United States District Court, S.D. Georgia, Savannah Division
BAKER & MURAKAMI PRODUCE COMPANY LLLP, an Idaho limited liability limited partnership, and J.F. PALMER AND SONS PRODUCE, INC., a Texas corporation, Plaintiffs,
WENG FARMS INC., a Texas corporation; LIYA WENG, an individual also known as Lea Weng; WILLIAM R. FOSTER, individual; and HILLCREST FARM, a business entity; Defendants.
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT
the Court is Plaintiffs1, Motion for Preliminary Injunction.
(Doc. 5.) In their motion, "Plaintiffs seek to enjoin
Weng Farms, its agents, employees, successors, banking
institutions, attorneys, and all other persons . . . from
using, consuming or otherwise dissipating trust assets"
under the Perishable Agricultural Commodities Act of 1930
("PACA"). (Doc. 5, Attach. 1 at 2.) On January 7,
2019, the Court held a hearing to consider the merits of
Plaintiffs' request. (Doc 23.) At the hearing, only
Plaintiffs' counsel was present.
eligible for preliminary injunctive relief under Rule 65 of
the Federal Rules of Civil Procedure, a movant must establish
each of the following elements:
(1) a substantial likelihood of success on the merits;
(2) that irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause
the opposing party; and (4) if issued, the inj unction would
not be adverse to the public interest.
Four Seasons Hotels & Resorts, B.V. v. Consorcio
Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003). After
careful review of the record in this case, the Court
concludes Plaintiffs' request has properly satisfied each
of rhese requirements. Specifically, the Court concludes that
Plaintiffs will likely suffer immediate and irreparable
injury due to the alleged dissipation of assets in the
statutory trust created under PACA. Based on Plaintiffs'
counsel's representations that Defendant Weng Farms may
be filing for bankruptcy and that Defendant Foster is
dissipating assets that should be included in the PACA trust,
the Court finds that Plaintiffs' injury may be
irreparable without injunctive relief. Accordingly,
Plaintiffs' Motion for Preliminary Injunction is GRANTED.
The Preliminary Injunction is ENTERED as follows:
1, Defendant Weng Farms Inc., its officers, agents, servants,
employees, attorneys, subsidiaries, assigns, banking and
financial institutions, and all persons in active concert or
participation with Weng Farms Inc. (including Defendants,
Liya Weng and William R. Foster, individually and doing
business as Hillcrest Farms) are enjoined and restrained from
dissipating, paying, transferring, encumbering, assigning or
selling any and all assets covered by or subject to the PACA
trust provisions except for full payment to Plaintiffs,
Plaintiffs' agreement, or until further order of this
Court. If Defendants submit such payment, Plaintiffs shall
immediately notify the Court of said payment, at which time
the Court will dissolve this Order.
2, Under PACA, 7 U.S.C. §499e(c)(2), the assets subject
to this Order include all of Weng Farms, Inc.'s assets,
unless it or a third party 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.
Provided, however, Weng Farms Inc. may sell perishable
agricultural commodities or products derived from perishable
agricultural commodities for fair compensation, without right
of setoff, on the condition that Weng Farms Inc. accounts for
and maintains the proceeds of any sale subject to this Order.
3. Until further order of this Court, Weng Farms, Inc. shall
have an affirmative obligation to maintain all documents
related to all sales of produce and all payments received.
Any proceeds of receivables shall be held in trust pending
further order of this Court.
4. This Order is binding upon the parties to this action,
banking and financial institutions, and all other persons or
entities receiving actual notice of this Order by persona 1
service, including facsimile transmission or federal express.
5. The $302, 078.25 in PACA Trust Assets belonging to
Plaintiffs and in Weng Farms' possession will serve as
Plaintiffs' security for this injunction as required by
FRCP 65 (c) .
6. Plaintiffs shall serve Defendants, or their registered
agent, or their counsel, with a copy of this Order by
personal service, including by facsimile transmission or
federal express. This Court finds that this service is good
7. Upon receipt of this Order, Defendants shall serve a copy
of this Order on all banking and financial institutions with
which Weng Farms, Inc. conducts business, or any person or
entity, including all banking or financial institutions, who
may be holding assets for or on its behalf.
8. Within fifteen days of service of this Order, Weng Farms,
Inc. shall provide a detailed listing of the following to
Plaintiff s attorneys: (1) all outstanding accounts
receivable; (2) accounts payable; (3) all other assets in the
name of Weng Farms, Inc.; (4) all lawsuits currently pending
or filed against Weng Farms, Inc.; (5) Weng Farm, Inc.'s
cash, checks, deposits or other monies in its possession or