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

PACA PROOF OF CLAIM OF
I,

(Company)

(Name), declare:

1.

That I am the

accounts and records of

(Title) ,and the custodian of the
(Company) (hereinafter referred to as

Page 1 of 5

“Claimant”), and I file this Declaration and declare under penalty of perjury that the
following are true statements and that the attached documents are true and correct
copies or original documents, which are filed with this Declaration for the purpose of
supporting Claimant’s PACA claim as a beneficiary of the trust created against
perishable agricultural commodities sold and delivered to Custom Cuts, Inc. pursuant
to the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C. §499e
(“PACA”) and the Code of Federal Regulations implementing PACA promulgated by
the Secretary of the United States Department of Agriculture (“USDA”), 7 C.F.R. §46.46,
and I am authorized to make this Declaration and am competent to testify at trial, if
necessary, regarding the statements made in this Declaration.

2.

Claimant:




3.

is licensed by the USDA–PACA, and currently holds valid PACA
license number _____________ and was so validly licensed during
the period applicable to the transactions which are the subject of
this claim.
is not licensed by the USDA-PACA, and was not so licensed during
the period applicable to the transactions which are the subject of
this claim.

That the sales transactions between Claimant and Custom Cuts and were

based on the following payment terms:


Payment was due within ten (10) days after the day on which the
produce was accepted as provided for in 7 C.F.R. §46.2(aa)(5).



On _______ day written payment terms from the date of (check one):
 Shipment
 Invoice
 Delivery
 Acceptance

True and accurate copies of the written agreements, if any, providing for such
payment terms are attached to this Declaration

4.

That Claimant sold and delivered perishable agricultural commodities

Page 2 of 5

consisting of fresh fruits and/or vegetables (hereinafter “Produce”) on credit as
described in a chart attached to this Declaration (“Trust Chart”). In each instance, the
Produce was received and accepted and no adjustments have been made on the invoice
except as listed. True and accurate copies of all relevant invoices are attached to the
Trust Chart. In the Trust Chart, I have used the following terms, which have the
following meanings:
Invoice Number:............The invoice under which the commodity was sold
Transaction Date: ..........The date that begins the payment term between the
parties
Invoice Date: ..................The date the invoice was generated and mailed
Payment Due Date: .......The date payment was due based upon the agreed
payment terms.
Invoice Amount Due ....The principal amount owed and remaining unpaid,
whether or not it qualifies for trust protection;
# of Days Overdue ........The number of days the invoice will be past due on the
Proof of Claim deadline.
PACA Trust Amount ....The amount owed and remaining unpaid qualifying for
trust protection pursuant to the provisions of PACA.

5.

That Claimant preserved its PACA trust interest:



6.

by including the statutorily required language on Claimant’s
invoice or other billing statement (7 U.S.C. §499e(c)(4)); or
By serving Trust Notices (7 U.S.C. §499e(c)(3)).

That on the Invoice Date indicated on the Trust Chart and appearing on

each of the invoices, each invoice was sent via:
 US Mail
 Hand-Delivery
 Facsimile

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 Other: (describe)

7.

That true and accurate copies of all Trust Notices, if applicable, are

attached hereto as Exhibit __ to this Declaration, copies of all unpaid invoices are attached
as Exhibit __, and other evidence to support Claimant’s PACA trust claim are attached as
Exhibit __.

8.

That Claimant provides the following additional information and

documents that it believes may be necessary and helpful for the just determination of its
claim. (Attach anything else you would like to place before the Court and intend to
introduce at trial in connection with proving your claim as a PACA trust beneficiary).

9.

That the total amount past due and unpaid from Custom Cuts to Claimant

and that qualifies for PACA trust protection is calculated as follows:

Total Amount Sold to Custom Cuts $
Interest through October 6, 2011 $
Attorneys Fees* $
TOTAL $
*Only

include if Claimant has a written contract, agreement or credit application
providing for recovery of attorneys fees

10.

That Claimant


Has a written contract with Custom Cuts
attorneys’ fees



Does not have a written contract with Custom Cuts for the
recovery of attorneys’ fees

Page 4 of 5

for the recovery of

11.

That Claimant
 Has a written contract with Custom Cuts for the recovery of
interest and (check one)


The interest rate set forth on the contract is _______% per
annum



No interest rate is set forth on the contract.

 Does not have a written contract with Custom Cuts for the
recovery of interest
I understand that the penalty for presenting a fraudulent claim is a fine of not
more than Five Thousand Dollars ($5,000.00) or imprisonment for not more than five (5)
years, or both. 18 U.S.C. §152.
I declare under the penalty of perjury, under the laws of the United States of
America and the State of ____________________ (State) , that the foregoing is true and
correct based on my personal knowledge.
Executed on October _____________, 2011 at ____________________ (City), State
of ____________________ (State).
Signature
Printed Name
Title

Page 5 of 5

_______________________________________ (Company Name)
vs.
Custom Cuts Fresh, LLC
TRUST CHART
Invoice
Number

Transaction
Date

Invoice
Date

Payment
Due Date

Invoice
Amount

(____ Days)

Sub-Totals

$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$

No. of
Days
Overdue
10/6/2011
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$

Accrued
Interest*

Trust
Amount

_____%
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$

$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$

+Attorneys Fees

$

=TOTAL CLAIM

$

* Additional daily interest accruing from above date

$