National Produce Trading Company, LLC v. Henderson Foods, Inc. et al, No. 2:2021cv02035 - Document 29 (D. Nev. 2021)
Court Description: ORDER granting 28 Stipulation - the Court shall retain jurisdiction over this action and the Parties, during the pendency of the application of this Stipulation and Order in order to enforce the terms and conditions hereof. All dates and deadli nes imposed by operation of the Federal Rules of Civil Procedure or prior orders of this Court are adjourned sine die. The hearing scheduled for November 24, 2021 at 9:00 AM is hereby VACATED. Signed by Judge Andrew P. Gordon on 11/23/2021. (Copies have been distributed pursuant to the NEF - DRS)
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National Produce Trading Company, LLC v. Henderson Foods, Inc. et al 1 2 3 4 Doc. 29 DICKINSON WRIGHT PLLC Cynthia L. Alexander, Esq. (SBN 6718) 3883 Howard Hughes Parkway, Ste. 800 Las Vegas, NV 89169-2210 Tel: (702) 550-4400 Fax: (844) 670-6009 Email: calexander@dickinsonwright.com 5 6 7 8 9 10 11 Gregory A. Brown, Esq. New York Bar Number 4366498 McCarron & Diess 576 Broadhollow Road, Suite 105 Melville, NY 11747 Phone: (631) 425-8110 Email: gbrown@mccarronlaw.com Admitted Pro Hac Vice Attorneys for Plaintiff National Produce Trading Company, LLC 12 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 NATIONAL PRODUCE TRADING COMPANY, LLC, CASE NO.: 2:21-cv-02035-APG-BNW 17 Plaintiff, 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND ORDER vs. HENDERSON FOODS, INC. T/A TIERRA PRODUCE, ALKO GREEN FRESH LLC D/B/A TIERRA PRODUCE DEPOT A/T/A TIERRA PRODUCE, LAS VEGAS FOOD DISTRIBUTOR LLC T/A TIERRA PRODUCE, GILBERTO BLANCO, SALVADOR CASTRO, MARIA CASTRO, JESUS MENDEZ, JORGE ALEJANDRO ORTEGA MEDINA and ALICIA ORTEGA MEDINA, Defendants. Plaintiff National Produce Trading Company, LLC (“National Produce” or “Plaintiff”) and defendants Henderson Foods, Inc. trading as Tierra Produce (“Tierra”), Alko Green Fresh LLC doing 1 of 13 Dockets.Justia.com 1 business as Tierra Produce Depot also trading as Tierra Produce (“Alko”), Las Vegas Food Distributor 2 LLC trading as Tierra Produce (“LVFD”), Salvador Castro (“S. Castro”) and Jorge Alejandro Ortega 3 4 Medina (“J. Ortega”) (Tierra, Alko, LVFD, S. Castro and A. Ortega are collectively, “Defendants”) (Plaintiff and Defendants are collectively, the “Parties”), by and through their undersigned attorneys, 5 6 7 agree and stipulate to the following: 1. Plaintiff is a qualified trust creditor and beneficiary under the provisions of the 8 Perishable Agricultural Commodities Act, 7 U.S.C. § 499a, et seq. (“PACA”), of Defendants, 9 jointly and severally, for a debt in the principal amount of $174,120.00, plus accrued interest at the 10 rate of 18% per annum through November 24, 2021 in the amount of $3,767.32 and reasonable 11 12 attorneys’ fees and legal expenses incurred by Plaintiff through November 18, 2021 in the amount of $19,066.50 for a total debt under PACA in the amount of $196,953.82 (the “PACA Trust Debt”). 13 14 2. For full and final satisfaction of Plaintiff’ claims, subject to the terms and 15 conditions of this Stipulation and Order, Defendants shall pay to Plaintiff the sum of $193,186.50 16 (the “Settlement Amount”) as follows: (a) the sum of $10,000.00 on or before November 24, 2021 17 (the “Initial Payment”); (b) the sum of $40,000.00 on or before December 3, 2021; and (c) monthly 18 installments of $50,000.00 each commencing on January 3, 2021 and continuing on the 3rd day of 19 each month until the Settlement Amount is paid in full. All payments to be made under this 20 Stipulation and Order shall be paid so as to be received on or before 3:00 PM Eastern Time on the 21 22 date due, TIME BEING OF THE ESSENCE. All payments to be made pursuant to this Stipulation 23 and Order shall be paid by, bank check, wire transfer or ACH according to separately provided 24 wire instructions. 25 3. 26 27 On or before 3:00 PM Eastern Time on November 24, 2021, Alko shall cause to be delivered to Plaintiff’s attorney the following documents regarding the assets of Alko and those of its subsidiaries and related companies: (a) most recent balance sheets and profit/loss statements; (b) 28 2 of 13 1 all accounts receivable records showing all funds collected by or on behalf of Alko in the last sixty 2 days in addition to all records showing accounts receivable currently outstanding, including names, 3 4 addresses, amounts and other documentation such as invoices and account statements; and (c) true and complete copies of bank account statements for all accounts belonging to Alko for the last three 5 6 months (collectively, the “Financial Records”). 