the Motions for Temporary Restraining Order
and for Preliminary Injunction, and all related filings.
8. This Temporary Restraining Order shall expire within ten days from
the date of its issuance, unless dissolved or extended pursuant to
further order of the Court.
Done and ordered at Miami, Florida, on May 8, 2017.

________________________________
Robert N. Scola, Jr.
United States District Judge