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Kingsburg Apple Packers, Inc. v. Ballantine Produce Co.

December 6, 2010

KINGSBURG APPLE PACKERS, INC.
D/B/A KINGSBURG ORCHARDS, ET AL,
v.
BALLANTINE PRODUCE CO., INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATION Plaintiffs, GRANTING MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT (Doc. 178)

Bank of the West ("Bank") filed a motion for determination of good faith settlement on May 21, 2010. (Doc. 178). Defendants Ballantine Produce Co., Inc.; David Albertson; Eric Albertson; and Jerry DiBuduo filed a notice of opposition to the motion on June 8, 2010 (Doc. 188), which was joined by defendant Virgil Rasmussen on June 7, 2010 (Doc. 189). The matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.

The Court has read and considered the pleadings and arguments of counsel. For the reasons discussed below, the Court recommends that the Bank's motion for determination of good faith settlement be GRANTED.

I. Procedural History

On May 21, 2009, Kingsburg Apple Packers and David Del Curto filed their Complaint against defendants Ballantine Produce, Virgil Rasmussen, David Albertson, Eric Albertson, and 4 Jerry DiBuduo, thereby commencing the action in this Court. (Doc. 1.) Plaintiffs' Complaint 5 alleged violations of the Perishable Agricultural Commodities Act ("PACA"), arising under 7 U.S.C. § 499e(c)(2). Id. Immediately after filing, Plaintiffs sought injunctive relief against the defendants 7 in the form of a temporary restraining order to prevent them from violating PACA provisions and 8 dissipation of assets subject to the PACA trust (Doc. 9). The Court granted Plaintiffs' motion on May 22, 2009. (Doc. 15).

The Court issued an Order establishing the procedure for PACA claims on June 16, 2009.

(Doc. 28). To assert a PACA claim, parties had to file a notice of a claim by July 29, 2009. Id. at 10. Pursuant to the Order, the following parties filed PACA claims: C&D Comercio y Desarollo International (Doc. 32); Sofruco Alimentos (Docs. 45, 64, 66); Lamanuzzi & Pataleo, LLC (Doc. 49); Kingsburg Apple Packers (Doc. 50); David Del Curto, S.A. (Doc. 51); Giumarra International Marketing (Doc. 52); Agricamex, Ltda (Doc. 54); Delifruit, S.A. (Doc. 57); Gerry Lund (Doc. 58); Wagon Wheel Farms, Inc. (Doc. 59); Exportadora & Servicios Racaray, S.A. (Doc. 61); DiBudio Land Management, Inc. (Doc. 63); Exportadora Agricola Casabindo, Ltda (Doc. 65); Gestion De Exportationes Fruticolas, S.A. (Doc. 67); Southern Fruit, S.A. (Doc. 68); Comercial Greenvic, S.A. (Docs. 69-70); Tuniche Fruits, S.A. (Doc. 73); and Fred Garza, Jr., Inc., doing business as Fruit Harvest (Doc. 79). After the deadline, on September 29, 2009, Spectrum Produce Distributing filed 21 a "Motion for Leave to Intervene and for Leave to File a PACA Proof of Claim Out of Time" (Doc. 22 108), which was granted by the Court on February 3, 2010. (Doc. 144).

The Order establishing the PACA procedure established also that July 29, 2009, was the deadline for parties to file complaints in intervention. (Doc. 28 at 10). Several parties filed 25 complaints in intervention against Ballantine Produce, David Albertson, Eric Albertson, Virgil Rasmussen, Jerry DiBuduo, and Babijuice Corporation. These complaints varied in allegations, but 27 a majority alleged PACA violations and breach of by Ballantine Produce; and fiduciary duty 28 violations, conversion, and unlawful retention of assets by David Albertson, Eric Albertson, Rasmussen, DiBuduo, and Babijuice Corporation. In addition, Kingsburg Apple Packers and David Del Curto filed their First Amended Complaint which then included new plaintiffs, Giumarra International Marketing; Agricamex, Ltda; Delifruit, S.A.; Exportadora & Servicios Rucara, S.A., Exportadora Agricola Casabindo, Ltda; Gestion De Exportationes Fruticolas, S.A.; Southern Fruit; 5 and Tuniche Fruit. (Doc. 74).

On August 12, 2009, the defendants (Ballantine Produce, Virgil Rasmussen, David Albertson, Eric Albertson, Jerry DiBuduo, and Babijuice Corporation of California) filed their 8 answers to the Amended Complaint and complaints in intervention. (Docs. 88-96). In addition, 9 these defendants filed a "Third Party Complaint" against John D. Pelton & Associates, John D.

Pelton, and Bank of the West. (Doc. 97). In the Third Party Complaint, defendants raised claims for 11 equitable indemnity, contribution, and tort of another. Id. Bank of the West filed its Answer on September 11, 2009. (Doc. 107).

On May 5, 2010, Bank of the West, and PACA claimants Kingsburg Apple Packers, David Del Curto, Agricamex, Delifruit, Exportadora &Servicios Rucaray, exportadora Agricola casabindo, Southern Fruit, C& D Comerico y Desarollo Internacional, Guimarra International Marketing, Comercial Greenvic, RJO Produce Marketing, Spectrum Produce Distributing (Doc. 175), 17 filed a "Stipulation Instructing and Authorizing the Receiver to Distribute Funds with Respect to PACA Claims" ("Stipulation") and moved the Court to approve the stipulation. (Docs. 176, 182)

The Court granted the motion and approved the stipulation on June 28, 2010. (Doc. 200).

On September 16, 2010, the "Kingsburg Group"*fn1 filed a stipulation to dismiss claims against the defendants. (Doc. 220). In addition, the "Comercial Greenvic Group"*fn2 filed a stipulation and 22 proposed order for voluntary dismissal of claims against the defendants on September 20, 2010.

(Doc. 223). Subsequently, the Court issued orders dismissing the claims of the Kingsburg and Comerical Greenvic Groups against Ballantine Produce, Virgil Rasmussen, David Albertson, Eric ...


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