4. 7 In the event Defendants default in any of their payment obligations as set forth in 8 Paragraph 2 above, or if Defendants fail to timely deliver the Financial Records, Defendants shall 9 have the right to cure such default by paying the amount due, or delivering the Financial Records, 10 within three days after notice of such default is sent to Defendants’ counsel, Judah Zakalik, via 11 12 email at jz@pandalawfirm.com. Notwithstanding the foregoing, Defendants’ right to cure a default as provided hereinabove shall be limited to one such occurrence, and this provision is of 13 14 the essence. In the event that a default occurs because the funds necessary to honor the payment 15 are unavailable or insufficient for any reason, Defendants’ curative payment shall include all 16 charges assessed by any financial institution as a consequence of the unavailability of the required 17 funds. 18 19 5. In the event Defendants default in their payment obligations as set forth in Paragraph 2 above, or if they default in timely delivering the Financial Records, and Defendants 20 either fail to cure such default or are not allowed to cure such default pursuant to Paragraph 4 21 22 above, then upon the filing with the Court of a declaration as to such default by Plaintiff’s attorney, 23 with a copy to Defendants’ counsel via email at the addresses set forth in Paragraph 4, this Court 24 shall immediately enter a Final Order and Judgment in a form substantially similar to the one 25 attached hereto as Exhibit A. The judgment amount prescribed in the Final Order and Judgment 26 27 in favor of Plaintiff and against Defendants, jointly and severally, shall be the amount of the PACA Trust Debt set forth in Paragraph 1 above plus any additional attorneys’ fees and costs incurred by 28 3 of 13 1 Plaintiff following the date of this Stipulation and Order, plus all interest accrued at the rate of 2 18% per annum, less any payments made to Plaintiff pursuant to this Stipulation and Order. 3 4 6. In the event Defendants pay the Settlement Amount in full as contemplated herein, Plaintiff shall cause to be filed with the Court a stipulation and notice of dismissal with prejudice 5 6 7 8 9 10 11 12 in a form substantially similar to the version annexed hereto as Exhibit B within three business days of the receipt and clearing of the final payment. In the event Defendants default in their payment obligations, Exhibit B shall be deemed void ab initio and of no force or effect. 7. The Parties’ agreement to the payments set forth in Paragraph 2 above is without prejudice to Plaintiff’s standing as qualified PACA trust creditor and beneficiary as set forth in Paragraph 1 above and nothing herein shall be deemed a waiver of those rights as contemplated by 7 C.F.R. § 46.46(c)(2) and 7 C.F.R. § 46.46(e)(3). The original credit terms between the Parties 13 14 are not intended to be modified, nor are they modified by this Stipulation and Order. Nothing 15 herein shall be deemed, interpreted or otherwise construed as an extension of credit by Plaintiff to 16 Defendants, nor as a waiver of Plaintiff’s rights under the PACA statutory trust as set forth in 7 17 U.S.C. § 499e(c), and Plaintiff’s rights under this Stipulation and Order are in addition to their 18 rights under the trust. 19 8. Without altering or limiting any other provision of this Stipulation and Order, 20 Plaintiff (and their counsel) and Defendants (and their counsel) shall each: (a) cooperate with the 21 22 other in good faith; and (b) timely execute and deliver such documents and other things as may be 23 necessary to effectuate the provisions of this Stipulation and Order, including but not limited to 24 entry of judgment as contemplated herein. 25 26 27 9. No delay or failure by either Party to exercise any right under this Stipulation and Order, and no partial or single exercise of any right, shall constitute a waiver of that or any other right, unless stated otherwise in writing. 28 4 of 13 10. 