Sun Commodities, Inc. v. Selectos Whole Foods, Inc. et al

Filing 21

REPORT AND RECOMMENDATION re 7 MOTION for Preliminary Injunction filed by Sun Commodities, Inc. Signed by US Magistrate Judge Camille L. Velez-Rive on 6/20/13.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
SUN COMMODITIES, INC.,
Plaintiff,
v.

CIVIL NO. 13-1429 (CCC)

SELECTOS WHOLE FOODS, INC., et al,
Defendants.

REPORT AND RECOMMENDATION
On June 10, 2013 the Court referred plaintiff Sun Commodities, Inc.’s request for
a preliminary injunction to this Magistrate Judge. The Court denied the Temporary
Restraining Order requested by plaintiffs. (Docket Nos. 9 and 10).
A Status Conference was held this morning. Counsel Orlando Fernández
appeared on behalf of plaintiff Sun Commodities, Inc. d/b/a Sun International Produce
Co., counsel Carlos Rodríguez Quesada appeared on behalf of Selectos Whole Foods,
Inc. (“Selectos”), and counsel David Carrión Baralt appeared on behalf of defendants
Thomas Ward and Caroline Ward. Counsel for the parties discussed at the Status
Conference that Selectos has filed for Chapter 11 bankruptcy, and that Selectos has filed
a motion in the bankruptcy court to address the payment of trust claims made under the
Perishable Agricultural Commodities Act at 7 U.S.C. §499e(c), including the claim made
herein by Sun Commodities, Inc. Counsel for the parties stipulated to the entry of a
Preliminary Injunction against defendant Thomas Ward, and that the hearing on the
Motion for Preliminary Injunction against Caroline Ward be continued. A separate

Sun Commodities, Inc. v. Selectos Whole Foods, Inc., et al
Civil No. 13-1429 (CCC)
Report and Recommendation
Page 2

order was issued which continues the hearing date on the Motion for a Preliminary
Injunction against Caroline Ward for June 26, 2013 at 10:00 am. (Docket No. 20).
Subsequent to the Status Conference, the undersigned was informed that Counsel
for the parties further stipulated to the form of the Preliminary Injunction that appears
below.
Based on the foregoing, this Magistrate Judge recommends to the Court the entry
of a Preliminary Injunction which provides as follows:
1.

Defendant Thomas Ward, on behalf of himself only, admits he is the

principal of Selectos Whole Foods, Inc. (“Selectos”), and that Selectos owes Sun
Commodities, Inc., an amount (and as of today not determined) of money for the
purchase of perishable agricultural commodities, and that Sun Commodities, Inc.,
preserved its trust rights against Selectos under the Perishable Agricultural
Commodities Act at 7 U.S.C. §499e(c) by placing the language required by 7 U.S.C.
§499(e)(c)(3) on its invoices to Selectos.

Sun Commodities, Inc. is making a claim of

$143,526.56.
2.

Defendant Thomas Ward, and his agents, assigns, and financial

institutions, are restrained and enjoined from dissipating, disbursing, or otherwise
encumbering any and all monies and/or unliquidated assets of any type in their
possession and/or their control that are derived in whole or in part from their receipt of
money from Selectos. All financial institutions receiving this Order are directed to

Sun Commodities, Inc. v. Selectos Whole Foods, Inc., et al
Civil No. 13-1429 (CCC)
Report and Recommendation
Page 3

comply with this requirement until further notice. Defendant Thomas Ward is required
to promptly serve a copy of this Preliminary Injunction on all financial institutions in
which he has an account.
3.

Within twenty (20) days from the date of this Order, Thomas Ward will

provide Sun Commodities, Inc., with a written accounting which identifies the assets he
received from Selectos since January 1, 2012, and which further identifies in reasonable
detail the date the assets were received and the amount, the form of the assets, and to
the extent that the assets consists of money, the location of the money received, and the
names, addresses, and telephone numbers of the persons who have possession or
control of the money received, and if the money was used to purchase non-cash assets,
then a detailed description of the nature of the assets purchased, the location of the
assets, and the names, addresses, and telephone numbers of the persons who have
possession or control of such assets.
IT IS SO RECOMMENDED.1
In San Juan, Puerto Rico, this 20th day of June 2013.
s/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE

1

The parties waived the fourteen (14) days to file any objections to this Report and Recommendation in light
of the agreement reached. (Docket No. 20).