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Premium Valley Produce, Inc. v. Hayes Produce Marketing, Lp

United States District Court, Ninth Circuit

August 8, 2013

PREMIUM VALLEY PRODUCE, INC., a corporation; C & G FARMS, INC., a corporation; and MANN PACKING CO., INC., a corporation, Plaintiffs,
v.
HAYES PRODUCE MARKETING, LP, a [Re Dkt. limited partnership; HAYES PRODUCE MARKETING, LLC, a limited liability company; and TIMOTHY J. HAYES, an individual, Defendants.

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION [Re Dkt. No. 3].

RONALD M. WHYTE, District Judge.

Plaintiffs move for a temporary restraining order under Rule 65 for violation of the Perishable Agricultural Commodities Act of 1930 ("PACA"). 7 U.S.C. § 499 et seq. The court finds that plaintiffs are sellers of perishable agricultural commodities and are beneficiaries of a statutory trust under the PACA. Defendant has failed to make full payment of $84, 988.69 to plaintiffs for the purchase of perishable agricultural commodities. After acknowledging the debt owed to plaintiffs, defendant has failed to make payments and is no longer responding to phone calls, strongly suggesting financial instability and failure to establish a PACA trust for the protection of plaintiffs as required by law. Thus, the court finds that the dissipation of funds is likely, which would cause plaintiffs irreparable harm.

Plaintiffs have attempted to provide notice to defendant by leaving him voice messages, emailing and faxing him a letter summarizing the motions, and mailing him copies of all of the documents via FedEx overnight delivery to both his home and business address.

THEREFORE, IT IS HEREBY ORDERED that defendants appear in Courtroom 6 of the U.S. District Court for the Northern District of California, San Jose Division located at 280 South 1st Street, San Jose, CA 95113 on August 19, 2013, at 9 a.m., then and there to show cause, if any they have, why they, their agents, bankers, subsidiaries, successors, assignees, principals, employees, attorneys, and representatives should not be restrained and preliminarily enjoined during the pendency of this action, pursuant to Rule 65 of the Federal Rules of Civil Procedure, from engaging in, committing, or performing directly and indirectly, any and all of the following acts:

A. Removing, withdrawing, transferring, assigning or selling to any other person or entity, the proceeds from the sales of any or all existing or future inventories of food or other products derived from perishable (including frozen) agricultural commodities, and/or receipts of payment for products sold prior to the date of this order and/or otherwise disposing of assets, books or funds;

B. Taking any other action whatsoever which causes, has the effect of causing, or which otherwise dissipates Plaintiffs' beneficiary interests in trust assets of the Perishable Agricultural Commodities Act ("PACA") [7 U.S.C. §499e et seq. ];

C. Taking any other action whatsoever which violates 7 U.S.C. §499e(c)(1) through (4), inclusive, and 7 U.S.C. §499b(4) [§2 of PACA].

IT IS FURTHER ORDERED that Defendants, their owners, officers, directors, agents, subsidiaries, successors, assignees, principals, assignors, attorneys and persons acting in concert with them, appear at the same time and place to show cause, if any they have, why they should not be commanded by order of this Court and required to distribute PACA trust assets in the amount of at least $84, 988.69, the amount of the PACA Trust principal owing to Plaintiffs, plus finance charges accrued through August 7, 2013, in the amount of $1, 509.75, plus reasonable attorney's fees to C & G in the amount of $980.72, plus filing fees of $400.00, making in all the sum of $87, 879.16 due as of the date hereof.

IT IS FURTHER ORDERED that pending the hearing and determination of the foregoing Order to Show Cause, Defendants, their agents, bankers, subsidiaries, successors, assignees, principals, attorneys, and persons acting in concert with them shall be and hereby are prevented from transferring, withdrawing or in any other manner removing Perishable Agricultural Commodities Act [7 U.S.C. §499e et seq. ] trust assets, including funds on deposit in banking accounts held by or on behalf of Defendants, from Defendants' banking accounts, including but not limited to Defendants' accounts held at Pacific Valley Bank, 422 Main Street, Salinas, CA 93901, including but not limited to account number XXXXXXXXXX, and any other accounts subsequently discovered to be standing in any Defendants' names.

IT IS FURTHER ORDERED that pending the hearing and determination of the foregoing Order to Show Cause, and continuing thereafter, Defendants and their counsel, agents, or representatives, shall be temporarily restrained from engaging in, committing, or performing directly and indirectly, any and all of the following acts:

D. Removing, withdrawing, transferring, assigning or selling to any other person or entity, the proceeds from the sales of any or all existing or future inventories of food or other products derived from perishable agricultural commodities, and/or receipts of payment for products or crops sold prior to the date of this order and/or otherwise disposing of assets, books or funds;

E. Taking any other action whatsoever which causes, has the effect of causing, or which otherwise dissipates Plaintiffs' beneficiary interests in the trust assets;

F. Taking any other action whatsoever which violates 7 U.S.C. §499e(c)(1) through (4), inclusive, and 7 U.S.C. §499b(4) [§2 of PACA].

IT IS FURTHER ORDERED that in the event Defendants lack sufficient funds to promptly deposit the sums described above, Defendants shall be ...


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