1 2 3 4 This Stipulation and Order may be executed by the Parties, or by the Parties’ authorized counsel acting with active authority from their principals, in Counterparts, and collectively all signed Counterparts represent one agreement. Facsimile or electronic signatures shall be deemed originals for all purposes. 5 11. 6 7 8 Stipulation and Order with their respective attorneys and having availed themselves of that opportunity to the extent they desired to do so. 9 10 11 The Parties acknowledge having had a sufficient opportunity to discuss this 12. Plaintiff’s counsel shall file a notice advising the Court of the receipt and clearing of the Initial Payment, at which time the TRO shall be deemed dissolved without further order of the Court. 12 13. This action shall be stayed, and the Court shall retain jurisdiction over this action 13 14 and the Parties, during the pendency of the application of this Stipulation and Order in order to 15 enforce the terms and conditions hereof. All dates and deadlines imposed by operation of the 16 Federal Rules of Civil Procedure or prior orders of this Court are adjourned sine die. 17 18 19 14. The hearing scheduled for November 24, 2021 at 9:00 AM is hereby cancelled. // // 20 // 21 22 // 23 // 24 // 25 // 26 27 // // 28 5 of 13 15. 1 2 may not be changed unless in a written agreement signed by all parties or their representatives. 3 4 5 This Stipulation and Order constitutes the entire understanding of the Parties and IT IS SO AGREED AND APPROVED AS TO FORM AND CONTENT: Dated this 23rd day of November, 2021. McCarron & Diess Attorneys for Plaintiff 6 Peters and Associates, LLP Attorneys for Defendants Alko Green Fresh LLC, Las Vegas Food Distributor LLC, Salvador Castro and Jorge Alejandro Ortega Medina 7 8 9 10 11 12 13 14 15 By: Gregory Brown 576 Broadhollow Road, Suite 105 Melville, New York 11747 (631) 425-8110 gbrown@mccarronlaw.com By: J Ji/dah c w Boulevard 6173 as, Nevada 89118 Las (702) 507-6990 jz@pandalawfinn.com SO ORDERED: 23rd day of ________ November , 2021. SIGNED AND ENTERED this __ 16 17 18 Andrew P. Gordon UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 Dw HC:.!h",:; ; ,,. iii/,;/; ,,, ' I ,. 6 of 13 EXHIBIT A 1 2 NATIONAL PRODUCE TRADING COMPANY, LLC, 3 4 CASE NO.: 2:21-cv-02035-APG-BNW Plaintiff, FINAL ORDER AND JUDGMENT vs. 5 6 7 8 9 10 11 12 HENDERSON FOODS, INC. T/A TIERRA PRODUCE, ALKO GREEN FRESH LLC D/B/A TIERRA PRODUCE DEPOT A/T/A TIERRA PRODUCE, LAS VEGAS FOOD DISTRIBUTOR LLC T/A TIERRA PRODUCE, GILBERTO BLANCO, SALVADOR CASTRO, MARIA CASTRO, JESUS MENDEZ, JORGE ALEJANDRO ORTEGA MEDINA and ALICIA ORTEGA MEDINA, Defendants. 13 THIS MATTER having come before the Court on Plaintiff’s application for a Final Order 14 and Judgment; and it appearing that pursuant to the terms of the Stipulation and Order previously 15 16 filed in this action, this Court is to enter this Final Order and Judgment immediately upon the filing of a declaration by Plaintiff’s attorney which states that payment has not been made by 17 18 Defendants as required by the Stipulation and Order and Defendants have failed to cure the default 19 in payment; and it appearing that Plaintiff’s attorney has filed such a declaration and that 20 Defendants have failed to make payment and to cure that default in accordance with the 21 Stipulation and Order; and for good cause shown; 22 23 IT IS on this _____ day of _______________, 202___, ORDERED, ADJUDGED, AND DECREED that plaintiff National Produce Trading 24 Company, LLC is a qualified trust creditor and beneficiary under the provisions of the Perishable 25 26 Agricultural Commodities Act, 7 U.S.C. § 499a et seq. (“PACA”), of defendants Henderson 27 Foods, Inc. trading as Tierra Produce (“Tierra”), Alko Green Fresh LLC doing business as Tierra 28 Produce Depot also trading as Tierra Produce (“Alko”), Las Vegas Food Distributor LLC trading as -1- 1 2 3 Tierra Produce (“LVFD”), Gilberto Blanco (“Blanco”), Salvador Castro (“S. Castro”), Maria Castro (“M. Castro”), Jesus Mendez (“Mendez”), Jorge Alejandro Ortega Medina (“J. Ortega”) and Alicia 4 Ortega Medina (“A. Ortega”) (Tierra, Alko, LVFD, Blanco, S. Castro, M. Castro, Mendez, J. Ortega 5 and A. Ortega are collectively, “Defendants”), jointly and severally, for a debt in the amount of 6 $___________, plus interest at the rate of 18% per annum in the