Opinion
Case No: C 11-0302 SBA.
February 9, 2011
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION Dkt. 3, 12
Plaintiff Juan Osborno ("Plaintiff") brings the instant action under the Perishable Agriculture Commodities Act ("PACA"), 7 U.S.C. § 499a, et seq., to recover $45,091 from Defendant Samuel Fong ("Defendant" or "Fong") for unpaid perishable produce. The parties are presently before the Court on Plaintiff's motion for preliminary injunction. Dkt. 3, 12. Actual notice of the motion was properly provided to Defendant, who has not filed an opposition. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS the motion for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
I. BACKGROUND
II. LEGAL STANDARD
without Id. Winter v. Natural Res. Def. Council, Inc. ___ U.S. ___129 S.Ct. 365376Winter Alliance for the Wild Rockies v. Cottrell2011 WL 208360 See 7 U.S.C. § 499aMiddle Mountain Land and Produce Inc. v. Sound Commodities Inc. 307 F.3d 1220 1224 See Inn Foods, Inc. v. Fong, LLC2007 WL 2769849
On January 26, 2011, Plaintiff filed a document styled as Plaintiff's Motion for Issuance of Preliminary Injunction and Motion to Consolidate the Trial on the Merits with Hearing on Motion for Preliminary Injunction. Dkt. 12. It is unclear why Plaintiff filed a second request for a preliminary injunction in light of the Court's Order of January 26, 2011, which expressly stated that the Court was construing Plaintiff's ex parte motion for a TRO as motion for preliminary injunction. 1/26/11 Order at 5. With respect to Plaintiff's ancillary request to consolidate the hearing on the motion for preliminary injunction with the trial on the merits, such request fails to provide the requisite 35-day notice required by Civil Local Rule 7-2(a). Therefore, Plaintiff's request to consolidate is DENIED. To the extent Defendant fails to respond to the Complaint, Plaintiff may seek to have the Clerk enter default against Defendant, and thereafter file a motion for default judgment. See Fed.R.Civ.P. 55.
Based upon the pleadings and the supporting declaration of Plaintiff, coupled with the fact that Defendant has not challenged any of Plaintiff's claims, the Court finds that Defendant purchased $45,091 in perishable agricultural commodities in interstate commerce from Plaintiff, that Plaintiff provided Defendant with notice of intent to preserve trust benefits and that Defendant failed to pay Plaintiff for said perishable agricultural commodities in violation of PACA, 7 U.S.C. § 499e(c). The Court further finds that Defendant has, in fact, dissipated the PACA trust by failing to maintain sufficient assets to satisfy Plaintiff's PACA trust claims. Finally, the Court finds that there is sufficient evidence of dissipation of assets subject to the PACA trust to warrant the relief granted in this order.
IV. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for preliminary injunction is GRANTED.
2. Fong and his agents, officers, subsidiaries, assigns, financial and banking institutions, and all persons in active concert or participation with him or who receive actual notice of this Order are enjoined and restrained from dissipating, paying, transferring, assigning or selling any and all assets covered by or subject to the trust provisions of the PACA without agreement of the parties or until further order of this Court. Under § 499e(c)(2) of PACA, the assets subject to this order include all of the assets of Fong, including but not limited to, any and all bank accounts at any and all financial institutions, unless the Fong can prove to this Court that a particular asset is not derived from perishable agricultural commodities, inventories of food or other products derived from perishable agricultural commodities or receivables or proceeds from the sale of such commodities or products.
2. Plaintiff shall not be required to give security in view of the fact that Fong holds $45,091.00 of PACA trust assets that belong to Plaintiff, and that this Order merely requires said Defendant to obey the requirements of PACA.
3. Within 48 hours of the entry of this Order, Fong shall assign all of his accounts receivable to Plaintiff for the benefit of the PACA trust and deposit and/or deliver complete accounts, records and information of all of his accounts receivable to Plaintiff's counsel, provided that those accounts receivable being collected by Plaintiff's counsel are for the benefit of the PACA trust.
4. Fong shall endorse any checks made, endorsed or paid to him which are trust assets and which are in his possession or obtainable by him at the time of the entry of this Order, or which he obtains or which become obtainable by him after entry of this Order, and deliver them, within 48 hours of receipt, to Plaintiff's counsel to be held in trust pending further determination by this Court as to the distribution of those funds.
5. Defendant Fong shall use his best efforts to cooperate with Plaintiff in any action which Plaintiff or his counsel may be required to take in collecting the accounts receivable or other trust assets, including any action at law or equity.
6. Immediately after the entry of this Order, Fong shall grant Plaintiff and his counsel, agents or employees, full, complete and continuing access to all of the books and records of Fong, which shall include but not be limited to tax returns, accounts, invoices, ledgers, computer runs, bank statements and canceled checks relating to Fong for the purpose of verifying the accounting as ordered by this Court.
7. This Order shall be binding upon Fong, and his officers, agents, servants, employees, banking and financial institutions, attorneys and/or all other persons acting in concert or participating with him who receive actual notice of this Order.
8. This Order shall continue in full force and effect pending further Order of this Court.
9. The hearing on Plaintiff's motion for preliminary injunction scheduled for Tuesday, February 15, 2011, at 1:00 p.m. is VACATED.
10. Plaintiff's request to consolidate the hearing on the motion for preliminary injunction with the trial on the merits is DENIED.
11. This Order terminates Docket 12.
IT IS SO ORDERED.
Dated: February 9, 2011