Senn Brothers, Inc. v. Farmin' Brands, LLC et al
ORDER granting 3 Motion for Temporary Restraining Order. Counsel should read the order in its entirety for critical deadlines and information. Signed by Chief Judge James C. Dever III on 7/20/2017. (Briggeman, N.)
IN THE,UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SENN BROTHERS, INC.,
FARMIN' BRANDS, LLC, f/k/a
CAROLINA FARMIN' LLC,
G. WAYNE LONG, and
WILLIAM BENJAMIN LONG,
On July 13, 2017, Senn Brothers, Inc., ("Senn Brothers" or "plaintiff') filed an ex parte
motion for a temporary restraining order without notice pursuant to Rule 65 of the Federal Rules of
Civil Procedure [D.E. 3]. After considering the record, including the declaration of Gregg Senn,
Secretary and Treasurer of Senn Brothers, the certification of counsel why notice should not be
required, the memorandum of law in support of the motion, and the relevant exhibits, the court
makes the following findings of fact and conclusions of law.
Senn Brothers is a creditor of defendant Fannin'· Brands, LLC, ("Fannin' Brands") under
section 5(c) of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e(c). Senn
Brothers has not been paid for produce Senn supplied to Fannin' Brands in the principal amount of
$273,560.10, plus interest and attorneys' fees. Defendants previously paid Senn Brothers for
produce using checks drawn from both an account held by Fannin' Brands and an account held by
Fannin' 2PL, LLC ("Fannin' 2PL"). Defendants have refused to pay the amount owed Senn
Brothers, and defendants issued a check drawn from an account owned by Fannin' 2PL, which the
bank returned due to insufficient funds. At defendants' direction, Senn Brothers attempted to deposit
the check a second time, but the check again was returned for insufficient funds. As a result, PACA
trust assets have been dissipated and are threatened with further dissipation.
For purposes of this temporary restraining order and in light ofPACA's unique statutory
scheme, the court finds that Senn Brothers has shown a likelihood of success on the merits and a
likelihood of imminent irreparable harm. See, e.g., Winter v. Nat. Res. Def. Council. Inc., 555 U.S.
7, 20 (2008); Nickey Gregory Co. v. Agricap. LLC, 597 F.3d 591, 594-95 (4th Cir. 201 0); Tanimura
& Antle. Inc. v. Packed Fresh Produce. Inc., 222 F.3d 132, 137-41 (3d Cir. 2000); Frio Ice. S.A. v.
Sunfruit. Inc., 918 F.2d 154, 156--60 (11th Cir. 1990); Cont'l Fruit Co. v. Thomas J. Gatziolis & Co.,
774 F. Supp. 449, 453-54 (N.D. Ill. 1991). Additionally, there is little harm to defendants in
granting the temporary restraining order, which requires only that d.efendants comply with PACA
(i.e., maintain the trust required by statute and pay for the produce received). Moreover, the
temporary restraining order furthers the public interest reflected in PACA's statutory scheme.
In sum, the court fmds that this ex parte temporary restraining order without notice is
appropriate. Thus, plaintiffs motion for a temporary restraining order [D.E. 3] is GRANTED, and
it is ORDERED that:
(1) pending the hearing of plaintiffs application for a preliminary injunction, defendants,
their agents, employees, officers, directors, subsidiaries, related entities, assigns, and banking
institutions are temporarily restrained and enjoined from alienating, dissipating, paying over, or
assigning any assets ofFarmin' Brands and Farmin' 2PL or their subsidiaries or related companies,
except for payment to plaintiff, until further order of this court or until defendants pay plaintiff the
amount of $273,560.10 by bank check or wire transfer, at which time this order is dissolved; and
(2) it is further ORDERED that, pursuantto Fed. R. Civ. P. 65(b)(2), this order shall expire
on August 4, 2017, unless before that time the court, for good cause, extends it or defendants consent
to a longer extension; and
(3) it is further ORDERED that, pursuant to Fed. R. Civ. P. 65(b)(4), on three days' notice
to plaintiff, defendants may appear and move to dissolve or modify the order; and
(4) it is further ORDERED that ifdefendants fail to pay plaintiff the amount of$273,560.10
by bank check or wire transfer within five business days of service of this order, then defendants
shall file with this court by August 1, 2017, with a copy to plaintiff's counsel, an accounting that
identifies the assets and liabilities and accounts receivable reports ofFarmin' Brands and Fannin'
2PL signed under penalty of perjury; and
(5) that defendants shall supply to plaintiff's attorney, by August 1, 2017, all documents in
their possession, custody, or control concerning the assets and liabilities of Farmin' Brands and
Fannin' 2PL and their related and subsidiary companies, including, but not limited to, the most
recent balance sheets, profit/loss statements, accounts receivable reports, accounts payable reports,
accounts paid records, and bank statements with cancelled checks for the last 90 days; and
(6) it is further ORDERED that a bond is waived in view of defendants now holding
$273,560.10 worth of plaintiff's assets; and
(7) it is further ORDERED that plaintiff shall serve defendants a copy of this order and the
papers upon which it is based, together with the summons and complaint, by Federal Express or
other nationally recognized overnight delivery service on or before Friday, July 21, 2017; and
(9) it is further ORDERED that defendants shall serve any answering papers by August 1,
(10) it is further ORDERED that defendants show cause in courtroom one ofthe Terry
Sanford Federal Building, 310 New BemAvenue, Raleigh, North Carolina, on August 3, 2017, at
4:00p.m., or as soon thereafter as counsel may be heard, why this court should not issue an order
pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining defendants, their agents,
employees, officers, directors, subsidiaries, related entities, assigns, and banking institutions, from
alienating, dissipating, paying over, or assigning any assets ofFarmin' Brands or Farmin' 2PL, or
their subsidiaries or related companies, except for payment to plaintiffof$273,560.1 0 by bank check
or wire transfer.
SO ORDERED. This _.2.Q day of July 2017.
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