A.S.A. Produce Co., Inc. v. Supermercado Del Puebl, t/a Mercado Del Pueblo et al
Filing
21
ORDER that the Temporary Restraining Order 14 is extended until expiration on 4/15/10. Defendants may file an emergency motion to dissolve the Temporary Restraining Order, prior to 4/15/10, on 2 days notice to Plaintiff, or on shorter notice by th e Court. Defendants shall appear in Courtroom on 4/15/10 at 9:30 AM in Courtroom 7C, to show cause why an order should not be issued restraining defendants, their customers, agents, officers, factors, subsidiaries, assigns, and banking institutions, during the pendency of this action, from alienating, dissipating, paying over or assigning any assets of Defendant Supermercado Del Pueblo, t/a Mercado Del Pueblo or its subsidiaries or related companies except for payment to Plaintiff until further order of this Court, or until Defendants pay to Plaintiff the sum of $155,481.43 by cashiers check or certified check, at which time this Order is dissolved. Bond shall be waived in view of the fact that Defendants now hold $155,481.43 wor th of Plaintiffs assets. Service of a copy of this Order and annexed declaration by personal service upon the Defendants by 4:00 PM on 4/9/10 shall be deemed good and sufficient service thereof; that Defendants shall file any Opposition to Plaintiffs Application for Preliminary Injunction by 4/13/10 and shall personally serve Plaintiffs counsel with a copy of any such opposition by the same deadline. Plaintiff shall file and serve on Defendants a Reply to any Opposition filed by Defendants by 4/14/10. Signed by Judge Philip M. Pro on 4/7/10. (Copies have been distributed pursuant to the NEF - ECS)
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Case 2:10-cv-00456-PMP-LRL Document 19
Filed 04/07/10 Page 1 of 4
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Gordon Silver
Attorneys At Law Ninth Floor 3960 Howard Hughes Pkwy Las Vegas, Nevada 89169 (702) 796-5555
GORDON SILVER ERIC R. OLSEN Nevada Bar No. 3127 eolsen@gordonsilver.com BRIGID M. HIGGINS Nevada Bar No. 5990 bhiggins@gordonsilver.com JEFFREY L. HULET Nevada Bar No. 10621 jhulet@gordonsilver.com 3960 Howard Hughes Pkwy., 9th Floor Las Vegas, Nevada 89169 (702) 796-5555 Louis W. Diess, III (Pro hac vice application to be filed) ldiess@mccarronlaw.com McCarron & Diess 4530 Wisconsin Ave., N.W., Suite 301 Washington, D.C. 20016 (202) 364-0400 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEVADA A.S.A. PRODUCE CO., INC., Plaintiff, vs. SUPERMERCADO DEL PUEBLO, t/a MERCADO DEL PUEBLO; and ARACELICA PAREDES, Defendants. This matter originally came before the Court on April 5, 2010, upon Plaintiff A.S.A. Produce, Inc.'s ("Plaintiff") Ex Parte Application for Temporary Restraining Order and for an Order to Show Cause Re Preliminary Injunction (the "Application") pursuant to Rule 65 of the Federal Rules of Civil Procedure ("FRCP"). Pursuant to FRCP 65(b), a temporary restraining order may be granted without notice to the adverse party only if: 1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result before the adverse party can be heard in opposition, and 2) the applicant's
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CASE NO. 2:10-CV-00456-PMP-LRL ORDER EXTENDING TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
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Case 2:10-cv-00456-PMP-LRL Document 19
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Gordon Silver
Attorneys At Law Ninth Floor 3960 Howard Hughes Pkwy Las Vegas, Nevada 89169 (702) 796-5555
attorney certifies the reasons that notice should not be required. In this case, it appeared to the Court, upon review of the papers and pleadings submitted to the Court, including the declaration of Plaintiff's representative, that Plaintiff is a produce creditor of Defendants under Section 5(c) of the Perishable Agricultural Commodities Act (PACA), 7 U.S.C. §499e(c), and had not been paid for produce in the amount of $155,481.43 supplied to Defendants, as required by the PACA. It also appeared that Defendants are in severe financial jeopardy and are dissipating PACA trust assets, as evidenced by Defendants' notification to Plaintiff that Defendants do not have sufficient funds to pay Plaintiff, which is in direct violation of the PACA. As a result, it appeared that the PACA trust assets are threatened with dissipation. See Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154 (11th Cir. 1990); Taminura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132 (3rd Cir. 2000). If notice had been given to Defendants of the pendency of the Application, trust assets belonging to Plaintiff could have been further dissipated before the Application was ruled-upon. Once dissipation has occurred, recovery of trust assets is all but impossible. H.R. Rep. No. 543, 98th Cong., 2d Sess. 4 (1983), reprinted in 1984 U.S. Code & Admin. News 405, 411. J.R. Brooks & Son, Inc. v. Norman's Country Market, Inc., 98 B.R. 47 (Bkrtcy. N.D. Fla. 1989); Taminura & Antle, Inc. v. Packed Fresh Produce, Inc., supra. Entry of the April 5, 2010 Order without notice assured retention of the PACA trust assets under the control of the Court, which is specifically vested with jurisdiction over the trust. 7 U.S.C. §499e(c)(5). In accordance with Rule 65(b)(2), the Plaintiff's attorney has certified why notice should not have been required. As a result of the Court's consideration of the Application and the supporting documents, the Court granted the ex parte request for a temporary restraining order, ordered service of all papers and pleadings on the Defendants by 4:00 p.m. April 6, 2010, and further ordered that a hearing regarding the temporary restraining order occur at 4:00 p.m. on April 7, 2010, whereby the Temporary Restraining Order would either expire or be extended.