amount of $__________ and 7 8 reasonable attorneys’ fees, for a total judgment amount of $__________ under the trust provisions of the PACA, 7 U.S.C. § 499e(c); and it is further 9 10 ORDERED that Defendants shall, within five business days of service of this Order, 11 turnover any and all funds realized from the sale of produce or products derived from produce in 12 their possession to McCarron & Diess, attorneys for Plaintiff, located at 576 Broadhollow Road, 13 Suite 105, Melville, New York, 11747, for distribution to Plaintiff; and it is further 14 15 ORDERED that any and all funds belonging to Defendants, in the possession of third parties, shall be immediately turned over to McCarron & Diess, attorneys for Plaintiff, located at 16 576 Broadhollow Road, Suite 105, Melville, New York, 11747, for distribution to Plaintiff; and 17 18 it is further 19 ORDERED that any and all funds owed to Defendants shall be paid directly to McCarron 20 & Diess, attorneys for Plaintiff, located at 576 Broadhollow Road, Suite 105, Melville, New York, 21 11747, when due for distribution to Plaintiff; and it is further 22 23 ORDERED that Defendants shall supply to Plaintiff’s attorney, within five days of the date of this Order, any and all documents in their possession, custody or control which reflect or 24 25 26 27 relate to the assets and liabilities of Defendants and their related and subsidiary companies, including, but not limited to, the most recent balance sheets, profit/loss statements, accounts receivable reports, accounts payable reports, accounts paid records, bank account statements and 28 -2- 1 2 3 income tax returns. SIGNED AND ENTERED this _____ day of _____________________, 20___. 4 5 Andrew P. Gordon UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- EXHIBIT B 1 2 NATIONAL PRODUCE TRADING COMPANY, LLC, 3 4 Plaintiff, vs. 5 6 7 8 9 10 11 12 CASE NO.: 2:21-cv-02035-APG-BNW HENDERSON FOODS, INC. T/A TIERRA PRODUCE, ALKO GREEN FRESH LLC D/B/A TIERRA PRODUCE DEPOT A/T/A TIERRA PRODUCE, LAS VEGAS FOOD DISTRIBUTOR LLC T/A TIERRA PRODUCE, GILBERTO BLANCO, SALVADOR CASTRO, MARIA CASTRO, JESUS MENDEZ, JORGE ALEJANDRO ORTEGA MEDINA and ALICIA ORTEGA MEDINA, STIPULATION AND NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE AND WITHOUT COSTS AS TO ALL DEFENDANTS Defendants. 13 IT IS HEREBY STIPULATED AND AGREED, pursuant to Fed. R. Civ. P. 14 41(a)(1)(A)(ii), between plaintiff National Produce Trading Company, LLC (“National Produce” 15 16 or “Plaintiff”) and defendants Henderson Foods, Inc. trading as Tierra Produce (“Tierra”), Alko Green Fresh LLC doing business as Tierra Produce Depot also trading as Tierra Produce (“Alko”), 17 18 Las Vegas Food Distributor LLC trading as Tierra Produce (“LVFD”), Salvador Castro (“S. Castro”) 19 and Jorge Alejandro Ortega Medina (“J. Ortega”) (Tierra, Alko, LVFD, S. Castro and A. Ortega are 20 collectively, the “Settlement Defendants”), by and through undersigned counsel, that Plaintiff’s 21 claims against the Settlement Defendants are hereby dismissed in their entirety with prejudice and 22 without costs to either side. 23 PLEASE TAKE NOTICE, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), that Plaintiff, by 24 and through undersigned counsel, hereby voluntarily dismisses its claims against defendants 25 26 Gilberto Blanco (“Blanco”), Maria Castro (“M. Castro”), Jesus Mendez (“Mendez”) and Alicia 27 Ortega Medina (“A. Ortega”) (Blanco, M. Castro, Mendez and A. Ortega are collectively, the “Non- 28 Settling Defendants”), in their entirety with prejudice and without costs to either side. -1- 1 2 Dated this ____ day of ______________________, 20___. McCarron & Diess Attorneys for Plaintiff 3 Peters and Associates, LLP Attorneys for Defendants Alko Green Fresh LLC, Las Vegas Food Distributor LLC, Salvador Castro and Jorge Alejandro Ortega Medina 4 5 6 7 8 9 10 By: ______________________________ Gregory Brown 576 Broadhollow Road, Suite 105 Melville, New York 11747 (631) 425-8110 gbrown@mccarronlaw.com By: ______________________________ Judah Zaklik 6173 S Rainbow Boulevard Las Vegas, Nevada 89118 (702) 507-6990 jz@pandalawfirm.com 11 12 SIGNED AND ENTERED this _____ day of _____________________, 20___. 13 14 Andrew P. Gordon UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-
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