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United States of America v. Ninety-Seven

May 9, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
NINETY-SEVEN, MORE OR LESS, 1.2 POUND WEDGES OF GOUDA CHEESE, IN ARTICLE OF FOOD LABELLED IN PART: "BRAVO FARMS *** HANDMADE CHEESE *** AGED > 60 DAYS PLANT # 06-827 TRAVER, CA 93673 *** DUTCH-STYLE GOUDA ***" AND FOURTEEN, MORE OR LESS, 40 POUND BLOCKS OF WHITE CHEDDAR CHEESE, ARTICLES OF FOOD, LABELLED IN PART: "SAGE, WHITE PEPPER, AND ONION *** 06-827 *** 8 3 10" AND ALL OTHER ARTICLES OF CHEESE IN ANY SIZE AND TYPE OF CONTAINER LABELLED OR UN-LABELLED, EXCEPT FOR PASTEURIZED CHEESE CURDS THAT ARE LOCATED ANYWHERE ON THE PREMISES OF BRAVO FARMS, LLC, 3660 HIGHWAY 99, TRAVER, CALIFORNIA,
DEFENDANTS,
AND
BRAVO FARMS CHEESE, LLC, AND JONATHAN VAN RYN CLAIMANTS-DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

CONSENT DECREE OF CONDEMNATION AND PERMANENT INJUNCTION

On January 21, 2011, the United States of America ("Plaintiff"), by and through its attorneys, filed a Verified Complaint for Forfeiture In Rem ("Complaint") against the articles described above. The articles proceeded against are articles of food within the meaning of the Federal Food, Drug, and Cosmetic Act ("the Act"), 21 U.S.C. § 321(f). The Complaint alleges that the articles are adulterated while held for sale after shipment in interstate commerce, within the meaning of 21 U.S.C. § 342(a)(4), in that they have been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth, or whereby they may have been rendered injurious to health.

In response to the Complaint, on January 25, 2011, this Court issued a Warrant for Arrest In Rem directing the United States Marshal for this District to seize the articles. The United States Marshal executed the seizure on January 27, 2011.

On February 28, 2011, Jonathan Van Ryn, on behalf of and as owner of Bravo Farms Cheese, LLC ("Bravo Farms") (collectively, "Claimants"), intervened and filed a Verified Claim to all of the seized articles. Claimants affirm that Bravo Farms is the sole owner of the seized articles, and that no other person has an interest in the seized articles. No other party has filed a claim to the seized articles. Claimants further affirm that they shall indemnify and hold the United States harmless should any party or parties hereafter file or seek to file a claim or to intervene in this action and obtain any part of the seized articles. Bravo Farms and Van Ryn (hereinafter, collectively, "Defendants"), having appeared and voluntarily consented to the entry of this Decree without contest, solely for the purpose of settling this case, without admitting or denying the allegations of the complaint and disclaiming any liability in connection herewith, before any testimony has been taken, and waiving the filing and service of an amended complaint seeking injunctive relief, and without requiring the government to file a separate action for injunctive relief, and the United States having consented to this Decree:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1345 and 21 U.S.C. §§ 332 and 334, and personal jurisdiction over all parties to this action. Venue is proper in this District under 28 U.S.C. §§ 1391(b)-(c) and 1395.

2. The seized articles are articles of food that are adulterated while held for sale after shipment in interstate commerce, within the meaning of 21 U.S.C. § 342(a)(4), in that they have been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth, or whereby they may have been rendered injurious to health.

3. The seized articles are, therefore, condemned pursuant to 21 U.S.C. § 334(a) and forfeited to the United States.

4. Pursuant to 21 U.S.C. § 334(e), Bravo Farms shall pay to the United States all court costs and fees, storage, and other proper expenses of this proceeding incurred to date, including, but not limited to, those incurred by the United States Marshal, and such additional expenses as may hereinafter be incurred and taxed. Bravo Farms shall pay these costs within ten (10) calendar days after receiving notice of such costs from the United States Food and Drug Administration ("FDA"), the United States Marshal, or the United States Attorney for the Eastern District of California.

5. Within twenty (20) calendar days of entry of this Decree, Bravo Farms shall execute and file with the clerk of this Court a good and sufficient penal bond with surety in the amount of one hundred eighty thousand dollars ($180,000.00) in a form acceptable to the clerk of this Court and payable to the United States of America, and conditioned on Defendants abiding by and performing all of the terms and conditions of this Decree and of such further orders and decrees as may be entered in this proceeding.

6. Within twenty-five (25) calendar days after filing the penal bond, pursuant to paragraph 5, Bravo Farms shall:

(a) give written notice to FDA, at the address listed in paragraph 30, that Bravo Farms is prepared to attempt to bring the condemned articles into compliance with the law, and

(b) submit a written statement to FDA detailing Bravo Farms' proposed plan to bring the condemned articles into compliance with the law (the "Reconditioning Proposal").

