Baginski Potato Company Ltd v. Custom Cuts Fresh LLC et al

Filing 40

ORDER signed by Judge Rudolph T Randa on 08/16/2011 granting (35) Motion for Entry of Amended Preliminary Injunction, Consolidation, and Establishing a PACA Claims Procedure. (Attachments: # 1 Exhibit Notice of Claims, # 2 Exhibit PACA Proof of Claim) (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MILWAUKEE DIVISION
BAGINSKI POTATO COMPANY Ltd,
Plaintiff,
vs.
CUSTOM CUTS FRESH LLC, BRADLEY
BECKMAN,
Defendants.
RIVER POINT FARMS LLC,
Plaintiff,
vs.
CUSTOM CUTS INC., CUSTOM CUTS
FRESH LLC, BRADLEY BECKMAN,
Defendants.
KAISER INTERNATIONAL, LLC,
Plaintiff,
vs.
CUSTOM CUTS FRESH, LLC, BRADLEY
V. BECKMAN,
Defendants.
SUNRIDGE FARMS INC., dba
COASTLINE,
Plaintiff,
vs.
CUSTOM CUTS INC., CUSTOM CUTS
FRESH LLC, BRADLEY BECKMAN,
Defendants.
SANTA BARBARA FARMS LLC
Plaintiff,
vs.
CUSTOM CUTS INC., CUSTOM CUTS
FRESH LLC, BRADLEY BECKMAN,
Defendants.

Case No. 2:11-CV-00439-RTR

NOTICE OF PACA CLAIMS PROCEDURE ORDER
TO: ALL CREDITORS OF CUSTOM CUTS, INC.
PLEASE TAKE NOTICE that on _____________, the Court entered an
Order granting Plaintiffs’ Motion to Amend Preliminary Injunction Order and
Page 1 of 6

Establishing a PACA Claims Procedure (the “PACA Claims Procedure Order”)
in the above-captioned proceeding, a copy of which is attached.
Under certain circumstances, the trust provisions of the Perishable
Agricultural Commodities Act of 1930, as amended, 7 U.S.C. §499e (“PACA”)
provide for priority payment to qualifying sellers or suppliers and growers of
perishable agricultural commodities (“Produce”) who have not received
payment for Produce sold supplied and/ or shipped to its buyer or commission
agent. In order to qualify as a PACA trust beneficiary entitled to such priority
payment, the creditor must first have sold or supplied perishable agricultural
commodities (meaning fruits or vegetables in fresh form, whether or not packed
in ice, including frozen). Second, the seller or supplier of such commodities must
have timely complied with certain statutory requirements to validly preserve
PACA trust benefits and qualify as a PACA trust creditor. Sellers or suppliers
who prove they have met all statutory requirements and have valid PACA trust
claims are entitled to share in the distribution of Custom Cuts, Inc.’s PACA trust
assets.
The PACA Claims Procedure Order sets forth a procedure for all fruit and
vegetable suppliers to intervene in the case to prove their PACA trust claims
against Custom Cuts.

Page 2 of 6

PRODUCE VENDORS and SUPPLIERS
If you are a Produce vendor or Supplier that has not been paid for fresh or
frozen produce sold to Custom Cuts, Inc., and you desire to assert a claim that
you are a PACA trust creditor of Custom Cuts, Inc., you must timely and fully
comply with all terms of the following claims procedure for produce creditors.
NON-PRODUCE VENDORS or SUPPLIERS
If you are NOT a produce supplier, you must file and serve a Complaint in
Intervention, only, on or before the Thursday, October 06, 2011. Any creditor of
Custom Cuts, which is not a Produce supplier, who fails to timely file a
Complaint in Intervention with the Court and serve the counsel identified below
shall be forever barred from contesting whether Custom Cuts’ assets are subject
to the trust provisions of PACA, whether in this Court or any other forum.
CLAIMS PROCEDURE FOR PRODUCE CREDITORS
1.

On or before Thursday, October 06, 2011, any potential PACA trust

creditor wishing to intervene in this lawsuit and seek relief under the PACA’s
trust provisions must file (i) a Complaint in Intervention (or Amended
COmpaint) which complies with Federal Rule of Civil Procedure 8(a), and (ii) a
PACA Proof of Claim substantially similar to the attached form with the Clerk of
the United States District Court.
2.

