Burr Potato Company, Inc. et al v. IGH Enterprises, Inc. et al

Filing 10

ORDER granting 3 Motion for TRO. This Temporary Restraining Order shall expire 14 days from the date and time issued, unless before that time the Court, for good cause, extends it for a like period or Defendants consent to a longer extension. Additionally, pursuant to Fed.R.Civ.P. 65(b)(4), on two days' notice to Plaintiffs, Defendants may appear and move to dissolve or modify the order. The parties are directed to TAKE NOTICE that a hearing on this Order and on Plaintiff's Motion for P.I. (doc 5) shall take place on Monday, May 22, 2017 at 2:00pm in Courtroom 1-1. Signed by Chief Judge Frank D. Whitney on 5/11/2017. (chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
BURR POTATO COMPANY, INC., et al
Plaintiffs
v.
IGH ENTERPRISES, INC., t/a
MITCHUM QUALITY SNACKS, et al
Defendants

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Civil Action No. 3:17-cv-247

TEMPORARY RESTRAINING ORDER AND NOTICE OF HEARING
THIS MATTER is before the Court on Plaintiffs’ Motion for Temporary Restraining Order
Without Notice pursuant to Rule 65 of the Federal Rules of Civil Procedure (Doc. No. 3). After
careful consideration of the record, the Court GRANTS the motion and makes the following findings
of fact and conclusions of law.
In this case, it appears from the declarations of Plaintiffs’ representatives and certification of
Plaintiffs’ counsel that Plaintiffs are creditors of Defendants IGH Enterprises, Inc., t/a Mitchum
Quality Snacks (“Mitchum”), John R. Wilson, Henry D. Pully and Cheri Shipley under Section 5(c)
of the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. § 499e(c), and have not been
paid as required by the PACA for produce supplied to Defendants in the aggregate principal amount
of $926,908.79, plus interest and attorneys’ fees. It also appears from Plaintiffs’ declarations that
Defendants have dissipated PACA trust assets, as Defendants have admitted they cannot pay Plaintiffs
as required by PACA. As a result, it appears that Plaintiffs’ PACA trust assets are threatened with
further dissipation.
Notice of this request for a Temporary Restraining Order (“TRO”) has not been given
because if it were given there is a clear likelihood that funds may be dissipated further.

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The Court finds that Plaintiffs have shown a likelihood of success on the merits and a
likelihood of imminent irreparable harm, which justifies not only issuance of this TRO but also
issuance of this TRO without notice to Defendants.
Additionally, there is little harm to Defendants in granting an injunction, which only requires
Defendants to do that which they are required to do under the statute, i.e., maintain the trust required
by statute and pay for the undisputed portion of produce.
Lastly, the public interest is furthered by the granting of a TRO. The statute itself states that
the trust law was established to benefit the public interest that had suffered due to nonpayment for
produce.
Based on the foregoing, the Court finds that issuance of this TRO without notice is
appropriate.
IT IS THEREFORE ORDERED that, Plaintiffs’ Motion for a Temporary Restraining Order
(Doc. No. 3) is GRANTED for the reasons stated herein and in Plaintiffs’ pleadings (Docs. Nos.
5, 6, 7, 8).
IT IS FURTHER ORDERED that Defendants, their customers, agents, officers, subsidiaries,
assigns, and banking institutions are TEMPORARILY RESTRAINED AND ENJOINED from
alienating, dissipating, paying over or assigning any assets of Mitchum or its subsidiaries or related
companies except for payment to Plaintiffs until further order of this Court or until Defendants pay
Plaintiffs the aggregate sum of $926,908.79, plus interest and attorneys’ fees, by cashier’s check or
certified check, at which time this Order is dissolved.
IT IS FURTHER OREDERED that pursuant to Fed. R. Civ. P. 65(b)(2), this Order shall
expire 14 days from the date and time issued, unless before that time the Court, for good cause,
extends it for a like period or Defendants consent to a longer extension. Additionally, pursuant to
Fed. R. Civ. P. 65(b)(4), on two days’ notice to Plaintiffs, Defendants may appear and move to
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dissolve or modify the order.
Finally, the parties are directed to TAKE NOTICE that a hearing on this Order and on
Plaintiffs’ Motion for a Preliminary Injunction (Doc. No. 5) shall take place on Monday, May 22,
2017, at 2:00 p.m. at the Charles R. Jonas Federal Building, 401 West Trade Street,
Charlotte, NC 28202, in Courtroom #1-1.
IT IS SO ORDERED.
Signed: May 11, 2017

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