7. Bravo Farms shall not commence, or cause or permit any other person to commence, attempting to bring the condemned articles into compliance with the law unless and until Bravo Farms receives: (a) written approval of the Reconditioning Proposal from FDA, and (b) written authorization from FDA to commence reconditioning.

8. Following Bravo Farms' payment of costs and posting of the Bond, as required by paragraphs 4-5 of this Decree, and following Bravo Farms' receipt of written authorization to commence reconditioning as described in paragraph 7, the United States Marshal, upon receiving notice from the United States Attorney or FDA, shall release the appropriate Lot of condemned articles, as described in paragraphs 8(A)-(E) below, from his custody to the custody of Bravo Farms for the sole purpose of attempting to bring such articles into compliance with the law in accordance with the Reconditioning Proposal. The schedule for release of the condemned articles is as follows:

A. The condemned articles in Lot 1, consisting of approximately one-fifth (1/5) of the articles (by value), to be designated by FDA, shall be released to Bravo Farms for the sole purpose of attempting to bring Lot 1 into compliance with the law.

B. If and only if Defendants comply with all the terms of this Decree with respect to Lot 1, the condemned articles in Lot 2, consisting of approximately one-fifth (1/5) of the articles (by value) to be designated by FDA, shall be released to Bravo Farms for the sole purpose of attempting to bring Lot 2 into compliance with the law.

C. If and only if Defendants comply with all the terms of this Decree with respect to Lot 2, the condemned articles in Lot 3, consisting of approximately one fifth (1/5) of the articles (by value), to be designated by FDA, shall be released to Bravo Farms for the sole purpose of attempting to bring Lot 3 into compliance with the law.

D. If and only if Defendants comply with all the terms of this Decree with respect to Lot 3, the condemned articles in Lot 4, consisting of approximately one fifth (1/5) of the articles (by value), to be designated by FDA, shall be released to Bravo Farms for the sole purpose of attempting to bring Lot 4 into compliance with the law.

E. If and only if Defendants comply with all the terms of this Decree with respect to Lot 4, the condemned articles in Lot 5, consisting of approximately one fifth (1/5) of the articles (by value), to be designated by FDA, shall be released to Bravo Farms for the sole purpose of attempting to bring Lot 5 into compliance with the law.

In no event shall a Lot be released to Bravo Farms for the purpose of attempting to bring the condemned articles into compliance pursuant to this Decree unless there is on file with the Clerk of the Court a penal bond in the amount of one hundred eighty thousand dollars ($180,000).

9. Within sixty (60) calendar days of receiving written authorization to commence reconditioning, Bravo Farms shall complete its attempt to bring the condemned articles into compliance with the law in accordance with the Reconditioning Proposal and under the supervision of FDA. Within ten (10) calendar days after the expiration of this sixty (60) day period, Bravo Farms shall destroy, at its expense and under FDA's supervision, any article that has not been reconditioned in accordance with the Reconditioning Proposal, and shall file a notice with this Court certifying that such articles have been destroyed. Bravo Farms shall reimburse the United States for the costs of supervising Bravo Farms' attempt to bring the condemned articles into compliance with the law, at the rates set forth in paragraph 14.

10. Defendants shall at no time, and under no circumstances whatsoever, directly or indirectly, cause or permit the shipment, sale, offer for sale, or other disposal of any part of the condemned articles until: (a) FDA has had free access to the condemned articles in order to take any samples or conduct tests or examinations that are deemed necessary; and

(b) FDA has released, in writing, the condemned articles for shipment, sale, or other disposition.

11. Defendants shall at all times, until the condemned articles have been released in accordance with this Decree, retain the condemned articles intact for examination or inspection by FDA in a place made known to and approved by FDA, and shall maintain the records or other proof necessary to establish the identity of the articles to the satisfaction of FDA.

12. Defendants shall not sell, ship, destroy, or dispose of, or permit or cause another person to sell, ship, destroy, or dispose of, the condemned articles or any part of the condemned articles in a manner contrary to the provisions of the Act, or other laws of the United States, or of any State or Territory (as defined in the Act), in which they are disposed of or sold.

13. If Defendants breach any condition of this Decree, or of any subsequent decree or order in this proceeding, Bravo Farms shall, at its own expense, immediately return the condemned articles to the United States Marshal, or otherwise dispose of them pursuant to an order of this Court. In the event that return of the condemned articles becomes necessary pursuant to this paragraph, Bravo Farms shall be responsible for all costs of storage and disposition that are incurred by the United States.

14. Defendants shall reimburse the United States, pursuant to the terms of this Decree, for the costs associated with any inspections, examinations, reviews, evaluations, and analyses conducted pursuant to this Decree, at the standard rates prevailing at the time the activities are accomplished. As of the date this Decree is signed by the parties, the rates are $87.57 per hour or fraction thereof per representative for time spent on supervision other than laboratory and analytical work; $104.96 per hour or fraction thereof per representative for laboratory and analytical work; 51 cents per mile for travel expenses; government rate or the equivalent for travel by air or other means; and the published government per diem rate or the equivalent for the areas in which the inspections are performed per representative and per day for subsistence expenses, ...


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