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Case 2:10-cv-00456-PMP-LRL Document 19
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Gordon Silver
Attorneys At Law Ninth Floor 3960 Howard Hughes Pkwy Las Vegas, Nevada 89169 (702) 796-5555
Defendants, through no fault of Plaintiff, were not served with the papers and pleadings in this case until approximately 12:09 p.m. today, April 7, 2010. Thus, given the lateness of service, the Court considers the extension of the Temporary Restraining Order under the criteria for issuance of ex parte orders under the authorities cited. The Court finds and concludes that the rationale for granting the original Temporary Restraining Order on April 5, 2010 continues to apply, thereby warranting the extension of the Temporary Restraining Order past today's date. Based on the foregoing, the Court finds that Plaintiff will suffer immediate irreparable injury in the form of a loss of trust assets unless extension of the Temporary Restraining Order is granted. Therefore, it is, pursuant to Rule 65(b), by the United States District Court for the District of Nevada, ORDERED, that the Temporary Restraining Order issued and entered by the Court on April 5, 2010 (Doc. No. 14) is hereby extended and shall be in full effect until it shall expire on April 15, 2010. Nonetheless, pursuant to Rule 65(b)(4), Defendants may, at any time prior to April 14, 2010. April 15, 2010, file an emergency motion to dissolve the Temporary Restraining Order on two April 14, 2010, (2) days' notice to Plaintiff--or on shorter notice as set by the Court; IT IS FURTHER ORDERED that the above-named Defendants appear in Courtroom 7C ____ of the U.S. District Court for the District of Nevada, 333 Las Vegas Blvd. South, Las April 15, 2010, 2010 at _____ Vegas, Nevada on _______________, at 9:30 a.m. o'clock __.m., to show cause why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure restraining and enjoining the Defendants, their customers, agents, officers, factors, subsidiaries, assigns, and banking institutions, during the pendency of this action, from alienating, dissipating, paying over or assigning any assets of Defendant Supermercado Del Pueblo, t/a Mercado Del Pueblo or its subsidiaries or related companies except for payment to Plaintiff until further order of this Court, or until Defendants pay to Plaintiff the sum of $155,481.43 by cashiers' check or certified check, at which time this Order is dissolved; ...
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Case 2:10-cv-00456-PMP-LRL Document 19
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Gordon Silver
Attorneys At Law Ninth Floor 3960 Howard Hughes Pkwy Las Vegas, Nevada 89169 (702) 796-5555
IT IS FURTHER ORDERED that bond shall be waived in view of the fact that Defendants now hold $155,481.43 worth of Plaintiff's assets; IT IS FURTHER ORDERED that service of a copy of this Order and annexed declaration by personal service upon the Defendants or their counsel on or before April 9, 2010, at 2010 at _____ o'clock __.m., shall be deemed good and sufficient service _______________, 4:00 p.m. thereof; that Defendants shall file any Opposition to Plaintiff's Application for Preliminary Injunction on or before _____________, 2010, and shall personally serve Plaintiff's counsel with April 13, 2010, a copy of any such opposition by the same deadline. Plaintiff shall file and serve on Defendants a Reply to any Opposition filed by Defendants on or before ___________, 2010. April 14, 2010. IT IS SO ORDERED:
UNITED STATES DISTRICT JUDGE
April 7, 2010 DATED:________________________
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