Free Order to Show Cause - District Court of California - California

Case 3:08-cv-00930-L-WMC

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Filed 05/29/2008

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1 2 3 4 5 6 7 8 9 10 11 SAMMY'S PRODUCE, INC., 12 13 v. 14 REY & REY PRODUCE, INC., and MANUEL REYNOSO, 15 Defendants. 16 17 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv930 L(WMc) ORDER DENYING WITHOUT PREJUDICE EX PARTE MOTION FOR TRO WITHOUT NOTICE [doc. #6] and TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED ON PLAINTIFF'S COUNSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On May 28, 2008, plaintiff Sammy's Produce Inc. ("Sammy's") filed an unverified

18 Complaint for violations of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 19 499e(c)(2), along with a request for a temporary restraining order without notice against 20 defendants Rey & Rey Produce, Inc. and Manuel Reynoso. 21 The Court denied without prejudice the TRO without notice. The Court discussed that a

22 TRO may be granted without notice to the adverse party or that party's attorney only if "it clearly 23 appears from specific facts shown by affidavit or by the verified complaint that immediate and 24 irreparable injury, loss, or damage will result to the applicant before the adverse party or that 25 party's attorney can be heard in opposition." FED. R. CIV. P. 65(b). Rule 65(b) also requires the 26 plaintiff to certify to the Court "the efforts, if any, which have been made to give the notice and 27 the reasons supporting the claim that notice should not be required." Id. In denying the 28 application for TRO without notice, the Court found plaintiff's application did not comply with
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Case 3:08-cv-00930-L-WMC

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1 the fundamental procedural requirements of Rule 65(b). Plaintiff was advised that if it intended 2 to again seek the issuance of a TRO without notice, it was required to comply fully with Federal 3 Rule of Civil Procedure 65(b). (Order filed May 28, 2008 at 2.) 4 Plaintiff refiled its ex parte motion for a TRO on May 28, 2008. [doc. #6] This time

5 plaintiff's counsel, Bryan W. Pease ("Pease"), filed his declaration in an apparent effort to meet 6 the requirements of Rule 65(b) for a TRO without notice. Pease states, under penalty of 7 perjury: 8 9 A similar order to what Plaintiff requests here was recently issued against Plaintiff without notice in another case, Chiquita Fresh v. Sammy's Produce [("Chiquita")], Case 08-CV-930 [sic].1

10 (Pease Declar. at ¶ 3)(emphasis added). 11 The Court takes judicial notice that Pease represented Sammy's Produce in the Chiquita

12 action and as a result, Pease was aware of Chiquita's filings in that case. The Court also notes 13 that the TRO in the Chiquita case was filed on April 21, 2008 ­ less than six weeks ago. The 14 official court file in the Chiquita case clearly reflects that Chiquita's application for a TRO was 15 with notice. (See Chiquita Fresh v. Sammy's Produce, Case 08-CV-714 JLS(POR), docket no. 16 3, "APPLICATION FOR TEMPORARY RESTRAINING ORDER WITH NOTICE" (emphasis 17 added)). Further, as evidenced by the Proof of Service, Sammy's Produce was personally served 18 with Chiquita's application for a TRO with notice and supporting documents at the time the 19 application was filed. (See docket no. 3-4). Pease therefore was well aware when making his 20 declaration in the present case that the TRO in the Chiquita case was with notice rather than 21 without notice. Pease directed the Court's attention to the Order granting the TRO in Chiquita 22 that states in one sentence: "Therefore, a TRO should be issued without notice to the 23 Defendants." (Order filed April 22, 2008, in the Chiquita action, docket no. 5). Given the lack 24 of discussion in the Order concerning the necessary elements for a TRO without notice under 25 Rule 65(b) and the clear and unambiguous request by plaintiff's counsel for a TRO with notice, 26 Pease's reference to and attachment of the Chiquita Order appears to be an attempt to mislead 27 28
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The Chiquita case number is 08cv714 JLS(POR). 2
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1 this Court with what is likely to be a typographical error in the Chiquita Order. 2 Pease's declaration in support of the ex parte motion in the present case lacks credibility

3 and appears to be in violation of counsel's duty of candor to the Court. As a result, counsel shall 4 show cause why monetary sanctions should not be imposed against him. Further, because 5 counsel's declaration is not trustworthy and forms a critical basis for a TRO without notice, the 6 Court will again deny without prejudice the ex parte motion for TRO without notice . 7 Based on the foregoing, IT IS ORDERED plaintiff's ex parte motion for TRO without

8 notice is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Bryan W. 9 Pease shall appear before this Court in Courtroom 14, on Monday, June 9, 2008 at 10:30 a.m. to 10 show cause why monetary sanctions should not be imposed upon him personally for statements 11 made in his declaration in this case. Pease may file a statement of cause prior to the show cause 12 hearing if he so desires. 13 IT IS SO ORDERED.

14 DATED: May 29, 2008 15 16 17 18 COPY TO: 19 HON. WILLIAM McCURINE, JR. UNITED STATES MAGISTRATE JUDGE 20 21 ALL PARTIES/COUNSEL 22 23 24 25 26 27 28
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08cv930

M. James Lorenz United States District Court Judge