Northwest Bank v. McKee Family Farms, LLC et al

Filing 12

STIPULATED ORDER GRANTING EX PARTE APPLICATION FOR ENTRY OF TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY INJUNCTION. Signed on 8/21/15 by Judge Michael W. Mosman. (dls)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
NORTHWEST BANK f/k/a NORTHWEST
SAVINGS BANK, a Pennsylvania statechartered savings association,
Plaintiff,
v.
MCKEE FAMILY FARMS, LLC, an
Oregon limited liability company; SCHARF
FARMS, INC., an Oregon corporation;
DUSTIN WILFONG, individually and dba
DUSTIN WILFONG FARMS; DENNY
WILFONG, individually and dba WILFONG
FARM’S; K & J FARMS, LLC, an Oregon
limited liability company; CREEKSIDE
VALLEY FARMS LLC, an Oregon limited
liability company; ALFRED V. MULLET;
SJB FARMS, LLC, an Oregon limited
liability company; KAUER FAMILY
FARMS, LLC, an Oregon limited liability
company; DAN G. FANNING, individually
and dba FANNING FARMS; CLARKE
ELLINGSON; GILBERT & SON, INC., an
Oregon corporation; KEN CRUICKSHANK
FARMS, INC., an Oregon corporation;
LARRY BURGER; DOERFLER FARMS,
INC., an Oregon corporation; GOLDEN
VALLEY FARMS, LLC, an Oregon limited
liability company; ZEIGLER FARMS, LLC,

DM1\5978115 1

Case No. 3:15-CV-01576

STIPULATED ORDER GRANTING EX
PARTE APPLICATION FOR ENTRY OF
TEMPORARY RESTRAINING ORDER
AND SETTING HEARING ON MOTION
FOR PRELIMINARY INJUNCTION

Oregon limited liability company; JANZEN
FARMS LLC, an Oregon limited liability
company; EDIGER FARMS, LLC, an
Oregon limited liability company; JOHN
IMLAH and MARGY IMLAH, individually
and dba HOOD VIEW FARMS; DARYN
BRUTKE; ANTHONY DERAEVE;
RAINBOW HILL RANCH, INC., an Oregon
corporation; ROHDE GENERATIONS
INC., an Oregon corporation; M. GRANT
RICE; KEITH B. DEJONG; MATTHEW J.
RICE; DEAN C. DODSON; RYAN
KADELL; ROBIN KADELL; MT. HOPE
SEED CO., INC., an Oregon corporation;
RIDDELL FARMS, INC., an Oregon
corporation; GARY CROSSAN FARMS,
LLC, an Oregon limited liability company;
PAUL H. COUSSENS FARMS, LLC, an
Oregon limited liability company; PHIL
SPIESS; TIM PFEIFFER; KCK FARMS,
LLC, an Oregon limited liability company;
CARLTON SEED, LLC, an Oregon limited
liability company; MEADOW RIDGE
FARMS, INC., an Oregon corporation;
MARK W. GEHRING and CAROL A.
GEHRING, individually and dba GEHRING
FARMS; TRIPLE K, LLC, an Oregon
limited liability company; LARRY D. BELL;
and INTEGRATED SEED GROWERS,
LLC, an Oregon limited liability company,
Defendants.
THIS MATTER came before the Honorable Michael W. Mossman on Plaintiff's Ex
Parte Application for Entry of Temporary Restraining Order and Preliminary Injunction
("Application"), against Defendant Riddell Farms, Inc. (“Defendant” or “Riddell”). Plaintiff was
represented by Kimberly Sugawa-Fujinaga and Riddell was represented by John D. Albert, who
appeared for the limited purpose of this hearing and the hearing scheduled below. The Court has
carefully reviewed the Application, heard from the parties, and is otherwise fully advised in the
premises.
PAGE 2

ORDER GRANTING EX PARTE APPLICATION FOR ENTRY OF TEMPORARY
RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY
INJUNCTION

Plaintiff Northwest Bank ("NWB") and Riddell stipulate, pursuant to Fed. R. Civ. P. 65
for immediate entry of a Temporary Restraining Order ("TRO") against Riddell on the following
terms:
IT IS ORDERED AND ADJUDGED that NWB's Application for Temporary
Restraining Order is hereby GRANTED as follows:
1.

Riddell, their officers, directors, employees, agents, subsidiaries, distributors, and

all persons in active concert or participation with Riddell having actual notice of this Order are
hereby temporarily restrained from the sale or other disposal of the 2014 Radish Seed. The 2014
Radish Seed is in and is to remain in Riddell’s possession, properly insured at all times, until
further order of the Court and/or stipulation of the parties. 1
2.

