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Sunriver Traiding Co. Ltd. v. Double D Trade Co.

December 22, 2008

SUNRIVER TRADING COMPANY LIMITED, A CALIFORNIA CORPORATION DBA SUNRIVER SALES, PLAINTIFF,
v.
DOUBLE D TRADE COMPANY, LLC., A WASHINGTON LIMITED LIABILITY COMPANY; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON PLAINTIFF'S EX PARTE APPLICATION FOR RIGHT TO ATTACH ORDER AND PREJUDGMENT WRIT OF ATTACHMENT

Document # 8

This is an action pursuant to the Perishable Agricultural Commodities Act ("PACA") by plaintiff Sunriver Traiding Co. Ltd. ("Plaintiff") against Double "D" Trade Company, LLC ("Defendant") arising out of Defendant's failure to pay the agreed price for a shipment of two containers of oranges. The administrative procedure provided by PACA produced a default judgment in favor of Plaintiff for a total sum of $18, 468.00, plus interest and fees. In the instant motion , Plaintiff seeks ex parte an order for right to attach and a prejudgment writ of attachment pursuant to California Code of Civil Procedure 485.010, et seq.*fn1 Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1337. Venue is proper in this court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action arises out of the sale by Plaintiff of two containers of Oranges to Defendant for shipment to Vladivostok, Russia, pursuant to a sales contract. Plaintiff performed its portion of the contract by delivering the oranges to the Port of San Pedro for shipment. Defendant took possession of the shipment and transported the oranges to Vladivostok where the shipment was accepted. Defendant refused to tender payment in violation of the sales agreement and in violation of the PACA as set forth at 7 U.S.C. § 499b(4).

On June 18, 2008, Plaintiff filed an administrative complaint before the United States Department of Agriculture pursuant to 7 U.S.C. §499f. Although Defendant was served with the complaint, Defendant failed to respond and a default order and reparation award in the sum of $18,468.00 plus fee and interest was issued on October 9, 2008. Plaintiff's action was commenced in this court on November 25, 2008.

LEGAL STANDARD

Rule 64 of the Federal Rules of Civil Procedure provides, in pertinent part, that "all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held . . . ." Fed. R. Civ. P. 64. Thus, Rule 64 "permits state seizure provisions to be used in federal courts . . ." Reebok Int'l v. Marnatech Enters., 970 F.2d 552, 558 (9th Cir. 1992); Pos-A-Traction, Inc. v. Kelly-Springfield Tire Co., 112 F.Supp.2d 1178, 1181 (C.D. Cal. 2000) (noting that Rule 64 incorporates state law for prejudgment seizures of property). Among the specific seizure remedies provide by Rule 64 are arrest, attachment, garnishment, replevin and sequestration.

In the instant request, plaintiff seeks an order for right of attachment and writ of attachment on an ex parte basis. The procedure for obtaining a writ of attachment under California Law is set forth beginning at section 485.010, which provides, in pertinent part, that:

[N]o right to attach order or writ of attachment may be issued pursuant to this chapter unless it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.

Section 485.010(a). Subdivision (b)(1) provides that the requirements of subdivision (a) are met if either:

(1) Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice

(2) Under the circumstances of the case it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute. Plaintiff's affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant , that the debts are not subject to bona fide dispute and the basis for plaintiff's determination that the defendant's debts are undisputed.

A court shall issue a right to attach order and shall order "a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 589.210 ...


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