A. Ferlito Farms, Inc. v. Empire Fresh Cuts, LLC et al

Filing 10

ORDER TO SHOW CAUSE and TEMPORARY RESTRAINING ORDER: Defendants are ordered to show cause before this Court on 9/15/10 to be heard on submit in Syracuse, New York before the Honorable Glenn T. Suddaby with no personal appearance necessary, why an ord er for Preliminary Injunction should not be entered; and it is ordered that Defendants shall not use any PACA trust assets without agreement of the parties or until further order of this Court, or until the Defendants pay Ferlito Farms by cashiers check or certified check the principal amount owed to Plaintiff of $429,590.00. Defendants' response to this motion is due by 9/9/10; and reply to response to motion is due by 9/13/10.Signed by Judge Glenn T. Suddaby on 9/1/10. (lmw)

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-ATB A. Ferlito Farms, Inc. v. Empire Fresh Cuts, LLC et al Doc. 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK A. FERLITO FARMS, INC., Plaintiff, -vsEMPIRE FRESH CUTS, LLC, JAMES R. ZAPPALA and SAMUEL A. ZAPPALA, Defendants. Upon review of the Complaint of Plaintiff A. Ferlito Farms, Inc. on file in the above-captioned action; the Declaration of Joseph A. Ferlito, President of A. Ferlito Farms, Inc. ("Ferlito Farms") with exhibits; the Attorney Certification as to why notice of the Plaintiff's request for a temporary restraining order should not be required pursuant to Rule 65(a) of the Fed.R.Civ.P.; the Memorandum of Law in Support of Plaintiff's Application for an ex parte Temporary Restraining Order and/or Preliminary Injunction submitted therewith; and all other pleadings, papers and proceedings heretofore had herein, and it appearing to the satisfaction of the Court that this is a proper case for granting an ex parte Temporary Restraining Order and Order to Show Cause; IT IS HEREBY ORDERED that Defendants show cause before this Court on the 15th day of September, 2010 to be heard on submit in Syracuse, New York before the Honorable Glenn T. Suddaby with no personal appearance necessary, why an order for Preliminary Injunction should not be entered in accordance with Rule 65(a) of the Fed.R.Civ.P. to enforce the statutory trust pursuant to Section 5(c)3 of the Perishable Agricultural Commodities Act, 7 U.S.C. 499e(c), by segregating all trust assets of Empire Fresh Cuts, LLC; and sufficient cause appearing therefore, it is: ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT BE ENTERED AND EX PARTE TEMPORARY RESTRAINING ORDER Civil Case No. 5:10-cv-1044 (GTS/ATB) Dockets.Justia.com ORDERED that pending hearing and determination of Plaintiff's Application for a Preliminary Injunction, Defendant Empire Fresh Cuts, its agents, officers, directors, members, including Defendants James R. Zappala and Samuel A. Zappala, subsidiaries, assigns and financial and banking institutions, including but not limited to Pathfinder Bank, shall not alienate, dissipate, pay over or assign any PACA trust assets to any creditor, person or entity, without agreement of the parties or until further order of this Court, or until the Defendants pay Ferlito Farms by cashiers' check or certified check the principal amount owed to Plaintiff of $429,590.00. Under 499e(c)(2) of PACA, trust assets include perishable agricultural commodities received by a commission merchant, dealer or broker in all transactions, and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products; and it is further ORDERED that this Order shall be binding upon the parties to this action, their officers, agents, employees, banking institutions, or attorneys and all other persons or entities who receive actual notice of this Order by personal service or otherwise; and it is further ORDERED that the $429,590.00 in PACA Trust assets belonging to Plaintiffs and in the possession of the Defendant will serve as Plaintiffs' security for this injunction as required by Rule 65(c) of the Federal Rules of Civil Procedure; and it is further ORDERED that Ferlito Farms must serve on Defendants, or their resident agent, or their counsel a copy of this Order to Show Cause and Temporary Restraining Order, by personal service, including overnight mail, on or before the end of the 2nd day of September, 2010. Such service will be deemed good and sufficient; and it is further ORDERED that opposition papers shall be filed and served by personal service, including overnight mail, no later than September 9, 2010; and reply papers in further support of this application shall be served by personal service, including overnight mail, no later than September 13, 2010. IT IS SO ORDERED Dated: September 1, 2010 at 3:15 p.m. Syracuse, NY

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