The Complaint in Intervention and the Proof of Claim must also be

Page 3 of 6

served upon:
MEUERS LAW FIRM, P.L.
Katy Koestner Esquivel
5395 Park Central Court
Naples, Florida 34109-5932
Telephone: [phone]
Facsimile: [phone]
[e-mail]

BECK, CHAET, BAMBERGER & POLSKY,
S.C.
Steven W. Jelenchick
330 E. Kilbourn Avenue, Suite 1085
Milwaukee, WI 53202
Telephone: [phone]
Facsimile: [phone]
[e-mail]

MARTYN AND ASSOCIATES
Devin J. Oddo
820 Superior Avenue, N.W., Tenth
Floor
Cleveland, Ohio 44113
Telephone: [phone]
[phone]
[e-mail]
Service is permitted to be made pursuant to Fed.R.Civ.P. 5(b)(2)(D) via e-mail,
provided that if service is effectuated via e-mail, a copy of the document shall also
be served via U.S. Mail or personal service on the date of e-mail service, and
service via e-mail shall be made to the following e-mail addresses identified
above. All filings will be accompanied by a certificate of service.
3.

ANY PACA CLAIMANT WHO FAILS TO TIMELY FILE A

COMPLAINT IN INTERVENTION AND PACA PROOF OF CLAIM WITH
THE COURT AND SERVE THE SAME ON COUNSEL REFERENCED
ABOVE ON OR BEFORE THE THURSDAY, OCTOBER 06, 2011 DEADLINE,
SHALL BE FOREVER BARRED FROM ASSERTING ANY CLAIM UNDER

Page 4 of 6

THE PACA TRUST AGAINST CUSTOM CUTS OR ANY OFFICER OR
EMPLOYEE OF CUSTOM CUTS, FOR NON-PAYMENT OF PRODUCE
SOLD TO CUSTOM CUTS, WHETHER IN THIS COURT OR ANY OTHER
FORUM.
4.

Additional deadlines governing the determination and payment of

valid PACA claims against Custom Cuts are set forth in the Order and are
summarized below:
Deadline to File Complaint in Intervention and
PACA Proof of Claim .............................................. Thursday, October 06, 2011
Objections to any PACA Proof of Claim Due . Wednesday, October 26, 2011
Responses to Claims Objections Due ................ Monday, November 07, 2011
Deadline to File Motion to Rule on Objections Thursday, November 17, 2011
Deadline to File PACA Trust Chart and Motion
for Interim Distribution of Available Funds .... Tuesday, November 22, 2011
Deadline to object to PACA Trust Chart and
Motion for Interim Distribution of Available
Funds ...................................................................... Tuesday, November 29, 2011
Deadline to Reply to any Objection to PACA
Trust Chart and Motion for Interim
Distribution of Available Funds ............................... Friday, December 2, 2011
Deadline for Interim Distribution ............................ Friday, December 9, 2011

Page 5 of 6

If you have any questions concerning this Notice or whether you qualify as a
PACA trust creditor of Custom Cuts or any of its affiliated entities, you are
strongly advised to seek legal counsel immediately.
MEUERS LAW FIRM, P.L.
/s/Katy Koestner Esquivel
Katy Koestner Esquivel
Florida Bar No. 159484
5395 Park Central Court
Naples, Florida 34109-5932
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Kaiser International, LLC

BECK, CHAET, BAMBERGER &
POLSKY, S.C.
/s/ Steven W. Jelenchick
Steven W. Jelenchick
330 E. Kilbourn Avenue, Suite 1085
Milwaukee, WI 53202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for River Point Farms, LLC

MARTYN AND ASSOCIATES
/s/ Devin J. Oddo
Devin J. Oddo
Ohio Bar I.D. No. 0069693
820 Superior Avenue, N.W.
Tenth Floor
Cleveland, Ohio 44113
[phone] – telephone
[phone] – facsimile
[e-mail]
Attorney for Baginski Potato Company,
Ltd. and C.H. Robinson Worldwide, Inc.

Page 6 of 6