Riddell, their officers, directors, employees, agents, subsidiaries, distributors, and

all persons in active concert or participation with Riddell having actual notice of this Order are
hereby temporarily restrained from taking any additional seed from either of the warehouses
owned by McKee Family Farms, LLC located at 11640 Elkins Road, Monmouth, OR 97361 and
22450 SW McKee Road, Amity, OR 97101;
3.

Riddell, their officers, directors, employees, agents, subsidiaries, distributors, and

all persons in active concert or participation with Riddell having actual notice of this Order are
must provide an accounting to NWB of any proceeds from the sale of the 2014 Radish Seed that
has occurred to date within fourteen (14) days of entry of this Order, and either: (1) tender such
amounts to the court pending the outcome of this matter or (2) hold such sale proceeds in escrow

1

"2014 Radish Seed" refers to the seed listed by lot number in the Settlement Sheet For Riddell
Farms 2014 Radish Crop, attached to the Indemnity Agreement between McKee and Riddell.
See Creal Dec. Ex. I.
PAGE 3

ORDER GRANTING EX PARTE APPLICATION FOR ENTRY OF TEMPORARY
RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY
INJUNCTION

pending issuance of final judgment by this Court on the priority of liens set forth in the
Complaint;
4.

This Temporary Restraining Order shall remain in effect until the hearing on the

Motion for Preliminary Injunction as set forth below, or until such further dates as set by the
Court or stipulated by the parties;
5.

Pursuant to Fed. R. Civ. P. 65(c), NWB shall post an irrevocable letter of credit

issued by NWB in the amount of Five Thousand Dollars and Zero Cents ($5,000.00) as payment
of damages to which Riddell may be entitled for a wrongful injunction or restraint, during the
pendency of this action, or until further Order of the Court;
6.

This Court will conduct a hearing on NWB's Motion for Preliminary Injunction

on the 31st day of August, 2015, at 4:00 PM, Courtroom 16, of the U.S. District Courthouse,
1000 SW Third Avenue, Portland, Oregon.

Defendant shall serve and file any answering

affidavits or memoranda in response to Plaintiff’s application on or before August 26, 2015; and
NWB shall serve and file any reply papers on or before August 28, 2015. Those dates may be
revised upon stipulation of all parties and approval of the court. At that hearing, Defendants
and/or any other affected persons may challenge the appropriateness of this Order and move to
dissolve the same, and the Court will hear arguments on the Motion for Preliminary Injunction;
7.

SERVICE. A copy of this Order and of the Complaint filed in the above matter,

together with all supporting papers, shall be served by NWB upon Riddell by hand delivery,
regular mail, or electronic mail within two business days following NWB's receipt thereof;
Riddell's counsel has agreed to accept service of the Order as well.
8.

ALL DEFENDANTS ARE HEREBY NOTIFIED THAT IF THEY DO NOT

TIMELY RESPOND TO THE MOTION FOR PRELIMINARY INJUNCTION AND AS
PAGE 4

ORDER GRANTING EX PARTE APPLICATION FOR ENTRY OF TEMPORARY
RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY
INJUNCTION

ORDERED HEREIN, AND DO NOT APPEAR AT THE SCHEDULED HEARING, THE
COURT MAY ENTER A PRELIMINARY INJUNCTION OR OTHER ORDERS
AGAINST THEM BY DEFAULT.
DONE AND ORDERED in Chambers as the U.S. District Courthouse, 1000 SW Third
Avenue, Portland, Oregon, this 21 day of August, 2015, at

3:40 PM AM/PM.

/s/ Michael W. Mosman
United States District Court Judge

Submitted by:

/s/ Kimberly Sugawa-Fujinaga
Kimberly Sugawa-Fujinaga, OSB No. 054685
[e-mail]
MCEWEN GISVOLD, LLP
1100 SW Sixth Avenue, Suite 1600
Portland, Oregon 97204
Tel: [phone]
Fax: [phone]
Of Attorneys for Plaintiff

PAGE 5

/s/ John D. Albert
John D. Albert, OSB No. 760418
[e-mail]
SHERMAN SHERMAN JOHNNIE & HOYT

693 Chemeketa Street NE
PO Box 2247
Salem, OR 97301
Tel: [phone]
Of Attorneys for Defendant Riddell Farms,
Inc.

ORDER GRANTING EX PARTE APPLICATION FOR ENTRY OF TEMPORARY
RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY
INJUNCTION