Chiquita Fresh vs. Pandol Associates Marketing, Inc, et al. Doc.

Case 1:07-cv-01305-LJO-DLB Document 9 Filed 09/11/2007 Page 1 of 3

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2 Andrea Selvidge (CA Bar No. 185002)
The Law Offices of Young Wooldridge, LLP
3 1800 30th Street, Fourth Floor
Bakersfield, California 93301
4 (661) 327-9661

5 Louis W. Diess, III

ldiess@mccarronlaw.com
6 McCarron & Diess
4900 Massachusetts Avenue, N.W., Suite 310
7 Washington, D.C. 20016
(202) 364-0400
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Attorneys for Plaintiff
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IN THE UNITED STATES DISTRICT COURT
11 FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHIQUITA FRESH, N.A., L.L.C. :
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Plaintiff :
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v. : Civil Action No: 07CV1305 LJO DLB
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PANDOL ASSOCIATES MARKETING : AMENDED TEMPORARY
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INC., et. al., : RESTRAINING ORDER AND
17 : ORDER TO SHOW CAUSE RE
Defendants : PRELIMINARY INJUNCTION
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This matter is before the Court upon plaintiff's Application for Temporary
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Restraining Order Without Notice pursuant to Rule 65 of the Federal Rules of Civil
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22 Procedure.

23 Pursuant to Rule 65(b), a temporary restraining order may be granted without

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notice to the adverse party only if: 1) it clearly appears from specific facts shown by
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affidavit or verified complaint that immediate and irreparable injury, loss or damage will
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result before the adverse party can be heard in opposition, and 2) the applicant's
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28 attorney certifies the reasons that notice should not be required.

Dockets.Justia.com
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2 In this case, it appears from the declaration of plaintiff's representative that

3 plaintiff is produce creditor of defendants under Section 5(c) of the Perishable

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Agricultural Commodities Act (PACA), 7 U.S.C. §499e(c), and has not been paid for
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produce in the amount of $91,496.90 supplied to defendants, as required by the PACA.
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7 It also clear that defendants are in severe financial jeopardy and are dissipating PACA

8 trust assets in that defendants have tendered three checks to plaintiff in the aggregate
9 amount of $17,659.20 in partial payment for the produce supplied by the plaintiff, which
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were returned by the bank due to insufficient funds. As a result, it appears that the
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PACA trust assets are threatened with dissipation. Frio Ice, S.A. v. Sunfruit, Inc., 918
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13 F.2d 154 (11th Cir. 1990); Taminura & Antle, Inc. v. Packed Fresh Produce, Inc., 222
14 F.3d 132 (3rd Cir. 2000).
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If notice is given to defendants of the pendency of this motion, trust assets may
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be further dissipated before the motion is heard. Once dissipation has occurred,
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18 recovery of trust assets is all but impossible. H.R. Rep. No. 543, 98th Cong., 2d Sess.

19 4 (1983), reprinted in 1984 U.S. Code & Admin. News 405, 411. J.R. Brooks & Son,
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Inc. v. Norman's Country Market, Inc., 98 B.R. 47 (Bkrtcy. N.D. Fla. 1989); Taminura &
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Antle, Inc. v. Packed Fresh Produce, Inc., supra. Entry of this Order without notice
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23 assures retention of the trust assets under the control of the Court, which is specifically

24 vested with jurisdiction over the trust. 7 U.S.C. §499e(c)(4).

25 In accord with Rule 65(b)(2), the applicants' attorney has certified why notice
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should not be required.
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Based on the foregoing, the Court finds that plaintiff will suffer immediate
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irreparable injury in the form of a loss of trust assets unless this order is granted without
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2 notice.

3 Therefore, it is by the United States District Court for the Central District of California,
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ORDERED, ADJUDGED AND DECREED that defendants, their customers,
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agents, officers, subsidiaries, assigns, and banking institutions, shall not alienate,
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7 dissipate, pay over or assign any assets of Pandol Associates Marketing, Inc., or its

8 subsidiaries or related companies except for payment to plaintiff until further order of
9 this Court or until defendants pay plaintiff the sum of $91,496.90 by cashiers check or
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certified check, at which time this Order is dissolved.
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Bond shall be waived in view of the fact that defendants now hold $91,496.90
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13 worth of plaintiff's assets.
14 This Temporary Restraining Order is entered this 11th day of September 2007. A
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hearing on plaintiff's application for preliminary injunction is set for October 2, 2007 at
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8:30 a.m. in Department 4 (LJO) of this Court. Any opposition on the motion for
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18 preliminary injunction shall be filed and served by overnight mail on or before

19 September 24, 2007. Any reply shall be filed and served by overnight mail on or before
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September 27, 2007. Plaintiff shall forthwith serve defendants with a copy of this Order
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and not later than September 14, 2007.
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IT IS SO ORDERED.
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Dated: September 11, 2007 /s/ Lawrence J. O'Neill
28 b9ed48 UNITED STATES DISTRICT JUDGE